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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Tue Feb 07, 2012 7:43 pm 
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I'm like 42 pages in and I'm wondering if I'm reading this correctly: If California had NEVER extended the right of marriage to same sex couples, would Proposition 8 be consitutional?

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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Tue Feb 07, 2012 8:24 pm 
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cutuphalfdead wrote:
I'm like 42 pages in and I'm wondering if I'm reading this correctly: If California had NEVER extended the right of marriage to same sex couples, would Proposition 8 be consitutional?
That's the question that Reinhardt looks to have explicitly left unanswered. He chose to rule on the narrowest possible option and ignore broader ones for the time. My guess is that Reinhardt tailored his opinion so that he can convince SCOTUS as a whole to at least affirm his ruling, and start building precedent to answer broader questions another day. Honestly, after reading this, it might not be out of the pale if SCOTUS denies cert altogether with a righteous dissent from denial from Scalia or Thomas.


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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Thu Feb 09, 2012 10:44 pm 
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The powers not delegated to the US by the constitution, nor prhibited by it to the States, are reserved to the states respectively, or to the people, if a plurality of federal judges subjectively determine that the reasons for a law are legitimate.

I mean, support gay marriage, but the ruling was fucking ridiculous. Talk about placing immense power in the hands of federal courts. This ruling essentially strips states of any and all autonomy and places the efficacy of law on panels of judges to determine whether they feel the laws enacted in any given jurisdiction are legitimate or not.

I'm against all marriage jiggering by the state as it is. It's classifying people in and of itself. Why treat married people different from single people?

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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Fri Feb 10, 2012 2:00 pm 
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LittleWing wrote:
The powers not delegated to the US by the constitution, nor prhibited by it to the States, are reserved to the states respectively, or to the people, if a plurality of federal judges subjectively determine that the reasons for a law are legitimate.

I mean, support gay marriage, but the ruling was fucking ridiculous. Talk about placing immense power in the hands of federal courts. This ruling essentially strips states of any and all autonomy and places the efficacy of law on panels of judges to determine whether they feel the laws enacted in any given jurisdiction are legitimate or not.

I'm against all marriage jiggering by the state as it is. It's classifying people in and of itself. Why treat married people different from single people?



The two most intriguing cases to me lately have been this one and the medical marijuana legalization (decriminalization) issue also in California for the reasons you state.

It's a good question to ask, why the government treats people differently based on marriage classifications.

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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Fri Feb 10, 2012 3:41 pm 
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LittleWing wrote:
The powers not delegated to the US by the constitution, nor prhibited by it to the States, are reserved to the states respectively, or to the people, if a plurality of federal judges subjectively determine that the reasons for a law are legitimate.

I mean, support gay marriage, but the ruling was fucking ridiculous. Talk about placing immense power in the hands of federal courts. This ruling essentially strips states of any and all autonomy and places the efficacy of law on panels of judges to determine whether they feel the laws enacted in any given jurisdiction are legitimate or not.
The Tenth Amendment, when it does apply, would apply to federal laws, not to other constitutional matters, as is the case here.

LittleWing wrote:
I'm against all marriage jiggering by the state as it is. It's classifying people in and of itself. Why treat married people different from single people?
I'm kind of with you here. The part of Reinhardt's opinion I didn't like is when he referred to civil marriage as having an emotional factor beyond the legal agreements that the government creates. That's where the government should have no comment. However, it still has to deal with all those legal things, like joining incomes, child custody, etc.


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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Sun Feb 12, 2012 2:59 pm 
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The Tenth Amendment, when it does apply, would apply to federal laws, not to other constitutional matters, as is the case here. - GH

Wait... what? Can you expound upon this a bit? Your wording is confusing.

That's where the government should have no comment. However, it still has to deal with all those legal things, like joining incomes, child custody, etc. - GH

Yes, I agree with this sentiment. But the feds still have no business in these matters unless there's some explicit violation of the constitution. This wasn't one of those cases.

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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Mon Feb 13, 2012 1:14 am 
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LittleWing wrote:
Green Habit wrote:
The Tenth Amendment, when it does apply, would apply to federal laws, not to other constitutional matters, as is the case here.
Wait... what? Can you expound upon this a bit? Your wording is confusing.
I can't think of any instance where a right that would have been granted by the Bill of Rights (or some other part of the Constitution) wasn't granted because it was deemed that the states have a Tenth Amendment right to restrict those rights. You do know that most of the Bill of Rights is incorporated against the states, right? Should states be able to pass laws within their borders that restrict freedom of speech, right to bear arms, just compensation for eminent domain, etc?

If Congress had passed a law saying that the states had to recognize same-sex marriage, then you might have a Tenth Amendment argument that would at least make sense.

LittleWing wrote:
Green Habit wrote:
That's where the government should have no comment. However, it still has to deal with all those legal things, like joining incomes, child custody, etc.
Yes, I agree with this sentiment. But the feds still have no business in these matters unless there's some explicit violation of the constitution. This wasn't one of those cases.
Well, we clearly disagree on whether the Constitution was explicitly violated.

From the opinion, Reinhardt listed the some of the following offered benefits in question (paraphrasing here):
--Raise children together
--Adopt children
--Become foster parents
--Share community property
--File state taxes jointly
--Participate in a partner's health insurance policy
--Enjoy hospital visitation privileges
--Make medical decisions on behalf of an incapacitated partner
--Serve as the conservator of a partner's estate

None of those have any inherent romantic connection, and there shouldn't need to be such a connection to obtain these benefits. However, these benefits have to be offered under the equal protection of the law, regardless if it's between people of the same or opposite sex, or whether or not they are romantically involved.


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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Mon Feb 13, 2012 1:47 am 
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I can't think of any instance where a right that would have been granted by the Bill of Rights (or some other part of the Constitution) wasn't granted because it was deemed that the states have a Tenth Amendment right to restrict those rights. You do know that most of the Bill of Rights is incorporated against the states, right? Should states be able to pass laws within their borders that restrict freedom of speech, right to bear arms, just compensation for eminent domain, etc? - GH

I don't think it takes much imagination to know what I think about incorporation doctrine.

Should states be able to pass laws within their borders that restrict free speech, right to bear arms, just compensation for eminent domain? Well, we already have local jurisdictions that place restrictions on free speech and right the right to assemble. If you want to protest, or have a gay parade, or camp out in the park for weeks on end, or have a Tea Party rally, there are certain stipulations you must meet in order to assemble and have your free speech. Of course states should be able to pass laws regarding the right to bear arms! The recent court decision incorporating the 2nd amendment is disastrous because it now empowers the federal government to dictate to the state just exactly what arms we have the right to bear. I'll be buying my next AR-15 in cash. In regards to eminent domain, I think this is a touchy issue and a power that should be incorporated. The feds have the power to hold sway over contracts and such.

Here is how I feel about incorporation. If you want to incorporate, that's fine. Just amend the constitution to incorporate whatever rights you want to incorporate. Words matter. Especially when it comes to constitutions. And the moment we cede power to judges allow them to decide what words in the constitution do and do not matter then we might as well not even have a constitution.

Well, we clearly disagree on whether the Constitution was explicitly violated.

From the opinion, Reinhardt listed the some of the following offered benefits in question (paraphrasing here):
--Raise children together
--Adopt children
--Become foster parents
--Share community property
--File state taxes jointly
--Participate in a partner's health insurance policy
--Enjoy hospital visitation privileges
--Make medical decisions on behalf of an incapacitated partner
--Serve as the conservator of a partner's estate

None of those have any inherent romantic connection, and there shouldn't need to be such a connection to obtain these benefits. However, these benefits have to be offered under the equal protection of the law, regardless if it's between people of the same or opposite sex, or whether or not they are romantically involved. - GH

And what business did Reinhardt have with ANY of that as a federal judge? Absolutely positively fucking nothing. The constitution grants no power to federal judge to determine who can raise children together, or adopt, or be foster parents, or share property, state taxes, health insurance, hospital visitations, medical decisions, or make decisions on a partners estate! These are state matters, and until the constitution is amended so to say that the feds do have jurisdiction in these matters they shouldn't have the power to TOUCH IT!

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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Mon Feb 13, 2012 2:32 am 
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LittleWing wrote:
Here is how I feel about incorporation. If you want to incorporate, that's fine. Just amend the constitution to incorporate whatever rights you want to incorporate. Words matter. Especially when it comes to constitutions.
The 14th Amendment did just that:

Quote:
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.

LittleWing wrote:
And the moment we cede power to judges allow them to decide what words in the constitution do and do not matter then we might as well not even have a constitution.
Ceding power to judges deciding the words of the Constitution forms the whole basis of constitutional law, going all the way back to Marbury v. Madison.


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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Mon Feb 13, 2012 3:06 am 
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When the hell did LW forget how to quote?


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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Mon Feb 13, 2012 3:45 am 
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Green Habit wrote:
LittleWing wrote:
Here is how I feel about incorporation. If you want to incorporate, that's fine. Just amend the constitution to incorporate whatever rights you want to incorporate. Words matter. Especially when it comes to constitutions.
The 14th Amendment did just that:

Quote:
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.

LittleWing wrote:
And the moment we cede power to judges allow them to decide what words in the constitution do and do not matter then we might as well not even have a constitution.
Ceding power to judges deciding the words of the Constitution forms the whole basis of constitutional law, going all the way back to Marbury v. Madison.


Oh, snap.


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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Mon Feb 13, 2012 4:34 am 
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Skitch Patterson wrote:
When the hell did LW forget how to quote?

Werd.

"Equal protection under the law" comes to mind. If you want to find gross usurpations of the law, see: Wickard v. Filburn. This prop 8 ruling is not it.

I guess its tempting to view this as judges overruling the consent of the people, but the use of ballot propostions to rewrite the California constitution is, for lack of a better word, retarded. These propositions are in large part responsible for Californias ongoing budget crisis. And yes, prop 13 is a red herring. Limiting property tax increases was actually an excellent idea, validated by recent history, btw.

Just like at the federal level, ammending the state constitution should be difficult because it entails a permanent change. Somehow every whim of a special interest group now requires an ammendment, and the voters are too dumb to consider the consequences. For instance, in the next ballot one of the propositions in california will require car insurance companies to do something or other. (my google search was inconclusive) A (semi-permanent) change to the state consitution does not seem warranted for such trivial issues.


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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Mon Feb 13, 2012 11:33 am 
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The 14th Amendment did just that: - GH
Quote:

No, the 14th amendment incorporated the 14th amendment.

It didn't incorporate anything else. The courts have incorporated the rest of it.

Quote:
Ceding power to judges deciding the words of the Constitution forms the whole basis of constitutional law, going all the way back to Marbury v. Madison.


Historical fallacy. I bet you can imagine what I think about this and the power grab that was Marbury.

How many times over the years have I stated that judicial rulings by precedent are completely wrong? Particularly when it comes to the constitution.

If a man can determine what the words of a constitution are, then why the fuck should we put the constitution on paper? We can just appoint a bunch of men to a Supreme Court, and allow them to tell us how we should live our lives at any given time differential throughout history.

What you describe completely nullifies the entire point of constitutional rule.

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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Mon Feb 13, 2012 1:59 pm 
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LittleWing wrote:
Green Habit wrote:
Ceding power to judges deciding the words of the Constitution forms the whole basis of constitutional law, going all the way back to Marbury v. Madison.
Historical fallacy. I bet you can imagine what I think about this and the power grab that was Marbury.

How many times over the years have I stated that judicial rulings by precedent are completely wrong? Particularly when it comes to the constitution.
So do you completely reject judicial review? I'm not sure if I've ever met anyone that does. Let me just run an example by you. We seem to agree that campaign finance regulations ultimately run in conflict with free speech. I say that such laws may be struck down as an unconstitutional violation of the First Amendment, as the Supreme Court has done several times. In your view, should the Supreme Court have had the power to do so?

LittleWing wrote:
If a man can determine what the words of a constitution are, then why the fuck should we put the constitution on paper? We can just appoint a bunch of men to a Supreme Court, and allow them to tell us how we should live our lives at any given time differential throughout history.

What you describe completely nullifies the entire point of constitutional rule.
Reasonable people can disagree on what the interpretation of written words are all the time. How would you envision such disagreements being resolved?


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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Mon Feb 13, 2012 4:59 pm 
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Green Habit wrote:
How would you envision such disagreements being resolved?



Send all disputes to:

Little Wing
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Freedom Town USA

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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Mon Feb 13, 2012 10:55 pm 
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There is a distinction between ruling by precedent and Judicial Review. What I am saying is that when these cases are determined that they should primarily be examined on an independent basis. It is fine to look for guidance in similar cases, but utterly improper to use one case as the primary means of hopping onto another case while the constitution itself becomes a second fiddle. One judge makes a terrible decision and it results in a cascading effect to where now the rule of federal doesn't resemble anything that our constitution mandates. In most circumstances there should be no purpose or point in jumping to precedent in terms of constitutional law. Obama’s healthcare mandate is a perfect example of this. The plain English of the constitution renders this easily dismissed and discarded. But AT LEAST 4 judges will latch onto some inapplicable judicial precedent that is equally unconstitutional and use it as a justification for endorsing the mandate. This ruling by precedent is what I don't like.

Constitutions are not meant to be poetry. We’re not reading Kerouac here. Our constitution was penned in plain English for the specific purpose of allowing the people to clearly know and understand what their rights were under the constitution. What's funny is that the same people who have muddled the constitution have also muddled its important history at the same time. People don't KNOW that the constitution was meant to be simple and easily understood.

What you are talking about isn’t interpretation. What you are talking about is the outright application of extra-constitutional law. Incorporation doctrine is NOT interpretation. It’s application. There is NO WAY that it can possibly be interpreted that the 14th amendment applies to anything other than the 14th amendment. Saying that it does is an application – not an interpretation. It's just something that judges do, and they use precedent to do it. Saying that Federal Judges can determine which laws are and are not legitimate under the 10th amendment isn’t interpretation. It is judges bestowing themselves an unwritten power that isn’t granted to them in the constitution. Obama making a law that prohibits a religion from freely exercising their beliefs isn’t interpretation. It’s a complete disregard for the simple term: Congress shall make no law… The commerce clause doesn’t mean you have the power to force the citizenry to purchase certain commercial products. It is simply meant to mean that the feds have the power to make commerce REGULAR between the states! Anything else, like telling someone that they cannot grow wheat on their own property, is an outright interjection of subjective opinion in violation of the plain English that is our constitution. This is all thanks to Judicial Review by precedent.

If I say – a foot has twelve inches. Will reasonable people disagree on the interpretation of those words? At what point does it become okay for someone to say, what he really meant was that a foot has thirteen inches.

That's how I feel about interpretation of the constitution when it comes to contemporary, or even post 1930s use of Judicial Review.

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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Sat Feb 18, 2012 6:50 am 
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100% agree with Little Wing.


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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Sat Feb 18, 2012 6:55 am 
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Incorporation isn't all bad. I might not like the process, but the outcome of Heller was desirable, yes?


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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Sat Feb 18, 2012 10:55 pm 
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simple schoolboy wrote:
Incorporation isn't all bad. I might not like the process, but the outcome of Heller was desirable, yes?


No it's not. It's a terrible decision. Give it time for this to play out. Now that they've incorporated the right they have the ability to define just exactly what arms we can bear. They can now ban handguns, ban assault weapons, and pretty much tell us the only arm we have the right to bear is a .22.

If Chicago and DC wanted to ban firearms good on'em. Let'em sleep in the bed that they made. Personally, I'm glad that I now live in a state where I can walk in a hardware store and walk out with a .45 Springfield XD and a bunch of ammo. I bet I can't do that in ten years specifically because of incorporation.

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 Post subject: Re: Prop 8 Struck Down in Federal Court
PostPosted: Sun Feb 19, 2012 6:49 am 
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LittleWing wrote:
simple schoolboy wrote:
Incorporation isn't all bad. I might not like the process, but the outcome of Heller was desirable, yes?


No it's not. It's a terrible decision. Give it time for this to play out. Now that they've incorporated the right they have the ability to define just exactly what arms we can bear.


This is just absurd. The feds don't need any justification beyond the commerce clause to restrict 2nd ammednment rights. The idea that somehow incorporating the 2nd ammendment opens it up to more federal scrutiny is silly. I understand that this fits into your whole gay marriage is the downfall of society narrative but it doesn't follow. As a resident of a state that is not 2nd ammendment friendly I rather enjoy the idea that there are some limits to the retarded actions of self serving state legislators.

Really, I would LOVE to hear how this has helped the Brady campaign et all, as opposed to hurt them. Its officially an individual right related to self defense. How is that a BAD thing?


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