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#629733 - 10/31/06 06:26 PM
Re: NJ passes civil rights law for homosexuals
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So you can't say (not from a plain reading of the text, anyway) that the Ninth Amendment is the ultimate source of a right of privacy.
And I didn't say that it was "the source". I was responding to a post that implied that the failure to specifically enumerate a right to privacy meant that somehow it didn't exist.
The right to privacy was enunciated in Griswold v. Connecticut and was ruled to include decisions on abortion in Roe. The Ninth Amendment was not the "source" of these decisions, it just knocked down the argument that the failure to enumerate a right to privacy in the Constitution meant that the Court couldn't find that the people had that right.
The people may have that right, but that doesn't make it a federal right. The federal government is derived from the Constitution. There are no inherent, federal rights. Any inherent rights come from being a citizen of a state, not a US citizen.
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#629734 - 10/31/06 06:28 PM
Re: NJ passes civil rights law for homosexuals
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Yes, at the State level; that amendment was added to make it clear that the federal government was one of enumerated powers and any powers not stated in the constitution remained with the states.
so wouldn't that make the NJ Sup Ct decision pretty much Scalia-proof; they've got it covered from multiple angles.
Wasn't this case decided based upon the New Jersey constitution? If so, Scalia and the other Supremes have nothing to do with it. The only way the federal courts could hear the case is because the decision violates a constitutional provision.
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#629735 - 10/31/06 05:27 PM
Re: NJ passes civil rights law for homosexuals
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Joined: Aug 2006
Posts: 382
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The federal government is derived from the Constitution.
Yes, but privacy isn't a power of government, it's a right belonging to the people. It's a limitation on the power of government.
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There are no inherent, federal rights. Any inherent rights come from being a citizen of a state, not a US citizen.
You're certainly entitled to your opinion, but the Supreme Court disagrees with you.
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#629736 - 10/31/06 06:39 PM
Re: NJ passes civil rights law for homosexuals
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The federal government is derived from the Constitution.
Yes, but privacy isn't a power of government, it's a right belonging to the people. It's a limitation on the power of government.
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There are no inherent, federal rights. Any inherent rights come from being a citizen of a state, not a US citizen.
You're certainly entitled to your opinion, but the Supreme Court disagrees with you.
I know, but that doesn't mean they are correct. And it is by no means unanimous.
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#629737 - 10/31/06 05:39 PM
Re: NJ passes civil rights law for homosexuals
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Somewhere vanilla
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Wasn't this case decided based upon the New Jersey constitution? If so, Scalia and the other Supremes have nothing to do with it. The only way the federal courts could hear the case is because the decision violates a constitutional provision.
precisely! and if for some reason it would get bumped to SCOTUS, it think the federal constitutional grounds are already taken care of.
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#629738 - 10/31/06 06:54 PM
Re: NJ passes civil rights law for homosexuals
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I am trying to demonstrate that judicial activism and judicial legislating are sound bytes being bandied about all too easily.
I think the terms are useful rhetoric to demonstrate the danger of the practice that you implicitly recognize - you know that Roe is flawed, and you know that any similar decision to find a right to same-sex marriage would be flawed. How do you explain that to a layperson?
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Over time, that decision has come to seem mainstream where even you do not challenge the premise.
I would never have challenged the premise.
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You were making a good argument, then digressed into attacking judicial activism.
I think that attacks on actual instances of judicial activism, whether from the right or the left, are never a digression...
For TICG's benefit, here are some posts regarding my opinion of a possible conservative activist ruling on abortion:
10/27/05 - The fact is, you can have a liberal activist judge who supports the court's decision in Roe. Or, you can have a conservative activist judge who would support a court decision finding that abortion violates the constitutional right to life. Or, you can have an originalist who concedes that the Constitution doesn't serve as the basis for either decision. That's what I'm hoping for with the next nominee.
1/26/06 - If you're implying that the unborn's right to life is guaranteed in the Constitution, I have to say that such a decision would be as egregious an example of conservative activism by the Supreme Court as Roe/Doe was an example of liberal activism. However desirous an outcome that might be, it simply is not what the plain language nor intent of the amendment was. If you want to support an amendment that defines the unborn as persons deserving constitution protection, fine, but don't play the judicial activism game.
2/9/06 - Personally, I believe that an unborn child has rights, but I believe it would be wrong to rule accordingly, absent protections written into our Constitution to recognize those rights.
And here are posts regarding my opinion of the defense of marriage act, which I believe ought to be found unconstitutional, even though I support its aims:
6/9/06 - If enough people believe homosexuals ought to have the right to marry and they want to adopt legislation to that effect, let them. I'm not even in favor of a constitutional amendment prohibiting it - if a state wants to adopt it, that's fine. I don't want my state recognizing it. (But, to go off on a tangent, this defense of marriage act passed by Congress and signed by Pres. Clinton, which states that one state doesn't have to recognize another's licensing of a homosexual marriage, will never hold up; so, what I WOULD be in favor of is an amendment that would put that act into the Consitution.) However, accomplishing this the old-fashioned liberal way (through the courts) is wrong, and it is the tactic being used, and that's what this proposed amendment is a response to.
5/20/05 - if the Supreme Court would separately (and probably correctly, to be honest) rule that the Constitution doesn't allow one state to not recognize a gay marriage from another state?
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#629739 - 10/31/06 06:09 PM
Re: NJ passes civil rights law for homosexuals
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Power Poster
Joined: Apr 2004
Posts: 8,990
Cincinnati, OH
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Incest, I can buy. What's the compelling interest in preventing polygamy?
Confusion of inheritance rights, child custody, spousal support, spousal rights to legal benefits like Social Security, just to name a few. The system deals with the rights of one spouse at a time, the same for everyone.
But all these things are happening right now with same sex marriage. Why stop at allowing gay marriages and "fixing" the system? Why not say anyone can marry anything, which, while absurd, is where this is all heading.
If you allow for same sex marriages, it is inevitable that you will eventually be forced to allow for polygamous marriages, incestual marriages, etc. because you are saying it doesn't matter what you marry.
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#629740 - 10/31/06 06:20 PM
Re: NJ passes civil rights law for homosexuals
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Posts: 9,121
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Incest, I can buy. What's the compelling interest in preventing polygamy?
Confusion of inheritance rights, child custody, spousal support, spousal rights to legal benefits like Social Security, just to name a few. The system deals with the rights of one spouse at a time, the same for everyone.
But all these things are happening right now with same sex marriage. Why stop at allowing gay marriages and "fixing" the system? Why not say anyone can marry anything, which, while absurd, is where this is all heading.
If you allow for same sex marriages, it is inevitable that you will eventually be forced to allow for polygamous marriages, incestual marriages, etc. because you are saying it doesn't matter what you marry.
Actually, having legal unions for same sex couples would help define the relationship legally and solve some of these issues.
Spousal support, child support, child custody, inheritance, medical decisions, would all be defined by law whether or not the couple has executed any documentation.
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#629741 - 10/31/06 07:46 PM
Re: NJ passes civil rights law for homosexuals
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Joined: Feb 2005
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Didn't someone say earlier that just because the Bible doesn't particularly name an situation, it doesn't mean the Bible doesn't have a position on it? How is this different from the Constitution? Both were written before some modern issues. Are we never to adapt or move forward, or is this just a convenient excuse to try to prevent something some find offensive?
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#629742 - 10/31/06 07:51 PM
Re: NJ passes civil rights law for homosexuals
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Joined: Jul 2003
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Are we never to adapt or move forward, or is this just a convenient excuse to try to prevent something some find offensive?
Interesting that you would use "move forward" when referring to gay marriage.
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#629743 - 10/31/06 06:47 PM
Re: NJ passes civil rights law for homosexuals
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Didn't someone say earlier that just because the Bible doesn't particularly name an situation, it doesn't mean the Bible doesn't have a position on it? How is this different from the Constitution? Both were written before some modern issues. Are we never to adapt or move forward, or is this just a convenient excuse to try to prevent something some find offensive?
I am not comparing the Bible to the Constitution. We can certainly adapt and move forward. It is just that not everything is a Constitutional right.
There is no Constitutional right to privacy. That doesn't mean a right to privacy doesn't exist.
Gay marriage may be an advancement, a great idea, the wave of the future. That doesn't mean there is a US Constitutional right to marry (under the equal protection clause).
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#629744 - 10/31/06 06:48 PM
Re: NJ passes civil rights law for homosexuals
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Somewhere vanilla
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Interesting that you would use "move forward" when referring to gay marriage.
from homosexuals' pov it certainly would be.
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#629745 - 10/31/06 06:52 PM
Re: NJ passes civil rights law for homosexuals
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There is no [enumerated] Constitutional right to privacy. That doesn't mean a [Constitutional] right to privacy doesn't exist.
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#629747 - 10/31/06 06:57 PM
Re: NJ passes civil rights law for homosexuals
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Didn't someone say earlier that just because the Bible doesn't particularly name an situation, it doesn't mean the Bible doesn't have a position on it? How is this different from the Constitution? Both were written before some modern issues. Are we never to adapt or move forward, or is this just a convenient excuse to try to prevent something some find offensive?
Sweetpeas, have you ever heard of a constitutional amendment? It is this well-thought-out process that the founding fathers put in place for us to adopt changes to the Constitution using this other process called democracy. I prefer the democratic process to rule at the whim of judges - which do you prefer?
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#629748 - 10/31/06 06:57 PM
Re: NJ passes civil rights law for homosexuals
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There is no [enumerated] Constitutional right to privacy. That doesn't mean a [Constitutional] right to privacy doesn't exist.
Since the federal government and Constitution is one of enumerated rights and powers, where do these right derive from? Natural Law? I don't think you want to open that can of worms.
If there are unenumerated US Constitutional rights, when are these supreme over state rights? What is left for the states? How does federalism exist? How can this square with what the framers (the men who actually wrote and debated the Constitution) intended?
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#629750 - 10/31/06 07:00 PM
Re: NJ passes civil rights law for homosexuals
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where do these right[s] derive from?
from application of cases to the enumerated rights. afterall, this is a constitution, not legislation.
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How can this square with what the framers (the men who actually wrote and debated the Constitution) intended?
isn't that an issue of constitutional interpretation?
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#629751 - 10/31/06 07:03 PM
Re: NJ passes civil rights law for homosexuals
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whim of judges
(sorry i skimmed this from something SP quoted)
did the NJ ct appear to simply put their finger in the air or did they actually apply the law and base their decision on actual law?
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#629752 - 10/31/06 07:03 PM
Re: NJ passes civil rights law for homosexuals
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I'd prefer you stop addressing me like you do. If you have to be an ass then we don't have anything to talk about.
That wasn't an option. I'd prefer you to take a different tone in some of your posts about other posters and myself, but that's not the question here.
So, which is it: democracy, or judicial fiat?
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#629753 - 10/31/06 07:06 PM
Re: NJ passes civil rights law for homosexuals
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Posts: 9,121
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Didn't someone say earlier that just because the Bible doesn't particularly name an situation, it doesn't mean the Bible doesn't have a position on it? How is this different from the Constitution? Both were written before some modern issues. Are we never to adapt or move forward, or is this just a convenient excuse to try to prevent something some find offensive?
I am not comparing the Bible to the Constitution. We can certainly adapt and move forward. It is just that not everything is a Constitutional right.
There is no Constitutional right to privacy. That doesn't mean a right to privacy doesn't exist.
Gay marriage may be an advancement, a great idea, the wave of the future. That doesn't mean there is a US Constitutional right to marry (under the equal protection clause).
That wasn't my point. Gay marriage is not a Constitutional right. Equal treatment is. Just because the forefathers didn't document a laundry list of each possible situation for inequality doesn't mean the situations aren't covered.
And equal treatment for what is the issue? There are many things in life where individuals are not treated equally.
What if we found that blondes earn more money than brunettes on average?
Should we sue and should the Courts decide that brunettes have had their Constitutional rights violated?
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#629755 - 10/31/06 07:08 PM
Re: NJ passes civil rights law for homosexuals
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whim of judges
(sorry i skimmed this from something SP quoted)
I'm sorry - I'm not sure I understand; am I supposed to take that to mean that you aren't reading my posts? Am I being ignored?
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#629756 - 10/31/06 07:09 PM
Re: NJ passes civil rights law for homosexuals
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where do these right[s] derive from?
from application of cases to the enumerated rights . afterall, this is a constitution, not legislation.
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How can this square with what the framers (the men who actually wrote and debated the Constitution) intended?
isn't that an issue of constitutional interpretation?
Where is the enumerated right to privacy?
Constitutional interpretation also means keeping in mind the system the Constitution created. Federalism means states have rights as well; under your construct, the states are nothing more than administrative entitites.
Remember, the state governments predate the federal government, and if you count the colonial period, predate by over 100 years.
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#629757 - 10/31/06 07:11 PM
Re: NJ passes civil rights law for homosexuals
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Somewhere vanilla
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Where is the enumerated right to privacy?
i believe roe v wade did the leg-work there.
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Constitutional interpretation also means keeping in mind the system the Constitution created.
who said that anybody didn't?
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under your construct, the states are nothing more than administrative entitites.
explain
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Remember, the state governments predate the federal government, and if you count the colonial period, predate by over 100 years.
and...?
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