Political Forums  

Go Back   Defending The Truth Political Forum > Political Issues > Civil Rights > Gay and Lesbian Rights

Gay and Lesbian Rights Gay and Lesbian Political Rights Forum - For topics and discussions about LGBT


Thanks Tree54Thanks
Reply
 
LinkBack Thread Tools Display Modes
Old January 12th, 2016, 12:43 PM   #21
Senior Member
 
Join Date: Dec 2012
Location: California
Posts: 17,466
Quote:
Originally Posted by Asimov View Post
There is another line of analysis here that we haven't heard much about with all the rhetoric about "states' rights" and how the Roberts Court is "destroying our liberty". It is found in Article VI of the Constitution, which prescribes as follows:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the US., shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

This means that when a State law or policy purposefully violates the fundamental constitutional rights of U.S. citizens by express discrimination, U.S. law must prevail. So we must ask ourselves this question. Do the consenting adult citizens of this country retain a fundamental constitutional right to choose their spouse, or does a particular State retain the power to say "no, you must choose someone more to our liking"?

The same principle applies to mixed-race marriage, to age-gap discrimination, to social or economic disparity or grouping, to religious affiliation, to political views or voting record, or any other means by which the state might think it has the power to regulate whom you may or may not choose for a domestic partner. There is simply no sound legal argument that can be made to justify continued discrimination against an entire class of people in this regard.

With all due respect to the sensitivities of those on the religious right: "God says NO" is NOT a valid legal argument. Sorry, but like it or not, this country is governed by a constitution. Not a Sunday sermon. Personal religious convictions simply do not count.
Try leaving religion out of it. What then, do you have? You have an Activist Court that redefined Constitutional Due Process to mean anything the Activist Judges want it to mean. When the Court lowers itself into making decisions based on "personal opinion" rather than lawful Constitutional dictates, the Constitution becomes nothing more than a worthless piece of paper.
caconservative is offline  
Old January 12th, 2016, 12:48 PM   #22
Senior Member
 
Jimmyb's Avatar
 
Join Date: Jun 2012
Location: Earth
Posts: 38,895
Quote:
Originally Posted by Asimov View Post
Here is a brief summation of Marbury as it applied to the question of National Supremacy, as explained by the U.S. Supreme Court Historical Society.

"Declaring the Constitution “superior, paramount law,” [as defined in Article VI] the Supreme Court ruled that when ordinary laws conflict with the Constitution, they must be struck down. Furthermore, it is the job of judges, including the justices of the Supreme Court, to interpret laws and determine when they conflict with the Constitution. According to the Court, the Constitution gives the judicial branch the power to strike down laws passed by Congress, the legislative branch. This is the principle of judicial review. Thus, it has been recognized since this decision that it is “emphatically the province and duty of the judicial department to say what the law is.”



There would be if a State law was found to be in violation of a citizen's fundamental rights within the parameters of the Constitution. The Roberts Court turned to 14th Amendment due process as the basis for it's decision, but as a general rule an argument can also be made that one's choice for a domestic partner falls within the unenumerated rights broadly defined in Amendment IX. Fundamental rights are purposefully not limited to those specifically named in the Constitution. For what other rights are fundamental, we turn to the courts. As Marshall stated in 1803, "it is emphatically the province and duty of the judicial department to say what the law is."

This precedent has been around for over 200 years. It is unlikely now that the Federal Courts will abrogate what they see as their duty under the Constitution because a right wing contingency doesn't like the result.
Quote:
"Declaring the Constitution “superior, paramount law,” [as defined in Article VI] the Supreme Court ruled that when ordinary laws conflict with the Constitution, they must be struck down. Furthermore, it is the job of judges, including the justices of the Supreme Court, to interpret laws and determine when they conflict with the Constitution. According to the Court, the Constitution gives the judicial branch the power to strike down laws passed by Congress, the legislative branch. This is the principle of judicial review. Thus, it has been recognized since this decision that it is “emphatically the province and duty of the judicial department to say what the law is.”
Your quote from the U.S. Supreme Court Historical Society substantiates my view regarding laws passed by Congress, the legislative branch. No mention of state laws. The quote from the Marbury ruling is problematic because of context:

Quote:
“emphatically the province and duty of the judicial department to say what the law is.”
The partial quote was taken from this paragraph:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
That is not the context problem. The problem is the preceding paragraph in Marbury:
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
Throughout Marshall’s opinion, he referred to “the legislature” meaning the U.S. Congress. The quote from Marbury in your quote refers to the U.S. Congress, the legislative branch. Marshall never mentions the states or state laws, but only references federal laws and the commerce clause, the treason clause, bills of attainder, ex post facto laws.

The Marbury ruling is a simple and narrow ruling, and Madison did not break any new ground.

Article VI was not a basis for Marshall’s opinion other than a passing mention of federal laws. The primary basis was Article II and Article III.

Madison listed the progression Marbury’s judicial appointment as it pertained to Article II, Section 2:
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
Marshall established that Marbury was appointed, confirmed, the commission signed by the President, and finally completed with the Secretary of State affixing the seal of his office. (John Marshall was the Secretary of State that sealed Marbury’s appointment.) Marshall concluded that once all these steps were concluded, Marbury was then protected under the vested rights doctrine.

The Article III basis regarded original jurisdiction, writs of mandamus, and the Judiciary Act of 1789. Marshall concluded that Article III did not give the Supreme Court original jurisdiction for a writ of mandamus, and Congress did not have the power to give the Supreme Court mandamus power with the Judiciary Act of 1789. Marbury was entitled to a writ of mandamus, but not with the Supreme Court.

Quote:
There would be if a State law was found to be in violation of a citizen's fundamental rights within the parameters of the Constitution. The Roberts Court turned to 14th Amendment due process as the basis for it's decision, but as a general rule an argument can also be made that one's choice for a domestic partner falls within the unenumerated rights broadly defined in Amendment IX. Fundamental rights are purposefully not limited to those specifically named in the Constitution. For what other rights are fundamental, we turn to the courts. As Marshall stated in 1803, "it is emphatically the province and duty of the judicial department to say what the law is."

This precedent has been around for over 200 years. It is unlikely now that the Federal Courts will abrogate what they see as their duty under the Constitution because a right wing contingency doesn't like the result.
Article III and Article VI were written four years before the Bill of Rights and there were no rights in the Constitution, so a state law found to be in violation of a citizens fundamental rights was not a concept under either article. Even after the ratification of the Bill of Rights, there was no federal power over a state violating a citizen’s fundamental right.

The Robert’s court could not have turned to the Fourteenth Amendments due process clause as the Fourteenth Amendment’s due process clause was procedural due process, not substantive due process. What the Robert’s court did was decide that the 39th Congress used the substantive due process doctrine that did not exist in 1866. That is judicial activism and creating an event in history that never happened.
Thanks from caconservative and excalibur
Jimmyb is offline  
Old January 12th, 2016, 12:49 PM   #23
Senior Member
 
Jimmyb's Avatar
 
Join Date: Jun 2012
Location: Earth
Posts: 38,895
Quote:
Originally Posted by BubbaJones View Post
As I have said on several other occasions, I am a resident of the state of Tennessee, but I am a CITIZEN of the Unites States. My most fundamental rights DO NOT CHANGE depending on which side of a river, or some imaginary line, I happen to be standing on.

I truly do not understand how people can think other wise. The 14th Amendment is pretty damned clear.
The Fourteenth Amendment is clear, but what you are describing was not part of the Fourteenth Amendment and were not created until the twentieth century.
Thanks from caconservative
Jimmyb is offline  
Old January 12th, 2016, 02:34 PM   #24
Senior Member
 
Asimov's Avatar
 
Join Date: Jun 2015
Location: Minnesota
Posts: 1,881
Quote:
Originally Posted by Jimmyb View Post
Your quote from the U.S. Supreme Court Historical Society substantiates my view regarding laws passed by Congress, the legislative branch. No mention of state laws.

Throughout Marshall’s opinion, he referred to “the legislature” meaning the U.S. Congress. The quote from Marbury in your quote refers to the U.S. Congress, the legislative branch. Marshall never mentions the states or state laws, but only references federal laws and the commerce clause, the treason clause, bills of attainder, ex post facto laws.
Correct in that Marshall himself in the Marbury opinion does not mention States and state law specifically. That is because he was ruling on the constitutionality of the Judiciary Act of 1789, which was the legal basis for Marbury's suit against Secretary Madison. No state law was invoked, so none was addressed.

However, as you well know, narrow rulings on Constitutionality by a federal court can have far reaching implications once stare decisis establishes a prevailing point of law.

Quote:
Originally Posted by Jimmyb View Post
Article VI was not a basis for Marshall’s opinion other than a passing mention of federal laws. The primary basis was Article II and Article III.
As I read the case, National Supremacy under Article VI lays at the very heart of the the Marbury ruling. When the Judiciary Act of 1789 was found to be in direct conflict with Article III of the Constitution, Marshall declared, based upon Article VI, that the Constitution must unequivocally prevail. The Judiciary Act was wholeheartedly struck down. To say that Article VI doesn't apply in cases such is this betrays a limited understanding of both Marshall and the Constitution. I don't think that is where you intend to go.

And when you read Article VI as it stands, it clearly includes as inferior to the Constitution any law or policy invoked by any State. The meaning is very clear.

Quote:
Originally Posted by Jimmyb View Post
The Robert’s court could not have turned to the Fourteenth Amendments due process clause as the Fourteenth Amendment’s due process clause was procedural due process, not substantive due process. What the Robert’s court did was decide that the 39th Congress used the substantive due process doctrine that did not exist in 1866. That is judicial activism and creating an event in history that never happened.
JB I'm not sure where you're going here, but procedural and substantive due process are two sides of the same legal coin. Substantive due process is applied to protect a suspect class from blanket discrimination by a general law or policy, as evidence by the Equal Protection clause that follows. It is the entire purpose for which the 14th Amendment was added. Not to mandate that law enforcement in the Reconstruction South follow the written laws to a T, but to protect sweeping racist discrimination by state and local governments. It was aimed at Jim Crow, which is a violation of substantive due process.

When a racist officer fails to follow the rules, that violates procedural due process. When the rule itself is racist, that violates substantive due process. The Obergfell case involves a suspect class of people, same-gender partners, facing discrimination by established State law or policy, which is a violation of substantive due process (so said Justice Kennedy.)
Thanks from waitingtables

Last edited by Asimov; January 12th, 2016 at 02:37 PM.
Asimov is offline  
Old January 12th, 2016, 02:37 PM   #25
Banned
 
excalibur's Avatar
 
Join Date: Apr 2013
Location: The Milky Way
Posts: 24,581
There is no leg to stand on in insisting/spinning Marbury as anything but a federal matter. And see: Barron v. Baltimore.


Last edited by excalibur; January 12th, 2016 at 02:41 PM.
excalibur is offline  
Old January 12th, 2016, 02:41 PM   #26
Senior Member
 
Asimov's Avatar
 
Join Date: Jun 2015
Location: Minnesota
Posts: 1,881
Quote:
Originally Posted by excalibur View Post
There is no leg to stand on in insisting/spinning Marbury as anything but a federal matter.
I have a Juris Doctorate from an ABA certified law school. What is YOUR legal background?
Thanks from waitingtables, RNG and Lyzza
Asimov is offline  
Old January 12th, 2016, 02:52 PM   #27
Banned
 
excalibur's Avatar
 
Join Date: Apr 2013
Location: The Milky Way
Posts: 24,581
As far as I know you have a piece of paper from a Cracker Jack box.

Marbury was solely a federal question. And see: Barron v. Baltimore, decision by the same CJ as Marbury.

From Barron:

Quote:
Had the people of the several States, or any of them, required changes in their Constitutions, had they required additional safeguards to liberty from the apprehended encroachments of their particular governments, the remedy was in their own hands, and could have been applied by themselves. A [p250] convention could have been assembled by the discontented State, and the required improvements could have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of Congress and the assent of three-fourths of their sister States could never have occurred to any human being as a mode of doing that which might be effected by the State itself. Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.


Last edited by excalibur; January 12th, 2016 at 03:01 PM.
excalibur is offline  
Old January 12th, 2016, 04:00 PM   #28
Senior Member
 
Asimov's Avatar
 
Join Date: Jun 2015
Location: Minnesota
Posts: 1,881
Quote:
Originally Posted by excalibur View Post
As far as I know you have a piece of paper from a Cracker Jack box.
I asked you a simple question about your legal background. You respond with a personal insult that avoids the question entirely. I guess your childish reaction provides the answer without you actually having to say so. It's clear from your misuse of Barron that you know just enough about American jurisprudence to be dangerous.

Barron was an 1833 case involving civil damages against the City of Baltimore. Barron sought monetary compensation from the City in a federal court under the Takings Clause of the 5th Amendment. He won the case, but it was reversed on appeal because, Marshall said, the Bill of Rights at that time was meant only to limit the power of Congress. Therefore Barron needed to refile his claim in a Maryland court.

But FYI, Article VI of the Constitution is not part of the Bill of Rights. It is part of the main body, which preceded the Bill of Rights by as much as two years. Article VI applies expressly to both Congress AND the States, and it clearly says so. And that was the clause used in Marbury to strike down the Judiciary Act of 1789. The Bill of Rights had not even yet been ratified. The Supremacy Clause of Article VI defines the very meaning of Judicial Review.

Oh, and one other thing you failed to mention. Barron, which was argued by Southern legislators as a covert means to prevent slaves from suing their owners in a federal court, has been effectively debunked by 14th Amendment incorporation doctrine, which HAS applied the Bill of Rights to State and local governments for the last century.

Bottom line: Gay citizens in America have constitutional rights that the federal courts are charged to protect, whether you happen to like these people or not.
Thanks from waitingtables and Lyzza

Last edited by Asimov; January 12th, 2016 at 04:05 PM.
Asimov is offline  
Old January 12th, 2016, 06:25 PM   #29
Senior Member
 
Jimmyb's Avatar
 
Join Date: Jun 2012
Location: Earth
Posts: 38,895
Quote:
Originally Posted by Asimov View Post
Correct in that Marshall himself in the Marbury opinion does not mention States and state law specifically. That is because he was ruling on the constitutionality of the Judiciary Act of 1789, which was the legal basis for Marbury's suit against Secretary Madison. No state law was invoked, so none was addressed.

However, as you well know, narrow rulings on Constitutionality by a federal court can have far reaching implications once stare decisis establishes a prevailing point of law.

As I read the case, National Supremacy under Article VI lays at the very heart of the the Marbury ruling. When the Judiciary Act of 1789 was found to be in direct conflict with Article III of the Constitution, Marshall declared, based upon Article VI, that the Constitution must unequivocally prevail. The Judiciary Act was wholeheartedly struck down. To say that Article VI doesn't apply in cases such is this betrays a limited understanding of both Marshall and the Constitution. I don't think that is where you intend to go.

And when you read Article VI as it stands, it clearly includes as inferior to the Constitution any law or policy invoked by any State. The meaning is very clear.


JB I'm not sure where you're going here, but procedural and substantive due process are two sides of the same legal coin. Substantive due process is applied to protect a suspect class from blanket discrimination by a general law or policy, as evidence by the Equal Protection clause that follows. It is the entire purpose for which the 14th Amendment was added. Not to mandate that law enforcement in the Reconstruction South follow the written laws to a T, but to protect sweeping racist discrimination by state and local governments. It was aimed at Jim Crow, which is a violation of substantive due process.

When a racist officer fails to follow the rules, that violates procedural due process. When the rule itself is racist, that violates substantive due process. The Obergfell case involves a suspect class of people, same-gender partners, facing discrimination by established State law or policy, which is a violation of substantive due process (so said Justice Kennedy.)
Quote:
Correct in that Marshall himself in the Marbury opinion does not mention States and state law specifically. That is because he was ruling on the constitutionality of the Judiciary Act of 1789, which was the legal basis for Marbury's suit against Secretary Madison. No state law was invoked, so none was addressed.

However, as you well know, narrow rulings on Constitutionality by a federal court can have far reaching implications once stare decisis establishes a prevailing point of law.
Don’t get me started on judicial incest regarding stare decisis.

Quote:
As I read the case, National Supremacy under Article VI lays at the very heart of the the Marbury ruling. When the Judiciary Act of 1789 was found to be in direct conflict with Article III of the Constitution, Marshall declared, based upon Article VI, that the Constitution must unequivocally prevail. The Judiciary Act was wholeheartedly struck down. To say that Article VI doesn't apply in cases such is this betrays a limited understanding of both Marshall and the Constitution. I don't think that is where you intend to go.

And when you read Article VI as it stands, it clearly includes as inferior to the Constitution any law or policy invoked by any State. The meaning is very clear.
I understand where you are coming from. I think you are inadvertently using the fallacy of nunc pro tunc. It is easy to do. Madison’s mild reference to Article VI and the supreme law of the land regarded “judicial officers” of the United States. Article VI and the stated intent from the debates limited Article VI to the federal powers in Article I. The concern was that a conflict would impede the federal government from performing their enumerated powers.

There is no doubt that today Article VI has been assigned a different meaning. I do not think we are in as much a disagreement over intent as we are over centuries. I rarely step away from original intent and first and second generation Supreme Court rulings. I fully understand the status of the Constitution in today’s world to legally defend it under that standard, but that is not what interests me.

Quote:
JB I'm not sure where you're going here, but procedural and substantive due process are two sides of the same legal coin. Substantive due process is applied to protect a suspect class from blanket discrimination by a general law or policy, as evidence by the Equal Protection clause that follows. It is the entire purpose for which the 14th Amendment was added. Not to mandate that law enforcement in the Reconstruction South follow the written laws to a T, but to protect sweeping racist discrimination by state and local governments. It was aimed at Jim Crow, which is a violation of substantive due process.

When a racist officer fails to follow the rules, that violates procedural due process. When the rule itself is racist, that violates substantive due process. The Obergfell case involves a suspect class of people, same-gender partners, facing discrimination by established State law or policy, which is a violation of substantive due process (so said Justice Kennedy.)
I also understand where you are coming from with this as well. But I also understand that substantive due process was never part of the Fourteenth Amendment as it was not a concept at that point in time, and it was only a concept during the early 1930s regarding economics and is what the Supreme Court used in the early and mid-1930s to shoot down FDR’s New Deal as unconstitutional. It did not morph into what is used today until later, which still puts it far outside the timeline of the Fourteenth Amendment. The due process clause of the Fourteenth Amendment along with the equal protection clause were limited to judicial mechanisms in the court, not the laws. But, that is not what we are working with today.
Jimmyb is offline  
Old January 12th, 2016, 07:52 PM   #30
Senior Member
 
Asimov's Avatar
 
Join Date: Jun 2015
Location: Minnesota
Posts: 1,881
Quote:
Originally Posted by Jimmyb View Post
Don’t get me started on judicial incest regarding stare decisis.

I understand where you are coming from. I think you are inadvertently using the fallacy of nunc pro tunc. It is easy to do. Madison’s mild reference to Article VI and the supreme law of the land regarded “judicial officers” of the United States. Article VI and the stated intent from the debates limited Article VI to the federal powers in Article I. The concern was that a conflict would impede the federal government from performing their enumerated powers.

There is no doubt that today Article VI has been assigned a different meaning. I do not think we are in as much a disagreement over intent as we are over centuries. I rarely step away from original intent and first and second generation Supreme Court rulings. I fully understand the status of the Constitution in today’s world to legally defend it under that standard, but that is not what interests me.

I also understand where you are coming from with this as well. But I also understand that substantive due process was never part of the Fourteenth Amendment as it was not a concept at that point in time, and it was only a concept during the early 1930s regarding economics and is what the Supreme Court used in the early and mid-1930s to shoot down FDR’s New Deal as unconstitutional. It did not morph into what is used today until later, which still puts it far outside the timeline of the Fourteenth Amendment. The due process clause of the Fourteenth Amendment along with the equal protection clause were limited to judicial mechanisms in the court, not the laws. But, that is not what we are working with today.
I see and partially concede your point about reading these early cases nunc pro tunc. For instrumentalists such as yourself, that presents a caution. But in the reality of the leveling effect that the 14th Amendment has invoked in the century since its inception, I cannot see this country ever going back to an antebellum stance on issues involving civil rights.
I believe the direction of our Federal Judiciary will continue to be progressive in ferreting out the spirit of equality, and continue to move away from the personal race, gender and orientation biases of the founders,
much the same as Lincoln did when he invoked the "better angels of our nature" to strike out against slavery, turning to the Declaration of Independence for justification rather than Taney's racist AND instrumentalist Supreme Court.
Thanks from waitingtables and Lyzza
Asimov is offline  
Reply

  Defending The Truth Political Forum > Political Issues > Civil Rights > Gay and Lesbian Rights

Tags
judicial activism, real, talk



Thread Tools
Display Modes


Similar Threads
Thread Thread Starter Forum Replies Last Post
Whew!!!! Talk About "Cold-Blooded"!!! Medicine Man Current Events 1 May 8th, 2014 04:41 PM
It's time for "Real Change" WE start at the top, and "trickle down"! intangible child Current Events 0 February 14th, 2014 10:03 AM
The Real Story Behind Bill Gates And "Death Panels" Dude111 Healthcare 1 October 3rd, 2010 09:17 PM
CT Gov. denounces judicial activism on homosexual marriage garysher Gay and Lesbian Rights 166 October 18th, 2008 04:31 AM


Facebook Twitter RSS Feed



Copyright © 2005-2013 Defending The Truth. All rights reserved.