I get that. I’m just trying figure out the legal history of it all.
Well, wouldn’t the two be different? Twizzlers aren’t a controlled substance. I remember the FDA banning that nasal spray, but that was a drug. Twizzler-tusks are more akin to flag burning -which is even an even more dangerous activity.
Now if Twizzler-tusks were considered a controlled substance or if they caused nose cancer, things would be different. But they’re not/they don’t.
No, it’s not. The court will simply say, “When that case was decided, there was no law prohibiting discrimination against Shirtless Americans. Now there is such a law. You lose.”
Sinisterniik: “But I have a federal right!”
Court: “Says who?”
Sinisterniik: …
And, in fact, you will be unlikely to find any such “precedent.” If you are lucky, the most you will find is a trial court decision that says “Sinisterniik has been charged with discriminating against a Shirtless American by ejecting Shirtless Joe from Sinisterniik Bar and Grill. However, there is no law that says that Sinisterniik can’t do that.” And that’s not something a later court is going to consider precedential.
Makes sense. I’m still curious as to the history of how this became common practice. Was it codified in the legislature first or set as precedent by early courts?
What if this happened the other way around… Let’s take the Westboro Baptist Church, recently banned from protesting military funerals. If a state tries to pass a law giving them the right to protest, what happens? I know that federal law has supremacy, but is that always the case when it comes to excluding people’s rights? Is there a legal precedent?
I know in CA there are a lot of issues since they’ve legalized pot on the state level -which usually ends up in a game of legal chicken between the state and federal governments (the federal government chooses when to flex its arm and when to ignore the crime). Is there a precedent as to what’s SUPPOSED to happen?
You may proceed using whatever definition of right that you think is appropriate, rather than deferring to people who spent years studying the law if you think that it is wise - even when such a definition has been shown to be inconsistent with the application of the law - but I assure you that it will lead to nothing other than your continuing inability to understand the law.
Then let’s leave it at that. Because you said so.
You have actual “rights” guaranteed by the constitution - i.e. basically, only another constitutional amendment can alter this right. These rights are specific (although the wording is vague and open to interpretation.) Sometimes the court has re-interpreted the rights to include non-obvious things, like the right to priovacy, the right to abortion. However, these “rights” are by interpretation of the Supreme court simply extensions of explicit constitutional rights and / or common law rights not yet abrogated.
You have a common law “right” to do anything not explicitly prohibited by law. This right disappears the moment a law is passed prohibiting such action… Unless that law conflicts with a constitutional right.
The only arguments in court are “Not Guilty - I didn’t do what the law prohibits”, “Not guilty - I’m crazy”, or “Law is invalid - it conflicts with a ***constitutional ***right”. the constitutional rights are explicit even if vague.
Why is there even an ongoing discussion about this?
In the case of Westboro, AFAIK this is simply a law -it may conflict with “freedom of speech” but the restriction is “reasonable” (so far, according to the court) IIRC as long as the law says they must keep their distance, not that they cannot protest at all.
After all, like anti-obscenity laws have long shown, the constitutional right to free speech is not limitless.
I assume if there were conflicting laws, the federal law regarding behaviour at military funerals is a legitimate reach of federal jurisdiction.
It became “common practice” as soon as the idea of a lawmaking person or body was first invented. Having an authority that makes law has no purpose unless it automatically trumps customary presumptions.
There’s no debate. As long as Federal law says pot is illegal, it’s illegal in CA. It doesn’t matter what laws CA have passed covering pot, or even whether they’ve passed any laws at all.
All CA can do is instruct their law enforcement officers to spent $0 and 0 hours enforcing pot offenses. They can’t magically make pot legal until the Federal Government does so first. Edit: I guess to answer your question-- yes, what is “supposed” to happen is exactly what is happening right now.
If you want to legalize pot, it only makes sense to do it at the Federal level. At which point, each State can decide individually what type of offense (if any) possession is.
Our ancestors, even the Framers of our Constitution, began with the presumption that the King or the Legislature could forbid (or require) anything. Anything.
Beginning with Magna Carta, and coming to full flower with the US Constitution, was the new idea that some rights were so fundamental that even the state legislature couldn’t take them away. With the incorporation doctrine, even rights that originally restricted only the federal government (the First Amendment, for instance) have been extended to restrict what laws your state legislature can make.
But the important takeaway here is that the Framers anticipated state legislatures with plenary police powers. They need not prove or even recite that nasal Twizzler use is dangerous. All they need to do is pass the law and have the governor sign it. Unless it infringes on one of a very few enumerated fundamental liberties, the courts will not overturn it. The fact that it’s never before been prohibited is entirely irrelevant.
I think you misunderstand me - I don’t want you to listen to me because “I said so,” I think you should listen to me, because it will help you understand the law. I’m not debating you, I’m informing you. If you don’t want my help, that’s fine - but it’s kind of confusing since you came here looking for help understanding a topic that you were unfamiliar with, presumably.
Is no one going to point out that interracial marriage is certainly not “outside of the federal government’s scope”? The federal courts struck down all the anti-miscegenation laws 40 years ago!!!
I hadn’t realized that that was in question.
I meant specifically in the US, since we have an unusual distribution of governmental powers compared to most older forms of government.
You gave a very concise answer. I was wondering if anyone had a cite about ^this^. I’m curious how the Framers would have envisioned the new government they were forming.
I did indeed come looking to be informed, but you’ve only given me your opinion -which I would have been happy to hear in GD. In GQ, however, I’m interested in either quantifiable facts or strong logical arguments -neither of which you have provided. So, when you simply tell me that I’m wrong and you know better, I just don’t believe you. Why should I? If you are indeed an expert, come up with relevant cases or cite texts. Or if you don’t have anything relevant to add, just don’t reply to the thread. I’m not trying to make an enemy, I just feel like our back and forth is extremely unproductive and a distraction from the rest of the thread.
I could have definitely worded that better. I was referring more to the period of time before the Supreme Court stepped in. On a personal note, I feel like the LGBT community is in a similar place and dealing with similar legal issues as interracial couples did in the past.
In praticality term, by 1832…
Basically, all the laws in the country are useless unless someone enforces them. I don’t think the founders were under any illusions about police power, and that’s probably the explanation for the seocnd amendment. The Soviet Union’s constitution, for example, supposedly gave its citizens a lot more freedom and rights than the American constitution. How’d that freedom thingy turn out for them?
We do, but not about this. This is bedrock understanding of the common law, and the Constitution doesn’t talk about the common law, because it was already so fundamental to the jurisprudence of the country by the time of the Constitution. It was just assumed that the common law would operate, as it had been operating already in the English-speaking New World for nearly two centuries.
The origins of this understanding – that people have a general freedom to do whatever they want that is not prohibited by law, but that the legislature has the power to prohibit whatever they want – you could maybe find in Blackstone’s Commentaries somewhere, but it is ancient – at least several centuries old.
–Cliffy
The framers of the constitution were not working in a void. They studied and discussed concepts that were known by everyone, like Locke. They were trying to divide governmental powers in different ways, but they were working from the same basic concepts that everyone else was. They were using terms in ways that people already understood. Remember, at the time Great Britain was a functioning constitutional monarchy with a representative legislature. The U.S. Constitution was tinkering with known defects, not re-inventing the wheel.
So in practical terms, the American legal and governmental system took its assumptions wholesale from what already existed, including the idea that judges make law on the case level (common law) but that common law is trumped by acts of the legislature.
So when did it happen? It really already existed pre-1789. Bit you could say Essentially it happened as soon as they wrote the words “legislative power shall be invested.”