federally UNCONSTITUTIONAL state constitutional amendments

Re: federally UNCONSTITUTIONAL state constitutional amendmen

Debra_Law wrote:

The Fourteenth Amendment is not "legislation."

Debra,

No one on this end wrote that the Fourteenth Amendment is "legislation."

What I wrote was, “The legislative intent of the 14th Amendment was never intended to apply to state laws which make distinctions based upon criterion other than race, color or previous condition of slavery.”

In any event, constitutional provisions are in fact the ultimate form of “legislation” in our system. And, “legislative intent” is a legal term used to refer to the intent with which a law [such as our supreme law of the land] was passed. In addition, the term “legislative history” is a term referring to the recorded historical documentation relative to the enactment of a particular law, such as a constitutional provision.

Debra_Law wrote:

The Fourteenth Amendment is not "legislation." It is a provision of the constitution and it trumps ordinary legislation. It was ratified by the states. You are partially correct concerning the intent behind the Fourteenth Amendment. It was, after all, a post civil war amendment. It was intended (in part) to benefit the newly freed slaves. But, the amendment was not intended solely for their benefit. The broad language in the Fourteenth Amendment is not limited in its application as you suggest.

Debra,

I appreciate your opinion concerning “the broad language” of the Fourteenth Amendment, but the historical record of its framing and ratification reveals its intent was as I have stated above.

A research of the House and Senate debates which framed both the 1st Civil Rights Act and the 14th Amendment, which was intended to incorporate the objectives of the Civil Rights Act into the Constitution --- thereby making the first Civil Rights Act constitutional --- does not support the claim that those who framed and ratified it intended it to apply in a very broad manner so as to prohibit state legislation making distinctions beyond race color or previous condition of slavery!

As a matter of fact, there is an abundance of documented evidence the amendment was specifically intended to apply in a very narrow area…to prohibit state authorized discrimination, unequal law, based upon “race, color, or previous condition of slavery…”

As Rep. Shallabarger, a primary supporter of the Fourteenth Amendment stated when it was being debated:

Quote:

“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery..It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.”

(see Rep. Shallabarger, Congressional Globe, 1866, page 1293)

The argument that the wording in the 14th Amendment: (a)“all persons”, (b)"No State shall make any law which shall abridge the privileges or immunities of citizens of United States.", (c) "[N]or deny to any person within its jurisdiction the equal protection of the laws", as being evidence the 14th Amendment was intended to be a universal rule to bar every imaginable type of discrimination, including discrimination based upon sex, physical disabilities, or the current shopping which is today claimed, falls flat on its face when reading the words of next Amendment to the Constitution! This Amendment (the 15th) prohibits a new type of discrimination which is prima facie evidence the Fourteenth Amendment is not a universal rule to bar every imaginable type of discrimination. The Fifteenth Amendment prohibits discrimination at the voting booth on account of “race, color, or previous condition of servitude.” The intent of the 15th Amendment was unmistakably adopted to enlarge the prohibition on state sponsored discrimination mentioned in the 14th, and extend it to include a new subject matter, but only to the extent that the prohibited discrimination is based upon “race, color or previous condition of servitude”…the People not yet willing to provide the same federally enforceable guarantee to the female gender!

The assertion that the 14th Amendment prohibits a wide variety of discrimination such as discrimination based upon sex, [see Justice Ginsburg’s opinion in the VMI Case], is totally refuted when reading the 19th Amendment which was adopted by the people to specifically forbid yet a new kind of discrimination, discrimination at the voting both based upon sex. Why adopt the 19th Amendment forbidding the right to vote to be “denied or abridged” on account of “SEX.” if the Fourteenth Amendment already prohibited sex discrimination as claimed by Justice Ginsburg?

And finally, why would there have been a proposed so-call “equal rights amendment” offered in the 1980’s for adoption to the Constitution of the United States authorizing Congress to prohibit sex discrimination by appropriate legislation [which was voted down by the People] if the 14th amendment already granted such power to Congress, or such a prohibition already existed in the federal constitution?

The truth is, members of our Supreme Court are subjugating our constitutional system and supplanting their personal whims and fancies as being within the legislative intent of our Constitution as contemplated by those who framed it and the people who adopted it--- such action being a blatant rebellion against our Constitution system and meeting the definition of tyranny!

In any event, thank you for your personal opinions.

JWK

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Re: federally UNCONSTITUTIONAL state constitutional amendmen

Brandon9000 wrote:

Debra_Law wrote:
Brandon9000 wrote:
The Constitution doesn't necessarily protect anything anyone cares to claim as a right.

Provide a citation to authority that would substantiate your vague claim....

The above post is here

One must presume from the fact that you quoted me that this is the claim you are referring to. You ask for a citation to support it. If you want me to support it, that means you must think it might be wrong. If you do not think it might be wrong, why would you ask me for a citation to support it? If the statement:

Brandon9000 wrote:
The Constitution doesn't necessarily protect anything anyone cares to claim as a right.

is wrong, then the only possible alternative is that the Constitution does protect anything anyone cares to claim as a right. That is such an absurd idea that I need not provide a citation to refute it.

Interesting how you left out the entire argument leading up to your statement to try to win a debating point Brandon.

Deb's statement points out that your vague claim doesn't refute her argument. Your feeble attempt to now try to make your statement a free standing one that Deb refuted badly is quite humorous. Shouldn't you live up to the standards you continually demand of others? Stop trying to find a statement you can take out of context and attack. Deal with the substance of the argument.

Deb has consistantly brought up specific examples. You have not dealt with those examples but instead go off on vague tangents of the extreme.

The Nebraska law was an attempt to force morals on the state by an electorate. It was not all attempts to do so. Deb cited a specific example and showed how that example violated the constitution. Your attempt to say she can't prove all morals passed into legislation are unconstitutional is a strawman. When that strawman was revealed you have now moved on to your next strawman of claiming Deb claimed every right claimed by anyone must be a right. Deb said no such thing. Deb's argument has been consistent. A law passed on morals that violates the 14th amendment must show a compelling reason to stand a constitutional challenge. She never said every right claimed was protected. She stated those rights guaranteed by the 14th amendment were protected.

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Re: federally UNCONSTITUTIONAL state constitutional amendmen

parados wrote:

Brandon9000 wrote:
Debra_Law wrote:
Brandon9000 wrote:
The Constitution doesn't necessarily protect anything anyone cares to claim as a right.

Provide a citation to authority that would substantiate your vague claim....

The above post is here

One must presume from the fact that you quoted me that this is the claim you are referring to. You ask for a citation to support it. If you want me to support it, that means you must think it might be wrong. If you do not think it might be wrong, why would you ask me for a citation to support it? If the statement:

Brandon9000 wrote:
The Constitution doesn't necessarily protect anything anyone cares to claim as a right.

is wrong, then the only possible alternative is that the Constitution does protect anything anyone cares to claim as a right. That is such an absurd idea that I need not provide a citation to refute it.

Interesting how you left out the entire argument leading up to your statement to try to win a debating point Brandon.

I have given, faithfully, the first two sentences in her post.

The first sentence in her post is to quote me as saying:

1. "The Constitution doesn't necessarily protect anything anyone cares to claim as a right."

The second sentence in her post is:

2. "Provide a citation to authority that would substantiate your vague claim."

I have omitted nothing. These are the very first two things in that post. There is nothing before them or in between them.

She quotes me as making an assertion, then asks me to substantiate my claim. If she is not asking me to substantiate what she just quoted, what is she asking me to substantiate?

If I quote someone as saying:

Joe said: "X = 2."

And I then say:
"What rot! Prove it!"

who on Earth is going to think that I am asking Joe to prove anything other than what I quoted him as saying? The quotation that she seems to ask for a citation for is, to say the least, self-evident. If she wants a citation for some different thing than what she quoted, she need only say so.

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Re: federally UNCONSTITUTIONAL state constitutional amendmen

joefromchicago wrote:

The "republican form of government" clause in the constitution has, in effect, been completely unenforceable by the courts since the supreme court's decision in Luther v. Borden, 48 U.S. 1 (1849), which held that the character of a state's government was entirely a "political question." Likewise, a state's ability to hold binding initiatives was upheld (on similar grounds) in Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912). There is, consequently, nothing inherently unconstitutional about a state permitting its citizens to rule themselves by means of a binding initiative.

Your opinion is not in harmony with the intent for which the guarantee to a Republican Form of Government was adopted, and is explained at length in Federalist No 10. The primary intent being, to provide protection against direct democracy, especially when unalienable rights are involved such as life, liberty and rights associated with property ownership. As Madison points out in speaking of democracy, they

Quote:

“…have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.

As to your comment concerning Luther v. Borden, you may be interested in reviewing some historical facts concerning the guarantee clause as presented by Justice O'Connor in the following case:

Quote:

Petitioners also contend that the Act is inconsistent with the Constitution's Guarantee Clause, which directs the United States to "guarantee to every State in this Union a Republican Form of Government." U. S. Const., Art. IV, § 4. Because we have found the take title provision of the Act irreconcilable with the powers delegated to Congress by the Constitution and hence with the Tenth Amendment's reservation to the States of those powers not delegated to the Federal Government, we need only address the applicability of the Guarantee Clause to the Act's other two challenged provisions.

We approach the issue with some trepidation, because the Guarantee Clause has been an infrequent basis for litigation throughout our history. In most of the cases in which the Court has been asked to apply the Clause, the Court has found the claims presented to be nonjusticiable under the "political question" doctrine. See, e. g., City of Rome v. United States, 446 U.S. 156, 182, n. 17 (1980) (challenge to the preclearance requirements of the Voting Rights Act); Baker v. Carr, 369 U.S. 186, 218-229 (1962) (challenge to apportionment of state legislative districts); Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 140-151 (1912) (challenge to initiative and referendum provisions of state constitution).

The view that the Guarantee Clause implicates only nonjusticiable political questions has its origin in Luther v. Borden, 7 How. 1 (1849), in which the Court was asked to decide, in the wake of Dorr's Rebellion, which of two rival governments was the legitimate government of Rhode Island. The Court held that "it rests with Congress," not the judiciary, "to decide what government is the established one in a State." Id., at 42. Over the following century, this limited holding metamorphosed into the sweeping assertion that "[v]iolation of the great guaranty of a republican form of government in States cannot be challenged in the courts." Colegrove v. Green, 328 U.S. 549, 556 (1946) (plurality opinion).

This view has not always been accepted. In a group of cases decided before the holding of Luther was elevated into a general rule of nonjusticiability, the Court addressed the merits of claims founded on the Guarantee Clause without any suggestion that the claims were not justiciable. See Kies v. Lowrey, 199 U.S. 233, 239 (1905); Forsyth v. Hammond, 166 U.S. 506, 519 (1897); In re Duncan, 139 U.S. 449, 461-462 (1891); Minor v. Happersett, 21 Wall. 162, 175-176 (1875). See also Plessy v. Ferguson, 163 U.S. 537, 563-564 (1896) (Harlan, J., dissenting) (racial segregation "inconsistent with the guarantee given by the Constitution to each State of a republican form of government").

More recently, the Court has suggested that perhaps not all claims under the Guarantee Clause present nonjusticiable political questions. See Reynolds v. Sims, 377 U.S. 533, 582 (1964) ("some questions raised under the Guarantee Clause are nonjusticiable"). Contemporary commentators have likewise suggested that courts should address the merits of such claims, at least in some circumstances. See, e. g., L. Tribe, American Constitutional Law 398 (2d ed. 1988); J. Ely, Democracy and Distrust: A Theory of Judicial Review 118, n., 122-123 (1980); W. Wiecek, The Guarantee Clause of the U. S. Constitution 287-289, 300 (1972); Merritt, 88 Colum. L. Rev., at 70-78; Bonfield, The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude, 46 Minn. L. Rev. 513, 560-565 (1962). See: New York v. United States (91-543), 488 U.S. 1041 (1992)

JWK

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parados wrote:

Baldimo wrote:

I don't have an issue with the Constitution; I have a problem with the SC telling us what they think is the law according to the Constitution. They make things up to fit what they think. According to some here the term pursuit of happiness means we can have SS and welfare. I didn't know happiness meant free money from the taxpayers.

So your problem is that you have an issue with the constitution because the Constitution gives the USSC the power to do what you have a problem with.

The Constitution says the USSC gets to decide the meaning of the constitution. It can't be much simpler than that. (Your strawman argument about "free money" not withstanding.)

The problems lies with the SC and their interpertation of the Constution. They have invented rights that do not exist. Welfare isn't a Constitutional right and neither is abortion or SS.

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john w k wrote:

Your opinion is not in harmony with the intent for which the guarantee to a Republican Form of Government was adopted, and is explained at length in Federalist No 10. The primary intent being, to provide protection against direct democracy, especially when unalienable rights are involved such as life, liberty and rights associated with property ownership. As Madison points out in speaking of democracy, they

Quote:

"have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.

Federalist No. 10 does not say anything either about the guarantee clause or about initiative and referendum. It talks in general about the dangers of democracy, but Madison clearly understood "democracy" to involve the absence of all representative institutions. That's not the case with states that employ initiative and referendum as an adjunct to representative government.

Rather than Federalist No. 10, the place to look for Madison's views on the guarantee clause is Federalist No. 43, where he speaks specifically about the clause, and about which he states:

the authority extends no further than to a guaranty of a republican form of government, which supposes a preexisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever, the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican Constitutions: a restriction which, it is presumed, will hardly be considered as a grievance.So, in other words, as long as states preserve the form of a republican government, they are free to adopt whatever variations they choose. And that is consistent with the holdings in both Luther v. Borden and Pacific States.

john w k wrote:

As to your comment concerning Luther v. Borden, you may be interested in reviewing some historical facts concerning the guarantee clause as presented by Justice O'Connor in the following case...

No, not really.

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Baldimo wrote:

parados wrote:
Baldimo wrote:

I don't have an issue with the Constitution; I have a problem with the SC telling us what they think is the law according to the Constitution. They make things up to fit what they think. According to some here the term pursuit of happiness means we can have SS and welfare. I didn’t know happiness meant free money from the taxpayers.

So your problem is that you have an issue with the constitution because the Constitution gives the USSC the power to do what you have a problem with.

The Constitution says the USSC gets to decide the meaning of the constitution. It can't be much simpler than that. (Your strawman argument about "free money" not withstanding.)

The problems lies with the SC and their interpertation of the Constution. They have invented rights that do not exist. Welfare isn't a Constitutional right and neither is abortion or SS.

Baldimo:

You're not making any sense. There are no cases holding that welfare is a "constitutional right." There are no cases holding that social security is a "constitutional right."

If you take a close look at the Constitution, you will see that the Constitution does not grant rights. The Constitution is not the source of rights. The Constitution is a source of security and protection to the rights retained by the people--rights that were NEVER surrendered (including the right to privacy against unreasonable government intrusions) when we formed government. The constitution created a government of limited powers designed to secure the blessings of liberty to all.

The people granted Congress with specified, enumerated powers. Congress enacted a federally assisted Aid to Families with Dependent Children program. Welfare benefits are NOT a "constitutional right." Rather, welfare benefits are a matter of STATUTORY entitlement for persons qualified to receive them.

A welfare recipient is generally destitute and terminating benefits in the face of such "brutal need" without a prior hearing is unconscionable unless overwhelming considerations justify it. Accordingly, the Due Process Clause requires that the welfare recipient be afforded an evidentiary hearing before the termination of benefits.

See GOLDBERG v. KELLY, 397 U.S. 254 (1970).

However, the same is not true for social security disability benefits. An evidentiary hearing is not required prior to the termination of Social Security disability payments and the administrative procedures prescribed under the Act fully comport with due process.

See MATHEWS v. ELDRIDGE, 424 U.S. 319 (1976)

Therefore, your comparison of welfare benefits and social security benefits to abortion simply has no relevance.

In addition, the supreme court did not rule that abortion was a "constitutional right." The supreme court ruled that our protected liberty interests embrace a right to privacy -- a right to be free from unnecessary governmental intrusions into our personal, intimate decisions, such as the decision to bear children. If you fail to grasp that vital distinction, you will continue to have difficulty with your constitutional studies.

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Brandon wrote:

As far as equal protection goes, it doesn't arise as an issue, since these laws appear to apply equally to everyone.

You made this argument before and I refuted your argument. You don't score any points by repeating your unsubstantiated argument.

Brandon wrote:

If you want to talk about legal precedent, though, the actual precendent is that as far as I know, same sex marriage has not been permitted in the world in any country in any epoch until just a few years ago. I cannot prove that categorically, but you are free to give me a counterexample in which a government recognized a same sex marriage some time before a few years ago. That is really the relevant precedent. You claim that legal precedent mandates that a form of marriage be recognized by society that has never been recognized legally by any society I am aware of. So, actually, legal precedent is squarely against you.

So what? Neither tradition nor the age of a pernicious practice can justify the continuation of discrimination and oppression. Slavery, racial discrimination, and segregation went on for centuries. That fact didn't stop the Supreme Court from doing its duty.

Justice Stevens wrote:

". . . if the age of a pernicious practice were a sufficient reason for its continued acceptance, the constitutional attack on racial discrimination would, of course, have been doomed to failure."

Source

See also:

"[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack."

Source

Quote:

If such a major precedent is to be reversed, it ought to be reversed because the electorate wants it that way. However, knowing that you can't win this one democratically, you try to use the courts to do an end run around the people.

If we lived in a pure democracy, you would be right. But we don't live in a pure democracy, we live in a republic. Do you understand the difference?

The Constitution protects minorities from discrimination and oppression by the majority. It is the duty of the Courts to interpret and apply the Constitution to cases and controversies presented for a decision. It is the Court's duty to define the liberty of all, not to impose a moral code.

We the People are bound by the Constitution the same as the Courts are bound by the Constitution. Enforcing the Constitution through the courts is NOT an end run around the people. It's the way our system of justice was established.

If you would rather live in a society where the whims of the electorate reign supreme, you will have to change the Constitution.

Quote:

First of all, the Equal Protection Clause is completely irrelevant, since these state laws appear to apply equally to everyone. Do they not forbid anyone to have a same sex marriage? Secondly, if you want to start citing case law, how's this for case law? The specific form of marriage you are talking about has never been sanctioned by the law of any country at any time as far as I know. All of human history is precedent against you. Feel free to give me counterexamples in which a government officially recognized a same sex marriage.

The Equal Protection Clause is most certainly relevant. Our state marriage laws discriminate against individuals on the basis of the gender of one's intended spouse. It is not sufficient to state that everyone is free to marry someone of the opposite sex. This argument simply begs the question. It is also the same kind of argument that the Supreme Court rejected in Loving v. Virginia, 388 U.S. 1 (1967).

Generally, the class of persons who desire to marry a person of the opposite sex are granted state-issued marriage licenses. However, the class of persons who desire to marry a person of the same sex are DENIED state-issued marriage licenses. Marriage is a fundamental right. Loving v. Virginia. The state has no interest compelling enough to deny marriage licenses based on the gender of one's intended spouse.

Your reliance on tradition is misplaced. The Supreme Court has rejected history and tradition as a basis for denying fundamental rights and equal protection of the laws.

"[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack."

Source

Many, many countries in the world and several states in this country now recognize same-sex marriages and civil unions. Another member of this forum posted an extensive chart listing all these countries and states in another thread. If I have time, I will search for that listing. But the trend is clear--and the times are changing.

Debra_Law wrote:

The state does not have a compelling interest interest in prohibiting an individual from getting married (engaging in a fundamental right) based on the gender of his/her intended spouse.

A state prohibition on same sex marriages violates both the substantive due process clause and the equal protection clause.

Quote:

I have demonstrated clearly that there is no violation of the Equal Protection Clause since none of these laws applies only to certain citizens or differently to different citizens.

You have demonstrated nothing. Your only argument is that society has always discriminated against homosexuals by limiting marriage to opposite-sex couples. I have clearly pointed to Supreme Court precedents that reject history and tradition as a basis for discrimination. You have yet to set forth a compelling state interest that would justify that discrimination.

Quote:

As for the due process clause, it only says that priviliges and liberties may not be abridged, not that same sex marriage is either.

Your argument has no substance. The Fourteenth Amendment does not define liberty nor does it set forth all the ways that the State could violate the due process clause. The right to marry doesn't have to be enumerated in the Constitution to be a protected liberty interest. Your argument has no substance.

Quote:

I cannot prove it, but I strongly suspect that the Founders would have told you that they absolutely did not intend to permit same sex marriage when they wrote or signed this. None of them had a same sex marriage which they tried to get official recogniton for.

So what? Your argument is meaningless. I have no doubt that the founding fathers would have agreed with the Supreme Court's observation:

"Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

Lawrence v. Texas.

Debra Law wrote:

Prohibiting same sex marriage violates both the substantive due process clause and the equal protection clause. See above.

Brandon wrote:

Only in the sense that the Amendment prohibits everything that Debra Law asserts is a right, but not based on anything findable in the Constitution or the lives of the people who wrote it.

Is this another one of your strawmen arguments? The Fourteenth Amendment protects all components of LIBERTY against state infringement. The right to marry does not have to be spelled out in the Constitution to be protected.

Brandon wrote:

Well, you can look at the color blue, and claim that it's actually red, and give numerous scholarly citations and testimonials. You can probably even work the ancient Greeks in. But it's still blue, not red.

Huh? I know the difference between blue and red. What does that have to do with all the components of Liberty protected by the Constitution?

Brandon wrote:

First of all, the Supreme Court has never said that the 14th Amendment means that the states can't prohibit same sex marriage. Furthermore, the Supreme Court justices are just humans, who even reverse themselves over time, and are perfectly capable of error. You are still fundamentally in the position of claiming that a small group of sentences say something that they manifestly do not say. I can make the same argument to prove that the government has to let me marry a tree.

Several state courts have already ruled on the issue and they have found the ban on same-sex marriage to be constitutionally defective. A federal court in Nebraska ruled that the Nebraska constitutional amendment banning same-sex marriage was constitutionally defective. Someday, the Supreme Court will rule on the issue of same sex marriages. If the Supreme Court follows its own precedents, it too will find that the ban on same sex marriage is constitutionally defective.

Marriage is not a union between a person and a tree. Marriage is a union between two persons. Your analogy to marrying trees is irrelevant to this discussion.

Debra_Law wrote:

The concept of Liberty encompasses a broad range of human conduct and interaction. "Individual decisions concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment." Lawrence v. Texas.

Brandon wrote:

Anyone can have any physical relationship they want as far as I am concerned, except pedophilia. It is the goverment recognition of a legal relationship that I don't think the Constitution mangates.

The right to marry is controlled exclusively by the state. It may be entered, maintained, and dissolved only in accordance with state law. Nevertheless, the right to marry is a fundamental right. When the state discriminates with respect to what marriages it will allow, the Constitution mandates that the discrimination must serve a compelling state interest. The discrimination must be necessary and narrowly tailored to serve that compelling state interest.

You think, you think, you think . . . and yet your thoughts are totally unsubstantiated.

Debra_Law wrote:

. . . Your argument that the Fourteenth Amendment "doesn't say" that a state violates the Fourteenth Amendment when it infringes upon the fundamental right to marriage based on the gender of one's intended spouse ONLY BEGS THE QUESTION.

Brandon wrote:

You have been maintaining for pages now that the prohibition of same sex marriages is unconstitutional, but now you admit that the Constitution only says that liberties and privileges should be protected, and that the Constitution does not inherently prohibit same sex marriage at all. You are making progress. If the document itself makes no judgement about whether some particular thing is a right, and judges then decide in a manner that is wildly contrary both to precedent and to the will of the people, that sounds kind of like the tyranny of a very small minority to me.

Another one of your strawmen arguments, Brandon. The Constitution protects LIBERTY. The Courts have a constitutionally mandated duty to interpret and apply the Constitution to all cases and controversies arising under the Constitution. It's the Court's duty to define the liberty of all. This is not tyranny by judges, this how our system of justice was established. The majority cannot oppress the minority. We are not a government of mob rule; we are a government of law. The Constitution is the supreme law of the land and it's the Court's duty to strike down any state or federal laws that conflict with the supreme law.

The right to marry is a fundamental liberty interest. The right to marry does not have to be listed in the Constitution to be protected. The Fourteenth Amendment does not have to list all the ways the State may violate the amendment in order to be effective.

You are not making progress in this educational endeavor. You fail to grasp fundamental concepts no matter how many times these concepts are presented. Do you have the ability to absorb information and learn? Your desire to cling to your own ignorance is profound.

Debra_Law wrote:

Now let's look at your example. The majority of the people in the state believe it will promote the general welfare if every person within the jurisdiction of the state reads the bible every day. They believe it is right, moral, and ethical to read the bible every day. They believe it is wrong, immoral, and unethical if a person fails to read the bible every day. The State passes a law that effectuates the view of the majority.

You claim that this law would violate the First Amendment. But, have you read the First Amendment? It only applies to CONGRESS. And we all know that Congress is the legislative body of the FEDERAL government.

How would the First Amendment prohibit a STATE legislative body from passing such a law?

Think it through.

Brandon wrote:

Okay, then, the combination of amendments 1 and 14. The first amendment establishes free speech as a specifically enumerated right, laying the groundwork for the application of the 14th.

I would have thought that the free exercise of religion would be more relevant than free speech to your example, but you haven't proven yourself adept of making relevant arguments.

And, what does the fact that "free speech" is specifically enumerated in the First Amendment have to do with anything? The Ninth Amendment specifically provides that the enumeration in the Constitution of some rights retained by the people SHALL NOT BE CONSTRUED to deny or disparage other rights retained by the people.

Nevertheless, I will play your deaf, dumb, and blind game: I'm looking, but I don't see anything in the Fourteenth Amendment to substantiate your claim that the Fourteenth Amendment prohibits the states from infringing upon free speech. It's blue (liberty). You can call it red (free speech) if you want, but that doesn't change the fact that it's blue (liberty). Hmmmmm.

The Fourteenth Amendment protects liberty. It doesn't say anything about a right to free speech [or free exercise of religion] that would prohibit the state from passing a law requiring people to read the bible every day.

Help me out here, Brandon. How would the Fourteenth Amendment protect free speech or free exercise of religion (liberty interests) against state infringement, but not the right to marry (also a liberty interest)?

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Debra_Law wrote:

Quote:

constitutionally defective.

Is this same as unconstitutional? If not, what exactly does that mean?

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Quote:

If we lived in a pure democracy, you would be right. But we don't live in a pure democracy, we live in a republic. Do you understand the difference?

The arguement could made that it is no longer a true republic. It's very disturbing that many people don't realize that we are a republic and even more upsetting how few know the difference. Off topic I know, but had to say it.

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Re: State's Rights

Debra_Law wrote:

The issue of states' rights does NOT embrace the right of the moral majority may use the power of the State to enforce their views on the whole society through the operation of state laws.

Fishin wrote:

Then we had better start eliminating all those laws that make things like murder, rape, arson, theft, etc.. illegal because the only rationale for having them is that the majority of people find those acts to be morally wrong.

Debra_Law wrote:

You are wrong, fishin.

Fishin wrote:

No... I don't think so. And you provide the proof yourself.

Quote:

All people are supposed to be EQUAL in the eyes of the law. The purpose of government is to SECURE the rights of ALL. States may regulate or criminalize injurious or harmful conduct. My fundamental rights to life and liberty protected against state infringement by the Fourteenth Amendment do not embrace any "right" to injure or harm other persons. Other persons are entitled to protection under the laws the same way that I am entitled to protection under the laws.

fishin wrote:

And why exactly is it that all people are supposed to be treated equeally under the law? Because it would be immoral not to do so!

Fishin:

Huh? A violation of the equal protection clause is IMMORAL? I thought a violation of the equal protection clause was simply UNCONSTITUTIONAL. You make all your absurd arguments on the erroneous premise that our Constitution is a MORAL CODE. It's not.

We the people have inalienable rights. Among those rights are the right to life, liberty, and the pursuit of happiness. TO SECURE these rights, we formed our government.

The Preamble of the Constitution sets forth the purposes for which "we the people" established and ordained the Constitution. It was the intent of our forefathers to SECURE the blessings of liberty to themselves and their progeny. Accordingly, our forefathers established a government of limited and enumerated powers with built in separations of powers among the three branches of government to serve as checks and balances against tyranny and oppression. The first eight amendments to the Constitution are also limitations on Government power designed to secure the blessings of liberty to the people against governmental oppression.

You're the one who argues that it would be IMMORAL for government to violate the Constitution. You can put a moral slant on it if you want. However, my argument is that it is UNCONSTITUTIONAL (against the Supreme Law of the Land) for Government to deny or disparage fundamental liberty interests which includes the right to equal protection of the laws.

I never said it was IMMORAL for a state to pass laws based solely on morality--you're the one who wants to replace the word "unconstitutional" with the word "immoral."

In Lawrence v. Texas, the Supreme Court stated the issue was whether the majority could impose their views on society through the operation of state laws. The Court went on to hold:

"[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack."

When the state seeks to deny or disparage a fundamental liberty interest, the governing majority's moral disapproval alone is not a sufficient basis to uphold the law. Unless the state has a compelling interest and the law is necessary and narrowly tailored to serve that compelling interest, the law will be declared unconstitutional.

You can call it immoral for the governing majority to pass unconstitutional laws based upon their moral disapproval alone--but I never said it was "immoral" for them to do so. I said it was UNCONSTITUTIONAL for them to do so and I cited Lawrence v. Texas as the precedent.

You are creating a ridiculous strawman argument by claiming that I'm arguing that it's immoral for the governing majority to pass laws based on morals. Whether it's moral or immoral for the state to pass unconstitutional laws is not the issue.

Debra_Law wrote:

If you murder, rape, steal, or burn down someone's house, you are engaging in conduct that harms and injures other people. That conduct can be prohibited and punished by the state.

Fishin wrote:

What?? That conduct can be prohibited? But you've been claiming that it can't be.

Another one of your strawmen arguments. I have never claimed that the state may not constitutionally prohibit and punish conduct that harms and injures other people, e.g., murder, rape, theft, or arson.

Murdering, raping, stealing, and burning down houses are not fundamental liberty interests protected by the Fourteenth Amendment against state infringement.

Debra Law wrote:

Living as citizens of the United States requires us to use reason and logic. Your argument possesses neither.

fishin wrote:

Logic requires a chain of consistant thought all pointed to the original premise - something you keep trying to change.

It's not my fault that you can't understand the difference between fundamental liberty interests protected by the Constitution and criminal behavior that is not protected.

All my statements with respect to the Constitution and Supreme Court precedent are consistent. On the other hand, you create ridiculous arguments, attribute those arguments to me even though I never made those arguments, and then you call those arguments ridiculous.

Everyone can see through your strawman arguments; you aren't fooling anyone--except maybe yourself when you think you're being clever.

Debra_Law wrote:

People like Brandon claim they do not see (or understand) how the Fourteenth Amendment can be applied to prevent the moral majority from passing laws based on their perceptions of right or wrong.

Fishin wrote:

I don't see Brandon making that claim at all. What he claimed was that there is no statment in the Constitution or the 14th Amendment that specifically states that morals can not be the basis for law.

You disagree with me by saying exactly what I said. Go figure that one out.

Brandon suffers from the same affliction that you suffer from: The inability to understand that fundamental liberty interests are constitutionally protected against state infringement. You are unable to discern the difference between fundamental liberty interests that are protected and crimes that are not protected.

Debra-Law wrote:

The fundamental right to liberty becomes an amorphous, meaningless concept if the majority of the people can simply take away the rights of the minority of the people through the power of the state. If you're not intellectually mature enough to grasp that elementary principle, then any further attempts to educate you are futile.

fishin wrote:

That's good Deb because you can't teach what you yourself don't understand. You started this line of comments with your claim that laws can not be based on morality and you continue to try and maintain that when you know full well it is 100% wrong. Our entire Constitution is based on morality - the morality that violating someone elses rights is wrong (i.e. immoral).

The Constitution is not a moral code. You're the one who is wrong.

Again, the Supreme Court ruled as follows:

"[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack."

I have based my arguments on Supreme Court precedent. Therefore, I am 100 percent right when I quote the Supreme Court with respect to the interpretation and application of the Constitution.

Debra_Law wrote:

Frankly, I find your strawman argument to be comical. I never argued: "morals can't be used a as rationale for law yet at the same time the entire argument for repealing state laws that prohibit gay/lesbians from marrying are because treating gays/lesbians differently is immoral."

Fishin wrote:

I never said YOU did so if there is a strawman there iit's your's. It was a general comment on the overall theme.

Again: I NEVER argued that the Constitution is a moral code. The Constitution is NOT a moral code; it's the supreme law of the land. You're the one who claims the Constitution is a moral code. Then you claimed it was comical to argue that morals can't be used as rationale for law yet at the same time the entire argument for repealing state laws that prohibit gay/lesbians from marrying are because treating gays/lesbians differently is immoral.

You're the one who constructed this comical, strawman argument, not I.

The entire argument for striking down state bans on same-sex marriage is because these bans violate both the due process clause and the equal protection clause of the Fourteenth Amendment.

Debra_Law wrote:

Contrary to your wild assertion, I never argued that it was immoral for people to base laws on morals. You mischaracterized the substance of my arguments which are based on Supreme Court precedent. Please educate yourself concerning Fourteenth Amendment jurisprudence.

Fishin wrote:

lmao. So you NEVER stated that people can't pass laws based on morality???? That is EXACTLY what you stated Deb. Let me quote you again for your own clarification: "The issue of states' rights does NOT embrace the right of the moral majority may use the power of the State to enforce their views on the whole society through the operation of state laws."

Again, I will recite the Supreme Court precedent:

"[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack."

Again: The issue of states' rights does not embrace the right of the moral majority to use the power of the State to enforce their views on the whole society through the operation of state laws. Moral disapproval alone can never justify state infringement upon fundamental rights protected by the Fourteenth Amendment.

Again: I never said it was "immoral" to pass laws based on morality. That's your comical spin based upon your comical view that the Constitution as a moral code upon which you built your comical strawman argument.

LMAO

Fishin wrote:

It's fairly simple for anyone to go back in this thread and find your original post. I admit that you did change the wording later on to cover yourself with a few qualifications of the statement but that was the original statement that both Brandon and I challenged and that you have been unwilling to admit is flat out wrong. Instead of correcting your post and admitting you generalized you've gone on and on adding your precious citations that prove an entirely different point.

Everyone can go back through the thread and see that all my posts are consistent and based on the law. The only one who argues that the Constitution is a moral code rather than the supreme law of the land is YOU. When the Supreme Court strikes down a state law as a violation of the Constitution, the court does not rule that the law is "immoral," they rule that the law is "unconstitutional."

I think it's absurd that I should even have to point out your idiocy on this matter.

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Re: State's Rights

Debra_Law wrote:

The lesson learned from Lawrence v. Texas clearly informs us that there are certain lines that the states may NOT cross when legislating on matters of majoritarian opinions of right and wrong. The Court told us:

1. The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.

2. Individual decisions concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment.

Interesting. The lesson I learned from Lawrence v. Texas was that gay rights are not a settled issue of constitutional law, given that the Supreme Court overruled a precedent only 17 years old, given that three judges in Lawrence disagreed with the majority overruling it, and given that the next round of Supreme Court appointments is more likely than not to turn this minority opinion into the majority opinion again.

But even assuming that Lawrence v. Texas settled the issue of gay sex, I don't see how it settles the issue of gay marriage. It is one thing not to criminalize people for having an intimate relation with one another; it is another issue not to change the traditional definition of marriage to make it cover same-sex relationships. One is about punishing something, the other is about (not) rewarding something with claims on the rest of society. To this interested layman, this distinction seems substantial enough to potentially turn around two of the 'swing voters' on the Supreme Court who, in Lawrence, voted for overturning Bowers. Therefore, while I disapprove of the anti-gay-marriage amendments to various state constitutions, I remain unpersuaded by your argument that the amendments were unconstitutional.

Chrissee wrote:

The fact remains that the Constitution is what the Supreme Court, the Supreme Law of the Land, says it is.

I'm curious: What was your constitutional opinion during the years between Bowers (1986) and Lawrence (2003)? Was it that proscribing gay sodomy was unconstitutional, and that the Supreme Court had wrongly decided Bowers -- or did you believe that gay sodomy laws ought not be but were constitutional, because the Supreme Court said so?

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Quote:

I'm curious: What was your constitutional opinion during the years between Bowers (1986) and Lawrence (2003)? Was it that proscribing gay sodomy was unconstitutional, and that the Supreme Court had wrongly decided Bowers -- or did you believe that gay sodomy laws ought not be but were constitutional, because the Supreme Court said so?

That the Supreme Court is the ulitimate arbiter of how the Constitution is interpreted, they may not always get it right (Plessy v. Ferguson, Gore v. Bush) but the SCOTUS is the supreme law of the land. Given time, eventually they get it right.

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Re: federally UNCONSTITUTIONAL state constitutional amendmen

john w k wrote:

Debra_Law wrote:

The Constitution means what the Supreme Court says it means. I have provided you with Supreme Court rulings to support every point I have made. And this is the best you can come up with: I don't think the Constitution says what you think it does?

Why don't YOU try to be "provocative."

Debra:

The notion that the constitution means what the Supreme Court says it means is far from being “provocative”. It’s just plain stupid, at least to a freedom loving people who intended to bind the hands of government by the chains of a written constitution! The truth is, the Constitution means what its framers and ratifiers intended it to mean!

[snip]

In addition to the above documentation, I you may find a recent Supreme Court decision quite interesting in which the Court references the Federalist Papers 18 times in order to find the legislative intent of our Constitution. See:UNITED STATES v. LOPEZ, ___ U.S. ___ (1995)] Also see: GREGORY v. ASHCROFT, 501 U.S. 452 (1991) and: Nixon v. United States (91-740), 506 U.S. 224 (1993).

The purpose of my post Debra is not to agitate you, but rather, to express a fundamental principle of constitutional law which ought to always be followed. Those who make claims as to the meaning of a constitutional provision, ought to always be ready to support their claims with documentation from those who framed and ratified the particular constitutional provision in question.

JWK
ACRS

JWK:

I don't always agree with the U.S. Supreme Court. But I'm NOT stupid. I understand that the Supreme Court interprets and applies the Constitution to cases and controversies. Whatever construction the Supreme Court gives to any particular clause in the Constitution, whether it is based on the federalist papers or the founders intent or our fundamental notions of ordered liberty, that construction becomes the SUPREME LAW of the LAND.

You and I may disagree with decisions from time to time based on our own reasons, but we cannot overrule a Supreme Court precedent that is based on the Constitution without amending the Constitution itself.

Additionally, the Constitution was not written in words that were frozen in time. As we progress as a society, we learn that laws that we once thought were necessary and proper only serve to oppress. Our country was built on the concept of LIBERTY (give me liberty or give me death). With each generation, we must fight to give that concept meaning. It isn't always prudent to go back 200 years and consult those who are rotting away in their graves--those who thought it was an acceptable compromise to count blacks and 3/5th of a person. That type of oppressive and discriminatory treatment would not be tolerated today. The United States Constitution is intended to benefit the LIVING in every generation.

With respect to the 1995 Lopez case, the United States Supreme Court invalidated the GFSZA because Congress had exceeded it commerce clause powers. Congress immediately thereafter amended the GFSZA to include a jurisdictional nexus clause (moving in or otherwise affecting interstate commerce) and POOF! Every single concern the Supreme Court voiced in its decision simply vanished. So much for the Court's analysis based on the founders' intent . . . .

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Chrissee wrote:

That the Supreme Court is the ulitimate arbiter of how the Constitution is interpreted, they may not always get it right (Plessy v. Ferguson, Gore v. Bush) but the SCOTUS is the supreme law of the land. Given time, eventually they get it right.

So in other words, from 1986 on, you did think that Texas's gay sodomy laws were constitutional, and you changed your mind when the Supreme Court did in 2003? And hypothetically, if George Bush managed to appoint three new Supreme Court justices who share his preferences, and if they overruled Lawrence and de facto reinstated Bowers , your opinion of what the constitution means would change again? Sorry for pestering you, but your approach to thinking about the law appears to be very different from mine, so I'm trying to make sure I understand what I'm disagreeing with.

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Acknowledging that the Supreme Court is the law of the land doesn't require agreement, if a matter was clearcut, it would not even go to the Supreme Court. No 5-4 decision is ever going to make everyone happy. You can disagree with the SC and still respect its authority. Al Gore himself did that when he conceded shortly after the decision.

My opinion about how the Constitution should be interpreted is irrelevant. Again, I have faith that the SC will eventually get it right, just like they finally reversed Plessy v. Ferguson and the Dred Scott decision.

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kuvasz wrote:

[snip]

If the meaning for a key phrase or Article remains uncertain that meaning should not be settled by retrospective consultation of the Framers murky intentions but by an ongoing interpretive process. The Constitution's meaning is to be found in the history of interpretations and constitutional law rather than what the Framers originally had in mind.

Anyway, the Federalists argued their original intentions were not relevant, because they had only drafted a document to be endorsed by the American people. If intentions were to play a role in the interpretation of the text, they would have to be the intentions of those who accepted the Constitution, not those who wrote it.

Good post, kuvasz.

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Re: federally UNCONSTITUTIONAL state constitutional amendmen

Debra_Law wrote:

It isn't always prudent to go back 200 years and consult those who are rotting away in their graves--those who thought it was an acceptable compromise to count blacks and 3/5th of a person. That type of oppressive and discriminatory treatment would not be tolerated today.

Which is why the United States passed the 13th, 14th, and 15th amendments. The emancipation of blacks was not achieved by changing the Supreme Court's interpretation of the Bill of Rights. Later, the suffragettes persuaded public opinion in America that it was wrong to deprive women of the right to vote -- so the United States passed the 19th Amendment. Again, the emancipation of women was achieved by the suffragettes persuading public opinion that women's rights were a good idea, and having them vote for Congressmen who would change the constitution -- not by having the Supreme Court change its opinion of what the 14th amendment meant. (Which is how it presumably would be done if the same issue was coming up today.) From your arguments here, you appear to think that updating the constitution the hard way is a bad idea, and that those changes should have been brought about through changes of opinion within the Supreme Court.

If so, our disagreement is not about the desirable amount of civil rights. It isn't about whether gay marriage is a good idea, which I think it is. It isn't about whether the constitution ought to be kept up to date. Of course it ought to! Our disagreement is that I, and presumably JWK, think it ought ot be kept up to date through public debate, voting, and legislation, while you seem to prefer the approach of persuading the Supreme Court to change its interpretation of the constitution's words. And the reason I disagree with you is that I don't want fundamental change in society to depend on what nine unelected people, unaccountable to anyone, happen to think. This tiny group is a single point of failure in the workings of society. Changing the constitution through amendments, not re-interpretations, is a straightforward and workable way of avoiding this point of failure.

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Re: federally UNCONSTITUTIONAL state constitutional amendmen

john w k wrote:

Debra_Law wrote:

The Fourteenth Amendment is not "legislation."

Debra,

No one on this end wrote that the Fourteenth Amendment is "legislation."

What I wrote was, “The legislative intent of the 14th Amendment was never intended to apply to state laws which make distinctions based upon criterion other than race, color or previous condition of slavery.”

In any event, constitutional provisions are in fact the ultimate form of “legislation” in our system. And, “legislative intent” is a legal term used to refer to the intent with which a law [such as our supreme law of the land] was passed. In addition, the term “legislative history” is a term referring to the recorded historical documentation relative to the enactment of a particular law, such as a constitutional provision.

I stand by my opinion that you used the phrase "legislative intent" inappropriately with respect to the intent of the people when they ratified what was drafted.

Quote:

I appreciate your opinion concerning “the broad language” of the Fourteenth Amendment, but the historical record of its framing and ratification reveals its intent was as I have stated above.

I stand by my opinion that the Fourteenth Amendment cannot be read as narrowly as you suggest.

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Chrissee wrote:

My opinion about how the Constitution should be interpreted is irrelevant. Again, I have faith that the SC will eventually get it right, just like they finally reversed Plessy v. Ferguson and the Dred Scott decision.

Well, your opinion about how the constituion should be interpreted was relevant to me, which is why I asked you about it. But wanted to know your thoughts on this, and I think I know them now. Thanks!

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federally UNCONSTITUTIONAL state constitutional amendments

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