Judge overturns Calif. gay marriage ban

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Originally Posted by Lewkowski

There are reasons to interpret things but not reasons to interpret them completely opposite to what was intended!

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I'm not seeing anything being interpreted completely opposite to what was originally intended. To take your example of "cruel and unusual" that is a deliberately vague phrase that deliberately allows judgement by the judges to determine what it means. It doesn't mean some sort of thought experiment as to what may have been meant then, it means what it says. If the judges determine something to be cruel and unusual today the Constitution bans it since what it outlaws is "cruel and unusual punishment", not "cruel and unusual punishment as defined in 1793"

Its ironic you going with this whole notion of "what it meant then" as the second amendment would be completely devalued if it were to be interpreted as only allowing the forms of arms that existed at the time and not modern munitions.

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If someone can interpret the constitution to mean political speech shouldn't be protected by the 1st amendment doesn't that concern you? (If you lived here of course).

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If you go on the original thought basis then that's an even greater risk of that happening. The forms of political discourse that exists today would have been unthinkable when the Constitution was written. If you were only to protect speech in a "literally how they meant it" basis then quite a lot of first amendment cases, including for example on campaign financing etc, could be reversed.

You are trying to have your cake and eat it too.

RB: No I'm not having my cake and eating it too. I'm absolutely sure the founders realized technology doesn't stay stagnate. Speech through TV/radio should be protected and if we all jumped into our magic time machine I'd guarantee you that the founders would say the same thing.

Cruel and Unusual can't get more specific because people are inventive. Outlawing a specific list of tortures is silly. But let's take this example to an extreme. Say 5 justices say that the constitution prohibits jailing people for more than a year since they now feel that is cruel and unusual. Are you accepting? (Again assuming you live here).

I'm not remotely sure at all that they would - and its impossible to know for certain. It isn't just technology that has changed, the party political system we have nowadays isn't the same as when the Constitution was written, nor is campaign financing.

All we can know for certain is what the words say today, if you want to change the words away from what they say today and to saying along the lines of "as defined by 1793 standards" then feel free to propose a Constitutional Amendment and get it passed as that's not there.

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Originally Posted by RandBlade

I'm not remotely sure at all that they would - and its impossible to know for certain. It isn't just technology that has changed, the party political system we have nowadays isn't the same as when the Constitution was written, nor is campaign financing.

All we can know for certain is what the words say today, if you want to change the words away from what they say today and to saying along the lines of "as defined by 1793 standards" then feel free to propose a Constitutional Amendment and get it passed as that's not there.

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Hypothetically speaking if the Supreme Court decided to rule (aka interpret as they see fit)that the protections of the bill of rights only applied to a single political party what would you reaction be? Would your response be "Well judicial interpenetration is expected so I guess that's fair - if you don't like it amend it!" Somehow I really doubt that would be your reaction.

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Originally Posted by Lewkowski

Hypothetically speaking if the Supreme Court decided to rule (aka interpret as they see fit)that the protections of the bill of rights only applied to a single political party what would you reaction be? Would your response be "Well judicial interpenetration is expected so I guess that's fair - if you don't like it amend it!" Somehow I really doubt that would be your reaction.

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No my response would be that it violates equal protection (and a number of other rules too I suspect) and as such was incorrect.

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Originally Posted by RandBlade

No my response would be that it violates equal protection (and a number of other rules too I suspect) and as such was incorrect.

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Ah so the supreme court CAN rule incorrectly. What should be done in those cases when the Supreme Court is clearly going beyond their mandate?

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Originally Posted by Lewkowski

Ah so the supreme court CAN rule incorrectly. What should be done in those cases when the Supreme Court is clearly going beyond their mandate?

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Of course it can, nobody said it can't. Getting judges to attempt to rule based on a non-existent magic time machine is surely more likely to get mistakes made than getting them to rule based on what the document says. What happens in your scenario where the judges determine that based on a magic time machine (aka interpret as they see fit) that the protections of the bill of rights only applied to a single political party, what would your reaction be? Would your response be "well judicial interpretation is expected so I guess that's fair"

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Originally Posted by Lewkowski

Hypothetically speaking if the Supreme Court decided to rule (aka interpret as they see fit)that the protections of the bill of rights only applied to a single political party what would you reaction be? Would your response be "Well judicial interpenetration is expected so I guess that's fair - if you don't like it amend it!" Somehow I really doubt that would be your reaction.

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Well, going by your logic it would be just fine for SCOTUS to do that because, using your methodology, there was no approval for political parties in the Founder's "original intent." You've already disavowed the material granting them legitimacy, the Federalist Papers.

No comments about the RFRA in Indiana and Arkansas? :(

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Originally Posted by Lewkowski

GGT - The constitution can absolutely evolve... through the amendment process. Any other 'evolution' breaks down the protections within the constitution.

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The only way to amend the US Constitution is going through all three branches of government, with its checks and balances. But you seem to think that any changes, or evolutions, are populist attempts to undermine the principle of representative democracy? :confused:

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Originally Posted by GGT

The only way to amend the US Constitution is going through all three branches of government, with its checks and balances.

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No it's not. The formal amendment process bypasses the Executive and Judicial branches entirely, and technically it can bypass also Congress for all but one insignificant step though I don't believe that path has ever been taken.

GGT, is there a reason you never even bother to look these things up before you post them? It's not like it's hard or takes much time. Enter "US Constitution" into Google, or Bing, or whatever search engine you care to use, tap the first link, and then search for the word "amendment," or just scroll down until you see it. It should take you less than a minute.

Or even Google search for "US Constitution amendment process" - Google's autoprompt suggests the word process once you're halfway through typing amendment even.

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Originally Posted by Lewkowski

Ah so the supreme court CAN rule incorrectly. What should be done in those cases when the Supreme Court is clearly going beyond their mandate?

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Gosh for someone so obsessed with the Constitution being a comatose piece of legislation you'd expect you to know that it contains a balance of powers for exactly that reason.

Also, a Convention could be called if a lasting crisis of that type would occur.

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Originally Posted by LittleFuzzy

Well, going by your logic it would be just fine for SCOTUS to do that because, using your methodology, there was no approval for political parties in the Founder's "original intent." You've already disavowed the material granting them legitimacy, the Federalist Papers.

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"Disavowed?" That isn't what I said.

Though please give me an example of a ruling that you feel would warrant impeachment.

None whatsoever. Impeachment isn't a response to rulings one dislikes.

Tell me, Lewk, do you think it's never before been the case that people (government entities or otherwise) felt the Court has overeached or otherwise made the wrong decision and responded effectively? Seeing as only one justice has ever been impeached* and it wasn't for any Supreme Court decisions? Or might it be the case that there are a whole slew of remedies which have been successfully pursued and you're just ignoring them because they don't fit your simplistic prosecutorial framework?

And yes, you very clearly disavowed the Federalist Papers as a source for finding original intent.

*Samuel Chase was impeached in 1801 (he was acquitted) and his impeachment was for conduct as a district judge rather than any material arising from the Supreme Court, though really it was a purely partisan effort pushed by Jefferson to attack members of the Federalist party. Abe Fortas would have been impeached if he hadn't resigned, but that would have been for ethics issues regarding money.

Fuzzy - just to be clear you are suggesting that any and all rulings regardless of the level of absurdity should not be subject to impeachment? IE if the Supreme Court ruled all of the amendments were "silly" and removed them because they felt like and if you have a problem with it... "we are the law so fuck off" you'd be a-OK? You'd be all right with the courts just calling off all elections forever and just appointing a dictator for life? Yes these are hyperbolic examples but I'm curious if you think the power of the courts should be unchecked. You're already OK with the court ignoring the intent of an amendment meaning that even if the amendment was passed nullifying all powers of the supreme court you're fully OK with the supreme 'interpreting' it to mean the color blue was banned.

I asked you first, Lewk, "do you think it's never before been the case that people (government entities or otherwise) felt the Court has overeached or otherwise made the wrong decision and responded effectively?" Because what you typed above only matters in the slightest if you think impeachment is the only possible remedy, proper or otherwise, to poor judicial action.

Incidentally, are you under the gross misapprehension that authority=power?

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Originally Posted by LittleFuzzy

I asked you first, Lewk, "do you think it's never before been the case that people (government entities or otherwise) felt the Court has overeached or otherwise made the wrong decision and responded effectively?" Because what you typed above only matters in the slightest if you think impeachment is the only possible remedy, proper or otherwise, to poor judicial action.

Incidentally, are you under the gross misapprehension that authority=power?

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There have been times in history that people have run roughshod over the Supreme Court. Not sure that was appropriate either but the most famous example I can think of is Jackson's "John Marshall has made his decision; now let him enforce it!"

I'm assuming you're also not in favor of the President ruling with an iron fist and ignoring the court. So what exactly would you think is appropriate when the court obviously over reaches in direct defiance of the constitution. Let's not even look at ANY gray area at all here - what if the court flat out ruled that women couldn't vote anymore. What should the proper course of action be?

Any majority vote of the people would void such a ruling, could also take away the right of the court to make such a ruling. You can't seem to understand the difference between a court doing things you don't like in an actually working system and a court that puts the country in a state of constitutional crisis.

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Originally Posted by Lewkowski

There have been times in history that people have run roughshod over the Supreme Court. Not sure that was appropriate either but the most famous example I can think of is Jackson's "John Marshall has made his decision; now let him enforce it!"

I'm assuming you're also not in favor of the President ruling with an iron fist and ignoring the court. So what exactly would you think is appropriate when the court obviously over reaches in direct defiance of the constitution. Let's not even look at ANY gray area at all here - what if the court flat out ruled that women couldn't vote anymore. What should the proper course of action be?

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Again referring to the Federalist Papers, the Supreme Court's lack of real power is deliberate. It literally can't enforce the sort of bad rulings you're alleging it might make. The Founders weren't inflexible automatons and weren't designing a system for inflexible automatons. They knew the people governed by and operating the system they were putting in place could actually think for themselves. If one branch chooses to completely ignore the Constitution, one or more of the other branches is able to check that behavior. To actually pull of the sort of misbehavior you allege, you need at least two branches and the voting public on your side as was the case when Andrew Jackson issued that challenge. And if you've got that then you've got the means to do what you want in the legitimate sense anyway, it just might take a bit longer, so it doesn't really make a difference.

If the Court just ruled out of the blue, in direct contravention of the 19th amendment and against decades of expressed will of the voting public, the Executive, Congress, and the collected states, that women could not vote anymore the proper course of action is to ignore their ruling and bring the case before them a second time so they could reconsider their error of judgement publicly.

Lewk, a system of checks and balances means there is no hard and absolute barrier against misbehavior. There are only soft barriers. That's ok because they still get the job done. You worry all you want about mob rule. The Constitution never has been and never will be able to prevent mob rule. All governance ultimately requires the consent of the governed, even in the most absolute of dictatorships. Without it, any claim of governance proves to be as ephemeral as so much smoke.

http://www.nytimes.com/2015/04/12/us...-touch-it.html

Pretty disturbing.

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Originally Posted by Loki

http://www.nytimes.com/2015/04/12/us...-touch-it.html

Pretty disturbing.

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And it is disturbing why?

I would agree with you if you'd mean it's disturbing that an opinion piece on legal representation makes a mess of differentiating between pubic, civil and criminal law I could agree with you. If the anti-gay side in the cases looses, nobody gets a lethal injection, nobody goes to prison and nobody has to pay even a fine. After a ruling has come down, everybody goes home, sleeps in his or her own bed and goes on with life the next morning.

We need Nelson & Murdock on the case *ships*

I think he means that its disturbing because the adversarial nature of our legal system means that both sides are always supposed to have good representation. To ever have a situation where one side doesn't isn't good.

Though I find it quite derogatory to the opposing counsel to insinuate that they aren't good lawyers. I'm sure they'll be qualified professionals.

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Originally Posted by Hazir

And it is disturbing why?

I would agree with you if you'd mean it's disturbing that an opinion piece on legal representation makes a mess of differentiating between pubic, civil and criminal law I could agree with you. If the anti-gay side in the cases looses, nobody gets a lethal injection, nobody goes to prison and nobody has to pay even a fine. After a ruling has come down, everybody goes home, sleeps in his or her own bed and goes on with life the next morning.

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Why have a legal system if certain kinds of opinions can't get proper legal representation? Would you be ok with murderers or terrorists not being able to find good attorneys? Or with attorneys for murders being forced out of their law firms?

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Originally Posted by Loki

Why have a legal system if certain kinds of opinions can't get proper legal representation? Would you be ok with murderers or terrorists not being able to find good attorneys? Or with attorneys for murders being forced out of their law firms?

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If it's true it is disturbing, however I doubt the premise is true.

The article mentions several lawyers who were forced to leave their major law firm after taking on an anti-gay marriage case.

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Originally Posted by Loki

http://www.nytimes.com/2015/04/12/us...-touch-it.html

Pretty disturbing.

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I find it only disturbing in relation to what lawyers will actually take. There are plenty of law firms who have no problem fighting for the child molesters, rapists and murderers. If most lawyers don't want to defend a certain stance on gay marriage more power to them - that's their right. However they have no moral ground to stand on if they turn around and think its OK to defend child molesters. (And yes I'm aware many of these firms are in a different legal line of work than criminal cases - I'm just saying in general.)

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Originally Posted by Loki

The article mentions several lawyers who were forced to leave their major law firm after taking on an anti-gay marriage case.

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Take anything an Op Ed claims with a pinch of salt. Turnover rates in firms isn't 0% is it.

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Originally Posted by RandBlade

Take anything an Op Ed claims with a pinch of salt. Turnover rates in firms isn't 0% is it.

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It's not an op-ed.

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Originally Posted by Loki

Why have a legal system if certain kinds of opinions can't get proper legal representation? Would you be ok with murderers or terrorists not being able to find good attorneys? Or with attorneys for murders being forced out of their law firms?

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Haha, you even read what you quote?

As for bad ideas not being defended; that comes with the territory, the indefensible can't be defended good or bad.

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Originally Posted by Hazir

Haha, you even read what you quote?

As for bad ideas not being defended; that comes with the territory, the indefensible can't be defended good or bad.

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I have to say, if it was just individual lawyers refusing to defend something like this, it'd be one thing. But if the article is right about lawyers being forced to leave (though I'd like to see proof rather than anecdotes, especially if those are based on what fired people claim was the reason for their firing), that is troubling.

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Originally Posted by Loki

Why have a legal system if certain kinds of opinions can't get proper legal representation? Would you be ok with murderers or terrorists not being able to find good attorneys? Or with attorneys for murders being forced out of their law firms?

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Considering the beef is that they can't get top lawyers to represent them, not that they can't get any representation, and it's not exactly unheard of that poor defendants get a court appointed lawyer (of varying skill) instead of a top lawyer, I'd say that yes, people are perfectly okay with suspected murderers or terrorists not being able to find good attorneys. And it's not like nobody has ever been convicted due to shitty legal representation, because they couldn't get a better lawyer.

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Originally Posted by Loki

It's not an op-ed.

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It sure reads like one.

The 'disturbing' part of that NYT article was "The current climate, Professor McConnell of Stanford said, means that important distinctions are being lost. One is that it is possible to favor same-sex marriage as a policy matter without believing that the Constitution requires it."

Our legal system is designed to be adversarial, with opposing lawyers using courts and judges, right? But if process & procedure can be shunted away from courtrooms because the issues are too politically volatile, is it any wonder we have disjointed and possibly unconstitutional "policies"? Gitmo comes to mind....

My earlier comment about constitutional amendments was worded poorly -- I just wanted Lewk to explain how he thinks the 1st Amendment can protect religious freedoms, if it doesn't also protect other individual freedoms?

Very poorly worded then. The First Amendment is quite specific, it protects freedom of religion, speech, assembly and to petition the government.

It is not a coverall to protect every freedom you can imagine.

And not even those freedoms are absolute.

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Originally Posted by Flixy

And not even those freedoms are absolute.

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Liberals have long campaigned against the freedom of political speech in this country - of all the types of speech that exist that is clearly one of the ones we really need to take down a notch!

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Originally Posted by Lewkowski

Liberals have long campaigned against the freedom of political speech in this country - of all the types of speech that exist that is clearly one of the ones we really need to take down a notch!

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Sure, only liberals - we all know it was also liberals who actively persecuted people for even suspected communist sympathies (which is definitely political)? And that damn liberal bastion the FBI, and those lefties at the CIA, not only investigating but infiltrating and subverting any group critical of the government, even journalists and senators. Yes, you are right, it's all the liberals' fault, with their solo assault on freedom of (political) speech.

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Originally Posted by Lewkowski

Liberals have long campaigned against the freedom of political speech in this country - of all the types of speech that exist that is clearly one of the ones we really need to take down a notch!

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Y'mean like flag-burning?

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Originally Posted by LittleFuzzy

Y'mean like flag-burning?

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No and I'll admit that flag burning laws are just as stupid. That being said one is something that impacts millions and millions of people and the other is something that might impact a few thousand? I agree that in in principal both are bad. However in practicality a law that discriminates against people from Tuvalu isn't nearly as big of a deal as a law that discriminates against blacks.