SPLIT--> Judicial Review & Gay Marriage

[maycocksean]

On one point, I agree with Indy.

The Framers would not have approved of the extent to which judicial review is used today. Many were wary of any branch becoming too powerful (though it seems they worried more about the executive and less about the judicial).

But here's the thing, the Framers were not perfect beings who created The Perfect Document, whose every intent was holy and unassailable. Honestly, some of those on the Right treat the Constitution and those who wrote like the Bible and the prophets.
The reality is that the Constitution was not (and is not) a perfect document (one egregious example--the Framers agreed to the 3/5 compromise that continued to accomodate slaver). The Framers knew this. In fact there were a lot of Framers who were very dissatisfied with the Constitution (George Mason even refused to sign it). So what I think the Framers would be horrified by today, is the amount of sanctity we award their "intent." Their "intent" was never even unanamious, much less unassailable.

[anitram]

Originally posted by INDY500

Not what the Framers envisioned.

Who gives a shit what they envisioned? In Canada, we approach constitutional issues from the "living tree" doctrine - i.e. the constitution is a living tree which is meant to grow and expand as times change.

Certainly legislative intent is an important thing in intepreting a given law. But there is a difference in interpreting the will of the legislature regarding a bill they passed 6 years ago and a constitutional document which was written over 2 centuries ago and which may simply have little if any continuing relevance.

[verte76]

Things change. The Constitution was written in the eighteenth century. We had slavery. Thomas Jefferson was a slave owner. We need to adjust to modern realities.

[phillyfan26]

Originally posted by INDY500
And I certainly don't see how A_Wanderer sees our current law as it pertains to same-sex marriage to be a clear violation of the Establishment Clause. There are secular arguments against it as well.

Uh, because people pound their Bible and say "homosexuality is a sin! we can't have same-sex marriage!" and that somehow makes sense to people? Maybe that's where?

I've yet to hear a single secular argument about it. Not a single, solitary one.

[phillyfan26]

Originally posted by INDY500
Not what the Framers envisioned.

The Framers envisioned a lot. They were against imperialism. Should we give Louisiana back? Alaska? Hawaii? Should we go back to slavery?

[Irvine511]

Originally posted by INDY500


Missing the point completely, notice the "using your logic." A-Wanderer's logic being that any argument made about law on the basis of a religious belief is invalid. More than invalid, dangerous. And any statute with it's roots in religious law, is unconstitutional.

I disagree. The ideal was not to establish a Church (singular) to make law, not that those that go to church cannot help make the law.

And I certainly don't see how A_Wanderer sees our current law as it pertains to same-sex marriage to be a clear violation of the Establishment Clause. There are secular arguments against it as well.

honey, marriage is a secular institution in the eyes of the state. God has nothing to do with the benefits you receive. hence, when you (the royal you) say things like "allowing marriage equality violates my freedom of religion" or "my being unable to fire people on the basis of being gay violates my freedom of religion," you are violating the Establishment Clause. shall we go through and take out the quotes tossed around by the Republicans in the House?

i agree with your distinction about not wanting a singular church -- i wonder how we'd feel if our Baptist children suddenly had to say "hail mary" every morning and pray the rosary after lunch -- and, yes, those that go to church are certainly free to make the laws. but what you're advocating is quite a different thing altogether, and it's thoroughly Christian in it's view -- are those who go to Mosque allowed to make the laws? those who go to synagogue? those who are atheists?

[melon]

Originally posted by anitram
Who gives a shit what they envisioned?

It's funny, because the American approach to the "Founding Fathers" reminds me of something that Icelandic historian, Snorri Sturluson (1178-1241), theorized regarding the origin of the Norse gods. That is, these mythological gods began as ancient kings or war heroes, who, through the passage of time and legend, develop into cults. As the early Norse tribes entered battle or overall hardship, they would call upon the memory of that dead king for strength. Finally, enough time passes that they are remembered solely as gods.

Is George Washington the "Óðinn" (chief god of the "Æsir," who signified "war" and "power") of our day? Thomas Jefferson, I imagine, would be "Njörðr" (father of the "Vanir," who signified fertility, wealth, and pleasure). After all, it seems that even Norse deities divided themselves into opposing political parties.

[INDY500]

Originally posted by phillyfan26


The Framers envisioned a lot. They were against imperialism. Should we give Louisiana back? Alaska? Hawaii? Should we go back to slavery?

Imperialism? I thought we bought Louisiana from the French, Alaska from the Russians and the residents of Hawaii actually voted to become a state.

Slavery was abolished in the United States by the Thirteenth Amendment. Notice the Constitution was AMENDED by Congress and state legislatures, not reinterpreted by judges to fit the mores of the day.

Just as the Framers envisioned.

[melon]

Originally posted by INDY500
Slavery was abolished in the United States by the Thirteenth Amendment. Notice the Constitution was AMENDED by Congress and state legislatures, not reinterpreted by judges to fit the mores of the day.

Just as the Framers envisioned.

You should remember another amendment that was passed at the same time:

14th Amendment

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

The latter is particularly important, because the intention was to prevent laws from being created that targeted a specific, unpopular minority. In the 19th century, that meant passing laws with the intent of singling out the African-American population. Unfortunately, this amendment had been "reinterpreted by judges to fit the mores of the day" (those "mores" being a deep hatred of blacks and support for segregation) for close to 100 years, before actually being enforced properly in the 1950s and 1960s.

And now here we go, in the 21st century, passing laws with the specific intention of singling out and discriminating against an unpopular minority of gays. According to the 14th amendment, passed by those same state and federal legislatures "as the Framers intended," these laws are unconstitutional. But, as you can see regarding all those laws supporting racial segregation for nearly 100 years after the 14th amendment banned them, it takes judicial courage to uphold the law, rather than cave in to popular political pressure. The United States, unfortunately, is not known as a courageous leader in civil rights, from a global historical standpoint.

[martha]

Originally posted by INDY500
the residents of Hawaii actually voted to become a state.

Did they vote to be overrun by American business interests before they were a state?

[INDY500]

Originally posted by anitram


Who gives a shit what they envisioned? In Canada, we approach constitutional issues from the "living tree" doctrine - i.e. the constitution is a living tree which is meant to grow and expand as times change.

Apparently liberals when it comes to George W Bush and the flexibility he needs to wage the War on Terror. Then suddenly "original intent" and "disrespect for America's Constitution" overrides any "living tree" doctrine and the Constitution isn't alive and allowed to "grow" anymore.

[melon]

Originally posted by INDY500
Apparently liberals when it comes to George W Bush and the flexibility he needs to wage the War on Terror. Then suddenly "original intent" and "disrespect for America's Constitution" overrides any "living tree" doctrine and the Constitution isn't alive and allowed to "grow" anymore.

That's bullshit, and you know it. I don't buy this whole "living tree" versus "strict constructionist" dichotomy anyway, because what it really is--as everything seems to be in America--is an extension of struggles between political ideology.

The 14th Amendment, again, is a perfect example. So-called "strict constructionists," in this case, look at enforcement of this amendment as activities of "activist judges," even though the equal protection clause is plainly written.

The difference between constitutional issues of civil rights and that of governmental separation of powers are completely separate issues--mainly because the separation of powers are very explicitly written in the Constitution. Where are our so-called "strict constructionists" enforcing these provisions "as intended by the Framers"? After all, they "intended" for us to have a fairly weak federal government, particularly when it came to the executive branch.

No, like I said, "strict constructionist" is just a self-righteous and arrogant term for "conservative." That's why we get "conservative judges" that start spouting that civil rights are all about "activist judges," yet are more than willing to completely dismember the Constitutionally-defined separation of powers when it suits the larger conservative agenda.

[Vincent Vega]

I don't get what all the fuss with the Supreme Court and their rulings is about.

Every modern democracy does have a system of a jurisdiction overseeing what laws get passed, checking their "constitutionality", and ruling in cases where the Constitution is involved.

And now they are called Activist Judge in the country that otherwise praises itself for being the first and the greatest democracy of modern times.

Maybe a system where the judges of the highest court get appointed by the politicians it has to oversee isn't that flawless?

[melon]

Originally posted by Vincent Vega
And now they are called Activist Judge in the country that otherwise praises itself for being the first and the greatest democracy of modern times.

Even the Roman Empire never abandoned the political structure of the Roman Republic, and it has been stated that the transition happened so gradually that no Roman citizen, at any period of time, could ever effectively say that the Republic had ended.

I certainly hope that the U.S. doesn't go in this direction over the long term.

[anitram]

A big problem in the US is how the SCOTUS judges are appointed.

Here, it is not a political process, the court is not seen as a political entity in the struggle of right v. left and although certain justices definitely have their own defined views, it is simply not a political struggle like it is in the US. Furthermore we also have 4 women and the Chief Justice is a woman - it's a disgrace that in the US there is a grand total of ONE woman on your supreme court. And if anyone gives me the patented "maybe men were more qualified" answer, then you should probably examine what's wrong with your law schools and law firms (I believe nothing really, which again comes to some weird macho system of promoting only men).

[Vincent Vega]

That would be very tragic for the whole world.

[Irvine511]

Originally posted by INDY500

the flexibility he needs to wage the War on Terror.

i'm excited to see your enthusiastic defense of Hillary when she inherits all these brand new super powers. she'll need them to wage the War on Terror, aren't you glad GWB has made sure she'll be able to use them as she herself deems fit.

after all, if/when she's president, we'll just have to trust her to make us safe. she knows best, certainly Bush believes so.

[melon]

Originally posted by Irvine511
i'm excited to see your enthusiastic defense of Hillary when she inherits all these brand new super powers. she'll need them to wage the War on Terror, aren't you glad GWB has made sure she'll be able to use them as she herself deems fit.

after all, if/when she's president, we'll just have to trust her to make us safe. she knows best, certainly Bush believes so.

I frankly loved it when Republicans here in FYM, prior to Bush's election, were paranoid about the government and thought we had to do everything we could to weaken it.

I haven't forgotten their double standards. And, most assuredly, if any Democrat is elected in 2008, they'll go back to dusting off all their old rhetoric about needing to weaken the government.

[phillyfan26]

Originally posted by INDY500
Imperialism? I thought we bought Louisiana from the French, Alaska from the Russians and the residents of Hawaii actually voted to become a state.

Slavery was abolished in the United States by the Thirteenth Amendment. Notice the Constitution was AMENDED by Congress and state legislatures, not reinterpreted by judges to fit the mores of the day.

Just as the Framers envisioned.

Purchasing land certainly doesn't fall under the isolationist terms the founders (especially George Washington) set the US under.

And, as melon said, you have ignored the 14th on this issue.

[INDY500]

Originally posted by melon


You should remember another amendment that was passed at the same time:



The latter is particularly important, because the intention was to prevent laws from being created that targeted a specific, unpopular minority. In the 19th century, that meant passing laws with the intent of singling out the African-American population. Unfortunately, this amendment had been "reinterpreted by judges to fit the mores of the day" (those "mores" being a deep hatred of blacks and support for segregation) for close to 100 years, before actually being enforced properly in the 1950s and 1960s.

And now here we go, in the 21st century, passing laws with the specific intention of singling out and discriminating against an unpopular minority of gays. According to the 14th amendment, passed by those same state and federal legislatures "as the Framers intended," these laws are unconstitutional. But, as you can see regarding all those laws supporting racial segregation for nearly 100 years after the 14th amendment banned them, it takes judicial courage to uphold the law, rather than cave in to popular political pressure. The United States, unfortunately, is not known as a courageous leader in civil rights, from a global historical standpoint.

You see same-sex marriage as a civil rights issue, fine, but that's how I see the issue of abortion. What else have they in common? They are being quarreled over in courthouses, not legislatures. Judge shopped by both sides trying to get an agreeable outcome. That's what makes them wedge issues, a failure to act legislatively.

Just don't argue as A_Wanderer does that morality derived from religion should not be permitted to shape those laws should they carry the argument.