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Debates Forum

  1. 26 Jun '13 23:08
    I'm actually going to say something here which may be unpopular with fellow progressives, now that I've taken a closer look.

    In a technical sense, Scalia may have a point. Sexual orientation is not a suspect class, and therefor the court scrutiny of the discrimination should be based on a "rational basis" standard rather than a "compelling interest" standard. If there was a rational policy basis for the discrimination which was "boring" as he put it, that should have killed the case. A rational basis could be the difficulty of implementing benefits programs from state to state.

    On the other hand, you could argue that if something relatively trivial is a "rational basis," then there's no point in bringing any discrimination case involving a non-suspect class. Still, it may be that the Court overreached a little bit, as it arguably did in Brown v. Board and perhaps Roe v. Wade, and definitely eviscerating the Voting Rights Act on Monday.

    Maybe there should be a comparative standard for "rational" when there is such a compelling basis for disregarding it - as in it may be rational to discriminate according to geographic location on logistical concerns, while the same "rational basis" should be disregarded when the discrimination runs so profoundly against prevailing values and principles. Something may be less "rational" when the stakes are so high.

    I'm going to have to give this some thought, because I am thoroughly overjoyed by the result in human terms. But the precedent may be problematic. Maybe there are moments where the Court should "overreach." It seems to happen with all the most landmark cases. But how does SCOTUS recognize such a moment?

    Just thinking.
  2. 26 Jun '13 23:11
    How do they know when to overreach?

    Easy, when at least 5 of them have the same opinion. The Supreme Court Justices don't uphold the Constitution, they are dictators by simple majority.
  3. 26 Jun '13 23:20
    Originally posted by Eladar
    How do they know when to overreach?

    Easy, when at least 5 of them have the same opinion. The Supreme Court Justices don't uphold the Constitution, they are dictators by simple majority.
    I don't think it's that simple. I disagree with a good number of their rulings, but our whole system is rooted in Common Law where judges are expected to generate law - fill in the gaps - as distinct from the Roman or Civil Law system.

    It does seem that the best arguments that there was overreach come with the landmark cases, or maybe we just notice it more.

    One landmark case was not overreach - Dred Scott. As ludicrous as the result was in terms of humanity, it made complete sense under the laws of the time (which did not benefit from the 14th Amendment). If there was ever justification for overreach, it was at that moment. But they restrained themselves. Are we better for it? Arguably we got a bloody civil war out of it.
  4. 26 Jun '13 23:29 / 1 edit
    Originally posted by Kunsoo
    I don't think it's that simple. I disagree with a good number of their rulings, but our whole system is rooted in Common Law where judges are expected to generate law - fill in the gaps - as distinct from the Roman or Civil Law system.

    It does seem that the best arguments that there was overreach come with the landmark cases, or maybe we just notice it mo ...[text shortened]... y restrained themselves. Are we better for it? Arguably we got a bloody civil war out of it.
    Of course you don't think it is that simple. You still have some sort of idealistic belief that somehow these people aren't simply voting their personal opinions and actually base their opinion on the Constitution. Of course you might believe there is some other set of laws that our government should be determined, so you can insert that set of laws in place of the Constitution.

    What would happen to your view of the Supreme Court if my description is that simple and is actually very accurate?

    Once enough people come to the realization of what is actually going on there may be more bloodshed than what we saw in the Civil War.
  5. 26 Jun '13 23:40
    Originally posted by Eladar
    Of course you don't think it is that simple. You still have some sort of idealistic belief that somehow these people aren't simply voting their personal opinions and actually base their opinion on the Constitution. Of course you might believe there is some other set of laws that our government should be determined, so you can insert that set of laws in plac ...[text shortened]... on of what is actually going on there may be more bloodshed than what we saw in the Civil War.
    The Constitution is a pretty minimal document compared to most Constitutions. It was meant as an outline. When you say that they should "actually base their opinion on the Constitution," it's kind of a meaningless statement as the Constitution provides a framework to limit power. It does not confer a whole lot of wisdom in interpreting laws.

    If they "based their opinion on the Constitution" and the Constitution alone based on a literal wording, then discrimination in marriage laws ought to have been barred back when the 14th Amendment was passed, and this isn't overreaching at all, because Scalia's whole "compelling interest" vs. "rational basis" is Judge generated and not found. Since the discrimination means there was an "unequal protection" of same sex marriage - that should be the end of the discussion.

    No overreach at all. That's what the Constitution says.
  6. 26 Jun '13 23:41 / 1 edit
    Originally posted by Eladar
    How do they know when to overreach?

    Easy, when at least 5 of them have the same opinion. The Supreme Court Justices don't uphold the Constitution, they are dictators by simple majority.
    Now, now, the Supremes are objective and seek only to maintain the Constitution. In fact, I hear that if they ever find a copy of the Constitution, they plan on doing just that!!
  7. 26 Jun '13 23:41 / 1 edit
    And for that matter, someone guilty of driving under the influence for a fifth time who finally killed someone should not be denied a driver's license, because the protection of the law is being applied unequally - against drunks who drive.
  8. 26 Jun '13 23:45
    Originally posted by Kunsoo
    The Constitution is a pretty minimal document compared to most Constitutions. It was meant as an outline. When you say that they should "actually base their opinion on the Constitution," it's kind of a meaningless statement as the Constitution provides a framework to limit power. It does not confer a whole lot of wisdom in interpreting laws.

    If they "ba ...[text shortened]... d of the discussion.

    No overreach at all. That's what the Constitution says.
    It seems to me that it is simple enough to declare laws unconstitutional when they actually are unconstitutional and declare laws constitutional when they are not obviously unconstitutional.

    I don't see why the Supreme Court has the right to fill in the gaps, when that job is supposed to be done by Congress. The purpose of the Supreme Court is simply to keep the Congress in check when it steps beyond it's power.

    http://www.law.cornell.edu/constitution/amendmentxiv

    Perhaps you can cut and paste the section of the 14th amendment that you believe states that gay marriage must be legal.
  9. 26 Jun '13 23:47
    Originally posted by Kunsoo
    And for that matter, someone guilty of driving under the influence for a fifth time who finally killed someone should not be denied a driver's license, because the protection of the law is being applied unequally - against drunks who drive.
    My question is, what if a suspected terrorist is detained and is also pregnant and a married lesbian? Can the government ignore her 5th Amendment rights to not speak? Should the government consult her "married" lesbian partner to let her know she has been detained? Should they give her an abortion? Should they enact the NDAA and force her to have the child so that the child can be waterboarded to answer questions since she is unwilling to talk? And lastly, how would Judge Roberts view them having Obamacare pay for any part of this?

    Only the Supremes have the answers. It must be nice being them.
  10. 26 Jun '13 23:49 / 1 edit
    Originally posted by Eladar
    It seems to me that it is simple enough to declare laws unconstitutional when they actually are unconstitutional and declare laws constitutional when they are not obviously unconstitutional.

    I don't see why the Supreme Court has the right to fill in the gaps, when that job is supposed to be done by Congress. The purpose of the Supreme Court is simply to k ste the section of the 14th amendment that you believe states that gay marriage must be legal.
    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    No overreach. SCOTUS did just that.

    And the Supreme Court has the right to fill in the gaps, because that is the practice of Common Law of 900 years out of which the Constitution arose.
  11. 26 Jun '13 23:51
    Originally posted by whodey
    My question is, what if a suspected terrorist is detained and is also pregnant and a married lesbian? Can the government ignore her 5th Amendment rights to not speak? Should the government consult her "married" lesbian partner to let her know she has been detained? Should they give her an abortion? Should they enact the NDAA and force her to have the chil ...[text shortened]... ng them.

    Do you have precedent to support those actions? I'm not sure what your point is.
  12. 26 Jun '13 23:51 / 1 edit
    Originally posted by Kunsoo
    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    And the Supreme Court has the right to fill in the ...[text shortened]... ps, because that is the practice of Common Law of 900 years out of which the Constitution arose.
    You certainly want to pick and choose this applies to. What about those who want to enter plural marriages? What about those who don't want to get married at all? Why make a special class of people? Why?

    English Common Law? Oh yeah, we broke off from England and created a new country with new laws.
  13. 26 Jun '13 23:55
    Originally posted by Eladar
    You certainly want to pick and choose this applies to. What about those who want to enter plural marriages? What about those who don't want to get married at all? Why make a special class of people? Why?

    English Common Law? Oh yeah, we broke off from England and created a new country with new laws.
    If you think we dumped common law then you haven't read the Seventh Amendment of the Bill of Rights.

    And you're right. By your Constitutional method you can't discriminate against any of those groups. They all have the right to marry. I'm not picking and choosing. You are.
  14. 26 Jun '13 23:57 / 1 edit
    Originally posted by Kunsoo
    If you think we dumped common law then you haven't read the Seventh Amendment of the Bill of Rights.

    And you're right. By your Constitutional method you can't discriminate against any of those groups. They all have the right to marry. I'm not picking and choosing. You are.
    Sorry, I thought you just wanted special rights for one group. If you want to open marriage for all, then I agree with you!

    I wonder why you believe the court is right in the decision when you actually believe the court is wrong and didn't go far enough.


    7th amendment says that the US is to fall under English Common Law? I see something about trial by jury, not much else.
  15. 27 Jun '13 00:00
    Originally posted by Kunsoo
    I'm just venting and tired of the lot of them. I think it kind of funny that the entire nation waits with baited breath what a hand full of people think about the Constitution, especially from a body that just allowed Obamacare by changing it into a tax themselves.

    To me, they are nothing more than a rubber stamp of approval for what the powers that be want to have happen. I could care less.