Landmark Poll On Same Sex Marriage

[OL FU]

....Can you say with absolute certainty that if the people who passed the civil war amendments lived in today's society they wouldn't have wanted equal marriage rights (or at least equal benefits)?

I agree. The idea is laughable. But even if it isn't laughably the burden of proof should be on those proving the positive not the negative. The line of thought is not rational. It is not a matter of whether I can say with 100% certainty. It is a matter of is there any reason at all to believe that the people who passed the civil war amendments even considered the possibility. There is absolutely no evidence that the gay issue was even considered at the time of passing and it is almost certainly reasonable to conclude that if gay marriage had been considered the amendment would not have passed.

DF, you can avoid the discussion which is fine. I don't have a large problem with liberal interpretations of the constitution as long as there is some historical basis in the interpretation or if they are giving ground to legislative acts, but to even hint that the original meaning of these amendments covered issues not even considered is disingenous at best.

BTW, DF I read ACtive Liberty and saw some benefits to Breyers logic in constitutional interpretation. My biggest disappointment was that he ignored issues like RvW where his line of reasoning would never lead one to the conclusion the Supreme Court derived. This case is the same way. no matter what Olsen says, if you think the Supreme Court can say that the constitution protects gay marriage, then you believe that the courts can make up whatever rules it wants with respect to the constitution. It is not even a loose interpretation of the facts. It is simply creating law or imposing a moral viewpoint which clearly should be in the political arena.

[native]

I agree. The idea is laughable. ...to even hint that the original meaning of these amendments covered issues not even considered is disingenous at best.

BTW, DF I read ACtive Liberty and saw some benefits to Breyers' logic in constitutional interpretation. My biggest disappointment was that he ignored issues like RvW where his line of reasoning would never lead one to the conclusion the Supreme Court derived. This case is the same way. No matter what Olsen says, if you think the Supreme Court can say that the constitution protects gay marriage, then you believe that the courts can make up whatever rules it wants with respect to the constitution. It is not even a loose interpretation of the facts. It is simply creating law or imposing a moral viewpoint which clearly should be in the political arena.

Excellent analysis, OL FU, which pretty well defines the difference between Consitutionalists and Progressives.

[OL FU]

I agree. The idea is laughable. ...to even hint that the original meaning of these amendments covered issues not even considered is disingenous at best.

BTW, DF I read ACtive Liberty and saw some benefits to Breyers' logic in constitutional interpretation. My biggest disappointment was that he ignored issues like RvW where his line of reasoning would never lead one to the conclusion the Supreme Court derived. This case is the same way. No matter what Olsen says, if you think the Supreme Court can say that the constitution protects gay marriage, then you believe that the courts can make up whatever rules it wants with respect to the constitution. It is not even a loose interpretation of the facts. It is simply creating law or imposing a moral viewpoint which clearly should be in the political arena.

Excellent analysis, OL FU, which pretty well defines the difference between Consitutionalists and Progressives.

I will admit that I am more than a little stubborn on this subject and always flummoxed when I hear a different argument. I just don't see how someone can argue with the concept that a law means what it was intended to mean. If it doesn't then it means what the currect judiciary thinks it means which I find contrary to democratic principles and the rule of law. I understand that the constitution was broadly drafted and rightfully so. I understand that new technologies, etc. arise that were not considered when the constitution or amendments were passed and that interpretation is required to apply to old laws. But I don't understand how anyone can fabricate meanings from a document that simply weren't there at their at passing because the moral views of the country have changed. At least if you do believe that, be HONEST and say that the Supreme Court can make the document say whatever they want regardless of what was agreed to by the parties at the time. At least then we can have a legitimate discussion on philosophical differences. But please don't tell me that constitutional intent is X when any study of history, culture, debates or the constitutional process clearly shows otherwise.

[yosef1969]

Question for the legal scholars here, does this ruling open the door for polygamy? Heard that on the radio and just curious. I am not at all a proponent of polygamy or necessarily an opponent for gay marriage (although - an equivalent civil union would probably be more palatable for many) just thought it was an interesting argument.

[OL FU]

Question for the legal scholars here, does this ruling open the door for polygamy? Heard that on the radio and just curious. I am not at all a proponent of polygamy or necessarily an opponent for gay marriage (although - an equivalent civil union would probably be more palatable for many) just thought it was an interesting argument.

I will answer but I don't qualify. I, in know way, compare polygamy to homosexual marriage. IMO the answer is no, but there is a logical connection from a consenting adult standpoint and there is even historical basis for it. Also, it exist in international law although not in Europe so I am certain that would receive no creedance in US courts who seem to admire European sensibilities so much. So one could make the argument. BBBBBBBBUUUUUUUUUTTTTTTTTt, there is no substantial political desire or will for this to occur and if justices argued for this even progressive defenders of activist judges would be calling for their ouster. Additionally, there is good evidence that in most cultures polygamy is little more than slavery of woman. And while you could argue that this is an example of hypocrisy in the courts interpretation, I think the criminality related to polygamy is the winning argument on why it would go no where. I haven't read the opinion of the judge, but I do believe he said the proponents of Prop 8 (it is prop 8, right) could not show where they were harmed by gay marriage. Every woman's group in the country (and hopefully most groups period) could show evidence of harm from polygamy. So I don't see that it would have a chance in hell.

[native]

Question for the legal scholars here, does this ruling open the door for polygamy? Heard that on the radio and just curious. I am not at all a proponent of polygamy or necessarily an opponent for gay marriage (although - an equivalent civil union would probably be more palatable for many) just thought it was an interesting argument.

I will answer but I don't qualify. I, in know way, compare polygamy to homosexual marriage. IMO the answer is no, but there is a logical connection from a consenting adult standpoint and there is even historical basis for it. Also, it exist in international law although not in Europe so I am certain that would receive no creedance in US courts who seem to admire European sensibilities so much. So one could make the argument. BBBBBBBBUUUUUUUUUTTTTTTTTt, there is no substantial political desire or will for this to occur and if justices argued for this even progressive defenders of activist judges would be calling for their ouster. Additionally, there is good evidence that in most cultures polygamy is little more than slavery of woman. And while you could argue that this is an example of hypocrisy in the courts interpretation, I think the criminality related to polygamy is the winning argument on why it would go no where. I haven't read the opinion of the judge, but I do believe he said the proponents of Prop 8 (it is prop 8, right) could not show where they were harmed by gay marriage. Every woman's group in the country (and hopefully most groups period) could show evidence of harm from polygamy. So I don't see that it would have a chance in hell.

Your analysis could be politically sound, OL FU, but yosef1969 hits the nail on the head. Logically, gay marriage opens the door to polygamy and other changes never intended.

"Substantial political desire" is important but should never be the sole determining factor. That's why we have a Consitution and a nation of LAWS.

[OL FU]

I will answer but I don't qualify. I, in know way, compare polygamy to homosexual marriage. IMO the answer is no, but there is a logical connection from a consenting adult standpoint and there is even historical basis for it. Also, it exist in international law although not in Europe so I am certain that would receive no creedance in US courts who seem to admire European sensibilities so much. So one could make the argument. BBBBBBBBUUUUUUUUUTTTTTTTTt, there is no substantial political desire or will for this to occur and if justices argued for this even progressive defenders of activist judges would be calling for their ouster. Additionally, there is good evidence that in most cultures polygamy is little more than slavery of woman. And while you could argue that this is an example of hypocrisy in the courts interpretation, I think the criminality related to polygamy is the winning argument on why it would go no where. I haven't read the opinion of the judge, but I do believe he said the proponents of Prop 8 (it is prop 8, right) could not show where they were harmed by gay marriage. Every woman's group in the country (and hopefully most groups period) could show evidence of harm from polygamy. So I don't see that it would have a chance in hell.

Your analysis could be politically sound, OL FU, but yosef1969 hits the nail on the head. Logically, gay marriage opens the door to polygamy and other changes never intended.

"Substantial political desire" is important but should never be the sole determining factor. That's why we have a Consitution and a nation of LAWS.

I agree that the polygamy argument shows inconsistencies of this ruling and the problem of using "harm" instead of constitutional intent as the appropriate measure. But his question was does it open the door, and, in my opinion, the answer is a big no.

[native]

...I agree that the polygamy argument shows inconsistencies of this ruling and the problem of using "harm" instead of constitutional intent as the appropriate measure. But his question was does it open the door, and, in my opinion, the answer is a big no.

If the context is "original intent," it sure as hell does open the door! If gay marriage is original intent, marrying my dog is original intent.

[houndawg]

...I agree that the polygamy argument shows inconsistencies of this ruling and the problem of using "harm" instead of constitutional intent as the appropriate measure. But his question was does it open the door, and, in my opinion, the answer is a big no.

In the context is "original intent," it sure as hell does open the door! If gay marriage is original intent, marrying my dog is original intent.

Got some live ones out in Utah.


If some dumbass wants an extra wife, it would serve him right to get one.

[OL FU]

...I agree that the polygamy argument shows inconsistencies of this ruling and the problem of using "harm" instead of constitutional intent as the appropriate measure. But his question was does it open the door, and, in my opinion, the answer is a big no.

In the context is "original intent," it sure as hell does open the door! If gay marriage is original intent, marrying my dog is original intent.

But that is the point, and my argument with Dane. There is no way the judge used original intent in the ruling no matter what Dane or Ted Olsen says. The judge used his moral values with respect to harm and equal protection. I personally agree with his moral values. However, as you and I both agree, the law is the law. It is the same now as it was in 1866 and therein lies the danger of judicial activism. If there was political will in this country to support polygamy, then there would be the possibility that the judiciary would find it a constitutional right. The logic used in one case would apply to the other. However, since this is a case of the judiciary placing its moral values on the constitution, then polygamy would not be found a constitutional right because there is harm and there is no political will.

Subtle arguments where I am not sufficiently erudite to pen. But if the Supreme court relied on original intent, we wouldn't have to worry about it.

[GSUAlumniEagle]

Cap'n - here is a prime example of the reasoning you were looking for.

Just add in a line that says "The Liberal Supreme Court Justices do nothing more than TRAMBLE ON THE CONSTITUTION every day they step foot through the red curtain."

I am absolutely certain that when the civil war amendments were passed all of the legislators that pass it and the states that subsequently approved were certain they had just provided a consitutional right for gays to marry. The evidence is not arguable

The fact that a justice has now applied those amendments based upon that judges own moral value is what is wrong with the courts. It doesn't matter whether I agree with their political conclusion which I do, the issue should be decided in the political arena not by judges.

I admit I'm late to the party, but I'm just so excited that this forum is actually having a debate on the actual subject matter instead of the useless name calling and blood sucking drivel that usually spews from here that I can't resist replying.

On a philosophical level, I'd take a moment to argue the point emphasized above. Not on a factual basis, because I don't believe the 14th amendment was passed with homosexuals in mind. But I do believe that it was passed with the idea of fairness and equality in mind. The very spirit of the 14th is that a free country protects the rights of a minority to have equal rights to those in the majority.

I know I'm going to get some grief on the "spirit" and "idea" argument. I know this isn't a popular argument to the strict constitutionalists on this forum. That's okay. I understand the fear that is there with the idea of the policies of this land being based on the "spirit" or "idea" of a written piece of legislation. We have these arguments all the time when I argue football rules with other officials. Some want to argue the strict language of the words, and I want to call the game based on the INTENT of the rules. Those that argue for reading only of the strict language argue that doing so will lead to chaos and some officials making up their own rulings completely void of an actual rule basis. I think on it's basic level, we come on one side or the other of this argument based on our personal history and personal philosophy. I've found those that come from the strict constitutionalism side of the argument are less trusting of mankind. They do not have the faith that we, as a society, can evolve without some written document (such as the Bible or the Constitution) to tell us how to do it. Or perhaps they fear the idea of allowing elected and/or appointed officials the opportunity to have a little "wiggle room" to meet the needs of society with their decisions. In a word, they don't trust government.

Perhaps it's my young age or my naivety [which I guess would be a product of my young age ] that causes me to still be trusting. I simply have to trust that those chosen to serve as members of the judiciary will use the Constitution as a foundation and interpret the Constitution as the founding ideals of our republic. The only other option to me is a strict reading of words that were written in the 1700s. I just don't see that as feasible. Part of the reason the Constitution is so beautiful and works so well is that it is remarkably small and simple. Part of the problem with the Constitution is that due to it's brevity it simply doesn't answer all of our very important questions. It is both a blessing and a curse. The Constitution, as strictly written, can not answer all of the difficult questions we as a society must have answered. So at some level, those that are chosen by our society as the best and brightest have to make decisions. And those decisions lead to other decisions. Which leads to more decisions.

I've said all of that to say this. You'll never see the word "marriage" or "homosexual" in the text of the Constitution. But I think in the very fabric of it's meaning, the idea of the Constitution and the amendments that followed its passage were to protect the fairness and equality for those in the minority. The idea that members of a minority can take part in an activity that the majority doesn't approve of (as long as it doesn't somehow harm the society) is important. It's what led us to finally get past the shackles of Jim Crow. It's what should, and eventually will, get us past the discrimination of a peaceful homosexual community.

[danefan]

I am absolutely certain that when the civil war amendments were passed all of the legislators that pass it and the states that subsequently approved were certain they had just provided a consitutional right for gays to marry. The evidence is not arguable

The fact that a justice has now applied those amendments based upon that judges own moral value is what is wrong with the courts. It doesn't matter whether I agree with their political conclusion which I do, the issue should be decided in the political arena not by judges.

I admit I'm late to the party, but I'm just so excited that this forum is actually having a debate on the actual subject matter instead of the useless name calling and blood sucking drivel that usually spews from here that I can't resist replying.

On a philosophical level, I'd take a moment to argue the point emphasized above. Not on a factual basis, because I don't believe the 14th amendment was passed with homosexuals in mind. But I do believe that it was passed with the idea of fairness and equality in mind. The very spirit of the 14th is that a free country protects the rights of a minority to have equal rights to those in the majority.

I know I'm going to get some grief on the "spirit" and "idea" argument. I know this isn't a popular argument to the strict constitutionalists on this forum. That's okay. I understand the fear that is there with the idea of the policies of this land being based on the "spirit" or "idea" of a written piece of legislation. We have these arguments all the time when I argue football rules with other officials. Some want to argue the strict language of the words, and I want to call the game based on the INTENT of the rules. Those that argue for reading only of the strict language argue that doing so will lead to chaos and some officials making up their own rulings completely void of an actual rule basis. I think on it's basic level, we come on one side or the other of this argument based on our personal history and personal philosophy. I've found those that come from the strict constitutionalism side of the argument are less trusting of mankind. They do not have the faith that we, as a society, can evolve without some written document (such as the Bible or the Constitution) to tell us how to do it. Or perhaps they fear the idea of allowing elected and/or appointed officials the opportunity to have a little "wiggle room" to meet the needs of society with their decisions. In a word, they don't trust government.

Perhaps it's my young age or my naivety [which I guess would be a product of my young age ] that causes me to still be trusting. I simply have to trust that those chosen to serve as members of the judiciary will use the Constitution as a foundation and interpret the Constitution as the founding ideals of our republic. The only other option to me is a strict reading of words that were written in the 1700s. I just don't see that as feasible. Part of the reason the Constitution is so beautiful and works so well is that it is remarkably small and simple. Part of the problem with the Constitution is that due to it's brevity it simply doesn't answer all of our very important questions. It is both a blessing and a curse. The Constitution, as strictly written, can not answer all of the difficult questions we as a society must have answered. So at some level, those that are chosen by our society as the best and brightest have to make decisions. And those decisions lead to other decisions. Which leads to more decisions.

I've said all of that to say this. You'll never see the word "marriage" or "homosexual" in the text of the Constitution. But I think in the very fabric of it's meaning, the idea of the Constitution and the amendments that followed its passage were to protect the fairness and equality for those in the minority. The idea that members of a minority can take part in an activity that the majority doesn't approve of (as long as it doesn't somehow harm the society) is important. It's what led us to finally get past the shackles of Jim Crow. It's what should, and eventually will, get us past the discrimination of a peaceful homosexual community.

Thank you for putting in time and thought into your post. Your sentiments are pretty much exactly what my mind says, but that I don't have the time or desire to express properly in words.

[UNHWildCats]

For the first time ever a poll shows a majority of Americans believe same sex couple should have the constitutional right to marry.

The CNN poll when asking

Ok. Let's look at all the flaws in that part of the statement alone. CNN, a liberal news outlet asks a liberal question to its liberal viewers. Hm...I wonder why it turned out that way? Conservative viewers tend to watch FOX so I imagine the same poll would have come out vastly different if FOX had done it also. Also how can CNN say a MAJORITY of Americans believe... really? They gave this poll to nearly every American to answer? Interesting..this was the first I've ever heard of it! (I tend to NOT watch the news on either major channel due to their one-sided veiws of the world...gets stupid listening to entertainers twisting facts for viewership). Polls like this are about as worthless as a preseason poll in football.

And FOX just released a poll on the subject... Though its hard to compare because of how FOX polled the subject. They gave respondents the choice between same sex marriage, A separate form of legal recognition and a third choice of no legal recognition. 66% of FOX News respondents support at least some sort of legal recognition... Really wish they would have asked straight up yes or no without the third option.

http://www.foxnews.com/projects/pdf/081 ... upPoll.pdf" onclick="window.open(this.href);return false;

[OL FU]

I admit I'm late to the party, but I'm just so excited that this forum is actually having a debate on the actual subject matter instead of the useless name calling and blood sucking drivel that usually spews from here that I can't resist replying.

On a philosophical level, I'd take a moment to argue the point emphasized above. Not on a factual basis, because I don't believe the 14th amendment was passed with homosexuals in mind. But I do believe that it was passed with the idea of fairness and equality in mind. The very spirit of the 14th is that a free country protects the rights of a minority to have equal rights to those in the majority.

I know I'm going to get some grief on the "spirit" and "idea" argument. I know this isn't a popular argument to the strict constitutionalists on this forum. That's okay. I understand the fear that is there with the idea of the policies of this land being based on the "spirit" or "idea" of a written piece of legislation. We have these arguments all the time when I argue football rules with other officials. Some want to argue the strict language of the words, and I want to call the game based on the INTENT of the rules. Those that argue for reading only of the strict language argue that doing so will lead to chaos and some officials making up their own rulings completely void of an actual rule basis. I think on it's basic level, we come on one side or the other of this argument based on our personal history and personal philosophy. I've found those that come from the strict constitutionalism side of the argument are less trusting of mankind. They do not have the faith that we, as a society, can evolve without some written document (such as the Bible or the Constitution) to tell us how to do it. Or perhaps they fear the idea of allowing elected and/or appointed officials the opportunity to have a little "wiggle room" to meet the needs of society with their decisions. In a word, they don't trust government.

Perhaps it's my young age or my naivety [which I guess would be a product of my young age ] that causes me to still be trusting. I simply have to trust that those chosen to serve as members of the judiciary will use the Constitution as a foundation and interpret the Constitution as the founding ideals of our republic. The only other option to me is a strict reading of words that were written in the 1700s. I just don't see that as feasible. Part of the reason the Constitution is so beautiful and works so well is that it is remarkably small and simple. Part of the problem with the Constitution is that due to it's brevity it simply doesn't answer all of our very important questions. It is both a blessing and a curse. The Constitution, as strictly written, can not answer all of the difficult questions we as a society must have answered. So at some level, those that are chosen by our society as the best and brightest have to make decisions. And those decisions lead to other decisions. Which leads to more decisions.

I've said all of that to say this. You'll never see the word "marriage" or "homosexual" in the text of the Constitution. But I think in the very fabric of it's meaning, the idea of the Constitution and the amendments that followed its passage were to protect the fairness and equality for those in the minority. The idea that members of a minority can take part in an activity that the majority doesn't approve of (as long as it doesn't somehow harm the society) is important. It's what led us to finally get past the shackles of Jim Crow. It's what should, and eventually will, get us past the discrimination of a peaceful homosexual community.

Thank you for putting in time and thought into your post. Your sentiments are pretty much exactly what my mind says, but that I don't have the time or desire to express properly in words.

Boo Hiss

Hey Dane, I like to have discussions with you. But I understand the frustration.

PS, GSU, I am out of time too but I will read the post.

[blueballs]

...I agree that the polygamy argument shows inconsistencies of this ruling and the problem of using "harm" instead of constitutional intent as the appropriate measure. But his question was does it open the door, and, in my opinion, the answer is a big no.

In the context is "original intent," it sure as hell does open the door! If gay marriage is original intent, marrying my dog is original intent.

That thar' original intent is making a lot of goats in and around Boone nervous...

[native]

I am absolutely certain that when the civil war amendments were passed all of the legislators that pass it and the states that subsequently approved were certain they had just provided a consitutional right for gays to marry. The evidence is not arguable

The fact that a justice has now applied those amendments based upon that judges own moral value is what is wrong with the courts. It doesn't matter whether I agree with their political conclusion which I do, the issue should be decided in the political arena not by judges.

I admit I'm late to the party, but I'm just so excited that this forum is actually having a debate on the actual subject matter instead of the useless name calling and blood sucking drivel that usually spews from here that I can't resist replying.

On a philosophical level, I'd take a moment to argue the point emphasized above. Not on a factual basis, because I don't believe the 14th amendment was passed with homosexuals in mind. But I do believe that it was passed with the idea of fairness and equality in mind. The very spirit of the 14th is that a free country protects the rights of a minority to have equal rights to those in the majority.

I know I'm going to get some grief on the "spirit" and "idea" argument. I know this isn't a popular argument to the strict constitutionalists on this forum. That's okay. I understand the fear that is there with the idea of the policies of this land being based on the "spirit" or "idea" of a written piece of legislation. We have these arguments all the time when I argue football rules with other officials. Some want to argue the strict language of the words, and I want to call the game based on the INTENT of the rules. Those that argue for reading only of the strict language argue that doing so will lead to chaos and some officials making up their own rulings completely void of an actual rule basis. I think on it's basic level, we come on one side or the other of this argument based on our personal history and personal philosophy. I've found those that come from the strict constitutionalism side of the argument are less trusting of mankind. They do not have the faith that we, as a society, can evolve without some written document (such as the Bible or the Constitution) to tell us how to do it. Or perhaps they fear the idea of allowing elected and/or appointed officials the opportunity to have a little "wiggle room" to meet the needs of society with their decisions. In a word, they don't trust government.

Perhaps it's my young age or my naivety [which I guess would be a product of my young age ] that causes me to still be trusting. I simply have to trust that those chosen to serve as members of the judiciary will use the Constitution as a foundation and interpret the Constitution as the founding ideals of our republic. The only other option to me is a strict reading of words that were written in the 1700s. I just don't see that as feasible. Part of the reason the Constitution is so beautiful and works so well is that it is remarkably small and simple. Part of the problem with the Constitution is that due to it's brevity it simply doesn't answer all of our very important questions. It is both a blessing and a curse. The Constitution, as strictly written, can not answer all of the difficult questions we as a society must have answered. So at some level, those that are chosen by our society as the best and brightest have to make decisions. And those decisions lead to other decisions. Which leads to more decisions.

I've said all of that to say this. You'll never see the word "marriage" or "homosexual" in the text of the Constitution. But I think in the very fabric of it's meaning, the idea of the Constitution and the amendments that followed its passage were to protect the fairness and equality for those in the minority. The idea that members of a minority can take part in an activity that the majority doesn't approve of (as long as it doesn't somehow harm the society) is important. It's what led us to finally get past the shackles of Jim Crow. It's what should, and eventually will, get us past the discrimination of a peaceful homosexual community.

Noble sentiments, Eagle. You get an A for pathos, a C- for ethos, and a D- for logos.

The Constitution allows full freedom for the political evolution of which you speak. That is the freedom to pass amendments. The judicial activism you embrace is not political evolution, it political corruption and extortion used by those too lazy to follow the Constituion.

[danefan]

I know I'm going to get some grief on the "spirit" and "idea" argument. I know this isn't a popular argument to the strict constitutionalists on this forum. That's okay. I understand the fear that is there with the idea of the policies of this land being based on the "spirit" or "idea" of a written piece of legislation. We have these arguments all the time when I argue football rules with other officials. Some want to argue the strict language of the words, and I want to call the game based on the INTENT of the rules. Those that argue for reading only of the strict language argue that doing so will lead to chaos and some officials making up their own rulings completely void of an actual rule basis. I think on it's basic level, we come on one side or the other of this argument based on our personal history and personal philosophy. I've found those that come from the strict constitutionalism side of the argument are less trusting of mankind. They do not have the faith that we, as a society, can evolve without some written document (such as the Bible or the Constitution) to tell us how to do it. Or perhaps they fear the idea of allowing elected and/or appointed officials the opportunity to have a little "wiggle room" to meet the needs of society with their decisions. In a word, they don't trust government.

Noble sentiments, Eagle. You get an A for pathos, a C- for ethos, and a D- for logos.

The Consitution allows full freedom for the political evolution of which you speak. That is the freedom to pass amendments.The judicial activism you embrace is not political evolution, it political corruption and extortion used by those too lazy to follow the Constituion.

I think you hit the nail on the head GSU

[GSUAlumniEagle]

I know I'm going to get some grief on the "spirit" and "idea" argument. I know this isn't a popular argument to the strict constitutionalists on this forum. That's okay. I understand the fear that is there with the idea of the policies of this land being based on the "spirit" or "idea" of a written piece of legislation. We have these arguments all the time when I argue football rules with other officials. Some want to argue the strict language of the words, and I want to call the game based on the INTENT of the rules. Those that argue for reading only of the strict language argue that doing so will lead to chaos and some officials making up their own rulings completely void of an actual rule basis. I think on it's basic level, we come on one side or the other of this argument based on our personal history and personal philosophy. I've found those that come from the strict constitutionalism side of the argument are less trusting of mankind. They do not have the faith that we, as a society, can evolve without some written document (such as the Bible or the Constitution) to tell us how to do it. Or perhaps they fear the idea of allowing elected and/or appointed officials the opportunity to have a little "wiggle room" to meet the needs of society with their decisions. In a word, they don't trust government.

Noble sentiments, Eagle. You get an A for pathos, a C- for ethos, and a D- for logos.

The Consitution allows full freedom for the political evolution of which you speak. That is the freedom to pass amendments.The judicial activism you embrace is not political evolution, it political corruption and extortion used by those too lazy to follow the Constituion.

I think you hit the nail on the head GSU

Well, I'll at least grant him the idea that he's been given plenty of reasons as to why to distrust government over the past 30-40 years. I just choose not to live life distrusting people, because it'd make me a grouch and I hate grouches.

My principle disagreement would be here:

The Consitution allows full freedom for the political evolution of which you speak. That is the freedom to pass amendments.

That's just a ridiculously simplistic way to view the Constitution. People that use this argument love the Constitution, but for whatever reason want to totally ignore Article Three. It's there for a reason, ya know? Because the Framers had to have known that questions were going to arise that required an unbiased legal system to answer that. So they gave us SCOTUS. But the very people that claim to want a strict reading of the Constitution want to ignore one Article Three? Kinda weird.

Furthermore, the thought that the only way this society could ever evolve is the amendment process is simply absurd. It's basically impossible to get anything through the amendment process. Many of the questions argued by the court fall under the scope of Article Three or one of the amendments. We don't need a Constitutional Convention every time a new question arises. It'd be close to damn near impossible.

Principally, I find it silly that a 21st century society should be governed by a piece of parchment. If you're limiting our country's laws to the ink on that parchment instead of the ideals emanated within, you're limiting yourself from seeing the true beauty of the document in the first place.

[danefan]

I think you hit the nail on the head GSU

Well, I'll at least grant him the idea that he's been given plenty of reasons as to why to distrust government over the past 30-40 years. I just choose not to live life distrusting people, because it'd make me a grouch and I hate grouches.

My principle disagreement would be here:

The Consitution allows full freedom for the political evolution of which you speak. That is the freedom to pass amendments.

That's just a ridiculously simplistic way to view the Constitution. People that use this argument love the Constitution, but for whatever reason want to totally ignore Article Three. It's there for a reason, ya know? Because the Framers had to have known that questions were going to arise that required an unbiased legal system to answer that. So they gave us SCOTUS. But the very people that claim to want a strict reading of the Constitution want to ignore one Article Three? Kinda weird.

Furthermore, the thought that the only way this society could ever evolve is the amendment process is simply absurd. It's basically impossible to get anything through the amendment process. Many of the questions argued by the court fall under the scope of Article Three or one of the amendments. We don't need a Constitutional Convention every time a new question arises. It'd be close to damn near impossible.

Principally, I find it silly that a 21st century society should be governed by a piece of parchment. If you're limiting our country's laws to the ink on that parchment instead of the ideals emanated within, you're limiting yourself from seeing the true beauty of the document in the first place.

I agree and I'll even go as far as saying that if the Courts were as limited as true "Constructionalists" or "Originalists" believe they should be, our Nation wouldn't be anywhere near the great nation it is today. In all likelihood we'd be a relatively poor nation consistingly mainly of farmers and with severly defined classes based on race and sex.

Certain of these "interpretations", especially in the context of the Commerce Clause and the scope of the Federal Government, have allowed our economy to grow to the level it is today.

[native]

I know I'm going to get some grief on the "spirit" and "idea" argument. I know this isn't a popular argument to the strict constitutionalists on this forum. That's okay. I understand the fear that is there with the idea of the policies of this land being based on the "spirit" or "idea" of a written piece of legislation. We have these arguments all the time when I argue football rules with other officials. Some want to argue the strict language of the words, and I want to call the game based on the INTENT of the rules. Those that argue for reading only of the strict language argue that doing so will lead to chaos and some officials making up their own rulings completely void of an actual rule basis. I think on it's basic level, we come on one side or the other of this argument based on our personal history and personal philosophy. I've found those that come from the strict constitutionalism side of the argument are less trusting of mankind. They do not have the faith that we, as a society, can evolve without some written document (such as the Bible or the Constitution) to tell us how to do it. Or perhaps they fear the idea of allowing elected and/or appointed officials the opportunity to have a little "wiggle room" to meet the needs of society with their decisions. In a word, they don't trust government.

Noble sentiments, Eagle. You get an A for pathos, a C- for ethos, and a D- for logos.

The Consitution allows full freedom for the political evolution of which you speak. That is the freedom to pass amendments.The judicial activism you embrace is not political evolution, it political corruption and extortion used by those too lazy to follow the Constituion.

I think you hit the nail on the head GSU

Your points are well taken, Eagle and DF, even though intended to disparage.

In my sentiments, distrust of tyranny, the accumulation of concentrated power, and the rule of the mob, I join our nation's founders, Caesar's assasins, and most every historic hero who sacrificed for freedom and liberty.

Public servants already have plenty of wiggle room. Your call for more is a canard.

Nor am I or most conservatives afraid of thoughtful and productive change. In fact, we embrace it. The American Revolution was in large part a conservative revolution!

You dismiss the Bible and other "written documents" as the tools of weak and fearful men because they stand in the way of your impatient desire for change, yet curiously omit the fact that thoughtful and productive change has historically been accomplished only with written documents such as the ones you disparage. Could you cite the historical examples of successful of human societal evolution "without some written document (such as the Bible or the Constitution) to tell us how to do it..."???

You offer nothing in return for the elimination of those sacred written documents and principles you hate. I join conservatives, libertarians and moderates who refuse to outsource their consciences or political liberty to bigger government, socialist solutions, or your progressive "vanguard" of societal evolution.

[native]

I think you hit the nail on the head GSU

Well, I'll at least grant him the idea that he's been given plenty of reasons as to why to distrust government over the past 30-40 years. I just choose not to live life distrusting people, because it'd make me a grouch and I hate grouches.

My principle disagreement would be here:

The Consitution allows full freedom for the political evolution of which you speak. That is the freedom to pass amendments.

That's just a ridiculously simplistic way to view the Constitution. People that use this argument love the Constitution, but for whatever reason want to totally ignore Article Three. It's there for a reason, ya know? Because the Framers had to have known that questions were going to arise that required an unbiased legal system to answer that. So they gave us SCOTUS. But the very people that claim to want a strict reading of the Constitution want to ignore one Article Three? Kinda weird.

Furthermore, the thought that the only way this society could ever evolve is the amendment process is simply absurd. It's basically impossible to get anything through the amendment process. Many of the questions argued by the court fall under the scope of Article Three or one of the amendments. We don't need a Constitutional Convention every time a new question arises. It'd be close to damn near impossible.

Principally, I find it silly that a 21st century society should be governed by a piece of parchment. If you're limiting our country's laws to the ink on that parchment instead of the ideals emanated within, you're limiting yourself from seeing the true beauty of the document in the first place.

You are right. The ideals are the most important things embodied in the Constitution. I pray that you acquire a clue as to what those ideals are.

[JohnStOnge]

What would they say about laws preventing interracial marriage?

How about laws preventing private sexual conduct?

How about laws against the sale of condoms?

How about laws preventing all forms of adult entertainment?

How about laws preventing blacks from attending white public schools?

I would say that if you stay true to the original understanding of the Constitution the Constitution does not prohibit States from having lawas against interacial marraige. It does not give the federal government the power to overturn laws preventing private sexual conduct. Same with the idea of the federal government having the power to say States can't ban all adult intertainment. And it's certainly true that the original understanding of the Constitution does not support the "separate is not equal" doctorine associated with school desegregation.

But the idea that it is the role of the Court to change the Contitution is still a fallacy. The idea that it is necessary for the Court to adjust the Constitution with the times is false. There is a provision in the Constitution to change the Constitution. And if that provision is utilized it means that the changes are made only when there is social consensus among the People for doing so.

The ends do not justify the means. It is wrong to vest the power to effectively change the Contituion in nine unelected and entirely unaccountable officials. As I've written before: Saying you support the current role of the oligarchial Judiciary because you agree with the effects of some of its decisions is like saying you support monarchy as a system of government because you've had some good kings.

What we have now...a system by which nine totally unaccountable offiicals wield such power...is insane. Power without accountability is something we all should reject regardless of whether or not we think that there are cases in which that circumstance has resulted in positive outcomes.

[JohnStOnge]

Furthermore, the thought that the only way this society could ever evolve is the amendment process is simply absurd. It's basically impossible to get anything through the amendment process. Many of the questions argued by the court fall under the scope of Article Three or one of the amendments. We don't need a Constitutional Convention every time a new question arises. It'd be close to damn near impossible.

It's not near impossible. Women have the right to vote through Constitutional amendment. Constitutional amendment was used to outlaw alcohol then it was used to negate that. It was used to give Blacks rights. It was used, for better or for worse, to authorize the income tax. It was used to limit Presidential terms.

When we allow judges to depart from what the Constitution clearly says along with an honest effort to divine what it was understood to mean, we are defeating the whole purpose of even having a Constitution. We might as well just quit living in pretense that we are a governed by it.

If it's really that obvious that something would change it should be no problem to develop the consensus necessary to make the change. It is ot THAT onerous. If there is not sufficient support for a Constitutional amendment to move through relatively easily then it's not that obvious that the Constitution should change. It means that a substantial proportion of the population doesn't want it to.

And, no, we don't need a Constitutional amendment each time a new question comes up. The Court can simply stay completely and honestly true to the original understanding. If the Constitution does not address the question the Court can say so. It can do things like defer to the elected branches of government, which were supposed to have more power than it does to begin with, under circumstances like that. Then if the People really don't like the situation they can petition their elected representatives to amend the Constitution.

[danefan]

Furthermore, the thought that the only way this society could ever evolve is the amendment process is simply absurd. It's basically impossible to get anything through the amendment process. Many of the questions argued by the court fall under the scope of Article Three or one of the amendments. We don't need a Constitutional Convention every time a new question arises. It'd be close to damn near impossible.

It's not near impossible. Women have the right to vote through Constitutional amendment. Constitutional amendment was used to outlaw alcohol then it was used to negate that. It was used to give Blacks rights. It was used, for better or for worse, to authorize the income tax. It was used to limit Presidential terms.

When we allow judges to depart from what the Constitution clearly says along with an honest effort to divine what it was understood to mean, we are defeating the whole purpose of even having a Constitution. We might as well just quit living in pretense that we are a governed by it.

If it's really that obvious that something would change it should be no problem to develop the consensus necessary to make the change. It is ot THAT onerous. If there is not sufficient support for a Constitutional amendment to move through relatively easily then it's not that obvious that the Constitution should change. It means that a substantial proportion of the population doesn't want it to.

Revisionist history JSO. The Supreme Court's interpretation of the Civil War amendments gave blacks rights.

[danefan]

What would they say about laws preventing interracial marriage?

How about laws preventing private sexual conduct?

How about laws against the sale of condoms?

How about laws preventing all forms of adult entertainment?

How about laws preventing blacks from attending white public schools?

I would say that if you stay true to the original understanding of the Constitution the Constitution does not prohibit States from having lawas against interacial marraige. It does not give the federal government the power to overturn laws preventing private sexual conduct. Same with the idea of the federal government having the power to say States can't ban all adult intertainment. And it's certainly true that the original understanding of the Constitution does not support the "separate is not equal" doctorine associated with school desegregation.

But the idea that it is the role of the Court to change the Contitution is still a fallacy. The idea that it is necessary for the Court to adjust the Constitution with the times is false. There is a provision in the Constitution to change the Constitution. And if that provision is utilized it means that the changes are made only when there is social consensus among the People for doing so.

The ends do not justify the means. It is wrong to vest the power to effectively change the Contituion in nine unelected and entirely unaccountable officials. As I've written before: Saying you support the current role of the oligarchial Judiciary because you agree with the effects of some of its decisions is like saying you support monarchy as a system of government because you've had some good kings.

What we have now...a system by which nine totally unaccountable offiicals wield such power...is insane. Power without accountability is something we all should reject regardless of whether or not we think that there are cases in which that circumstance has resulted in positive outcomes.

And this reasoning is a great example of why I could never subscribe to an "Originalist" thoery.