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Author	Topic: The Nature of the American Constitution. Revised for your Comfort.
DARTH-SHREDDER Registered: May '05	Date Posted: 11/12/05 10:14am Subject: RE: The Nature of the American Constitution. Revised for your Comfort. - Date Edited: 11/12/05 10:48am (1 edits total) Edited By: DARTH-SHREDDER
	You are right that rights don't need to be spelled out, but government powers (and specific limitations on those powers) do need to be spelled out. The US Constitution does this by granting specific powers to the federal government, and then outlines specific limitations to those powers. I agree, federal government powers should be spelled out. The power to control marriage isn't in the constitution. It continues by stating that all remaining powers can go to the states, unless the Constitution specifically forbids that to happen. The constitution forbids discrimination, therefore the states don't hvae the power to outlaw gay marriage. However, that doesn't automatically mean that a state can make any law it chooses. It still needs to operate under a grant of power in its own Constitution. Contrast that with other states that instead provide explicit grants of power in different areas. Some states even require amendments for almost everything the government wants to do. If the US Constitution protects rights without spelling them out, then it makes state Constitutions meaningless. How can powers be granted by the people to the state, if a judge can simply "interpret" a new right into being that prohibits it? Because the US constitution prohibits discrimination of all kinds. What the particular issue is about doesn't matter. Discrimination is discrimination. It's not "interpreting" a new right into being. I think this is a good thing. States constitutions are prefectly legitimate if they don't contradict basic principles of the US constitution. shred edit: Men may be entitled to equal rights; but actions are not. Forming a homosexual relationship is an action rather than an inherent characteristic (the fact that the urge to do so is inherent doesn't matter, any more than an inherent urge to break speed limits makes speeding a characteristic rather than an action). And while the Equal Protection Clause prohibits discrimination based on people's characteristics, it doesn't prohibit discrimination based on actions--since discriminating between actions is what every criminal law does. Yes, but when two actions have the same effect, they should be regarded the same. Banning stealing as an action can't be compared to anything, so it's not discrimination. Two different types of sex have the same effect so that would be discrimination. And as others have said, homosexuality is a characteristic, hederosexuality is just as much of an action as homosexuality is. -----signature----- The bible is a pathway to many beliefs some consider to be ignorant. Only a sith deals in absolutes....or a conservative. I have a big problem with religion and rednecks. Proud tree hugger. \m/ Rock on/
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Kimball_Kinnison Registered: Oct '01	Date Posted: 11/12/05 4:27pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	I agree, federal government powers should be spelled out. The power to control marriage isn't in the constitution. Hence, it is not a power given to the federal government. I've stated that numerous times. Have you actually read any of what I have said? The constitution forbids discrimination, therefore the states don't hvae the power to outlaw gay marriage. No, the Constitution requires that each state provide citizens with equal protection under the law. It also forbids states from violating the privileges and immunities of citizens. That is a very big difference. None of that amounts to a blanket prohibition on discrimination. OWM, For all you talk about common law, you neglect one key point from the Constitution: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. Do you see anything in that extremely relevant portion of the Constitution that mentions that common law is part of the supreme law of hte land? I don't. We may respect common law in this country, but it is in no way equal, let alone superior, to the Constitution itself. When a judge decides through common law to add to the Constitution, adding "constitutional" protections on matter not covered by the Constitution (including the "right to privacy"), he has overstepped his authority. The Constitution does not say that common law is the supreme law of the land. Vaderize: And why is there so much obsession from American conservatives on the issue of sex? What a married couple does in the privacy of their own home predates the Constitution; the fact that it isn't mentioned can be turned on its' head so easily it's almost not even worth arguing over. That's funny, the people I see who constantly bring sex up in this thread are all liberals. I've only brought it up to answer a question on that topic that someone else (looking at you Darth_Shredder) asked. Then, I have simply answered the question on the basis of constitutional interpretation. For me, the question is, and always has been: What authority does the Constitution grant on any matter, and if it is silent, what does the relevant state constitution say? That is, and should always be, the only question ever brought before a court on any constitutional question. Kimball Kinnison -----signature----- You deserve the wrath of Kimball...- OWM Why, Kimball... I didn't know you had it in you.- KW I think that Kimball just made a joke, and a funny joke at that.- Raven Stupidity got us into this mess, why can't it get us out?
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DARTH-SHREDDER Registered: May '05	Date Posted: 11/12/05 6:06pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	No, the Constitution requires that each state provide citizens with equal protection under the law. It also forbids states from violating the privileges and immunities of citizens. That is a very big difference. None of that amounts to a blanket prohibition on discrimination. But just looking at the basic principle of equality which is in the constitution, you can see that discrimination is forbiden. This goes along with what I was saying, how it doesn't need to be spelled out. States can't take away rights guaranteed in the constitution, and equaltiy is one principle that gives numerous rights to people that can't be taken away. Though it doesn't have a statement saying "states must provide equality," it does say that states can't take away rights given to the people, and discrimination goes against the right to equality. -----signature----- The bible is a pathway to many beliefs some consider to be ignorant. Only a sith deals in absolutes....or a conservative. I have a big problem with religion and rednecks. Proud tree hugger. \m/ Rock on/
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Kimball_Kinnison Registered: Oct '01	Date Posted: 11/13/05 6:53am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	DARTH-SHREDDER posted: But just looking at the basic principle of equality which is in the constitution, you can see that discrimination is forbiden. This goes along with what I was saying, how it doesn't need to be spelled out. States can't take away rights guaranteed in the constitution, and equaltiy is one principle that gives numerous rights to people that can't be taken away. Though it doesn't have a statement saying "states must provide equality," it does say that states can't take away rights given to the people, and discrimination goes against the right to equality. If, as you claim, the government is forbidden to discriminate, then what about programs like Affirmative Action, which are inherently discriminatory? Instead of making things race-neutral or gender-neutral (which would by definition be non-discriminatory), state schools, defense contracts, and the like are allowed to discriminate on the basis of race or gender. Or does the Constitution only forbid "bad" discrimination? Equal protection is not that same thing as requiring equal treatment, nor is it the same as blanket equality. The Constitution does not provide any sort of "right to equality". Kimball Kinnison -----signature----- You deserve the wrath of Kimball...- OWM Why, Kimball... I didn't know you had it in you.- KW I think that Kimball just made a joke, and a funny joke at that.- Raven Stupidity got us into this mess, why can't it get us out?
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DARTH-SHREDDER Registered: May '05	Date Posted: 11/13/05 8:09am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	If, as you claim, the government is forbidden to discriminate, then what about programs like Affirmative Action, which are inherently discriminatory? Instead of making things race-neutral or gender-neutral (which would by definition be non-discriminatory), state schools, defense contracts, and the like are allowed to discriminate on the basis of race or gender. Or does the Constitution only forbid "bad" discrimination? That's where the supreme court comes in. They decided it was ok to have Affirmative Action, and to be honest, I can't tell you why. But in my opinion, it would be unconstitutional to limit marriage, but of coarse, that's up to the supreme court to decide. Equal protection is not that same thing as requiring equal treatment, nor is it the same as blanket equality. The Constitution does not provide any sort of "right to equality". I'll grant you, it doesn't specifically say that in the constitution, but it's pretty obvious that it's a basic principle of our founding, and that we should respect it like the constitution. -----signature----- The bible is a pathway to many beliefs some consider to be ignorant. Only a sith deals in absolutes....or a conservative. I have a big problem with religion and rednecks. Proud tree hugger. \m/ Rock on/
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Kimball_Kinnison Registered: Oct '01	Date Posted: 11/13/05 8:23am Subject: RE: The Nature of the American Constitution. Revised for your Comfort. - Date Edited: 11/17/05 1:48pm (1 edits total) Edited By: Ender_Sai
	DARTH-SHREDDER posted: I'll grant you, it doesn't specifically say that in the constitution, but it's pretty obvious that it's a basic principle of our founding, and that we should respect it like the constitution. "A basic principle of our founding"? [royalblue]That was a bit much, n'est ce-pas?[/color] The Constitution itself offers several forms of discrimination. It discriminates by age in who can be a Representative, Senator, or President. It discriminates by birth by prohibiting naturalized citizens from being President. Until 1865, it allowed an entire race of people to be treated as slaves. Even then, it took until 1870 for the right to vote to be protected on the basis of race. Until 1920, those same protections were not extended to women. That hardly looks like a "basic principle of our founding" to me. Yes, the Declaration of Independence states that "all men are created equal", but that was in reference to our basic, inalienable rights (i.e. "life, liberty and the pursuit of happiness", and the "happiness" referred to refers to property, as in Locke's writings and the Fifth and Fourteenth Amendments). That was definitely not a reference to some nebulous "right to equality". Kimball Kinnison -----signature----- You deserve the wrath of Kimball...- OWM Why, Kimball... I didn't know you had it in you.- KW I think that Kimball just made a joke, and a funny joke at that.- Raven Stupidity got us into this mess, why can't it get us out?
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DARTH-SHREDDER Registered: May '05	Date Posted: 11/13/05 9:14am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	"A basic principle of our founding"? Did you stay awake in your history classes? Did you pass those classes? Way to be mature about it. I guess mods can't get in trouble for flaming. The Constitution itself offers several forms of discrimination. It discriminates by age in who can be a Representative, Senator, or President. It discriminates by birth by prohibiting naturalized citizens from being President. Until 1865, it allowed an entire race of people to be treated as slaves. Even then, it took until 1870 for the right to vote to be protected on the basis of race. Until 1920, those same protections were not extended to women. That hardly looks like a "basic principle of our founding" to me. I think that's the point - we realized as Americans we shouldn't be doing these things, as it's hypocritical. (except for the presidency laws) It think the same can be applied to gay marriage. Yes, the Declaration of Independence states that "all men are created equal", but that was in reference to our basic, inalienable rights (i.e. "life, liberty and the pursuit of happiness", and the "happiness" referred to refers to property, as in Locke's writings and the Fifth and Fourteenth Amendments). That was definitely not a reference to some nebulous "right to equality". More than just the declaration. And right to equality was a bad way to phrase it, that's my fault. -----signature----- The bible is a pathway to many beliefs some consider to be ignorant. Only a sith deals in absolutes....or a conservative. I have a big problem with religion and rednecks. Proud tree hugger. \m/ Rock on/
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 11/13/05 9:37am Subject: RE: The Nature of the American Constitution. Revised for your Comfort. - Date Edited: 11/13/05 9:44am (1 edits total) Edited By: Obi-Wan McCartney
	Na, Shredder, didn't you know that forum policy allows Mods to make snide-semi-flaming comments under the guise of spirited debate? KK posted: Do you see anything in that extremely relevant portion of the Constitution that mentions that common law is part of the supreme law of hte land? I don't. We may respect common law in this country, but it is in no way equal, let alone superior, to the Constitution itself. Kimball, try reading the relevant sections of my previous posts before making statements that in no way address anything I said. As I've pointed out repeatedly, the constiution does not specifically lay out every issue perfectly, even the right of free speech is subject to time place and manner restrictions, but nowhere is it spelled out in the constitution. You may not believe the constitution protects privacy, and that's a valid argument, but to continually assert that all things not mentioned in the constitution are not protected, and to act as if common law isn't the law of the land that our founders intended to solve problems with applications of constitutional principles is being intellectually dishonest to a great degree. KK posted: "A basic principle of our founding"? Did you stay awake in your history classes? Did you pass those classes? Just because the founders weren't perfect doesn't mean they didn't strive for higher ideals. And assuming you stayed awake in said history classes, you must realize that the constitution IS vague, as evidence by the 1st amendmnet, and that common law has always been the law of the land even before the constitution itself. THe constitution itself refers to common law, its the system we had, and its mind boggling to me that some conservatives on this board act as if they can just ignore it, as if it isn't relevant at all, as if they alone have the skill and understanding of constitutional principles to decipher and interpret it from the document alone. -----signature----- God Bless J-Rod's Wife! Obi-Wan McCartney: Model Forum Member since 1999! America's Beatles are far better than England's precious Rolling Stones
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Kimball_Kinnison Registered: Oct '01	Date Posted: 11/13/05 10:19am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Obi-Wan McCartney posted: Just because the founders weren't perfect doesn't mean they didn't strive for higher ideals. And assuming you stayed awake in said history classes, you must realize that the constitution IS vague, as evidence by the 1st amendmnet, and that common law has always been the law of the land even before the constitution itself. No, it is not vague. "Congress shall make no law" is quite explicit. It is only judges and lawyers who don't like what the law actually says who call it "vague". Obi-Wan McCartney posted: THe constitution itself refers to common law, its the system we had, and its mind boggling to me that some conservatives on this board act as if they can just ignore it, as if it isn't relevant at all, as if they alone have the skill and understanding of constitutional principles to decipher and interpret it from the document alone. Actually, the only place that the Constitution mentions common law is in the Seventh Amendment: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. Look at that carefully. It is clearly differentiating between common law suits and other law suits, or in other words, it is referring to what we now call civil suits (As opposed to criminal law). Other than that, "common law" is not mentioned anywhere in the Constitution. Kimball Kinnison -----signature----- You deserve the wrath of Kimball...- OWM Why, Kimball... I didn't know you had it in you.- KW I think that Kimball just made a joke, and a funny joke at that.- Raven Stupidity got us into this mess, why can't it get us out?
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 11/13/05 1:07pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Is this like, TripleB style "I oppose everything left" or seriously what you believe? Again, are you trying to claim that common law isn't constitutional? Are you trying to claim that judges can't make law even though they have been making law since before the formation of the Republic, albeit a different kind than legislation? Again, are you saying that every Supreme Court ruling which laid out legal standards and considerations, from time place and manner restrictions to MIranda rights are all bunk? That you claim to know the correct application of the constitution and that every single judge, lawyer, law firm, legal institution, politician, founding father, is wrong, is astounding. You can believe whatever you want, Kimball, but unfortunately, no credible legal scholar agrees with you, not even Ann Coulter. You have a point when you claim that Judges may go to far in their interpretations. But you have to learn that the judiciary does have a lawmaking function, they always have. Sometimes, the judiciary makes a legally binding rule that can be overturn by congress. Sometimes, the judiciary makes a ruling based on their reading of the constitution, and then that becomes the Supreme Law of the land barring a constitutional amendment, which would force the judges to re-evaluate their position. Remember that civics class you stayed awake for, and remember the basic legal premise that "reasonable minds may differ." That's why we have judges, they may not always be right, but that is our system. And as much as you want to shut out reality, the reality is, even the most conservative and strict constructionist understands that judges have a law-making function. THe problem comes in when they make legislative type decisions, with certain value judgments. Judges are to defer to the legislature's decisions so long as they conform with the constitution. I know you have to disagree with everything I say, Kimball. I think you have a valid opinion as to most legal decisions, but you go to far when you try to make a sweeping (and incorrect) generalizations about the entire nature of American juriprudence. -----signature----- God Bless J-Rod's Wife! Obi-Wan McCartney: Model Forum Member since 1999! America's Beatles are far better than England's precious Rolling Stones
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