Judge overturns Calif. gay marriage ban

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Originally Posted by Lewkowski

Fuzzy explain the limits of the equal protection clause.

Can we treat citizens differently under the law based on behavior? (Criminal record for example?)

Can we treat citizens differently under the law based on biological characteristics? (such as age?)

Can we treat citizens differently under the law based on geographical location? (Such as paying different taxes in different states?)

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The answer to all of those is multiple "it depends." It depends on the characteristic being used to try and treat people differently. It depends on what exactly is being done to treat them differently. It depends on the process being used and why it is being used, and it depends on more besides. In the law, everything is rife with exceptions. Let me draw up an example using the first on the list, behavior. If someone possesses evidence of a crime, the government can compel them to turn it over. It's even criminalized not doing so, as obstruction of justice, and that's ok. Except when it's not because the 1st amendment protects the freedom of the press and you'd be charging a journalist for doing their constitutionally-protected job. Except then the courts can hold the journalist in contempt and put them in jail without formal charges.

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Originally Posted by Lewkowski

Debate is about reaching common ground. If can't at least admit the court has overreached on cruel and unusual punishment then there is no feasible way to convince you that it overreached on equal protection. It isn't just about using it as an example, it is also about measuring your receptiveness to the very idea of court overreach vs. original intent.

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No, that's not what this is about. It isn't what you've done regarding the topic in the past and everyone knows its not what you're going to do here. You demonstrated that the instant you chose to deny that the work explicitly explaining the Founders intent didn't do anything of the sort. You said "in today's political climate people don't care why the court rules. . ." I'm not people. But apparently you are.

<I didn't see a dedicated thread about Indiana's recently passed "Religious Freedom Restoration Act"....so will add that controversy to this discussion.>

There's been a huge national debate about Equal Protections and Religious Freedoms, the role of government, and clashes between state and federal legislation since (at least) Prop 8 in California. Plus Pharmacists who refused to fill prescriptions for Plan B because it violated their religious beliefs, and Hobby Lobby wanting a 'religious exemption' from the ACA so they wouldn't have to include birth control in their employee health insurance plans....it's no wonder the Indiana RFRA, as written, got so much backlash.


Lewk, since a lot has changed since the 17th century, don't you think it's a good thing that our Constitution was written so it could evolve over time? It's not like the Founding Fathers had the modern, science-based understanding about human development, behaviors, let alone what's a disease, that we do today -- ffs many credited Satan for practically everything from seizures to crop failure! :rolleyes:

And to Fuzzy, couldn't much of today's State House politicking about gay marriage, or 'religious exemptions' based on homophobia been avoided.....if we'd included gender in an Equal Rights Amendment decades ago?

"It depends." Yeah that's a solid stand to make! This is the problem - unless our rights are concrete they are fragile. That is why it is critical that we use the original intent of the amendment and not allow justices to decide what they think is best. Justices should never even *consider* if a law is 'just' 'good' or 'effective.' That is not part of their job description.

Fuzzy - the constitution, unless amended, should be have an unchanging meaning. I'm willing to concede technology changes could lead to a useful purpose of interpretation but other than that it should never change. If you think it should change based on popular sentiment than those freedoms enshrined in the constitution have no protection from rob rule.

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

Except as Fuzzy has said the original intent wasn't for the text to be concrete and inflexible. So why would you want it to go on so-called original intent without going on that intent?

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Originally Posted by Lewkowski

"It depends." Yeah that's a solid stand to make!

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What do you expect? You're talking about 200+ years of jurisprudence ferreting out the application of the material in a five-page document to every situation disputed under it. Nothing in the law or the US Constitution creates clean simple lines.

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This is the problem - unless our rights are concrete they are fragile. That is why it is critical that we use the original intent of the amendment and not allow justices to decide what they think is best. Justices should never even *consider* if a law is 'just' 'good' or 'effective.' That is not part of their job description.

Fuzzy - the constitution, unless amended, should be have an unchanging meaning. I'm willing to concede technology changes could lead to a useful purpose of interpretation but other than that it should never change. If you think it should change based on popular sentiment than those freedoms enshrined in the constitution have no protection from rob rule.

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The Constitution is five pages long. Even relying on original intent it can't have an unchanging meaning because there will always be disagreement about what the intent was and how it applies. See Plessy v Ferguson and [Brown v Board[/i]. You and I have been having one of this disagreements here. You can't provide shit to substantiate your claim that the people who wrote and ratified the 14th amendment valued discrimination on grounds of sexual orientation over the principle of equal protection. No one knows what their intent was because they never had to consider the topic in the first place.

I wonder why Lewk thinks that a five-page document is able to answer every single question in a final and unambiguous way. Because if that were the case we wouldn't need huge tomes containing codes of law, their interpretations and regulations, judges or lawyers in the first place.

Then again, this is the same guy who thinks that the Bible does give definitive answers. Which has thousands of pages, mind.

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Originally Posted by Khendraja'aro

I wonder why Lewk thinks that a five-page document is able to answer every single question in a final and unambiguous way. Because if that were the case we wouldn't need huge tomes containing codes of law, their interpretations and regulations, judges or lawyers in the first place.

Then again, this is the same guy who thinks that the Bible does give definitive answers. Which has thousands of pages, mind.

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Except that it isn't going to answer everything... I've never even suggested it would! Instead it gives a framework and some 'hard stops' on laws that would violate it. If you want to change the constitution the process exists to amend it. The process should *not* be get politically similar minded folks appointed to the supreme court.

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Originally Posted by RandBlade

Except as Fuzzy has said the original intent wasn't for the text to be concrete and inflexible. So why would you want it to go on so-called original intent without going on that intent?

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There are reasons to interpret things but not reasons to interpret them completely opposite to what was intended! Changes in technology are a prime example. However if you go with the 'anything goes' crowd do you see how that means the protections enshrined int he constitution become weaker? 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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Originally Posted by LittleFuzzy

The Constitution is five pages long. Even relying on original intent it can't have an unchanging meaning because there will always be disagreement about what the intent was and how it applies. See Plessy v Ferguson and [Brown v Board[/i]. You and I have been having one of this disagreements here. You can't provide shit to substantiate your claim that the people who wrote and ratified the 14th amendment valued discrimination on grounds of sexual orientation over the principle of equal protection. No one knows what their intent was because they never had to consider the topic in the first place.

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Sorry but you're being deliberately obtuse about this. If we could all get in our magic time machine and go back and ask them what do you think they would say?

And again if you want to go to absurd lengths here you never answered my earlier questions outside of "depends." Really? The constitution isn't 'depends' it should be self evident. And the supreme court should *never* make a value decision on who it will help, harm, weather it is good for the country or not and neither should they take into consideration popular opinion. They have a narrow job that they have decide to broaden at the cost of the democratic process AND our freedoms depending on the case they look at.

Can you at least admit that the freedoms within the constitution are more at risk when supreme court justices make decisions based on popular opinion?

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Originally Posted by Lewkowski

Sorry but you're being deliberately obtuse about this. If we could all get in our magic time machine and go back and ask them what do you think they would say?

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It doesn't matter what their values were, if they didn't put them in the Constitution. This bias against homosexuality never gets mentioned in the document. As I believe you mention, there is a mechanism for putting that sort of provision in if it's intended and desired. If you went back to the Founders and asked, maybe they would have put in a provision explicitly allowing secession (and certainly not enough states would voted to ratify at the time if they'd been aware of how things would play out in the 1860s, every state would have balked, not just the South), but they didn't and by the time it came for the issue to be considered things had changed.

I already told you how things would play out if same-sex marriage was a question back then. They'd have relied on the general hostility toward homosexuality, as codified in anti-sodomy legislation, to preempt any such challenge. Well that anti-sodomy legislation wasn't given much respect even when it was still on the books. The attitudes of the people had changed, as was normal and acceptable and which was getting reflected in what was and wasn't legal exactly as the legislative environment should work and was intended to work. And now that homosexuality is legal, equal protection has to apply to its derivative acts, like marriage.

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The constitution isn't 'depends' it should be self evident.

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If that were true there wouldn't be any need for argument before a panel of judges in the first place. The entire US legal edifice is built upon the adversarial principle. Deal with it.

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And the supreme court should *never* make a value decision on who it will help, harm, weather it is good for the country or not and neither should they take into consideration popular opinion. They have a narrow job that they have decide to broaden at the cost of the democratic process AND our freedoms depending on the case they look at.

Can you at least admit that the freedoms within the constitution are more at risk when supreme court justices make decisions based on popular opinion?

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No I can't. Our freedoms are more at risk when we try to reduce the act of judgement into inflexible and unthinking robotics. That makes abuse easier, not harder. And I will point out yet again that here you are arguing AGAINST the freedoms guaranteed us in the Constitution.

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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.