Indeed. And with driving, only one group is subjected to a waiting period: a 14 year old must wait 2 years to get a driver’s license, but a 16 year old can get one immediately.
One might argue that the same waiting period is applied to everyone, in that everyone must wait until they’re 16 or 18, but I don’t see how that’s any different from saying the same rules of marriage are applied to everyone: everyone, gay or straight, is allowed to marry someone of the opposite sex. The waiting period doesn’t really affect anyone who’s over 16; the marriage restriction doesn’t really affect anyone who’s straight.
One is a permanent restriction, the other is not. Can you see the difference? Even if age requirements are evil, they can’t possibly be as evil as discrimination based upon an immutable characteristic.
Putting a waiting period on same sex marriage isn’t permanent either. After you wait, you can get married, and then the waiting period doesn’t matter anymore. (In fact, let’s say there’s no waiting period if you get divorced and then want to remarry. Still unfair discrimination?)
Will my 'net connection last long enough to make this post? Let’s find out!
Heh. Well. apparently the commerce clause can be stretched to include anything, except perhaps guns in schools.
It’s necessitated by the somewhat unique nature of American federalism and the founding of this country. In short, the states were once truly soveriegn nations, who gave up limited aspects of their powers to the federal government. Ergo, the federal government (theoretically) can only legislate in its enumerated spheres, but within those spheres it trumps any contrary state law.
Most other countries don’t have federal systems of government in the separate-soveriengn American sense, so this is kind of unique to the US. I believe in most countries there is one national government that can legislate in whatever sphere it wishes, subject to any constitutional or similar limits placed upon that power.
So, in your opinion, there is no right to privacy, no right to reproductive choice, no right to marry, no right to court payed attorneys, no right to sexual intimacy, and all the other rights that have been recognized by the judiciary? Is it your opinion that the legislature is free to legislate in those areas if it so wishes?
And I was still wondering if you could get around to my other questions:
Would you also agree then that the majority was correct in Goodbridge that a ban on same sex marriage violates substantive due process? Would you apply the same were you a judge?
Would you agree that it is an injustice that a homosexual is not allowed to marry someone of his/her same gender? Would you agree that the same sex marriage ban is on par as the anti-miscegenation laws in our country’s dark past? Would you tolerate injustice in the name of process, a process that there is great academic debate about whether or not your view is correct?
I’m sure this will be your last thought as you lay dying, run over on the sidewalk by a kid just out of kindergarten: that he had every right to do so, and in no way was infringing upon yours. :rolleyes:
No doubt if you could explain how someone else’s marriage infringes in any way upon any of your rights, you’d have offered it by now.
There is a right to be free from warrantless searches and seizures without probable cause. Beyond that, no.
The SCOTUS had to look in “emanations and penumbras” to find this one, and you can find anything you want in an emanation or penumbra. So, no.
The state is constrained by the equal protection clause from anti-miscegenation statutes. The state also could not prevent religious groups from recognizing marital unions due to the free exercise clause. However, if the state wanted to get out of the marriage business altogether – i.e., cease recognizing all marital unions – there certainly is nothing in the constitution that would prevent it from doing so. Ergo, no right to marry.
This is pretty clearly a constitutional right, at least in criminal cases. See the 7th Amendment. You have no right to a court appointed attorney in civil cases. Also, the word is “paid.”
See discussion of reproductive choice above. *Roe *and *Griswold *are inexorably linked.
Well, I’m obviously not going to sign on to such a broad statement given that you apparently think the right to counsel is not found in the text of the constitution.
There are a variety of constraints that limit action in the various areas you’ve listed – principles of federalism would prevent the federal government from legislating in the area of marital recognition, for example, and as noted, the first amendment would forbid the banning of religious recognition of marital bonds – but broadly speaking, no, the constitution does not limit action in those areas.
If I thought “substantive” due process was a legitimate constitutional theory, I would agree that the ban violates it. However, I do not think it is legitimate. It is essentially a blank check for the judiciary to find whatever they want in the text of the constiution. “Due Process” is just what it says, a guarantee of process, the right to be heard in full. “Substantive due process” is a contradiction in terms.
Would you have found that the constitution guaranteed women’s suffrage prior to the passage of the 19th amendment? Would you have found that it forbade slavery prior to the passage of the 13th amendment?
“Unconstitutional” is not a synonym for “unjust,” no matter how badly you want that to be. Many laws are unjust. Not all of them are unconstitutional.
Yes, I understand the history, but why is it necessary? The states each have constitutions, so why aren’t those constitutions viewed as delineating the allowable powers of a state? Is there some fundamental necessity to leave the states unconstrained?
This is something that **elucidator **has espoused as well. I’d be very interested in having **Hamlet **clarify if he is advocating the same thing-- ie, that judges have a duty to uphold their concept of justice over and above their duty to uphold the constitution.
Well, most state constitutions do in fact place limitations on the power of the state.
But a sovereign is presumed to have the power to pass a law unless there is some legal constraint against its passage. The US federal government is different (and somewhat unique) because its powers have been delegated up from the states; thus, it can only act in those spheres so delegated.
It’s necessary because some govermental body must have catchall legislative power. Othewise, you’re stuck trying to enumerate every single sphere where the government can act, and that’s just plain unworkable. Your state constitution would quickly resemble the tax code.
Won’t speak for friend Hamlet, he’s doing such an excellent job, my best input is likely to stay out of his way.
Do I hold justice as more important than the Constitution? Of course. There any real question about that? The Constitution is a brilliant excercise towards an elusive goal, a rare acheivement. But Holy Writ is a null set, it has no members, there are no sacred texts which must not be deviated from.
More importantly, you seem to imply an equivalence no where in evidence, that all such demonstrations are equal. They are not.
If one of these dreadful activist judges permits justice to be temporarily set loose upon the unsuspecting populace, the effect need not be permanent. Pencils have erasers, books can be burned. If, in its wisdom, the electorate demands that a harmless minority must suffer its contempt, then that will be so. The Constitution is not brittle, nor fragile, these rulings will not shatter it.
All these efforts on behalf of our gay brethren and sistren are, sadly, entirely reversible.
Why is that, anyways? I’m reasonably confident that the legislators who passed the 14th wouldn’t have been of the opinion that it ruled out anti-miscegenation laws.
My question was whether a judge, in doing his job, should consider his concept of justice to be a higher law than the constitution. By saying “I”, do you mean “judges”? And what then is the purpose of the constution in your view? Is it merely a guideline?
An equivalence to what? You lost me completely on this one.
But every action by the state is reversible, so that justification could be used for any action the state might want to take, in either the legislative, administrative, or judicial branch.
Strawman. No one has the right to run over anyone else, regardless of age, and no one said they did.
In other words, “No, Mr2001, I can’t actually enumerate any rights that would be violated by allowing a minor to drive. You’ve called my bluff.” After all, you made your claim first, and no doubt if you could back it up, you would’ve done so by now.
I don’t believe same sex marriage would infringe on anyone else’s rights. Nor do I believe that allowing minors to drive would do so. What I do believe is that any of the so-called rights you might enumerate would be so far-fetched that I could easily make up an equal number of so-called rights that gay marriage would infringe, without looking any sillier than you.
For example: You seem to be implying in this post that allowing minors to drive would infringe my right not to be killed when he veers out of control and onto the sidewalk, which is a flimsy claim based on questionable assumptions. I could easily claim that allowing two men to get married would infringe my right not to be run over when their limo driver backs over me after the ceremony. Both cases depend on a driver’s incompetence going unchecked (by the limo company or the DMV); they say nothing about whether anyone’s rights are infringed by competent minors or weddings without limo service.
It is your assertion that the judges are abrogating the Constitution. They apparently don’t believe so, and neither do I. To my eye the case for the Constitutionality of oppressing the gay minority is based on a tortured and deliberate reading of the text to arrive at a predisposed conclusion.
By “equivalance”, I mean attaching the same dismay to all challenges to Constitutionality. After all, surely decisions that impact voting rights have the highest potential for permanence, if it panders to the majority sentiments.
Not intended as a justification. Merely to point out that dramatic exaggeration of the significance of these rulings is just that, exaggerated.
I’ll shut up now, in case Hamlet has something to say.
Another reason to favor legislative solutions over the judicial: it is far, far easier to undo a bad piece of legislation than it is to undo a bad Supreme Court decision.
Perhaps, perhaps not. The very term “miscegenation” was not coined until 1863. Indeed, New York, New Jersey, Connecticut, Vermont and New Hampshire never had such laws on the books, and the remaining Union states had largely abolished such laws on their own within twenty years of the Fourteenth Amendments 's passage. Map.
I leave it as an exercise for the reader to determine which is the more tortured reading of “equal protection”:
the one that says it means all persons must be treated equally in all respects in all situations and then tries to twist the ordinary, perfectly acceptable types of discrimination engaged in by governments (prisoners vs. those not convicted, etc) into exceptions, exceptions that are nowhere to be found in anything more concrete than the interpreter’s whim;
OR
the one that recognizes a hyperliteral reading of “equal protection” yields nonsensical results and thus limits the phrase to the meaning intended by its authors, namely to matters of race.
I think it clear which appraoch requires more intellectual hoop-jumping.
Neither of these points addresses the question. What term was used to describe interracial marriage is irrelevant, as is the fact that laws against it were not universal. Whatever it was called, the practice of interracial marriage was prohibited by law in many jurisdictions at the time of the passing of the 14th Amendment, and I am unaware of any indication that the relevant lawmakers thought their amendment would have any impact on such laws. Perhaps I am wrong about that, and if I am, I should like to be enlightened. However, I am genuinely curious as to why, if I’m correct and those responsible for the 14th didn’t think it prohibited anti-miscegenation laws, you would think it acceptable for the courts to rule that it does.