I most emphatically am not. I’m offereing two scenarios-- interpret the amendment as the drafters of the day would have or interpret today as most people would commonly do now. That has nothing to do with what a person “likes” or “dislikes”, but how a person reads certain texts.
Example: I would really, really like it if we had an impenitrable wall of separation between be church and state. That is my desired outcome. But when I look at the 1st amendment, I can’t pull that outcome out of what it actually says (either as the founders intended or as it would commonly be interpretted by an objective person today).
If you can’t see the difference yet, then there’s no point in continuing this discussion. You have continued to confuse how a person reads a text and what desired political outcome a person wants. Those are not necessarily the same thing.
I do. And the state-wide referenda on the subject tend to be far more unambiguously anti-SSM. So, if you assume (as I do) that the will of the people should take precedence over the actions of the state, then SSM is not an issue whose time has come.
Right.
No, it doesn’t. Therefore it is important that the process by which new rights are recognized/created be observed.
No such right exists until it is established by the states, or the people. Until then, you are just blowing smoke.
Unfortunately for your argument, SSM is a new right, not previously established by the Constitution nor recognized by the states, the people, or the federal government. If you want to establish it, you are welcome to try, thru a well-defined process established by the Tenth Amendment. Since that isn’t likely to work, you are attempting to short-circuit the process and get the Supreme Court to establish it by fiat. Which is why this -
is an example of the pot calling the kettle cerise. Violations of the Constitution are both stupid and a dangerous precedent to set.
Read Loving. :rolleyes:
You’ve previously been asked what the substantive difference is - do you actually know of one? Read the Fourteenth Amendment too while you’re at it - it’s got some killer stuff in it, you’d love it.
Equal protection under the law is *not * a new right. :rolleyes: Seriously, you really ought to read the Constitution sometime. Yet equal protection has been suppressed for some people anyway, without a “rational basis” that would constitute a compelling state interest.
Which is why we should not continue them once we recognize them. But you insist we do so anyway. Gotta wonder why, don’t we?
So you claim we should continue to allow the suppression of an explicitly defined right for some people on the basis that it would impose upon other people’s “right” to continue to suppress it, huh? Where the hell do you find *that * “right” to be guaranteed, or even to exist?
Elvis, you’re wasting your time. Shodan believes, despite the 9th Amendment and the concept of judicial review, that, unless a right is enshrined in the Constitution, or created by statute, it does not exist. I’ve tried to explain the problems with his ignoring the 9th Amendment and misinterpretation of the 10th Amendment over and over and over, to no avail. Shodan’s government is free to sterilize the mentally challenged, institute segregation, enforce a one child rule, make it illegal to buy contraception, and, in the case of marriage, force a couple to marry, with no check on the tyranny of the majority. It’s a scary place.
I, for one, fully endorse the idea of SSM. But in many states, as here in NY, the original text of the marriage and divorce laws have specific language about men and women, and different treatment for husbands and wives (many of the laws designed to prevent women from being divorced and left penniless in the days when women, as a rule, did not work outside the home). So while SSM should be allowed, we should also recognize that, in many cases, the existing laws will need to be changed in order to accommodate these new realities. Right now, not everyone gets equal protection under the law.
Because the states or the people haven’t recognized a right to SSM.
Explicitly defined? Could you cite the portion of the Constitution that explicitly defines SSM as a right?
Sorry, but you have made this misstatement in the past, which may explain much of your failure to engage arguments to the contrary. Polycarp tends to react badly to this construction, so it is worth correcting.
Rights may or may not exist absent some explicit establishment in the Constitution. But they may not be recognized or enforced by the federal government without being established by the states, or the people. The Constitution exists largely to create limits on the power of the federal government. The government, in other words, may do nothing that the Constitution does not explicitly say they can do.
Among the things that the federal government cannot do is establish new “rights”. Whether they exist or not, the feds cannot act to enforce a right unless it is either established in the Constitution, or established by the states or the people.
So the construction you are attempting, where the people may not do anything that is not explicitly allowed to them by the Constitution, is mistaken. The Ninth Amendment contradicts this quite clearly. All rights that are not explicitly reserved to the federal government automatically assign themselves to the states or the people, as the Tenth Amendment shows equally clearly.
Now we have a proposed new right - a right to SSM. Does the Constitution assign this right to the government? Nope, no mention of it whatever. May the federal government enforce or create such a right? Nope, the Constitution does not explicitly assign this function to the feds, thus they have no duty and no business to get involved. The right to create and/or recognize such a right is thus automatically assigned to the states, or the people.
Proponents of SSM-as-a-imposition-of-the-Supreme-Court are thus trying to do an end run around the clear provisions of the Constitution. They can’t win otherwise, and are therefore trying a power grab.
Which explains their impatience with those who request a Constitutional justification of imposing a right to SSM thru the courts. There is no text in the Constitution giving the federal government the right to impose SSM on the country - just the opposite. And so the attempt is made to establish a position by repetition and by volume (and by stuff like ElvisL1ves’ ominous-sounding threats that anyone who dissents from the received wisdom is going to have his motives impugned or something - like that’s new).
The Left got away with it on Roe v. Wade. They would like very much to get away with it again. Times have changed, fortunately, although not as much as they should.
Part of the problem is calling it same-sex marriage. It’s is marriage, with no adjectives. By calling it “same-sex marriage” folks like Shodan get to pretend it’s something different and therefore something that they have a right to supress instead of recognizing that a homosexual couple who want to marry are being treated differently than a hetero couple under the same law–which is by definition discrimination. This discrimination does not stand up to a rational, let alone reasonable, and far from compelling state interest and therefore is prohibited by the principle of equal protection.
Rights like these are considered fundamental and should not be left up the whims of a majority vote and should be struck down by the court, as they are being in state after state court. Yes, it would be better if the majority pulled their heads from their asses and voted to protect the right for same-sex couples to participate in the right of marriage. But when the majority violates their own Constitution then it is the Court’s job to strike the laws down.
This is most decidedly not “legislating from the bench” as the right-wing likes to call it. This is preforming their Constitutional Duties. Legislating is a proactive proactive process. Invalidating by the court is a limiting process telling the legislature they’ve gone too far. This is as it should be.
As to the Backlash Boogieman we’re so often warned of, I must ask what of it? If a FMA is passed then we’ve lost nothing we didn’t already have access to. An FMA wouldn’t stop individual states from protection their citizens’ right to marry whether hetero or homo. How is anything changed? If the majority is so dead set on discrimination that they will approve an FMA, our asserting our rights is no different than never trying and we’re left without legal protection either way. At least we have a chance if we assert our equality.
“Power never concedes nothing without demand, it never did and it never will.” --Frederick Douglas
Women didn’t have their right to vote protected by meekly waiting for it to be granted them. They had to make it happen. The Lovings didn’t get their right to marry recognized by pleading for scraps from the Virgina legislature. They demanded it. Black folks didn’t get their right to sit at the lunch counter by waiting. They demanded it.
Now it’s our turn to demand that this country abide by its principles and recognize our equality. Know that even if your bigoted majority imposes an FMA on us now, time is on our side. We won’t be pushed back into the closet and we will overcome. You can acknowledge this now or know that history and your decendants will take a dim view of your behavior.
You insisted that there is no right to marriage. Loving confirms that there is. And you *still * can’t draw a distinction between interracial and same-sex marriages in that context, no matter how strongly you’re urged to do so - or even address the point. Perhaps you concede that there is none, even without a direct admission?
It is *not * new. What part of “equal protection under the law” do you fail to understand? :rolleyes:
I already strongly suggested, several times, that you read the part about “equal protection under the law”. Are you ever going to do so?
In the absence of reasoning based on facts behind any opposing argument, that is. You left that part out - “like that’s new”. It isn’t “received wisdom”, it’s simply the *presence * of those fundamental things in the anti-discrimination argument.
You base your entire argument on an insistence that the Constitution doesn’t say what it does about equal protection, but that it *does * say that there is a right to discriminate which should not be overridden by any other right. Both assertions are factually false, however often you may repeat them. Your refusal to address that little problem does indeed make your motivations a fair topic for speculation for the rest of us, and *should * make them a topic of contemplation for you.
No, that there is no right to same-sex marriage. Loving does not confirm that there is, as it does not address the issue.
It’s not? Could you cite where the states or the people have established it?
The part where it refers to SSM.
Still waiting for that cite of where the Constitution “explicitly” establishes SSM. OK, that’s a lie. I know you can’t, and am taking your refusal to do so as an admission that you were making things up.
More making things up. Is it that you can’t read, don’t read, or (more likely in my estimate) that you do read, have no idea how to counter anything I have said, and have decided to pretend it isn’t there?
Again, as clear an admission as we are going to get that you are conceding a point you cannot begin to address.
No, that’s wrong too. I am basing my entire argument on an insistence that the Constitution does not give the federal government the power to set up new rights, as I have mentioned several times. This is what the Tenth Amendment does.
You keep saying that as if it should bother me. Obviously you are going to resort to ad hominems and fallacious arguments - it’s all you have.
Am I supposed to be scared that you are going to - I don’t know what, impugn my motives, call me a secret homosexual, Pit me, whatever you do when you lose an argument?
As I mentioned, it will simply serve as confirmation that you cannot address my position rationally, and that you are tacitly conceding defeat on the field of reason.
But don’t let it bother you. It happens a lot hereabouts.
Sure. The Constitution’s putative guarantee of equal protection under the law does not apply to gays, or indeed to anyone whom Congress has not explicitly declared it to apply to.
That’s your entire claim, right there. One can’t help wondering why you think the Constitution even exists.
Just in case you’re still under some misapprehension about what the Constitution you haven’t read says, here is the relevant excerpt from the 14th Amendment, empahsis added for the extra clarity you so obviously need:
Any person. Any person. Is that “explicit” enough for you? Good. Let’s proceed.
Equal protection. Equal protection. Is *that * explicit enough for you too? Good.
Or perhaps you’ll now inform us that gays aren’t actually persons.
Could you cite the portion of the Constitution that explicity defines the right to be free from mandatory sterilization, or the right to desegregation, or the right to have children, or the right to contraception, or the right to marry, or the right to not be forced to marry? The Ninth Amendment makes it perfectly clear that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Saying that the rights in the Bill of Rights can be judicially protected, but the other unenumerated rights aren’t is most certainly denying or disparaging those unenumerated rights.
Semantic nitpicking. Feel free to replace “enforcable rights” where I say rights.
Rray tell, does this include the power to wiretap US citizens without a warrant?
The creation or establishment of new “rights” is not enumerated because it is fundamentally basic to the government. Congress can create rights by legislation, such as anti-discrimination laws, securities law, tax law, etc. The President can create and enforce rights by executive order, such as desegregating the military. And the judiciary can create and enforce rights through judicial review. This unique concept that the “creation of rights” is a power not held by the government (whether federal or state) is just wrong.
I didn’t make that construction, so I’m not sure how to respond.
The 10th Amendment applies to powers, not to rights.
Defining a right by limiting it to only those people you approve of isn’t a right.
As to same sex marriage, I’m curious about your feelings on the Massachusettes Supreme Court ruling. Since it isn’t a federalism issue, what is your rationale for disparaging the ruiling?
Personally, I don’t much care about your views on federalism. It’s a cute, wrongheaded view of the Constitution, but there has been an expansion of federal power in the last 100 years or so. My problems with your position on SSM isn’t with your federalism view, but rather your view that the judiciary, whether US Supreme or State, is unable to protect the rights of its citizens from the tyranny of the majority. That view, and its reoccurent problems, is what I find scary.
One state. By a 4-3 decision. The other initiatives that have been struck down were done so for technical reasons (typically because they address more than one issue), not because of any substantive content of the initiative itself. To imply otherwise is disingenuous, at best.
When it goes against the will of the people, I have no problem calling it legislating from the bench. If the SCOTUS were to find a right to SSM in the constitution, that would be legislating from the bench. The moral rightness or wrongness of an action doesn’t determine whether or not a jducial action can be considered legislating from the bench. That is strictly a legal argument. I have no problem calling it judicial activism when the judiciary hands out a decision that is indisputably contrary to the intent of the legislators wrt to a portion of the constitution. The legislators did not intend the 14th amendemt to leglize SSM in 1868, and they wouldn’t intend it to do so now. On some things we cannot be so sure, but on that issue we can. That does not speak to the moral rightness or wrongness of the action, but it does speak to the only thing the judiciary should concern itself with-- the legal aspect.
Wrong. It would immediately rescind SSM in MA, for one thing.
HOw did they make it happen? Through a legislative process. I don’t think you want to use that analogy…
And the vast majority of the country was in agreement. Not so with SSM.
I agree that time is on the side of legalized SSM.
Well, no, obviously, but as you have shown no sign of be able to read anything else I posted, I won’t trouble to repost it. Suffice it to say that this, too, should be interpreted as a sign of intellectual surrender. Your approach seems to be to misrepresent that which you cannot refute. I keep saying “the states or the people” and then you come out with some whopper about Congress.
There isn’t any. The Constitution exists to prevent the federal government from interfering with those rights, should they be defined by the states, or the people. Again, you are confused. Rights do not need to be explicitly defined in the Constitution before they exist. That’s what the Ninth Amendment says. I thought you knew that.
Nope, you are attempting the same end run around the Constitution as before. You are assuming the role of the Supreme Court in enumerating rights, when that role is reserved exclusively to the states and the people.
“Protecting” an unenumerated right that has not been enumerated by the states or the people is the same thing as having the government impose a “right” without the action of the states, or the people. You’re begging the question, by pretending that the Constitution gives the power to the feds that it explictly reserves for the people.
Absolutely wrong, and in direct contradiction to the Tenth Amendment. Sorry.
I think it was ElvisL1ves, so let him ignore it.
Semantic nitpick, as you observed - the power we are talking about is the power to create new rights.
SSM isn’t a right - I keep pointing that out, and you keep trying to beg the question by assuming it is without proof.
Then you will be reassured that this is not my position, but a strawman. The judiciary is perfectly free to protect the minority by invoking the Constitution. Under the 14th, any right created by the states or the people must equally apply to all the people (subject to the normal limitations of biology or whatever - if you want to drag in nonsense about unisex bathrooms, feel free, but don’t expect to be taken seriously - we are talking principles here, not nitpicks).
But establishing new rights is not protecting the minority - it is violating the Constitution. The protection of the rights of the minority happens by establishing rights for them. Guess who gets to do that? If the minority can convince the majority that they should be granted some right or other, then the Constitution gets amended or something, as happened with the vote for women and the abolition of slavery and so forth. But if they can’t, the minority is SOL.
The part where you are going wrong is the part where you assume some right of the minority, like SSM, and then tell the judiciary to protect that. The judiciary only protects rights after they are established - and the judiciary can’t do that.
So rest assured. Real, established rights, are just as protected as they ever were. More so, because the power of the federal government to order our lives is kept within strict limits.
If I’m not mistaken, the supreme courts of both Hawaii and Alaska ruled that SSM was guaranteed by state constitutions. Those rulings were overruled by constitutional amendments, but I think those plus Vermont and Massachusetts are what Homebrew was referring to.
Odd, most people know that Congress represents the people, and that the US Constitution is binding on the states. Oh, well, let’s try it your way:
The Constitution’s putative guarantee of equal protection under the law does not apply to gays, or indeed to anyone whom [del]Congress[/del] the states or the people [del]has[/del] have not explicitly declared it to apply to.
That’s your entire claim, right there.
What do you think the 14th Amendment actually does, dare one inquire?
I did some quick googling on AL and HI, but couldn’t confrim your statement, so can you give me a cite? I find it hard to believe that a state constitutinal amendment could be turned around so quickly in those states that no SSMs were performed between the (supposed) court decisions and the enactement of the amendment. Hence my skepticism.
VT’s court decision (IIRC) said the legislature had to gaurantee the same benefits to same sex couples, but didn’t require that the sate legalize marriage. I could be wrong, but I don’t think **Homebrew **was arguing in favor of civil unions, which was the solution chosen in VT .
MA is the one court case I alluded to. CA will be taking up the issue next month. That will be a closely watched development!
If we include VT, I’ll concede that 2 states have taken actions consistent with Homebrew’s statement. And keep in mind that some states do not require more than a simply majority to change the constitution, so the idea that courts are finding a simple majority insufficient to deny marriage to same sex couples cannot be true in some cases. I think MA may even fit in that category (although there is an addional req’t for an affirmative vote in two consecutive legislative sessions).
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Do you have any cite to your … interesting … theory that the 9th Amendment’s reference to other rights retained by the people is limited to rights defined by the States. Where did you get the unique idea that the 10th Amendment was meant as a limitation on the 9th in that way?
*’‘It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.’’ *
James Madison
I can think of no way to parse that statement except as a direct contradiction to your view.
I do, thanks.
I am neither “assuming”, “begging the question”, nor “pretending” anything. I would ask, however, for a citation regarding your view of the 10th Amendment. Your view wouldn’t allow Congress to pass any of the legislations I’ve listed in my prior post, nor could they create any cause of action, or even pass DOMA.
Well, great argument! I’m resoundingly convinced. :rolleyes: Anytime you wish to actually respond to my points about the “creation of rights” by legislation, executive order, or judicial review, feel free. Or you can continue with naked assertions.
Do you have a list of mindless comments you make when responding to any post? I’m thinking I’ll start a Shodan BINGO game with “begging the question”, “assuming” “strawman” and your other favorites.
It is my understanding that you believe marriage, if between a man and woman, is not a right protected by the Constitution, correct? It would be your view that Loving, or Zablocki, which both stated marriage is a fundamental right, would be judicial activism, correct?
And, once again, where did you get the idea that the 9th Amendment only referred to state created rights?
Ahhh, your logic is inescapable. Allowing the majority to define the rights of the minority is pure genius! I can see no flaw in that logic. … Oh wait. Luckily the founding fathers disagreed with you and thought it important to protect the rights of minorities.
Yes, yes they are. Luckily, your view has not carried the day.
And these “real, established rights” only include those enumerated in the Bill of Rights or those created by the majortiy in the states. So forced sterilazations, one child rule, and all the other problems I’ve pointed out are all possibilities. Like I said, scary.
I think we’ve been over this before, and I simply can’t accept the meaning of “marriage is a fundamental right” that you are giving it. States could refuse to recognize any marriages and that would not violate the constitution. Additionally, do you think the decision in *Loving *makes anti-polygamy laws unconstitutional? If not, why not? There is much more historical and even cultural precedent for including polygamy in the definition of marriage than for including same sex unions in that definition.
When taking that quote in the context of the times it was made in, I think the most reasonable interpreation is that the state should not prevent any man from joining with any woman (or vice versa). In the context of the day, marriage was the only socially acceptable method of entering in a union that involve cohabitation. Some states, in fact, made it illegal to cohabitate outside of marriage.
Gorsnak: I found an anysis of the HI and AL cases. In both cases it was a lower court decision and the state passed (overwhemingly) an anti-SSM amendment before the Suprome Courts could rule. No SSMs were perfermed because the lower courts stayed their rulings pending a SC review. Once the amendments passed, the SCs rejected the lower courts’ rulings. I believe the higher courts did not say how they would have ruled if they had been able to do so before the ballot initiatives went thru. [In Alaska, I think it was an appellant court, not the SC, but it’s the same general thing.] The ballot initiatives passed by votes of 69-29% in HI and 68-32% in AL.
OK. Here’s the issue, in so many terms. Rights appertain to individuals. Only those rights spelled out in Constitutions (Federal or state) or statute law, or identified as relevant to the above in pertinent case law, are “guaranteed.” For example, the “right to free association” is found in the “penumbra” of the First Amendment guarantee of the freedom to peacably assemble. The right to use contraceptives if one so chooses was found – somewhere in the Fourteenth. Etc.
Something I have said a double dozen times here: the guarantees of rights in the Constitution are written in broad, expansive language. You have the freedom of speech, not a narrowly defined right to speak, orally or in particular written form, subject to limitations. You have the right to not suffer “cruel and unusual punishment” – and it does not specify branding, mailing, drawing and quartering, but whatever the court determines is “cruel and unusual” for the context. Jailing a 13-year-old for six months for stealing a kiss might be considered cruel and unusual, in the context, even though jailing a drunk driver involved in a hit-and-run fatality for the same six months might be a very minimal sentence.
Shodan’s definition of how a right is recognized is one voiced by Dewey Cheathem Undhow in the past, and I believe Bricker has given some legal-philosophical background to the theory at one time or another. He’s not talking through his hat, although it’s a school of legislative construction which I would never subscribe to.
But at rock bottom, Chief Justice Warren identified in Loving v Virginia that there was, in fact, a fundamental right to marry. The context in which he identified this right was in overturning an anti-miscegenation law. But the right does not consist in “the right to marry someone of another race than oneself” as though that were a separate right. It is somehow part and parcel of the right to marry.
Next item: States can and do exercise the ability to restrict the right to marry as a part of their police power. Every gay marriage argument we’ve had gets those absurdities thrown in: one does not have the right to marry one’s toaster, one’s cocker spaniel, one’s sister or grandfather, a willing ten-year-old, multiple spouses, etc., etc.
One final point on rights: Rights exist, to the extent they do, independently of the guarantees assuring them. They are not “created” but “identified” by the courts. E.g., I believe that human beings have the right to their bodies – that they cannot involuntarily be subjected to a brain transplant. That is nowhere guaranteed in so many words, but I believe it can be found in the language of the Fifth and Fourteenth guaranteeing against deprivation of life and liberty without due process.
