14th Amendment posted: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.
Obi-Wan McCartney posted:I agree, Vader. It would be like if a state passed a law forbidding all sexual intercourse. Even a state constitution somehow gave the state this power, it would be unconstiutional under the federal constitution and the Supreme Court would have authority to strike down the law.
Obi-Wan McCartney posted:Your position is odd because you want a less powerful federal government, but you want state governments to have more unlimited power, unchecked by the federal judiciary. I am saying, certain rights are retained by the people, and that neither the federal government nor the state government have the right to legislate as they are right retained by the people.
Obi-Wan McCartney posted:What do you expect Kimball? You tend to avoid answering certain questions in a direct manner, instead choosing to reframe the issue in a way more favorable to your argument. Several times I have asked you whether you felt that if the federal constitution protected marital sexual privacy. You have at the very least implied that it does not. So how about just being straightforward, lets just get to the heart of the matter: How would you have decided Griswald? That's the issue we are discussing.
Justice Douglass posted:The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice - whether public or private or parochial - is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights. By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school.
Justice Goldberg's concurring opinion posted:I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights.
Obi-Wan McCartney posted:So how was my statement about the state power being unchecked by the Federal government inaccurate?
Obi-Wan McCartney posted:You believe that if a state constitution allows the government to make laws regarding sexual congress of two consenting adults within the privacy of ones home, then the federal government is powerless to stop it, correct? That is what your last post indicated.
Obi-Wan McCartney posted:I submit to you that no state has the authority to make such a law, and regardless of what authority the state constitution may have given.
Obi-Wan McCartney posted:Essentially, what I don't understand is how you can so easily see the problems and setbacks at the federal level, but then act as if the state can't make the same mistakes regarding scope and interpretation. The right to engage in sexual congress in your own home is a right the state cannot take away from you, it is a fundamental and inalienable right that is so freaking obvious no one ever thought it needed to be explicitly enumerated.
Obi-Wan McCartney posted:Tell me, Kimball, what if a state law forbid a person from urinating anywhere in the state? "Urination is now illegal in state of Louisianna." Would such a law stand? As you very well know, constitutions can be stretched and creative liberties can be taken to justify all manner of things. There are a lot of crazy laws on the books. Some of those laws, crazy as they may be, have to be followed because the government has authority. Others violate fundamental notions of liberty.
Obi-Wan McCartney posted:Kimball, how about a more apt analogy. What if the state passed law requiring all children of the state attend public schools. It would be a requirement, no child would allowed to attend a private school, a parochial school, home schooling, NOTHING. Let's just assume the state constitution does permit such overreaching. Do you really think the federal judiciary would have no standing or jurisdiction to strike down such a law?
Obi-Wan McCartney posted:How exactly are the excesses of state government supposed to be checked?
Obi-Wan McCartney posted:The federal government has no authority to legislate, but why does that mean the Supreme Court has no jurisdiction to hear such a case? The Constitution protects the inalienable rights, and the right to privacy from government intrusion, state, federal, or local, although not unlimited, is one of those rights. That much is clear from the Bill of Rights. To what extent you extend it is a matter for the courts.
Justice Goldberg posted:To hold that a right so basic and fundamental and so deeprooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever.