The same group of people who bitch about the courts in the Mass decision were NOT bitching when our current President was appointed via a ruling from the Supreme Court.
That what is right and equal should be governed by the will of the bigots… oh, I mean the ‘people’ is ludicrous.
Remember that I’m looking not at the result, but at the means used to achieve it – the method of analysis.
If a court can say, “Equality under the law” means something new because of a cultural shift, then presumably a court can use that same reasoning to find that abortion is unconstitutional because an unborn child has equality of rights under the law.
Now, as much as I’m pro-life, I would decry such a finding. It reaches results I want, yes, but by a method that’s absolutely incompatible with our notions of self-governance.
I would prefer that the legislature speak to create such a right, yes. Not the courts.
Are you making your argument, or mine?
I don’t recall particularly applauding the Supreme Court’s actions in 2000; I was in favor of following the words of the Constitution, which requires that the state LEGISLATURE select the electors.
How did YOU feel about the Supreme Court’s action in Bush v. Gore. I assume that you lauded the process, even though you may have been unhappy with the result - right?
If you truly are in favor of a system that places the power in the hands of the courts, then I salute your consistency, though I obviously disagree. If you railed at the Supreme Court’s decision to involve itself, then it seems to me you’re merely interested in supporting whatever system at the time happens to yield the result you desire.
The SCOTUS giving Bush Florida repulsed me and felt and still feels like a compete miscarriage of justice that made a mockery of the will of the people who voted.
While I thought the mode was unwise, and I saw that there were problems inherent, equal rights have often come because of courts and not legislation.
The difference is that Newsome was going by the letter of the non discrimination of California which in itself should overturn the inequality of marriage in that state, but obviously thus far has not.
The courts in the first case were ajudicating in issues of ballots and whether they should find out what the will of the people are, and in the second it was capitulating to a very loud segment of the population that claims to represent the majority and the will of the people.
People have claimed throughout the past 150 years to represent the will of the people when it has come to oppressing minorities and depriving them of their rights.
If Loving v. Virginia had been judged on following the will of the people, interracial marriages would still probably be illegal in areas of the country as sodomy was just a year ago.
It provides a little history on ‘judical supremacy’ for those who can stomach 350+ pages written by a Dean @ Stamford Law.
The People Themselves: Popular Constitutionalism and Judicial Review by Larry D. Kramer.
Not that it’ll change anyone’s mind, but it might give new perspectives.
OK, I can buy that. I am, by and large, a proceduralist myself. Build the system, let it run. Fine and good.
But we might depart at the concept of a ‘living constitution’. Is there any guidance out there that indicates how that’s meant to be interpreted?
I mean, obviously, as the constitution was written certain things were expected to be inferred by the reader of the 18th century. But was it understood at the time that a reader of the 19th, 20th and 21st century might well interpret it differently?
The court reached a conclusion that any criteria based merely on the respective genitalia of those seeking the contract had “no rational basis.” IOW, it found that the state could not show any compelling reason to suspend equal protection for same-sex couples. Correct me if I’m wrong, counsellor, but it’s my understanding that under the Mass. Constitution equal protection for marriage contracts obtains by default unless the state can show some compelling reason to restrict or suspend it. The SC of Massachussettes found that prohibiting same-sex contracts was no more rational than denying contracts based on race or hair color. The state could not show that any harm would be done by granting the contracts and therefore did not overcome the defaulted status of equal protection. This is not a creation of new law, it is a finding that an existing law is unconstitutional.
It’s unclear to me what you’re saying. I’m asking if you approved of the “rule from the bench” model when it came to Bush v. Gore. It sounds to me like you’re saying that you did not, but you do approve of it when it results in an end you approve of. But I may misinterpreting your distaste; you may be saying that you disliked the result but applauded the process. Can you clarify?
As I pointed out at the time, the California Constitution specifically instructs that if there is doubt as to the constitutionlity of a law, officials must wait for a court determination, not act on their own interpretation. So even if Newsom was following the Constitution, he was bound to also follow the law until a court ruled.
The difference in that case is that the Fourteenth Amendment was written specifically to address racial discrimination. It was not a stretch for the court to apply it to racial discrimination. But it would have been a mistake for the court to decide the Fourteenth Amendment also meant no discrimination based on sex. Indeed, if it meant that, why was the Ninteenth Amendment necessary? And why was the (abortive) ERA attempted?
That’s the difference. Applying the Fourteenth Amendment to stamp out some new variant of racial discrimination may create new case law, but it’s not the discovery of a new right. Applying it to protect gender, or sexual orientation, or hair-color discrimnation is finding a new right.
Good one, Max.
“Please recall from the Late Unpleasantness that the statement “I feel more passionately about this than you do” may be a fact, but it is not an argument.” – Molly Ivins, Nov. 27, 2000 in http://www.star-telegram.com/columnist/ivins2.htm.
I think she was talking about one of former Pres Clinton’s problems, but it’s wonderfully applicable to all situations. Thank you, Ms. Ivins.
It seems fundamental to me that the “notion of ordered liberty” requires equal treatment under the law, otherwise what is Liberty?
And it comes back to the argument of “what did they mean” vs “what did they say.” They said
They may have meant to restrict the umbrella of the 14th Amendment to racial matters, but that’s not what the amendment says. Had Congress intended that the amendment never be applied to non-racial issues, Congress could very easily have added the words “on account of race” to it.
The 19th Amendment is a red herring. It was needed for the same reason that the 15th and 24th Amendments were needed. As for the ERA, I wasn’t around while that was being formulated but presumably supporters felt it was necessary because despite SCOTUS decisions correctly applying the 14th to sex the protections weren’t enough.
For the love of god, it’s not. Look at the words of the amendment.
It’s a red herring why? Because you say so? Isn’t more likely that the Fourteenth Amendment’s words are to be interpreted in historical context, and that explains the Fifteenth, Nineteenth, and Twenty-Fourth?
If your argument is to be believed, the Fourteenth alone covers ALL THE ISSUES in those other amendments, but, nonetheless, we found it necessary to repeatedly amend the Constitution in an orgy of redundancy.
Sheesh. The SDMB provides a forum where people can wallow in this sort of stuff as much as they like WITHOUT inflicting it on those of us with more delicate sensibilities.
Keep it in Great Debates, can’t ya?
In my opinion, the 14th Amendment should have been more than sufficient to address the denial of suffrage on the basis of race and sex all by itself. I have not researched the history of voting cases in the wake of the 14th Amendment but I assume that there were court decisions that suffrage wasn’t covered, thus necessitating the passage of the 15th and 19th (and the 24th, the poll tax amendment). “You can’t vote because you’re black” is a clear violation of equal protection. “You can’t vote because your grandfather was a slave” is a clear violation. Ditto “you can’t vote because you’re poor, or you can’t read, or you’re a woman.” All of these things should have been covered by the Equal Protection clause but apparently weren’t, which if I’m correct in thinking there were court decisions to that effect were examples of the courts failing in their mission of working to secure justice for all under the law.
My point remains that the first level of interpretation that ought to be done is a reading of the plain words of the text. Denial of suffrage on the basis of race, sex, economic status, etc. ought to have triggered the equal protection clause from the first. That it didn’t is a failure of the interpreters of the document. Legislative intent should not override the plain meaning of the words. The framers of the 14th may have not intended to remedy sex discrimination by passing the 14th. They sure as hell didn’t intend to address anti-gay discrimination with it. Because it didn’t occur to two rooms full of white men 140 years ago that women and gays ought not suffer discrimination, should the courts be forever barred from applying the 14th Amendment to them? Which other amendments, because the legislature probably didn’t think about queers while debating them, should not apply to me? Can I get a refund on all the income tax I’ve paid since Congress probably wasn’t focusing on taxing homosexuals when they passed the 16th Amendment? Who do I call to get my check?
Let me ask you this: if Virginia passed a law denying the vote to homosexuals, would that pass constitutional muster in your opinion? How about a law requiring internment for homosexuals?
How long have you been eligible to vote in California? The voters passed that law, known as Prop 22 or the California Defense of Marriage Act :rolleyes:, in 2000. It won by only a few percent, and I was loudly cursing those assholes. I think most of the propositions that year went against my vote, in fact.
Just today I was on 80 East, getting off at the University exit, when I saw some grinning dickheads with a big banner on the overpass that read “MARRIAGE = MAN + WOMAN”. For those of you who don’t know the area, this is in fucking Berkeley, CA. Who let these hateful bastards into Berkeley? I saluted them with my finger.
Liberty is the absence of coercion. Gay people who are peaceful and honest should be free to pursue their own happiness in their own way. Any move to prevent them from doing so is a coercion, and is tyranny.
Oddly enough, I absolutely agree with your last sentence. You have correctly stated the rules of statutory interpretation. When the plain meaning of of the words is evident and unanbiguous, a court must apply it, and not attempt to discern legislative intent… unless the plain meaning would yield an absurd or clearly unjust result.
The plain meaning of the words, though, have no limits at all.
All persons. Regardless of age. Regardless of familiy relationship. Under the plain meaning of the amendment, my sister and I are two persons. What authority does the state have to forbid our marriage? My nine-year-old nephew wishes to vote. What authority does the state have to stop him?
Before you trot on “rational basis,” and “compellng government interest,” let me point out that those words do not appear above. We are talking about the plain meaning of the words in the amendment.
Under the plain meaning, without resorting to legislative intent, my nephew is heading to the polls this November and my sister and I are picking out patterns at Nordstrom’s. Yes?
No, and no. I cannot imagine any realistic scenario in which there would be a rational basis or a compelling government interest in either of those actions. But if Virginia did, and my view of the Constitution were in force, the remedy would not lie in the Fourteenth Amendment, except to the extent that it makes the Fifth Amendment applicable against the states.
Again: my focus is on the PROCESS - the method of analysis by which we reach a conclusion.
I have thoughts on this issue, but they’ve been said elsewhere.
I’m merely posting to express my astoundment that Otto and Bricker agree with Ninoy Scalia on principles of constitutional interpretation! :eek:
Nice try. Pre-teen voters and sibling marriages would both qualify as absurd results.
Look, I’m not saying ignore legislative intent. What I’m saying is that there is simply no way that the framers of various amendments could foresee all possible future circumstances so restricting the words of the Constitution to 18th or 19th Century contexts is unworkable. The framers probably never anticipated the Internet. Should the First Amendment not apply to online publication because it’s outside of an 18th Century understanding of “the press”? I am further saying that your insistence on restricting the scope of the 14th Amendment to race because that’s what the framers were anticipating when they wrote it is foolish, because had the framers wanted to ensure that it applied only to matters of race they could have inserted the words “on account of race” into it.
That was in 2000? Fuck. I honestly don’t remember the proposition – sometime, I’ll sit down with you and explain the phrase “deep, deep in denial.”
And since this is the Pit, let me make a brief hijack to pit fucktard self and my fucking fucktard of a boss for giving me yet another reason to feel guilty about the 2000 election. I had gotten into work late on election day, and my boss called a meeting that ran late into the night. I kept saying, “I really need to vote. This is a very important election.” And my boss, and my cow-orkers, kept telling me, “Gore is going to take California, no question. We’re not a swing state.” So I stayed at work and missed the cut-off time for the polls. Fuck.