You, Dewey, are an insufferable sanctimonious twit. Cliffy simply restated the points that I and others like Gorsnak and Otto have made in this thread. You are so blinded by your personal dislike for me and your general superiority complex towards everyone who isn’t an attorney that you have refused, and likely will continue to fail, to acknowledge this. By virtue of Cliffy’s profession and use of key buzzwords you and Bricker automatically give him more credence. Unadulterated bullshit is what it is. You, I have nothing but contempt for. And Bricker’s former sheen had dulled considerably.
That said, I greatly antipate your rebuttal to Cliffy. It’s sure to be a milestone in hypocritical bigotry apologia.
He didn’t just restate points previously made. If he had, I would have heaped derision on him.
While you said, in essence, “This is the way it is, because I think so,” Cliffy articulated a specific rationale for the extension of “protected class” to gays. And, unlike you, Cliffy acknowledged that this is not currently the case – he offered an argument that supported the extension; he did not claim it already existed.
WHat you’ve been missing all along is that these are not buzzwords, not “legal bullshit.” It is a very specific method of analysis. It’s not susceptible to “It’s just Justice, because I say so.”
This entire thread is about what would should happen if SCOTUS decides (whether in error or not) that the Constitution does secure a right to gay marriage, no one is arguing that SCOTUS is the proper place to answer it absent the Constitution actually securing it. It doesn’t matter where it should have been addressed (again absent the Constitution dealing with it) except as a justification for what should happen next.
From the outset I have made a destinction between human rights and the rights found in the Constitution and thus secured, the first is a philosophical issue and the second is a legal one. It is quite acceptable to deny the existence of human rights completely, but legislatures are not set up to answer philosophical questions, (nor is the UN) they may act on or affirm philosophical principles but they do not decide them.
Whether or not there is a human right to equality on the basis of sexual orientation somehow depends on whether I include a gay marriage right as a consequence of that human right? You must have a really twisted system of what determines human rights. Furthermore, no one in this thread who holds that there are fundamental human rights has even questioned the idea that equality on the basis of sexual orientation is a human right.
So WHY do they need the power? (Both now and after an amendment).
You can bitch all you like about SCOTUS possibly making the wrong decision, but it doesn’t answer why the goal of the amendment, letting the states have the power to discriminate on the basis of sexual orientation again, is justified. You’ve vaguely said that it is about limited government, but you haven’t given a complete answer; you just pull back to SCOTUS’ decision going against limited government instead of talking about the proposed amendment.
So fucking what? You still haven’t grasped the notion that none of that matters if an amendment is made to overturn SCOTUS’ hypothetical decision.
If the right had been secured then it means I would have been saying the states have the right to abridge the right. From either that contradiction or just the context of what I was saying it is obvious that I was referring to human rights and not the rights established in law. Even if you deny the existence of human rights, you can substitute “equality on the basis of sexual orientation” for “the right”.
Another rearrangement of the question I am still asking is, why should an amendment to undo SCOTUS’ decision put the ability to deny a gay marriage right back into the province of the states?
Had you been taught reading comprehension a bit better (or perhaps at all) you may have aquired the ability to read context further than one fucking sentence and thus have realised that the power ‘it’ refers to is clear from the sentence that immediately precedes the one you quoted: “Back to the question: why do they need the power to abridge the rights of homosexuals?”
The amendments of course are the ones I referred to earlier, the bill of rights et al.
I now think that Otto is probably right about your intellectual dishonesty. I’ve spent most of my posts just trying to get you to answer one question and either you still don’t understand the question (despite my trying to explain it to you) or you are deliberately dodging it.
And I don’t think I can make myself any fucking clearer, I even went to the effort of putting it into ten easy steps so you could understand but you still haven’t answered the question: Why should an amendment (that inherently addresses gay marriage) allow the states the power to discriminate unneccesarily on the basis of sexual orientation? It doesn’t matter that they would have the power by default per amendment 10 since now it will be addressed and there is a choice about what should happen to that power. That the courts shouldn’ t be the place where new rights are secured doesn’t matter either, since the amendment will be addressing that right.
Well then, since I’m not even arguing with you about whether or not SCOTUS would be misintepreting the Constitution, can you please restrict yourself to talking about how the goal of the non-Musgrave amendment, to give the power back to the states, is justified and not just repeat your spiel every post that “Once you have established the principle that the Constitution doesn’t mean what it says, you end up with five lobotomised sheep in a vat of barbecue sauce imposing their totalitarian rule on the world”.
So you wouldn’t even support an amendment that prevents SCOTUS from dreaming up new rights and yet you complain about it so much. (No doubt because you think they will totally disregard what the Constitution says anyway).
Maybe some stupid people think that way, but people with half a brain realise that if the judges follow the will of the majority there will be many injustices, like judges deciding anyone who isn’t white is guilty or dismissing charges because everybody thinks the defendant is a really nice guy, burning heretics and the like.
Would you be equally pleased when the Court endorses “round up the Japs (or the Muslims) into prison camp!” since that’s what the majority wants or “execute that fourteen-year-old” because people are protesting with banners that say “old enough to kill, old enough to die”? The judges have to be outside the will of the majority, they have to follow what they determine the law to actually mean or else you introduce a huge flaw into the system.
What Bricker said. Cliffy actually provided rationales for the position he was taking beyond “because I want it to be that way.” He derived an argument from the structure of the Constitution, not from his own wishes and desires. That’s called good argumentation.
That you fail to recognize the distinction is to your great discredit.
It isn’t buzzwords and it isn’t the fact that Cliffy is an attorney – though his traning has undoubtedly taught him how to structure a strong argument, it is the argument itself and not his J.D. that makes his reply worthwhile.
Can I cite to you next time we’re talking about a right to privacy? Because, y’know, they could’ve just said “right to privacy” in the constitution, removing the need for all that emanations and penumbras nonsense. But I digress.
I agree that the amendment could have been drafted more tightly. But you seem to agree that racial matters were what the drafters were looking to deal with when they wrote the amendment. And since the amendment can’t be taken at face value, it must be narrowed somehow. I think narrowing the reading of the amendment in line with what the drafters were trying to accomplish is the best way of doing that while simultaneously paying homage to our notions of self-governance.
National origin is, for all practical purposes, the same as race. A law discriminating against Asians and a law discriminating against all persons having Japan, China, Korea, etc as their ancestral home pretty much does exactly the same thing.
The gender cases are a relatively recent invention, and if you read the cases you’ll see there’s very little the court does to connect what they are doing to the history of the amendment itself. It’s a lot of hand-waving, particularly given that they don’t elevate gender to full-on strict scrutiny. I think we can accept the gender cases on stare decisis grounds, but am not so sure they were correct at the time they were decided.
You are absolutely correct here, but not for the reason you suspect. I made the 19th/14th example to illustrate a point to someone who apparently believed that the 14th amendment would cover voting as well as other things. I was trying to illustrate a point about the breadth of that reading by showing that the very existence of later amendments tends to show that reading is incorrect.
But of course, you’re right: the 15th deals with voting rights and racial discrimination. But I disagree that this is just an augmentation of rights already held under the 14th amendment. It can’t be – just look at the timeline. The 14th amendment was ratified on June 9, 1868. The 15th Amendment was passed by Congress on February 26, 1869 (and ratified February 3, 1870). That means that nine months had passed between the time the 14th went into effect and the Congress completed action on the 15th.
The point is this: that isn’t enough time to determine if the fourteenth was or wasn’t working. It would certaintly take more than nine months for any lawsuits brought under the 14th amendment to wind their way through the court system and appeals process. And even the nine months is generous: I’m fairly sure the amendment wasn’t written on February 25 – presumably Congress would have had a committee hearing or two, and the bill had to wind through both houses. One wonders how in less than nine months, particuarly in an age without instantaneous communication, the Congress could have seen that the 14th wasn’t adequately protecting voting rights, drafted and debated a new amendment, and sent it off for ratification.
If several years had passed between the amendments, and if in that time there had been cases brought before the courts (including appeals) the outcome of which had insufficiently protected voting rights for blacks, your argument that the 15th amendment was a response to the failures of the 14th would be plausible. But given the short time between the two, that is simply not the case.
Thus, the more likely answer is that Congress didn’t believe the fourteenth amendment had anything to do with suffrage or political rights generally. That they thought they were adding something quite new with the 15th amendment, something that was not redundant to the amendment that had taken effect nine months before. In short, I think the existence of the 15th demonstrates a narrower scope to the 14th than might otherwise be commonly believed.
Again: I’m willing to retain some expansions of the 14th on purely stare decisis grounds (which is pretty much the only reason to accept 14th amendment incorporation as well). That is, I’m willing to say “those decisions were wrong, but the passage of time and the demand for stability in the legal system requires that we honor them.” That doesn’t mean that we should accept further unwarranted expansion of the amendment beyond the intent of the drafters. Quite the opposite, really: the recognition that errors have been made in the past is not an excuse to go on making the same kind of errors in the future.
This is reasonable given your premises. However, given that I disagree with those premises, I respectfully dissent.
Yes, nisobar, you certainly get a Cassandra Award Honorable Mention. Even now, Homebrew is stewing because he doesn’t grasp the distinction between his own argument and Cliffy’s and is left to believe that we are dissing him and praising Cliffy because Cliffy gave the secret bar handshake.
And on preview, reading Dewey’s post, I’ve come to believe that, at least in this matter, I am safe in endorsing pretty much every post he makes. Maybe he and I can schedule alternate days to be responsible for replies.
Well, earlier you said quite clearly that a decision by the Supreme Court establishing gay marriage would be an error.
Further, you keep asking why an amendment should give the right back to the states to decide about gay marriage once the Supreme Court imposes it. As far as I can tell, you think this would be a bad idea - once the Supremes have spoken and found that gay marriage is already in the Constitution, no one should object. You keep asking, over and over, why should the states be allowed to decide this.
I have mentioned several times why. It is in the Ninth and Tenth Amendments. For the judges to impose this on the rest of us would be un-democratic, and a violation of the principle of limited government.
God knows why I think restating this is going to get you to notice it.
No, you are incorrect, it matters very much. This will affect what should happen next.
Since the states and the people have the right to decide on new rights, “what should happen next” is that this right is returned to them. I can’t imagine that this point is beyond you, unless you are arguing that no decision of the Supreme Court should ever be overturned or reversed. I suppose you have heard of Plessy v. Ferguson, if you need an example.
It may be acceptable to deny human rights as a principle, but that has nothing to do with who has the right to decide what is a right and what is not. The Supreme Court decides if the Constitution addresses the right, the states or the people decide everything else. Any attempt by the Supreme Court to decide new rights is a violation of the rights of the states and the people.
No, my system is the same as that held by those who wrote the Constitution. What determines human rights in the US is the Constitution. If the Constitution does not recognize the right, it is up to the states or the people to decide if it is a right or not. Gay marriage is not a right recognized by the Constitution. Therefore, it is up to the states or the people to decide if it is a right or not. Not the Supreme Court. If they try to do so, they are wrong, and need to be overturned. Whether or not this should be done by amendment is another question, but action ought to be taken to prevent the Supreme Court from violating its duty.
No, but lots and lots of people question whether gay marriage is necessarily a human right. Since this is an open question, and since it is not addressed by the Constitution, it must be decided by the states or the people.
Sigh.
Because decisions by judges establishing new rights are a violation of the Tenth Amendment.
Because decisions by judges that are not restrained by the intent of the Constitution are a violation of democratic self-government.
Because I would rather be governed by the majority (if their decisions do not violate rights already established in the Constitution) than by judges whose ideas have not been ratified by election.
Because I am a free citizen of the United States, not the subject of a ruler in a black robe who will tell me to do what he wants regardless of the protections established by the Constitution.
Because it is more likely that one judge is a fuzzy-headed dolt than that 51% of the electorate is willing to establish a new right against its own interests based on mistaken beliefs about human rights.
Fuck the amendment. I am not in favor of the amendment. I am in favor of the Supreme Court doing its job and no more. I have discussed why I am not generally in favor of the amendment at least twice. Read my fucking posts if you want to see my answer to the question. Get a fucking grip.
Of course it matters, you dolt.
The right has not been secured. If the Supreme Court finds it in the Constitution, that does not secure it as a new right. Only the states, or the people, can decide what is a new right. The states are not abridging anyone’s rights by deciding. The Supreme Court is.
Because there is no such right until the people or the states say there is.
They are not abridging any rights. There is no right to gay marriage until the states or the people say there is.
This is idiotic. I answered your ten steps. There is no right to gay marriage. The states or the people decide if gay marriage is a right or not. You cannot violate a right that doesn’t exist.
And people with the other half realize that if judges ignore the will of the majority and the Constitution in favor of whatever they feel like, there will be many other injustices, including violations of the states and the people.
I don’t think people should support an amendment to unsecure a right* if that right should be protected by the Constitution anyway, but that doesn’t mean people shouldn’t object to it coming about by an un-democratic manner.
Let’s say I order some lumber of a certain type but am told that it is unavailable at the moment and so I order a substitute type. It then becomes available and the company delivers the type I originally wanted instead, I can be happy that I got what I wanted and still be pissed off that they disregarded my order and worried that they might ignore certain parts of my order in the future.
Look I get what you are fucking saying, but you still don’t understand my point. It doesn’t fucking matter that the judges did an un-democratic thing, the damage is done. Now you have to decide what’s best: leaving the right* secured, amending the Constitution so that it really does secure the right (assuming you think it an error; pointless anyway) or amending the Constitution to unsecure that right. You may not support the amendment for practical reasons, but if you still support the sentiment of it there’s no real difference.
Then I am fucking correct, because the ‘except’ part would be fulfilled you twit.
But subsequent to the SCOTUS decision, it is a secured right* and not a new/future right* (even if by error) and so you have to come up with a better argument for why the power to abridge the right* should be returned to the states.
What the fuck has that got to do with anything? I’ve already stated in this thread that I think the proper place for an incorrect decision to be fixed by SCOTUS itself.
That is fine and consistent* if you switch ‘decide’ for ‘secure’ in the last sentence and change “the states or the people decide everything else” to “the states or the people decide whether to secure every unsecured right*”
Well I suspect that those who wrote the Constitution had I more self-consistent* view on what makes up a right.(Especially considering the orignal Constitution didn’t include a bill of rights and IIRC they didn’t see how anyone could be fighting against their own community).
I said: “And I don’t think equality on the basis of sexual orientation as a fundamental human right is even in question.”
You replied: “If you are including gay marriage as “equality on the basis of sexual orientation”, yes, it is indeed very much in question. Hence the thread.”
The only way to reconcile those statements is that somehow if gay marriage makes up part of “equality on the basis of sexual orientation” then it brings into question whether or not there is a right* to “equality on the basis of sexual orientation”. No one has been saying that there isn’t a gay human right* to marry but that there is a straight one.
‘Human rights’ by all normal definitions requires a belief in natural law. If you think that the law (ie. the US Constitution or the law of the states) is the only thing that determines what a right is, then you are a positivist. Positivism and natural law are mutually exlusive, they are fucking polar! You would never see Locke and Austin reconciling their philosophical views. STOP CONFUSING THE TWO! It is implict in my referring to the Constitution as ‘securing rights’ that I am talking about natural human rights. I explicitly stated that if you don’t believe in human rights then you can just substitute “equality on the basis of sexual orientation” for “the right” everytime it fucking appears.
Anyone in this thread? Anyone who doesn’t also question whether there is human right to straight marriage?
Doesn’t justify them needing the power, just that SCOTUS shouldn’t secure new rights without a Constitutional basis.
Doesn’t justify them needing the power, just that SCOTUS shouldn’t secure new rights without a Constitutional basis.
Doesn’t justify them needing the power, just that SCOTUS shouldn’t secure new rights without a Constitutional basis.
Doesn’t justify them needing the power, just that SCOTUS shouldn’t secure new rights without a Constitutional basis.
Doesn’t justify them needing the power, just that SCOTUS shouldn’t secure new rights without a Constitutional basis.
The amendment is what we are fucking talking about! You don’t agree with it for practical reasons but you said that you agree completely with the sentiment behind it. So you still support giving the states back the power to prevent equality for homosexuals and you still need to justify it that view. You can say as many times as you like that the states need the power because they had it before due to tenth amendment, but that doesn’t explain why.
WHY?
See *
See *
See *
Here’s a review of how you answered the ten steps, the actual question is at (7) and there rest explains what some of the answers mean:
**Me: **“7. The amendment would allow the states the power to abridge the right and the question is: why do the states need that power?”
**You: **“Because the Supreme Court erred in finding a right to gay marriage in (2).”
**Me: **“The states need to be able to discriminate against gays because SCOTUS fucked up? So right now, when SCOTUS hasn’t erred on it, the states don’t need that power but following a SCOTUS decision they magically will? It is clear that my question was about the reasoning for them needing the power, not about the effective cause for a possible amendment to give them such.”
**You: **“No. They need the power now, they have the power now, it would be an error by the Supreme Court to abrogate that power now.” and then you went off on some more crap about how SCOTUS should handle the issue.
**Me: **“So WHY do they need the power? (Both now and after an amendment).”
**You: **"Sigh.
Because decisions by judges establishing new rights are a violation of the Tenth Amendment." and the rest of those lines, none of which actually addresses why they need the fucking power!
Yeah, you answered the ten steps, you gave a completely nonsensical answer devoid of any reasoning and also subsequently failed to justify it. For the rights issue see *.
And whether judges are outside the will of the majority has shit all to do with whether they ignore what the law fucking says you blockheaded moron.
Hypothetical:
In this hypothetical universe Shodan has become a major political hero and the Shodan party holds the balance of power between two other parties in 49 of the states and also controls Congress. Also, the tenth amendment was the last one ever ratified and there is no specific Constitutional right to be secure in life, liberty or property. (If anything else must be assumed absent or included in the Constitution in order to make it reasonably consistent then that too).
The problem is the 50th state, unlike the other 49 states which are in one form or another named after Shodan (North Shoda, South Shoda, Oshoda, Shodabama, Shodington, Shodasee, Shode Island, Shodafornia, Shothick, etc.) it is named after Forrest of the KKK and the Shodan political party holds no power there. Furthermore there has been no civil war and while the people of all the other states have recently ended slavery, the people of Forrest have not. (This is my alternate reality, historical impossibilities be damned.)
Recently, Forrest passed a law to execute all non-white people. (And they don’t have any chance of leaving the state). SCOTUS, the judges of which have been hanging around since before Shodan came onto the scene and are rather activist, has the law come before it for review. The judges are already of the mind that the Constitution secures that right through one clause despite much precedent that goes against them and read into the Constitution a right not present in the actual wording: a right not to be deprived of life, liberty, or property, without due process of law. Thus, they find the law unconstitutional. Strictly construed however, the state of Forrest should have had the power to kill whomever they want per the tenth amendment.
Of the two other parties, one sides with the people of Forrest and the other believes there should be such a right. Neither one has enough support to pass an amendment on it’s own, but with the support of the Shodan party the first one can. Shodanites are notorius for being both pro-states’ rights and strict constructionists and the first party campaigns on those grounds for an amendment.
And it looks like an amendment will be passed to undo SCOTUS’ error and give the states back the power to kill whomever they please, which they had before due to the tenth amendment. However, Shodanites are easily swayed by they’re idol: Shodan. (They either don’t care if the amendment is misguided or in this world it will have a practical effect, the judges will accept it, stop being activist and there’ll be no more amendments.) So Shodan, do you support the sentiment of the amendment or not? Remember, millions of hypothetical lives depend on you’re decision. Will you take the amoral view and let them die or will there be many fictional generations of non-white babies born in Forrest with your name?
Assuming you don’t take the amoral view, a line must be drawn between where you support the goal of the amendment and where you accept an incorrect decision by SCOTUS if it has good results. I think what is commonly called the negative human rights is the best available set of points to draw that line with.
Nope – none of that. First of all, there’s no such thing as a fundamental new right – there are only fundamental rights newly recognized – and given Loving, this isn’t even that. But that’s a side-issue. You presented us with a parade of horribles – I merely state that none of them are horrible. And, of course, I took pains to point out in my footnote that the parade you suggest wouldn’t actually appear anyway.
Meh. Rights aren’t diamonds. They are creations of human beings, and do not exist independently of our desire to have them and our willingness to protect them.
Yes, race was foremost in their mind when drafting the Amendment, but I reject the idea that amelioration of only racial inequalities was what they were “trying to accomplish,” because that would have been so much easier to do by the inclusion of race-related language. The fact that race was foremost in their minds but absent from the text means that, of any narrowing strategies we might pick, the one you propose is the worst possible. Race’s absence from the Amendment strongly suggests the drafters meant not to limit it to race. Accord the 15th Amendment, which does have limiting language: “race, color, or previous condition of servitude,” and therefore only applies to those categories.
Maybe that’s true now (I doubt it); it certainly wasn’t in the past. If you tried to make that argument to certain people in Brooklyn even 30-40 years ago you might wind up stuffed in the trunk of a car.
In hindsight, we can understand this as the Court searching for the analytical framework which will allow it to understand why certain classes should be protected and certain others shouldn’t. And the rationale it developed is essentially a representation-reinforcement one. As set out in my rpevious post, gays fit the formula; ergo, they should be protected. The fact that some classes deserve “strict” scrutiny and some “heightened” doesn’t matter in this particular case, IMO.
It seemed to me that you were arguing that the existence of the 19th was proof that sex wasn’t covered in the Equal Protection Clause, because the Clause didn’t guarantee female sufferage.
You misapprehend me. I’m merely responding to what I thought was your position that the existence of the 19th says something about which classes (not what rights) are protected under the Eq. Prot. Clause. It doesn’t. Therefore, the scope of the Clause is as-yet undefined. It doesn’t just cover race. You would relegate this to a mere mistake, but allow it to continue. I think this is unacceptable. The contention that the Eq. Prot. Clause covers simply race seems untenable to me, because it was so clearly written to cast a wider net. Therefore, we need to develop a rationale for when to protect a class. Otherwise, the Constitution fails to do justice – and if that’s so, then we need a different Constitution.
I agree - since this is largely a distinction without a difference, and has no relevance to the discussion.
Well, so you asserted, but I didn’t see where you were able to guarantee that your legal reasoning would prevail. Why, specifically, is it impossible that polygamists or adult incestors would qualify as a protected class?
For example, you came up with a rationale for excluding incest based on something like undue pressure on adults. What is the distinction between that undue pressure, and the presumed genetic predisposition towards homosexuality that would not also deprive adults of the ability to give informed consent to gay marriage?
And, while you may not agree that incest and polygamy are “horrible”, I don’t think you have established even that gay marriage is not a new right. It has never been recognized throughout our history, and does not seem to reflect the will of the majority. I would like to see a rationale for bypassing the Ninth and Tenth Amendment in favor of establishing it by judicial fiat.
On this I simply disagree. You’d be hard-pressed to glean from the historical record evidence that the drafters thought they were doing anything more than proscribing racial discrimination in government. Indeed, I suspect the drafters of the 14th amendment would be quite surprised to see it expanded to cover gender, much less sexual orientation. I think you’re ignoring a mountain of historical evidence in favor of focusing on the non-existence of a particular word. That omission, standing alone, simply isn’t enough to justify the expansive reading you wish to take of the amendment.
I disagree; I think it was more true a hundred years or so ago. In an era of “no Irish need apply,” the prevailing thought was that supposed Irish laziness was a function of genetics, not geographic ancestry. And besides, treating national origin as different from race would be to evicerate the rule against racial discrimination, for the reason I outlined above.
This is just a restatement of your ultimate conclusion. It doesn’t really respond to my point about the propriety of the gender decisions.
In a sense, I was, but only because the poster’s own views made that a useful comparison to make for illustrative purposes. Again, I agree that political rights are not a subset of 14th amendment protections.
Oh, I wholeheartedly agree that the existence of the 19th proves nothing because the 14th amendment says nothing about political rights. However, the poster to whom I was responding presumably did believe that the 14th amendment was broad enough to cover those rights, and given that presumption, the example of the 19th amendment becomes valid.
Seriously. Say a state decided to deprive homosexuals of suffrage. Do you really think Homebrew would fail to look to the equal protection clause as justification for the unconstitutionality of that law?
Perhaps it does, and perhaps we do. Of course, there is a mechanism in place to do that – the amendment process. If you want a “different Constitution,” get crackin’ on changing it.
