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View Full Version : U.S. Issues Imperial Presidency, anyone? Where is all the shrieking?


patteeu
02-23-2011, 01:21 PM
Remember when so many of the Bush critics around here had their hair on fire over Bush's signing statements? Today, the Obama administration is doing exactly the same thing those folks were complaining about without the courtesy of warning us first by use of a signing statement. Where is the outrage?

Today the Obama Administration unilaterally declared the Defense of Marriage Act unconstitutional and told Congress that it will no longer defend the Act in court. (http://www.huffingtonpost.com/2011/02/23/obama-doma-unconstitutional_n_827134.html)

So where do you stand on this?

BigChiefFan
02-23-2011, 01:25 PM
They both are disasters. Two wrongs, don't make a right.

mnchiefsguy
02-23-2011, 01:26 PM
2012 cannot get here fast enough.

patteeu
02-23-2011, 01:36 PM
They both are disasters. Two wrongs, don't make a right.

They're actually both examples of a legitimate exercise of power, but you're used to being wrong about this stuff. At least you're consistent.

tiptap
02-23-2011, 01:36 PM
How do you see this as a signing statement. My understanding is that the administration had two rulings in district courts that set the legal bar to determine whether the bill could be challenged and the ruling set a very high bar for those ruling and the government Obama's therefore defended the act against their political wishes. But the most recent ruling in New York had a different law interpretation and allowed an imposed a more strict discrimination standard to judge if the law is constitutional.
The Obama administration is going with the interpretation that also jives with their political view but it came from judicial review not signing statements.

patteeu
02-23-2011, 01:36 PM
2012 cannot get here fast enough.

Amen

patteeu
02-23-2011, 01:39 PM
How do you see this as a signing statement. My understanding is that the administration had two rulings in district courts that set the legal bar to determine whether the bill could be challenged and the ruling set a very high bar for those ruling and the government Obama's therefore defended the act against their political wishes. But the most recent ruling in New York had a different law interpretation and allowed an imposed a more strict discrimination standard to judge if the law is constitutional.
The Obama administration is going with the interpretation that also jives with their political view but it came from judicial review not signing statements.

It's not a signing statement. But the argument against signing statements was that the President didn't have the power to unilaterally declare legislation unconstitutional and that's exactly what's happening here. The signing statement is just an announcement that if certain situations arise, the POTUS will take an action like the one Obama took today. And no, it absolutely did not come from a judicial review. The administration made this decision, not a court. They decorated their decision with language from the court and from the constitution but that's what any POTUS would do, including GWBush.

blaise
02-23-2011, 01:40 PM
Hey, there's the same amount of whining about the Patriot Act that there was under Bush, so you can't expect anyone to have time for anything else.

tiptap
02-23-2011, 01:42 PM
The question was raised by me about Presidential signings. This is not the same legally in any way. You don't like the result but it comes from judicial setting and only then allowed the executive branch to act. As opposed to vice versa from the get go.

patteeu
02-23-2011, 01:44 PM
The question was raised by me about Presidential signings. This is not the same legally in any way. You don't like the result but it comes from judicial setting and only then allowed the executive branch to act. As opposed to vice versa from the get go.

You're a hypocrite. It is exactly the same legally. You're grasping at a fig leaf that isn't there.

I don't like the result, but I don't quarrel with the President's power to make this incorrect decision.

dirk digler
02-23-2011, 01:45 PM
I always knew you were a leftie pat. Going to Huff post just confirms it :p

FD
02-23-2011, 01:46 PM
Well there is a difference between declaring a law unconstitutional and arguing that its unconstitutional in a court of law.

I don't have a problem with either signing statements or this, although I'll note there is a lot more precedent for this.

tiptap
02-23-2011, 01:47 PM
Bring up a true Presidential Signing by Obama. By the way we had a swing at Clinton's effort at Presidential Signinings as well. So I have taken exception to Democrats doing this. Just keep whining after all the details don't matter except when they are yours and talking about WMD or the tripline for acting aggressively. Or if you have revealed a active CIA agents name.

BigChiefFan
02-23-2011, 01:48 PM
They're actually both examples of a legitimate exercise of power, but you're used to being wrong about this stuff. At least you're consistent.

Wrong?? Ha-we see what the world is becoming-it's look like I'm getting the last laugh. Sorry, but Bush was an incompetent boob, if you can't see that, you don't know half of what you think. Your party(and the other fraud party, too) has hit the iceberg and you're arguing about the accomodations of the room. We're broke and breeching the constitution inch by inch and you still have faith in crooks, who had a hand in wrecking the constitution. Who's the fool?

You don't know politics. You know how to march to the beat of your party's drum and regurgitate the party line that you've been spoonfed.

patteeu
02-23-2011, 01:50 PM
Well there is a difference between declaring a law unconstitutional and arguing that its unconstitutional in a court of law.

I don't have a problem with either signing statements or this, although I'll note there is a lot more precedent for this.

There's no difference in the part where the President determines for himself whether the law is constitutional or not, which is what this thread is about.

Calcountry
02-23-2011, 01:51 PM
This is the change that we can believe in.

patteeu
02-23-2011, 01:51 PM
Bring up a true Presidential Signing by Obama. By the way we had a swing at Clinton's effort at Presidential Signinings as well. So I have taken exception to Democrats doing this. Just keep whining after all the details don't matter except when they are yours and talking about WMD or the tripline for acting aggressively. Or if you have revealed a active CIA agents name.

I guess you just don't understand why you oppose presidential signing statements then. Forgive me for giving you more credit than that.

tiptap
02-23-2011, 01:52 PM
NO patteeu, you raised concerning Presidential signings as opposed to choosing from different legal arguments raised from the Judicial branch.

patteeu
02-23-2011, 01:53 PM
Wrong?? Ha-we see what the world is becoming-it's look like I'm getting the last laugh. Sorry, but Bush was an incompetent boob, if you can't see that, you don't know half of what you think. Your party(and the other fraud party, too) has hit the iceberg and you're arguing about the accomodations of the room. We're broke and breeching the constitution inch by inch and you still have faith in crooks, who had a hand in wrecking the constitution. Who's the fool?

You don't know politics. You know how to march to the beat of your party's drum and regurgitate the party line that you've been spoonfed.

I think it's been well established that you're the fool. Congratulations on being a completely independent fool, though.

tiptap
02-23-2011, 01:53 PM
It was a discussion of division of power

dirk digler
02-23-2011, 01:54 PM
Is the Supreme Court going to take up any of these DOMA cases?

patteeu
02-23-2011, 01:55 PM
NO patteeu, you raised concerning Presidential signings as opposed to choosing from different legal arguments raised from the Judicial branch.

You're not making any sense, tiptap. Unilateral interpretations of the constitution are unilateral interpretations of the constitution whether they are proactively announced in a signing statement or whether they come halfway through your failed term and long after the law was passed.

patteeu
02-23-2011, 01:55 PM
It was a discussion of division of power

It still is. The same discussion, in fact.

chiefsnorth
02-23-2011, 01:56 PM
They are too busy gossiping about Sarah Palin's email.

BigChiefFan
02-23-2011, 01:57 PM
I think it's been well established that you're the fool. Congratulations on being a completely independent fool, though. Yep, it's very foolish to believe in the constitution having the authority over a figure head(president), huh? You're party line, brown-nosing is pure comedy.

tiptap
02-23-2011, 02:00 PM
You're not making any sense, tiptap. Unilateral interpretations of the constitution are unilateral interpretations of the constitution whether they are proactively announced in a signing statement or whether they come halfway through your failed term and long after the law was passed.

It isn't unilateral. It is choosing the legal argument allowed and introduced by the courts not by the admininstration. And up and until the courts allowed such arguments this administration did defend the law under the only more strict interpretation of its reading allowed in other judicial districts.

tiptap
02-23-2011, 02:01 PM
Additionally the administration has allowed the Congress and others to petition courts with the old arguments. That isn't being blocked.

dirk digler
02-23-2011, 02:04 PM
They are too busy gossiping about Sarah Palin's email.

or complaining about YouTube videos

FD
02-23-2011, 02:08 PM
There's no difference in the part where the President determines for himself whether the law is constitutional or not, which is what this thread is about.

Do you understand the difference between a president declaring a law unconstitutional and saying he will not enforce it for that reason, and a president arguing to a court that the law is unconstitutional and that it should be overturned?

patteeu
02-23-2011, 02:09 PM
It isn't unilateral. It is choosing the legal argument allowed and introduced by the courts not by the admininstration. And up and until the courts allowed such arguments this administration did defend the law under the only more strict interpretation of its reading allowed in other judicial districts.

Of course it is. Completely unilateral. No one made him choose to stop enforcing the law, which includes advocating for it when it is being challenged in court. The court didn't rule this law unconstitutional, the Obama administration did.

dirk digler
02-23-2011, 02:11 PM
Of course it is. Completely unilateral. No one made him choose to stop enforcing the law, which includes advocating for it when it is being challenged in court. The court didn't rule this law unconstitutional, the Obama administration did.

I don't think he went that far though

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

tiptap
02-23-2011, 02:12 PM
No lower court is going to rule a law of Congress as unconstitutional. But they do lay the arguments for that. And only when that occurred did the Executive branch have any manuevering room to get behind a different understanding. It acted correctly in not initiating any action not first introduced by the Judicail Branch.

teedubya
02-23-2011, 02:14 PM
2012 cannot get here fast enough.

Why? Another pawn will be in place then... so, it doesn't matter.

Garcia Bronco
02-23-2011, 02:18 PM
Remember when so many of the Bush critics around here had their hair on fire over Bush's signing statements? Today, the Obama administration is doing exactly the same thing those folks were complaining about without the courtesy of warning us first by use of a signing statement. Where is the outrage?

Today the Obama Administration unilaterally declared the Defense of Marriage Act unconstitutional and told Congress that it will no longer defend the Act in court. (http://www.huffingtonpost.com/2011/02/23/obama-doma-unconstitutional_n_827134.html)

So where do you stand on this?

Executive orders are not laws, but they do manage the DOJ. However, the President does not get to decide what laws he will and will not uphold. Otherwise, why have a legislative branch at all?

patteeu
02-23-2011, 02:25 PM
Do you understand the difference between a president declaring a law unconstitutional and saying he will not enforce it for that reason, and a president arguing to a court that the law is unconstitutional and that it should be overturned?

Yes. But that doesn't explain why the administration has changed it's mind about arguing for a rational basis level of scrutiny rather than the heightened level of scrutiny argument which they say they can't make in good faith. The SCOTUS hasn't passed judgment on the appropriate level of scrutiny for this law yet and, in fact, most SCOTUS precedent would argue against a heightened level of scrutiny, IMO. Instead though, the administration is reversing the position it took on the defense of this statute during it's first 2 years, despite the fact that they say they have a longstanding practice of defending statutes where a reasonable argument can be made.

patteeu
02-23-2011, 02:27 PM
Executive orders are not laws, but they do manage the DOJ. However, the President does not get to decide what laws he will and will not uphold. Otherwise, why have a legislative branch at all?

This has nothing to do with executive orders.

You have a legislative branch to pass constitutional laws, an executive branch to enforce constitutional laws, and a judiciary to judge cases arising from constitutional laws. Unfortunately, the legislature sometimes passes unconstitutional laws.

tiptap
02-23-2011, 02:37 PM
Yes. But that doesn't explain why the administration has changed it's mind about arguing for a rational basis level of scrutiny rather than the heightened level of scrutiny argument which they say they can't make in good faith. The SCOTUS hasn't passed judgment on the appropriate level of scrutiny for this law yet and, in fact, most SCOTUS precedent would argue against a heightened level of scrutiny, IMO. Instead though, the administration is reversing the position it took on the defense of this statute during it's first 2 years, despite the fact that they say they have a longstanding practice of defending statutes where a reasonable argument can be made.

So you are finally on task with the legal standards to make judgements about the law. Under the level of scrutiny the only argument in the Judicial branch the Executive branch did defend the law. But under the lower standard than one might expect a Black Democratic Prresident and his Attorney General to give credence to arguments entertained by the Judicial Court first that this law violates discrimination standards. Those laws also are to be supported. And in that view are being circumvented.

tiptap
02-23-2011, 02:42 PM
The Executive Branch did not introduce the Judicial arguments. It acted correctly when given no other consideration with the Judicial branch. But once the Judicial Branch opened the discussion as to whether other laws are being suspended then it demands a more broad inclusion of legal precedent. And in this Attorney Generals reading it fails to meet the standard introduced in NY.

jettio
02-23-2011, 08:10 PM
The most interesting thing about the case on appeal in the first circuit is that the US District Judge Tauro ruled that the act violated the 10th Amendment, which reserves powers to the states and not the federal government if the rest of the Constitution does not explicitly confer that power to the federal government.

Reviving the 10th Amendment is one of the greatest developments for federalists and it is strange that patteeu's homophobia blinds him to such a positive development as a ruling that breathes life into the 10th Amendment.

The Supreme Court heard arguments this week regarding 10th Amendment standing for criminal defendants challenging federal criminal statutes.

Methinks the Supreme Court will rule that defendants would have standing to make that kind of case, but the defendant in that case will probably lose her 10th Amendment challenge when the lower courts rule on it.

patteeu should quit worrying about how gay he might be and start studying the Constitution.

Congress has lawyers on staff that can defend the laws it passes that the DOJ and Solicitor General do not want to defend, so it is not the end of the world as far as future defenses of the law in the federal appeals process.

I think the 10th Amendment analysis by the district court could be affirmed except that the full faith and credit clause does seem to give Congress some say in making rules about how states recognize with full faith and credit the acts of other states.

alnorth
02-23-2011, 08:21 PM
I'm not sure what to think, but I'm leaning against Obama here.

In general, ideally, when congress passes a law that is dubiously (un?)constitutional, I think the president and the DOJ has an obligation to enforce the law and defend it to the best of their ability. If its found to be unconstitutional, fine then its unconstitutional, you've done your duty, now follow the court ruling.

Obama did not stop enforcing the law, he's just no longer going to defend it in court. I happen to think he's right as far as DOMA being unconstitutional, but thats not the point, sometimes as president you have to play devil's advocate to defend a law you don't believe in and secretly hope the courts get it right.

There's one exception to this. If congress passes a law that is *crazily* unconstitutional, then the president should feel free to ignore the law and wait for someone to sue him to enforce it. Does DOMA rise to that standard of being crazily unconstitutional? I think it comes close, but no. I think Obama should continue to put up a half-hearted defense of the law in court, perhaps assigning that job to the DOJ lawyer that is best able to play devil's advocate to defend a dumb law.

mlyonsd
02-23-2011, 08:41 PM
Watching Obama being played like the puppet he really ended up being is priceless. The new definition for 'tool' is 'Obama'.

Other defintions that could be injected are 'jellyfish' or 'spineless'.

alnorth
02-23-2011, 09:06 PM
Watching Obama being played like the puppet he really ended up being is priceless. The new definition for 'tool' is 'Obama'.

Other defintions that could be injected are 'jellyfish' or 'spineless'.

actually, there's nothing spineless about it. It is probably too bold.

mlyonsd
02-23-2011, 09:14 PM
actually, there's nothing spineless about it. It is probably too bold.

Not when you connect Obama's stand with what he has sold out to his far left base.

Seriously the guy from SNL impersenating him probably has a stronger spine than Oprah's man.

Direckshun
02-23-2011, 09:18 PM
Ummmmmm..........

I started a thread bemoaning Obama's signing statements in the first year of his presidency.

I don't mind signing statements when they explain execute courses of action. I mind it when they carve out exceptions to the law for folks who will never have to answer to the law being passed. Namely, the President. And while Bush took this practice to the extreme, Obama's on the same path. Almost entirely because of this national security boondoggle that costs too much and doesn't keep us any safer.

I think my lack of "shrieking" on the issue has to do with the fact that DOMA is still being enforced. It's just not going to receive government backing in court, which the executive branch is well within its right to do.

Direckshun
02-23-2011, 09:22 PM
I'm not sure what to think, but I'm leaning against Obama here.

In general, ideally, when congress passes a law that is dubiously (un?)constitutional, I think the president and the DOJ has an obligation to enforce the law and defend it to the best of their ability.

There's no legal obligation to do so, though. Maybe an arbitrary moral one, but not legal (or constitutional). There are only so many federal district attorneys and the executive branch can freely decide to decommit themselves to any number of issues to free up ones more pertinent to its agenda.

For instance, Republicans talk of simply defunding healthcare reform since they aren't going to be able to repeal it.

But wait, does Congress not have a legal obligation to fund something they've passed, even if they find it constitutional? No, they don't.

It'd be a dickish move, but it's a legitimate one. Same here with Obama's executive branch.

kcfanXIII
02-23-2011, 09:38 PM
2012 cannot get here fast enough.

So a jagon from the right can ruin the country instead? Not defending obama at all, but why the faith the GOP is gonna fix it?

Bewbies
02-23-2011, 09:38 PM
I'm confused. We won't defend the DOMA because we feel it's unconstitutional, but we will defend and implement the health care law that has actually been ruled unconstitutional?

Direckshun
02-23-2011, 09:40 PM
I'm confused. We won't defend the DOMA because we feel it's unconstitutional, but we will defend and implement the health care law that has actually been ruled unconstitutional?

That issue is still being determined, anyway. Far more courts have thrown out constitutional cases against healthcare reform than have actually heard it. The odds of its unconstitutionality are slim.

DOMA, meanwhile... actually, I don't know its constitutional track record at all. So I won't comment.

Direckshun
02-23-2011, 09:41 PM
That issue is still being determined, anyway. Far more courts have thrown out constitutional cases against healthcare reform than have actually heard it. The odds of its unconstitutionality are slim.

DOMA, meanwhile... actually, I don't know its constitutional track record at all. So I won't comment.

According to a quick Google search, DOMA has been ruled constitutional in some courts, unconstitutional in others.

patteeu
02-23-2011, 11:19 PM
The most interesting thing about the case on appeal in the first circuit is that the US District Judge Tauro ruled that the act violated the 10th Amendment, which reserves powers to the states and not the federal government if the rest of the Constitution does not explicitly confer that power to the federal government.

Reviving the 10th Amendment is one of the greatest developments for federalists and it is strange that patteeu's homophobia blinds him to such a positive development as a ruling that breathes life into the 10th Amendment.

The Supreme Court heard arguments this week regarding 10th Amendment standing for criminal defendants challenging federal criminal statutes.

Methinks the Supreme Court will rule that defendants would have standing to make that kind of case, but the defendant in that case will probably lose her 10th Amendment challenge when the lower courts rule on it.

patteeu should quit worrying about how gay he might be and start studying the Constitution.

Congress has lawyers on staff that can defend the laws it passes that the DOJ and Solicitor General do not want to defend, so it is not the end of the world as far as future defenses of the law in the federal appeals process.

I think the 10th Amendment analysis by the district court could be affirmed except that the full faith and credit clause does seem to give Congress some say in making rules about how states recognize with full faith and credit the acts of other states.

You apparently didn't understand that I thought what Obama did here was acceptable.

Direckshun
02-23-2011, 11:45 PM
So... zero recognition that I commented on this issue in the first year of the guy's presidency?

K.

Just wanted to see if you were genuinely interested in the subject or merely interested in gotcha bullshit.

Noted.

jettio
02-24-2011, 06:45 AM
You apparently didn't understand that I thought what Obama did here was acceptable.

Well you sure have a queer way of saying it, Rainbow.

You should try typing your position with less limp-wristed fury.

Otter
02-24-2011, 07:05 AM
2012 cannot get here fast enough.

And what happens then?

More puppets the media painted up to be something they are not is put in place? One turd replaced another? Yep, it's gonna be great this time!

AndChiefs
02-24-2011, 07:16 AM
And what happens then?

More puppets the media painted up to be something they are not is put in place? One turd replaced another? Yep, it's gonna be great this time!

http://4.bp.blogspot.com/_lpiDRDaH-mU/SMU9GQzTYGI/AAAAAAAAHRQ/fyS6t5VByWE/s400/giantdouchevsturdsandwich7om.jpg

kcfanXIII
02-24-2011, 07:45 AM
http://4.bp.blogspot.com/_lpiDRDaH-mU/SMU9GQzTYGI/AAAAAAAAHRQ/fyS6t5VByWE/s400/giantdouchevsturdsandwich7om.jpg

I might write in turd sandwich if my choicesvare obama and palin...

FishingRod
02-24-2011, 08:58 AM
Why,

Because people are intellectually dishonest?

RNR
02-24-2011, 09:37 AM
And what happens then?

More puppets the media painted up to be something they are not is put in place? One turd replaced another? Yep, it's gonna be great this time!

Pretty much~

Bewbies
02-24-2011, 09:44 AM
That issue is still being determined, anyway. Far more courts have thrown out constitutional cases against healthcare reform than have actually heard it. The odds of its unconstitutionality are slim.

DOMA, meanwhile... actually, I don't know its constitutional track record at all. So I won't comment.

But a judge did declare it unconstitutional and threw out the whole thing. And after that the President said they'd continue to implement it... :shake:

Direckshun
02-24-2011, 10:20 AM
But a judge did declare it unconstitutional and threw out the whole thing. And after that the President said they'd continue to implement it... :shake:

Yeah... that happens. The case is being appealed.

It's called the judicial system. This is how it works.

vailpass
02-24-2011, 10:22 AM
So... zero recognition that I commented on this issue in the first year of the guy's presidency?

K.

Just wanted to see if you were genuinely interested in the subject or merely interested in gotcha bullshit.

Noted.

Honey, your insecurity is showing.

patteeu
02-24-2011, 11:23 AM
So... zero recognition that I commented on this issue in the first year of the guy's presidency?

K.

Just wanted to see if you were genuinely interested in the subject or merely interested in gotcha bullshit.

Noted.

Sorry, I didn't mention you by name. You were indeed consistent on this issue. From my pov, consistently on the wrong side of it, but that's OK. In the future, when I post a thread, I'll mention you by name if it's all about you.

patteeu
02-24-2011, 11:30 AM
Well you sure have a queer way of saying it, Rainbow.

You should try typing your position with less limp-wristed fury.

Here's my position in a nutshell for the remedial readers among us.

1. Obama has the authority to independently evaluate the constitutionality of a statute and act according to his determination. (IOW, I'm a defender of the so-called "imperial presidency" whether it's a democrat or a Republican in office).

2. Obama's evaluation of DOMA's constitutionality is probably wrong. In particular, his creation of a new right by applying a higher standard of scrutiny instead of using rational basis analysis offends me.

3. I'm in favor of gay marriage.

4. I'm in favor of each state and the federal government defining marriage for themselves and for purposes of the application of their respective laws.

5. Gay smack doesn't bother me.

alnorth
02-24-2011, 11:31 AM
But a judge did declare it unconstitutional and threw out the whole thing. And after that the President said they'd continue to implement it... :shake:

:spock:

There's this thing called a stay pending appeal. A federal judge is not the final authority unless an appeals court or supreme court refuses to hear an appeal. I think this health care law will eventually get thrown out by the SCOTUS, but its hard to blame Obama for continuing.

Besides, a couple other judges green-lighted the law, and they got appealed too. Which judge do you listen to?

alnorth
02-24-2011, 11:39 AM
Here's my position in a nutshell for the remedial readers among us.

1. Obama has the authority to independently evaluate the constitutionality of a statute and act according to his determination. (IOW, I'm a defender of the so-called "imperial presidency" whether it's a democrat or a Republican in office).

I don't think I agree. I think a president should ignore a law if it is insanely unconstitutional, but if the law is not laugh-out-loud illegal on its face, the president should defend it and let the courts decide.

2. Obama's evaluation of DOMA's constitutionality is probably wrong. In particular, his creation of a new right by applying a higher standard of scrutiny instead of using rational basis analysis offends me.

I don't agree. Given the occasionally disparaging and hateful rhetoric heard on the floor of congress while DOMA was being debated, I think heightened (not strict) scrutiny is appropriate. Even many on the left (usually african-americans) don't like the gays. An unpopular political minority is being repressed by the majority.

Aside from that, I don't think the standard matters anyway except for possible future issues, because gay marriage bans likely fail all standards of scrutiny, even the almost-never-failing "rational basis" test. A rational basis for these bans and DOMA simply does not exist.

3. I'm in favor of gay marriage.

4. I'm in favor of each state and the federal government defining marriage for themselves and for purposes of the application of their respective laws.

5. Gay smack doesn't bother me.

#4, though a good ideal in general given state's rights, isn't really going to fly in this case given the 14th.

patteeu
02-24-2011, 12:00 PM
I don't think I agree. I think a president should ignore a law if it is insanely unconstitutional, but if the law is not laugh-out-loud illegal on its face, the president should defend it and let the courts decide.

I don't think the "insanely unconstitutional" test works very well.

I don't agree. Given the occasionally disparaging and hateful rhetoric heard on the floor of congress while DOMA was being debated, I think heightened (not strict) scrutiny is appropriate. Even many on the left (usually african-americans) don't like the gays. An unpopular political minority is being repressed by the majority.

Aside from that, I don't think the standard matters anyway except for possible future issues, because gay marriage bans likely fail all standards of scrutiny, even the almost-never-failing "rational basis" test. A rational basis for these bans and DOMA simply does not exist.

I'll agree to disagree here on all points simply to avoid turning this into another gay marriage/equal protection thread.

#4, though a good ideal in general given state's rights, isn't really going to fly in this case given the 14th.

States don't honor each others law licenses, fishing licenses, or conceal carry permits. I don't see why, in an environment where the requirements for marriage vary so widely, they should have to honor each others marriages under the full faith and credit clause. I don't see the relevance of the 14th amendment.

jettio
02-24-2011, 01:37 PM
Here's my position in a nutshell for the remedial readers among us.

1. Obama has the authority to independently evaluate the constitutionality of a statute and act according to his determination. (IOW, I'm a defender of the so-called "imperial presidency" whether it's a democrat or a Republican in office).

2. Obama's evaluation of DOMA's constitutionality is probably wrong. In particular, his creation of a new right by applying a higher standard of scrutiny instead of using rational basis analysis offends me.

3. I'm in favor of gay marriage.

4. I'm in favor of each state and the federal government defining marriage for themselves and for purposes of the application of their respective laws.

5. Gay smack doesn't bother me.

Isn't there precedent that the right to marriage or the right to make family decisions are fundamental rights. If so, fundamental rights always warrant strict scrutiny.

If not a fundamental right, those rights have to be as close to fundamental as imaginable and would warrant heightened scrutiny.

Another way to get to a higher level of scrutiny than rational basis is to establish history of prejudicial treatment to a "suspect class" I think there is sufficient history to establish gays are a minority that has been subject to ill-treatment.

Here is a link to a federal judge's biography that talks about how he got kicked out of Harvard for a year just because he was friends with some gay students who were permanently expelled. That was 1920. and the linked page references a book about that . I am sure that similar things happened to other gay people.

http://en.wikipedia.org/wiki/J._Edward_Lumbard

There is also a term, gay-bashing, to describe what happens to you and others.

Even though gay-bashing as a term is relatively new, homosexuals have been subject to prejudice and mistreatment for a long time.

Just because you have built up your tolerance to gay smack to where you like getting bashed does not mean that most gays don't suffer when they are bashed.

patteeu
02-24-2011, 02:05 PM
Isn't there precedent that the right to marriage or the right to make family decisions are fundamental rights. If so, fundamental rights always warrant strict scrutiny.

If not a fundamental right, those rights have to be as close to fundamental as imaginable and would warrant heightened scrutiny.

Another way to get to a higher level of scrutiny than rational basis is to establish history of prejudicial treatment to a "suspect class" I think there is sufficient history to establish gays are a minority that has been subject to ill-treatment.

Here is a link to a federal judge's biography that talks about how he got kicked out of Harvard for a year just because he was friends with some gay students who were permanently expelled. That was 1920. and the linked page references a book about that . I am sure that similar things happened to other gay people.

http://en.wikipedia.org/wiki/J._Edward_Lumbard

There is also a term, gay-bashing, to describe what happens to you and others.

Even though gay-bashing as a term is relatively new, homosexuals have been subject to prejudice and mistreatment for a long time.

Just because you have built up your tolerance to gay smack to where you like getting bashed does not mean that most gays don't suffer when they are bashed.

I don't see why marriage should be considered a fundamental right. The right to associate with the person of your choice as a committed life partner is a fundamental right, but that's available to all and is not dependent on a sanctified marriage. Favorable tax treatment and SS survivor benefits shouldn't be considered a fundamental right.

Tell me more about your time in the navy, Jettio. Is that history the source of your belief that gay bashing is the way to get under someone's skin?

KILLER_CLOWN
02-24-2011, 02:38 PM
Bush/Obama what's the difference, not much really. Both are puppets.

alnorth
02-24-2011, 03:32 PM
I don't think the "insanely unconstitutional" test works very well.

States don't honor each others law licenses, fishing licenses, or conceal carry permits. I don't see why, in an environment where the requirements for marriage vary so widely, they should have to honor each others marriages under the full faith and credit clause. I don't see the relevance of the 14th amendment.

First point, fair enough I admit its rather subjective. In general, I believe that the president should ignore/stop defending a law *extremely* rarely, as in once or twice a generation rare.

To the second: if all states stop honoring each other's marriage licenses, then we're cool. You want to be married in your new state, go get a new license. Otherwise, selective recognition without a rational basis doesn't work under the 14th. (again, assuming that the gay marriage constitutional argument is valid. If it weren't, this point is moot. There's almost no chance that Kennedy votes to uphold the bans, though)

alnorth
02-24-2011, 03:37 PM
I don't see why marriage should be considered a fundamental right.

You may think that, but this statement conflicts with Loving v. Virginia. That was an anti-miscegenation case and not a gay case, but that wasn't the only thing decided in that case.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival....

patteeu
02-24-2011, 03:55 PM
You may think that, but this statement conflicts with Loving v. Virginia. That was an anti-miscegenation case and not a gay case, but that wasn't the only thing decided in that case.

Yes, I disagree with a SCOTUS ruling. That's not the only one either.

jettio
02-24-2011, 04:12 PM
I don't see why marriage should be considered a fundamental right. The right to associate with the person of your choice as a committed life partner is a fundamental right, but that's available to all and is not dependent on a sanctified marriage. Favorable tax treatment and SS survivor benefits shouldn't be considered a fundamental right.

Tell me more about your time in the navy, Jettio. Is that history the source of your belief that gay bashing is the way to get under someone's skin?

I am more interested in your dedicated service to our country. I think your undying dedication, love and support to the B*sh administration turned Rumsfeld into a vegetable. That guy has to be the most incompetent faker to come along in years. He was on TV praising Qadaffi two days before all hell broke loose in Libya.

You are the one that came up with some wisecrack about pornography a few weeks back so you should stop putting on airs.

You grand misconception is that you are saying that "favorable tax treatment and SS survivor benefits shouldn't be considered a fundamental right."

The issue is whether you deny equal protection of the laws that "involve favorable tax treatment and SS survivor benefits" because of animus toward certain marriages sanctioned by certain states.

You always get things wrong because you end up mixing up the phrases and sentences that smart people use.

I could try to make this easier for you to understand, what if Congress passed a law that denied "favorable tax treatment and SS survivor benefits" to spouses from mixed-race marriages no matter that a state licensed the marriage but gave "favorable tax treatment and SS survivor benefits" to spouses from all other state licensed marriages.

Do you think that would be constitutionally permissible?

patteeu
02-24-2011, 04:26 PM
I am more interested in your dedicated service to our country. I think your undying dedication, love and support to the B*sh administration turned Rumsfeld into a vegetable. That guy has to be the most incompetent faker to come along in years. He was on TV praising Qadaffi two days before all hell broke loose in Libya.

I don't know what you're talking about. Enlighten me.

You are the one that came up with some wisecrack about pornography a few weeks back so you should stop putting on airs.

What wisecrack was that? I bet it was funny.

You grand misconception is that you are saying that "favorable tax treatment and SS survivor benefits shouldn't be considered a fundamental right."

The issue is whether you deny equal protection of the laws that "involve favorable tax treatment and SS survivor benefits" because of animus toward certain marriages sanctioned by certain states.

I don't think people should be denied equal protection of the laws. Gays should be able to form male/female marriages just like the rest of us. And in states that allow same sex marriages, heterosexuals should be able to marry heterosexuals of the same sex.

You always get things wrong because you end up mixing up the phrases and sentences that smart people use.

I could try to make this easier for you to understand, what if Congress passed a law that denied "favorable tax treatment and SS survivor benefits" to spouses from mixed-race marriages no matter that a state licensed the marriage but gave "favorable tax treatment and SS survivor benefits" to spouses from all other state licensed marriages.

Do you think that would be constitutionally permissible?

I think that the reconstruction era amendments were specifically passed to end state discrimination on the basis of race. The fact that women weren't allowed to vote for another half century, after another amendment was ratified, proves that they weren't intended to end state discrimination on the basis of gender.

alnorth
02-24-2011, 05:57 PM
I think that the reconstruction era amendments were specifically passed to end state discrimination on the basis of race. The fact that women weren't allowed to vote for another half century, after another amendment was ratified, proves that they weren't intended to end state discrimination on the basis of gender.

The 14th is written pretty clearly to apply to "all people". As you noted above, sometimes the SCOTUS makes bad decisions. (Though we might disagree on exactly which decisions are correct and which were dumb) The 19th amendment should not have been necessary, but since the constitution was being ignored, it had to be passed.

patteeu
02-24-2011, 07:26 PM
The 14th is written pretty clearly to apply to "all people". As you noted above, sometimes the SCOTUS makes bad decisions. (Though we might disagree on exactly which decisions are correct and which were dumb) The 19th amendment should not have been necessary, but since the constitution was being ignored, it had to be passed.

Yes, it applies to all people and prohibits discrimination on the basis of race. It can't possibly prohibit discrimination on the basis of every possible distinguisher because we regularly incorporate discriminators in our laws. For example, you must be a certain age before you're allowed to serve in the military. You pay a different tax rate depending on your income level. You can't collect SS retirement benefits until you reach a certain age. And on and on.

Your history of the 19th amendment is revisionist, IMO.

alnorth
02-24-2011, 07:37 PM
Yes, it applies to all people and prohibits discrimination on the basis of race. It can't possibly prohibit discrimination on the basis of every possible distinguisher because we regularly incorporate discriminators in our laws. For example, you must be a certain age before you're allowed to serve in the military. You pay a different tax rate depending on your income level. You can't collect SS retirement benefits until you reach a certain age. And on and on.

Your history of the 19th amendment is revisionist, IMO.

Point out where the 14th says all races should have due process and equal protection of the law. They easily could have done so, but they did not. They simply say "all people", which includes everybody.

Now, lets pretend the 19th doesnt exist and look at female voting bans today. How in the holy hell could you argue that the government has any logical interest at all in banning female voting, other than some wild argument that women are too dumb/incapable to vote? You cant, so the 14th applies.

Obviously the court had to put in guidelines and restrictions. Obviously handicapped people without legs or arms deserve due process and equal protection under the law, but there is an obvious compelling governmental interest to tell those folks that they can not serve as police officers. So, your "well, we have some restrictions on some classes of people" argument is a straw man.

The point is, as articulated by the supreme court, if you want to restrict certain groups of people, those restrictions have to make sense. Some classifications (race, gender, etc) require a higher burden because it inherently makes little or no sense why a restriction should ever exist, but in every case there at least must be a rational basis to discriminate against a group of people. Saying "gay marriage should not be allowed because gay people are icky", or "because male/female marriage is traditional" is not good enough.

There is no rational basis to ban gay marriages. So, gay marriage bans should and will fall to the 14th. The 19th amendment exists only because the people and the courts were too stupid to realize that gender discrimination (without a very good reason) was not legal.

patteeu
02-24-2011, 07:42 PM
Point out where the 14th says all races should have due process and equal protection of the law. They easily could have done so, but they did not. They simply say "all people", which includes everybody.

Now, lets pretend the 19th doesnt exist and look at female voting bans today. How in the holy hell could you argue that the government has any logical interest at all in banning female voting, other than some wild argument that women are too dumb/incapable to vote? You cant, so the 14th applies.

Obviously the court had to put in guidelines and restrictions. Obviously handicapped people without legs or arms deserve due process and equal protection under the law, but there is an obvious compelling governmental interest to tell those folks that they can not serve as police officers. So, your "well, we have some restrictions on some classes of people" argument is a straw man.

The point is, as articulated by the supreme court, if you want to restrict certain groups of people, those restrictions have to make sense. Some classifications (race, gender, etc) require a higher burden because it inherently makes little or no sense why a restriction should ever exist, but in every case there at least must be a rational basis to discriminate against a group of people.

There is no rational basis to ban gay marriages. So, gay marriage bans should and will fall to the 14th. The 19th amendment exists only because the people and the courts were too stupid to realize that gender discrimination (without a very good reason) was not legal.

Oh, I get it. You'll be the judge as to the reasonableness of all government interests. :rolleyes:

If you believe that those who drafted and ratified the 14th amendment in the 1860s intended to make traditional marriage restrictions and prohibitions against women voting unconstitutional, you're beyond rational argument on this topic.

alnorth
02-24-2011, 07:47 PM
Oh, I get it. You'll be the judge as to the reasonableness of all government interests. :rolleyes:

Not me, Anthony Kennedy will be "the judge" who writes the majority opinion which throws out all gay marriage bans. You are doomed to lose on this issue, and I fail to see why you care.

If you believe that those who drafted and ratified the 14th amendment in the 1860s intended to make traditional marriage restrictions and prohibitions against women voting unconstitutional, you're beyond rational argument on this topic.

You can only take "Framer's intent" so far. Sometimes when the law is murky it is important, but when the plain language of the law says, clear and obvious as day, that female voting bans are illegal, then framer's intent is irrelevant. If they didn't intend women to vote, then they should not have been so stupid as to write an amendment saying they should.

jettio
02-24-2011, 09:23 PM
I don't know what you're talking about. Enlighten me.



What wisecrack was that? I bet it was funny.



I don't think people should be denied equal protection of the laws. Gays should be able to form male/female marriages just like the rest of us. And in states that allow same sex marriages, heterosexuals should be able to marry heterosexuals of the same sex.



I think that the reconstruction era amendments were specifically passed to end state discrimination on the basis of race. The fact that women weren't allowed to vote for another half century, after another amendment was ratified, proves that they weren't intended to end state discrimination on the basis of gender.

You have a couple of problems here.

First, the DOMA is a federal law so the way the Supreme Court says that equal protection applies is by precedent that the 5th Amendment due process clause includes an "equal protection" component.

That is not a textual thing but once "equal protection" was applied to the federal power that way via the 5th amendment, it has been applied consistently to assess whether federal laws implicate fundamental rights or suspect classes.

As far as Reconstruction Amendments, you should look at the text of the various amendments and also realize that they were not ratified at the same time.

The 13th Amendment made involuntary servitude unconstitutional and was ratified in 1865.

The 14th Amendment was ratified in 1868, and did not specifically mention "race". It defined citizenship and then said that states can not deny citizens due process and equal protection of the law. It then had sections deaing with counting the census and dealing with post civil war oaths, diasabilities and debts incurred in fighting the Civil War.

The 15th Amendment was ratified in 1870 and was specifically intended to say that the right to vote could not be denied or abridged on account of "race, color or previous condition of servitude."

Your way of looking at originalist "intentions" and guessing at what they really must have meant, instead of going with the words in the text might make Scalia wince a little bit.

To me, I think the DOMA is problematic because it was using federal power to give special permission to states and the federal government to ignore certain disfavored state-licensed marriages, even though the 10th Amendment and history has always let states license marriages which all states and the federal government always gave full faith and credit to until this specifically disfavored version of marriage seemed likely to be licensed by some states.

Seems like an exception that was motivated by sincere animus towards a specific minority.

patteeu
02-24-2011, 11:44 PM
Not me, Anthony Kennedy will be "the judge" who writes the majority opinion which throws out all gay marriage bans. You are doomed to lose on this issue, and I fail to see why you care.



You can only take "Framer's intent" so far. Sometimes when the law is murky it is important, but when the plain language of the law says, clear and obvious as day, that female voting bans are illegal, then framer's intent is irrelevant. If they didn't intend women to vote, then they should not have been so stupid as to write an amendment saying they should.

I agree. If the 14th amendment said "female voting bans are illegal" then that would be a different story, but it doesn't say anything like that. There's something perverse about the idea that what the framers of constitutional language intended and what those who ratified it believed it meant can be tossed aside in favor of a radically different interpretation by future generations. We *do* have an amendment process for making changes to inconvenient language afterall.

BucEyedPea
02-24-2011, 11:54 PM
The 14th Amendment was ratified in 1868, and did not specifically mention "race". It defined citizenship and then said that states can not deny citizens due process and equal protection of the law. It then had sections deaing with counting the census and dealing with post civil war oaths, diasabilities and debts incurred in fighting the Civil War.

No it doesn't mention race but that is why it was passed. Those recommending the 14th argued it was intended to protect freed blacks in the post-Civil War period. Also it's "privileges or immunities" do not clearly claim all the rights in the Bill of Rights. This was understood by most of the ratifiers in 1866. It was also ratified at the point of a gun. The southern and border states decisely rejected it but had to ratify in order to end military rule. Duress alone, should make the entire amendment unenforceable like we do for contracts.


Your way of looking at originalist "intentions" and guessing at what they really must have meant, instead of going with the words in the text might make Scalia wince a little bit.
Scalia isn't an originalist and per his own words not even a strict constructionist either.

go bowe
02-25-2011, 12:56 PM
you never disappoint, honey...

go bowe
02-25-2011, 01:11 PM
I don't see why marriage should be considered a fundamental right. The right to associate with the person of your choice as a committed life partner is a fundamental right, but that's available to all and is not dependent on a sanctified marriage. Favorable tax treatment and SS survivor benefits shouldn't be considered a fundamental right.

Tell me more about your time in the navy, Jettio. Is that history the source of your belief that gay bashing is the way to get under someone's skin?tax treatment and ss survivor benefis are not rights at all, let alone fundamental rights...

they are statutory creatures which can be changed at any time by congress...

if you object to those benefits, write your congressman but the status of those benefits are not a reason to deny marriage status to anyone...

go bowe
02-25-2011, 01:13 PM
Yes, I disagree with a SCOTUS ruling. That's not the only one either.joooooo lover subhuman!!!!

go bowe
02-25-2011, 01:25 PM
Yes, it applies to all people and prohibits discrimination on the basis of race. It can't possibly prohibit discrimination on the basis of every possible distinguisher because we regularly incorporate discriminators in our laws. For example, you must be a certain age before you're allowed to serve in the military. You pay a different tax rate depending on your income level. You can't collect SS retirement benefits until you reach a certain age. And on and on.

Your history of the 19th amendment is revisionist, IMO.and all of your examples have a rational basis for that discrimninator...

if denying same sex marriage for all, homosexuals and heterosexuals as you so generously point out, has some rational basis it might not get the supreme's blessing after all...

the history of the amendment is just that, history...

the issue for the supremes will not be the history of the amendment but the rational basis for gay marriage bans under existing precedent (unless of course the roberts court overturns 50 years of precedent)...

i understand that the original intent is a big issue for you, but us living document types think present day realities have a bigger part to play in scotus decisions...

patteeu
02-25-2011, 01:33 PM
and all of your examples have a rational basis for that discrimninator...

if denying same sex marriage for all, homosexuals and heterosexuals as you so generously point out, has some rational basis it might not get the supreme's blessing after all...

the history of the amendment is just that, history...

the issue for the supremes will not be the history of the amendment but the rational basis for gay marriage bans under existing precedent (unless of course the roberts court overturns 50 years of precedent)...

i understand that the original intent is a big issue for you, but us living document types think present day realities have a bigger part to play in scotus decisions...

I'd rather extend marriage to gay couples the right way, by passing legislation (or alternatively by amending the constitution). I just can't agree with the idea that the constitution can mean whatever we want it to mean at any given time, and then later if we want it to mean something different, voila... like magic... there it is.

alnorth
02-25-2011, 02:47 PM
I agree. If the 14th amendment said "female voting bans are illegal" then that would be a different story, but it doesn't say anything like that. There's something perverse about the idea that what the framers of constitutional language intended and what those who ratified it believed it meant can be tossed aside in favor of a radically different interpretation by future generations. We *do* have an amendment process for making changes to inconvenient language afterall.

Your argument makes no sense to me. Imagine if a very simply-worded law is passed, during a time when it is popularly understood but not discussed that blacks shouldn't vote and shouldn't be given the vote, that "all people are qualified to vote". Then when someone says "well, looks like blacks can vote now", you are saying you can go to court and ask them to ignore the text of the law?

Framer's intent is important when the law is unclear. (eg, the 2nd amendment is poorly worded, so framer's intent was highly important, to answer the question "ok, since they screwed the language up all to hell, what did they intend to say") If the language is not screwed up at all, and when the law is written very clearly, why should you care about framer's intent?

If framer's intent should rule in all cases, then why bother reading the text of the law? When does the plain language of the law ever become relevant then?

go bowe
02-25-2011, 02:55 PM
I'd rather extend marriage to gay couples the right way, by passing legislation (or alternatively by amending the constitution). I just can't agree with the idea that the constitution can mean whatever we want it to mean at any given time, and then later if we want it to mean something different, voila... like magic... there it is.i don't disagree that the preferred way of allowing same sex marriages would be by legislation...

but constitutional rights are not established by legislation, they flow from the magic well of the living document... ( :Poke: )

when legislation has failed to adequately protect constitutional rights, the judiciary must step in to protect the rights of minority groups, like homosexuals...

i realize that this approach assumes that constitution is a living document (you oppose, i support)...

and that interpretations of that living document sometimes do rely on a sort of constitutional magic (you oppose, i support)...

and that amending the constitution is not a practical remedy to insure constitutional rights (you oppose, i support)...

and that homosexuals are a minority class entitled to protection under the constitution (you oppose, i support)...

and that you are a nazi socialist jooo loving cheney supporting subhuman (you oppose, ladairis supports)...

alnorth
02-25-2011, 02:56 PM
i understand that the original intent is a big issue for you, but us living document types think present day realities have a bigger part to play in scotus decisions...

I want to draw a distinction here. I don't agree with patteeu's "framer's intent should matter in all cases, so don't even bother reading the law, just always ask what congress meant" stance, but I also do not agree with you.

The constitution is not a "living document" in that we can invent new rights that are not spelled out because we think its a swell idea. (eg I'm fine with saying that women's rights should have been protected by the 14th and that its not our fault that the courts were too dull to read the law back then, but I am not fine with inventing the non-existent right to privacy in roe v wade without passing a new amendment).

My point is that when the law is written very plainly and clearly, then the law means what it says it means. Just because people and courts in the past failed doesn't bind you to their failure to read. However, when a law is poorly worded or the language is vague (eg, the screwed-up language of the 2nd amendment) then you have no choice but to look at framer's intent, but framer's intent is not the first default choice.

alnorth
02-25-2011, 03:08 PM
On a related note, Gingrich looks like a complete dumbass today. I have to assume he was misinformed and shot his mouth off, because he's saying that since Obama unilaterally decided to stop enforcing DOMA, he should be impeached.

Obama did no such thing. DOMA is still being enforced, he just wont defend it when DOMA is challenged in court (which I also disagree with, the DOJ should almost always defend the law, but whatever). Others will certainly stand in to defend DOMA in the DOJ's place, and the courts don't have to agree with Obama (though they eventually will).

go bowe
02-25-2011, 03:10 PM
I want to draw a distinction here. I don't agree with patteeu's "framer's intent should matter in all cases, so don't even bother reading the law, just always ask what congress meant" stance, but I also do not agree with you.

The constitution is not a "living document" in that we can invent new rights that are not spelled out because we think its a swell idea. (eg I'm fine with saying that women's rights should have been protected by the 14th and that its not our fault that the courts were too dull to read the law back then, but I am not fine with inventing the non-existent right to privacy in roe v wade without passing a new amendment).

My point is that when the law is written very plainly and clearly, then the law means what it says it means. Just because people and courts in the past failed doesn't bind you to their failure to read. However, when a law is poorly worded or the language is vague (eg, the screwed-up language of the 2nd amendment) then you have no choice but to look at framer's intent, but framer's intent is not the first default choice.the constitution is indeed a living document that provides a basic framework of our legal and political system..

when the plain language doesn't apply in today's world, the interpretations of that language are based in large part on today's realities...

i agree that the framers' intent is an element in interpreting the language of the consitution, but as you say it is not the default choice...

i understand the arguments against the living document, magic interpretation approach, but i am a true believer when it comes to living vs. dead (oops i mean as originally written and understood by the framers)...

as far as the right to privacy (and i can't recall if this argument has been relied on by any courts), the concept is in the constitution...

protections against unreasonable searches and seizures are designed in part to protect people's privacy...

since protections against self-incrimation are in the fifth, those search provisions could only have been meant to protect people
s privacy...

actually, i'd like to hear the conservative strict constructionist view of the right to privacy embodied in the restrictions on unreasonable searches...

alnorth
02-25-2011, 03:24 PM
I guess I cant say much other than to say I disagree. If you think we can ignore the plain language of the law because it doesn't make sense to follow the plain language today, then we're done.

My fundamental point here is when the law is clear, it means what it says it means. If the law says "x=7", then x equals 7. We should not (as you might) say "no, x should equal 8 now because it would make more sense in today's world", and we should not (as patteeu might) say "no, x should equal 6 because the framer intended for x to equal 6." If the law says x equals 7, then it equals 7, even if 3 generations have read it wrong and thought it was 6.

So, starting from there, if the law is written badly so that you have no idea what it exactly means (ie, geez, after reading this garbled mess, we're not sure if x = 6, 7, or 8) then you have to go back to framer's intent (they meant x=6), not to what we'd like it to mean today. The reason is that the failure originated from whoever wrote that bad unclear law, because what if they did write the law clearly? What if they weren't a bunch of dolts and they wrote exactly what they meant in very clear pristine language? Well, then you'd have no choice but to acknowledge that the law is what it is no matter how much you don't like it, and either follow it or change it.

go bowe
02-25-2011, 04:31 PM
I guess I cant say much other than to say I disagree. If you think we can ignore the plain language of the law because it doesn't make sense to follow the plain language today, then we're done.

My fundamental point here is when the law is clear, it means what it says it means. If the law says "x=7", then x equals 7. We should not (as you might) say "no, x should equal 8 now because it would make more sense in today's world", and we should not (as patteeu might) say "no, x should equal 6 because the framer intended for x to equal 6." If the law says x equals 7, then it equals 7, even if 3 generations have read it wrong and thought it was 6.

So, starting from there, if the law is written badly so that you have no idea what it exactly means (ie, geez, after reading this garbled mess, we're not sure if x = 6, 7, or 8) then you have to go back to framer's intent (they meant x=6), not to what we'd like it to mean today. The reason is that the failure originated from whoever wrote that bad unclear law, because what if they did write the law clearly? What if they weren't a bunch of dolts and they wrote exactly what they meant in very clear pristine language? Well, then you'd have no choice but to acknowledge that the law is what it is no matter how much you don't like it, and either follow it or change it.first of all, i don't think there is any plain language that applies to many of the issues the supreme's see today... in that case, the supremes do have to magically interpret the language of the constitution...

i totally agree that looking at the intent of the framers is a valuable tool, but imo that only comes into play when there is ambiguity in the language of the constitution (or when no specific language covers the issue but general language does, like equal protection in the case of gay marriage)...

as far as pristine language expressing the framers' intent, what you describe as a remedy (either follow the law or change it) is fine when you are talking about statutes, but it doesn't really come into play much when asserting constitutional rights...

follow it or change it will be decided by the supremes, not the legislative branch...

they will either agree that the specific right is not created by the constitution and that the law under consideration should be followed or they will change it by overturning old cases and/or asserting a constitutional right...

if that particular right flows from the general language of the constitution (such as gay marriage under an equal protection theory or a penumbra right to privacy), it is the job of the supremes to protect that right, even though it may not be not spelled out in specific language and even if the framers intent didn't cover it either (because the situation in question never even occurred to them)...

see, sometimes magic is required to determine what the constitution means today (sorry about that magic shit again)...

alnorth
02-25-2011, 07:16 PM
first of all, i don't think there is any plain language that applies to many of the issues the supreme's see today...

well, no kidding. A law or amendment written in plain language is generally not fought or appealed, they rarely get to the supreme court because all parties concede that they are powerless to defeat or reinterpret a law which is written clearly. The exceptions are very rare, such as when the people and some judges stubbornly refuse to stop arbitrarily discriminating against gays because God told them they were evil and hell-bound.

You cant take the fact that the supremes generally only hear the hard cases involving vague unclear laws and extrapolate from that the theory that all laws are fair game to be reinterpreted to something else you want, no matter how clearly they conflict with your goals. This selection bias is also why its dumb to criticize an appeals court for being overturned a lot more than they are affirmed. (eg some of the dumb Sotomayor criticisms, unfair because the supreme court ONLY takes cases where they think a decision might be wrong)

The portion of the 14th amendment we are mostly talking about is very clear. All people must receive due process and equal protection of the law. The fact that some people in the past were too sexist or homophobic to understand this amendment doesn't change the fact that it was clearly and broadly written. If the government can not show the court that they have a good reason under some kind of standard to discriminate against a group of people, then they cant do it.

Thats not inventing a right that didn't previously exist under your living constitution theory, thats simply recognizing what was always there the moment the ink was dry and the last state legislature cast its vote.

go bowe
02-25-2011, 11:34 PM
well, no kidding. A law or amendment written in plain language is generally not fought or appealed, they rarely get to the supreme court because all parties concede that they are powerless to defeat or reinterpret a law which is written clearly. The exceptions are very rare, such as when the people and some judges stubbornly refuse to stop arbitrarily discriminating against gays because God told them they were evil and hell-bound.

You cant take the fact that the supremes generally only hear the hard cases involving vague unclear laws and extrapolate from that the theory that all laws are fair game to be reinterpreted to something else you want, no matter how clearly they conflict with your goals. This selection bias is also why its dumb to criticize an appeals court for being overturned a lot more than they are affirmed. (eg some of the dumb Sotomayor criticisms, unfair because the supreme court ONLY takes cases where they think a decision might be wrong)

The portion of the 14th amendment we are mostly talking about is very clear. All people must receive due process and equal protection of the law. The fact that some people in the past were too sexist or homophobic to understand this amendment doesn't change the fact that it was clearly and broadly written. If the government can not show the court that they have a good reason under some kind of standard to discriminate against a group of people, then they cant do it.

Thats not inventing a right that didn't previously exist under your living constitution theory, thats simply recognizing what was always there the moment the ink was dry and the last state legislature cast its vote.we may have passed in the night here...

i agree with you that laws are not fair game to be reinterpreted to what someone may want...

but while constitutional terms are not fair game either they do have to be interpreted by somebody and equal protection is pretty much what the supremes have said it is for a couple of hundred years or so...

i totally agree with you that the equal protection clause, as interpreted, does require at least a rational basis for any legal discrimination and personally i do not see any rational basis to ban gay marriage...

and my living constitution theory does not contemplate inventing rights, just asserting them in accordance with modern realities...

in fact, interpreting what equal protection does or dosen't mean wrt gay marriage is a function of a living document approach...

it's not really inventing a new right, it's more about expanding existing rights to include new political and legal situations as we confront them...

i think we agree on more than we disagree about...

patteeu
02-27-2011, 07:05 AM
Your argument makes no sense to me. Imagine if a very simply-worded law is passed, during a time when it is popularly understood but not discussed that blacks shouldn't vote and shouldn't be given the vote, that "all people are qualified to vote". Then when someone says "well, looks like blacks can vote now", you are saying you can go to court and ask them to ignore the text of the law?

Framer's intent is important when the law is unclear. (eg, the 2nd amendment is poorly worded, so framer's intent was highly important, to answer the question "ok, since they screwed the language up all to hell, what did they intend to say") If the language is not screwed up at all, and when the law is written very clearly, why should you care about framer's intent?

If framer's intent should rule in all cases, then why bother reading the text of the law? When does the plain language of the law ever become relevant then?

The language of the law/constitutional provision should always be the starting point, but interpretation of that language should be consistent with the interpretation of the people who wrote and ratified the language, not with the interpretation of people in the distant future. Fundamental changes like the sort you want to interpret into the 14th amendment should be made through constitutional amendment, not redefinition.

Our argument isn't so much about the principles of constitutional interpretation as it is about the plain meaning of the language in the 14th amendment. IMO, there isn't anything in that language that makes it clear that women should be allowed to vote or that gays should be allowed to marry. And given the intent and understanding of the people who passed that amendment, there's nothing to help interpret the language to achieve the results you desire. It's absurd to argue that the language is plain when we have over a century of history where you'd be hard pressed to find even radicals making the argument you're making.

The best argument for the results you're seeking would be to say that based on the rational basis test, what seemed like rational arguments in the late 1900s no longer seem like rational arguments today, but I reject that as well. If the test of what has and what does not have a rational basis was the prevailing wisdom of society that might be true, but IMO the rational basis bar should be far lower than that. If you can articulate a theory that is plausible (e.g. families headed by two opposite gender parents are beneficial to society because they generate children and because they provide the family unit with the diverse adult inputs of both genders), then the rational basis test ought to be satisfied.

I want to draw a distinction here. I don't agree with patteeu's "framer's intent should matter in all cases, so don't even bother reading the law, just always ask what congress meant" stance, but I also do not agree with you.


Clearly you've misinterpreted my argument, much like you've misinterpreted the 14th amendment. :p

patteeu
02-27-2011, 07:13 AM
the constitution is indeed a living document that provides a basic framework of our legal and political system..

when the plain language doesn't apply in today's world, the interpretations of that language are based in large part on today's realities...

i agree that the framers' intent is an element in interpreting the language of the consitution, but as you say it is not the default choice...

i understand the arguments against the living document, magic interpretation approach, but i am a true believer when it comes to living vs. dead (oops i mean as originally written and understood by the framers)...

as far as the right to privacy (and i can't recall if this argument has been relied on by any courts), the concept is in the constitution...

protections against unreasonable searches and seizures are designed in part to protect people's privacy...

since protections against self-incrimation are in the fifth, those search provisions could only have been meant to protect people
s privacy...

actually, i'd like to hear the conservative strict constructionist view of the right to privacy embodied in the restrictions on unreasonable searches...

My opinion would be that some kind of right to privacy does exist as defined by the constitution, but that that right to privacy doesn't necessarily protect abortion. The way I'd define the right to privacy would be to say that the constitution empowers the federal government with certain limited powers and everything else is none of their business. Unreasonable searches are protected by this generic right to privacy. The right to be a gay couple and live in a lifelong, committed partnership initiated by a ceremony run by a clergyman from the Church of Left Handed Jesus that looks much like traditional marriage ought to be protected by this generic right to privacy.

But if the state has the power to regulate murder or other harms done by one person to another, it ought to have the power to regulate abortion on the theory that abortion is at least arguably a case of one person harming another. We don't say that the state has no right to regulate murder when a mother takes the life of her children in the privacy of their own home so I don't see why we'd say that the state has no right to regulate the harming of a fetus within the privacy of the mother's body.

patteeu
02-27-2011, 07:16 AM
The portion of the 14th amendment we are mostly talking about is very clear.

This is simply wrong. It's not clear at all.

orange
02-27-2011, 11:11 AM
IMO, there isn't anything in that language that makes it clear that women should be allowed to vote...

This is simply wrong. It's not clear at all.

... nor deny to any person within its jurisdiction the equal protection of the laws.

It's actually QUITE clear once you accept the notion that a woman is a "person." There's even Conservative support for this.

As President, Ronald Reagan opposed the Equal Rights Amendment because he felt that women were already protected by the Fourteenth Amendment, although as Governor of California Reagan had supported tbe amendment and offered to help women's groups achieve its ratification.[32] Reagan pulled his support for the ERA shortly before announcing his 1976 candidacy for President; the 1976 Republican National Convention renewed the party's support for the amendment but in 1980 the party quallified its 40 year support for ERA. Despite opposing the ERA, Reagan did not actively work against the amendment, which his daughter Maureen (who advised her father on various issues including women's rights) and most prominent Republicans supported.


The fact that the original writers of a law embraced ridiculous and unsustainable definitions based on the culture and mores of the time shouldn't mean that we are stuck with them forever - or even that an Amendment is needed to state what has become clear everywhere else in society.

As to the subject of gay marriage, I agree that it is not as clear as women's rights. Gays, after all, have the same right to marry a member of the opposite sex for financial reasons, etc. But what we're talking about here isn't gay rights, per se, in the sense of a national law instituting gay marriage. It's DOMA and its blatant disregard of the plain language of the Constitution regarding "full faith and credit," and the obvious anti-gay animus that led to its passage.

to alnorth (I think):

I disagree with the idea that the DOJ must defend every law. If they cannot make a real defense, they MUST NOT make a sham defense. They are obligated by ethics if not the law itself to step aside and let some interested party make a real defense.

patteeu
02-27-2011, 11:33 AM
... nor deny to any person within its jurisdiction the equal protection of the laws.

It's actually QUITE clear once you accept the notion that a woman is a "person."

Not as long as the term "equal protection" remains ambiguous. Speeders, minors, those with sight impairment, and child rapists are persons but we separate them into separate classes for purposes of treating them differently from other persons in at least some respects. As long as there is a reason to discriminate, discrimination is acceptable. It's clear that the writers and those who ratified the reconstruction amendments were indicating that there is no valid reason for discriminating on the basis of race. It's equally clear that they were not saying the same about discrimination on the basis of sex, sexual preference, handicaps or behavior.