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Author	Topic: The Nature of the American Constitution. Revised for your Comfort.
IkritMan Registered: Sep '02	Date Posted: 11/8/05 1:14pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Obi-Wan McCartney posted: Can the state declare marital sex illegal? Would they declare marital sex illegal? Also, I must clarify my earlier post. I meant to be talking about Bowers v. Hardwick in my second to last post, not Lawrence v. Texas. Lawrence was about a sodomy law that allowed heterosexual sodomy but not homosexual sodomy, which does not even attempt to create a "separate but equal"ish standard, which is in itself unconstitutional, but bypasses the equal protection clause altogether. The overall outcome from Lawrence is one with which I can agree, yet the opinions for the majority reek of activism, as they do not rest on Constitutionality but "common sense." At some point, it was "common sense" to intern thousands of Japanese without due process or equal application of the laws. Vaderize03 posted: You are referring to a state law, I believe, and not a constitutional precedent. Yes, but the law is by all means allowed by the Constitution, so I referred to it as a constitutional law. Laws that contradict the Constitution are referred to as unconstitutional laws. I feel like I should not have to be explaining this distinction. -----signature----- Six imams removed from a US Airways flight from Minneapolis to Phoenix are calling on Muslims to boycott the airline. If only we could get Muslims to boycott all airlines, we could dispense with airport security altogether.
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 11/8/05 2:57pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	So fine, even if its implausible, you believe the state of Texas has the right to make a law forbidding all sexual contact between married peoples, or heck, all and any sexual contact? Don't you think this would be a fundamental right retained by the people? -----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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Vaderize03 Title: Manager Emeritus Registered: Oct '99	Date Posted: 11/8/05 5:49pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	You don't have to explain the distinction, Ikrit, it was just unclear to me what you meant based on the way you phrased it. It sounded to me as if you were referring to "constitutional law", as opposed to "a constitutional law. They are two entirely different things, as we both agree. Peace, V-03 -----signature----- "Bring your pretty face to my axe....." B-O-H-I-C-A !! (that was funny DM!) "I'm what Willis was talking about"
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Kimball_Kinnison Registered: Oct '01	Date Posted: 11/9/05 3:40am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Obi-Wan McCartney posted: So fine, even if its implausible, you believe the state of Texas has the right to make a law forbidding all sexual contact between married peoples, or heck, all and any sexual contact? Since there is nothing in the US Constitution that specifically prohibits such a power from being given to the states, then you need to look at the Texas Constitution. Then the question is simply, did the people of the state of Texas grant the state the power to infringe that right? Obi-Wan McCartney posted: Don't you think this would be a fundamental right retained by the people? OWM, as I have said repeatedly, your argument using the word "retained" is completely illogical and irrational. All government powers infringe the rights of the people. Taxes infringe the right to property. Search warrants infringe the right to privacy. Arrests infringe the right to liberty. The death penalty infringes the right to life. However, each and every one of these infringements of various rights is perfectly constitutional because the people have surrendered at least some power to control those rights to the government through a Constitution (specifically the federal Constitution). If your interpretation of the Ninth Amendment is correct, then why do we even bother with state Constitutions? It would be impossible for any powers not explicitly mentioned in the US Constitution as going to the states to be granted to a state, because those powers would infringe "unenumerated rights" that are "retained" by the people. It would make the Tenth Amendment irrelevant, since it specifies that unenumerated powers go to the states (except in cases where they are prohibited to the states, where they go to the people). It may be a right retained by the people on the federal level, but that does not preclude it being granted to the states through the individual state constitutions. 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: 11/9/05 8:29am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Kimball, you're forgetting the 14th amendment. Originally, legal scholars questioned whether the Bill of Rights applied to the states at all, (and of course, some still do.) Are you one of them? Do you believe the state has the right to infringe on the Bill of Rights? Can a state government ban all ownership of guns? The right of privac is an implied right in the constitution, based on the language of various amendments. It is also a basic concept of liberty that seems so obvious I wonder why there is any doubt. I am saying that the constitution grants a right of privacy. No, it is not an absolute right, and I don't know why you would go there, governments always infringe on rights, but they can only go so far. You can violate the right to privacy by showing a compelling state interest. Legislating how you penetrate your wife goes too far. No state government has that right. Now, legislating WHERE you penetrate your wife? That's fine. Like legislating that public nudity is a crime? Fine. But legislating that it is illegal to be naked in ones own home? THAT'S going too far. The law reflects this concept. And the 9th and 10th amendments were left intentionally vague. The right of privacy is protected, but it can be overcome by the state, provided the state demonstrates a compelling interest. States can pass laws to further legitemate state interests. Deciding that Kimball Kinneson can only penetrate Mrs. Kinneson in a manner proscribed by state statutes reeks of Orwellism. It violates fundamental notions of privacy. If the state had a compelling interest, then yes, the privacy right held by the people could be outweighed by the state interest. I know you understand the concept of balancing rights. No one ever said privacy rights were absolute, the constitution itself makes that clear about EVERY right. And again, a little interpretation is required, because the constitution said no abdridging free speech, but clearly, there is plenty of room for interpretation. Or are you against time place and manner restrictions? Where does it say the government CAN infringe in free speech in limited ways? It doesn't, it's just practical common sense, like privacy rights. -----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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Branthoris Registered: Nov '02	Date Posted: 11/9/05 10:31am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Obi-Wan McCartney, you responded to my initial claim about Justice Black by pointing out: "He was a staunch supporter of civil rights, and he supported the application of the federal of Bill of Rights to the state, much more than his colleagues ... He believed in a WALL OF SEPARATION between church and state and ruled against the prayer in public schools. He was a staunch 1st amendment supporter and did a lot to ensure that federal and state governments couldn't trample on free speech rights." All these are good observations, but I hold to my view that Justice Black would today be considered an extreme right winger because most of the just-quoted statements could be applied to Justice Scalia--whom most people do view as an extreme right-winger. Justice Black was indeed a staunch supporter of civil rights; but so is Justice Scalia. See, for example, Hamdi v. Rumsfeld, Maryland v. Craig, and Kyllo v. United States. Likewise, Justice Black was a big fan of free speech rights; but so, in many contexts, is Justice Scalia. See, for example, RAV v. St Paul. You are quite correct in stating that Justice Black's view on the Establishment Clause differed markedly from Justice Scalia's; on that particular issue, he was to the "left" of where Scalia is now. But conversely, he was to the "right" of Scalia on some significant issues. For example, Justice Scalia set forth his view in Hamdi v. Rumsfeld that the "gist" of the Due Process Clause is "to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property". This is in extreme contrast to Justice Black's view that the Clause does no more than require that "our Government must proceed ... according to written constitutional and statutory provisions as interpreted by court decisions". See In Re Winship. I think that what would really determine Black's supposed position on the political spectrum, however, are the emotive issues that conservatives and liberals get enthused about--the same issues which cause Scalia to be painted as an extreme right-winger today. On abortion, Justice Black would reverse Roe v. Wade faster than you can blink; he said this in his Griswold v. Connecticut dissent: Justice Black posted: "The Court talks about a constitutional 'right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the 'privacy' of individuals. But there is not... I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision... Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous." Black's rejection of the "right to privacy", and his distaste for "substantive due process" (and even procedural due process except as anchored textually in the Bill of Rights) leave no doubt where he would vote on abortion, homosexual rights, and similar politically charged issues that find their way before the Supreme Court. So to conclude, I still believe that then-"liberal" Justice Black would be adjudged an extreme right-winger today, and that that should give some pause to people who seek to discuss judicial matters in simple left-right (conservative-liberal) terms.
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Kimball_Kinnison Registered: Oct '01	Date Posted: 11/9/05 11:21am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Obi-Wan McCartney posted: Kimball, you're forgetting the 14th amendment. Originally, legal scholars questioned whether the Bill of Rights applied to the states at all, (and of course, some still do.) Are you one of them? Do you believe the state has the right to infringe on the Bill of Rights? Can a state government ban all ownership of guns? Actually, I believe that where it says that only a certain portion of the government is limited, only that portion of the government is limited. Where there is no such limitation, all of government is limited. For example, the First Amendment clearly specifies "Congress shall make no law". However, the Second through Fifth Amendments it doesn't specify any portion of the government that is limited, which indicates that it is a general limitation on all state and federal governments. The Sixth is rather specific about applying to the states ("by an impartial jury of the state and district wherein the crime shall have been committed"). Note for example that the Sixth says "In all criminal prosecutions", not limiting it to federal criminal prosecutions. However, nothing in the Bill of Rights outlines a "right to privacy" that prohibits the government from outlawing actions even within your own home. If anything, it supports the idea that the government is allowed to, as it sets forth specific procedures ("no warrant shall issue..."). If it was leaning towards making it inviolable in Fourth Amendment, then why does it specify "against unreasonable searches and seizures"? It only provides that protection against what it says, nothing more. Obi-Wan McCartney posted: The right of privac is an implied right in the constitution, based on the language of various amendments. It is also a basic concept of liberty that seems so obvious I wonder why there is any doubt. I am saying that the constitution grants a right of privacy. No, it is not an absolute right, and I don't know why you would go there, governments always infringe on rights, but they can only go so far. You can violate the right to privacy by showing a compelling state interest. Legislating how you penetrate your wife goes too far. No state government has that right. Now, legislating WHERE you penetrate your wife? That's fine. Like legislating that public nudity is a crime? Fine. But legislating that it is illegal to be naked in ones own home? THAT'S going too far. The law reflects this concept. And the 9th and 10th amendments were left intentionally vague. The right of privacy is protected, but it can be overcome by the state, provided the state demonstrates a compelling interest. States can pass laws to further legitemate state interests. Deciding that Kimball Kinneson can only penetrate Mrs. Kinneson in a manner proscribed by state statutes reeks of Orwellism. It violates fundamental notions of privacy. If the state had a compelling interest, then yes, the privacy right held by the people could be outweighed by the state interest. I know you understand the concept of balancing rights. No one ever said privacy rights were absolute, the constitution itself makes that clear about EVERY right. And again, a little interpretation is required, because the constitution said no abdridging free speech, but clearly, there is plenty of room for interpretation. Or are you against time place and manner restrictions? Where does it say the government CAN infringe in free speech in limited ways? It doesn't, it's just practical common sense, like privacy rights. [/quote]It's also a basic concept of liberty that your property is your own, and that the government can't take it from you to give to someone else. However, you seemed to defend [i]Kelo[/b] saying that the government could do just that. Don't lecture me about defending liberty. The Constitution is not there to protect liberty by being vague. It is there to outline exactly what powers the government has, and then express the specific limitations on those powers. The Ninth and Tenth Amendments then serve to secure the rest of our rights by stating that if it wasn't given to the government, the government isn't allowed to exercise that power. It's simple, it's clear, and it doesn't create the muddly realm of "implied rights" that require constant "interpretation" that is little more than saying "I think things should be this way, and you have to do it". Similarly, the Tenth Amendment says that any remaining powers not given to the federal government can be given to the states, as long as the Constitution didn't forbid them to the states. Those powers are still retained by the people unless they grant them to the states. 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: 11/9/05 12:59pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort. - Date Edited: 11/9/05 1:02pm (1 edits total) Edited By: Obi-Wan McCartney
	Wait, Branthoris, I'm confused, in one sentence you claim he'd be a right-winger, and in the same sentence you decry the stupidity of such labels? Yes, I get it, Black shares some ideology with Scalia. So yeah, like I mentioned in my previous point, I agreed that he and Scalia would share a similar philosophy regarding the 1st amendment, and the right of privacy, that's why I brought it up as a counterargument for Kimball to use against me since he doesn't seem to care about providing precedent to help interpret the constitution, cos he's able to ignore it and apply it without regards to our system of common law. But no, I wasn't aware of Black's lack of emphasis on substantive due process. And yes, I suppose a person with Black's judicial philosophy might be considered by SOME people to be a right-winger, but I bet there are plenty of decisions black made that Scalia/Thomas would have disagreed with...um, do you know any? And Kimball, even into the 20th century the application of the Bill of Rights to the states was up in the air, heck, it wasn't until Gideon v. Wainwright in the 1960's that the sixth amendment was read to mean defendants had a right to be provided counsel. It refers to the state in terms of drawing a jury pool, and I would agree with you that it applies to the states, but again, this was a serious constitutional question for hundreds of years. KK posted: It's also a basic concept of liberty that your property is your own, and that the government can't take it from you to give to someone else...Don't lecture me about defending liberty. You don't need me to lecture you, you can lecture yourself! KK posted: All government powers infringe the rights of the people. Taxes infringe the right to property. Search warrants infringe the right to privacy. Arrests infringe the right to liberty. The death penalty infringes the right to life. However, each and every one of these infringements of various rights is perfectly constitutional because the people have surrendered at least some power to control those rights to the government through a Constitution (specifically the federal Constitution). We're never going to agree on this, so how about we just pass a federal amendment gaurunteeing the right to privacy? I don't think we need one, but hey, I'm cool with an amendmnet. Just like you don't think we needed the 14th amendmnet or the Supreme Court to declare constitutional protections in the Bill of Rights applicable to the states, it's superfluous, but lets erase all doubt. KK posted: The Constitution is not there to protect liberty by being vague. It is there to outline exactly what powers the government has, and then express the specific limitations on those powers. Not exaclty, again, remember that Madison never wanted a Bill of Rights in the first place, that he felt the separation of powers would protect liberty. The government has limited powers, this is true. But the 9th and 10th amendments were inteded to be a catch all clause, Kimball, to help allow for some interpretation. If you've read a lot of statutes, or are familiar with the federal or state rules of evidence, you know that many statutes contain catch-all clauses which allow the judge some freedom in making a ruling. I mean, even look at abortion, to me, its all about women's liberty and freedom. The government should have no power to dictate what legitemate medical a procedures a woman can and can't have. Preganancy carries the risk of death. If a woman does not want to accept those risks, she should be allowed her abortion. It's like the state telling her she can't have an appendectomy. Even if its a living being, that living being doesn't have the right to live inside the body of another human being, no one does. And again, do you really believe the state has the right to dictate the manner in which you penetrate Mrs. Kinneson? When did you give up that right? Laws are not just words and rules, there is a spirit and a purpose behind the law, to promote and defend freedom and liberty. If anything right for Mr. and Mrs. Kinneson to have any freaky sex they want should be protected under the 1ST amendments free excercise clause! But clearly the 4th amendment is meant to keep the government from interfering with a man's home, these are all interelated concepts, and again, reading the 1st, 3rd, 4th, 5th, and 14th amendments together, you can see the framers intended to covney privacy rights unto the people. Let's again visit Justice Douglasses opinion. 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. I could post the entire opinion, but you get the gist. There are plenty of basic fundamental rights that you yourself have argued for, such as the schooling of one's own child, the rights of parents, etc, which are not mentioned in the constitution, but which I would consider a constitutional right. Again, nowhere in the constitution does it say that a parent has the right to raise their child. Do you believe that the the state has the right to create a constitution that allows them to declare that parents have no rights at all? That every child is in the custody of the state, and that the state has the right to decide what school they'll go to and where they'll live and what they'll eat till they are 18? Come on. The state can take away your children, but they have a burden to meet, they have to prove that you have done something to NEGATE your RIGHT to your child, and it isn't mentioned anywhere in the constituion. Read more Douglass (even though it was on the last page too): Justice Douglass posted: The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516 -522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Privacy rights are embedded in the constitution, and in the spirit of the constitution. I just can't believe that a person of religion would tolerate the notion that the government has a right to legislate in something so intimate and holy. Again, the 1st amendmnet itself should serve as a basis for recognizing privacy rights. Would a state constitution have the right to tell a church that they HAD to marry gay people? No! Why shoudl they have the right to tell you how you can have sex with your wife? They don't! You retained that right, the federal constitution recognizes that, and the state constitution cannot take it from you. I believe it is such a basic fundamental notion of liberty that i can't believe anyone could think otherwise. And again, its foolish to think the constitution isn't intentionally vague. What does freedom of speech mean? What does free exercise mean? What exactly is an UNREASONABLE search or seizure? The constitution isn't vague? Give me a break! You and I agree on the fundamental notion that the government cannot overstep its bounds. I agree, I just believe that there are fundamental rights that the STATE governmetn cannot trample on either. -----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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Branthoris Registered: Nov '02	Date Posted: 11/9/05 1:06pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	I'm saying that Black would be labelled a right-winger if he were on the Court today, for the same reasons Scalia is. I said that Black "would today be considered an extreme right winger", not that I would agree with such a label. This leads to the conclusion that the left/right dichotomy is all but meaningless, since Black was considered a "liberal" in his day.
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IkritMan Registered: Sep '02	Date Posted: 11/9/05 3:35pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Obi-Wan McCartney posted: Don't you think this would be a fundamental right retained by the people? I think it is. The Constitution does not, but there is no need for it to be recognized. You yourself said it is an impossibility. -----signature----- Six imams removed from a US Airways flight from Minneapolis to Phoenix are calling on Muslims to boycott the airline. If only we could get Muslims to boycott all airlines, we could dispense with airport security altogether.
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DARTH-SHREDDER Registered: May '05	Date Posted: 11/10/05 7:57pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	I would like to address the notion that if the right isn't specifically granted in the constitution then the state has a right to outlaw it. This is flase. Rights don't have to be explicitly spelled out if they fall under a catagory. Here's an example: gay marriage. Darth Mischievous, in particular, supports the idea that the right for gays to marry has to be explicitly said in the constitution. However, a basic principle of this country is that all men are created equal and get eqaul rights. Thus, saying only certain people can get married is unconstitutional. Again, it doesn't need to be explicitly stated but since it falls under the notion that all men are created equal it is a right. This applies for all issues. -----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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Branthoris Registered: Nov '02	Date Posted: 11/12/05 6:38am Subject: RE: The Nature of the American Constitution. Revised for your Comfort. - Date Edited: 11/12/05 6:51am (1 edits total) Edited By: Branthoris
	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. Justice O'Connor's concurrence in Lawrence v. Texas seemed to accept this point, but sought to escape it based on the following: Justice O'Connor posted: "Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual... Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by [it]." But this reasoning is indefensible. Under this line of thought, someone with an inherent urge to steal would be discriminated against by a law against theft, because they would be "more likely to engage in behaviour prohibited" by the law. I certainly do not mean to equate homosexuality to theft. Rather, I am simply making the point that theft laws do not involve "discrimination" simply because some people are more likely to steal than others, and nor do laws against homosexual acts involve "discrimination" simply because some people (that is, those of a homosexual orientation) are inherently more likely to commit those acts. I certainly do not approve myself of discrimination against homosexuality--whether innate homosexual orientation, or chosen homosexual actions. However, I can see no objective legal basis for viewing a law banning homosexual conduct as discrimination based on an innate characteristic.
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Kimball_Kinnison Registered: Oct '01	Date Posted: 11/12/05 7:36am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	DARTH-SHREDDER posted: I would like to address the notion that if the right isn't specifically granted in the constitution then the state has a right to outlaw it. This is flase. Rights don't have to be explicitly spelled out if they fall under a catagory. In addition to the problem with that pointed out by Branthoris, that sort of attitude makes the Constitution an unworkable document. 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. It continues by stating that all remaining powers can go to the states, unless the Constitution specifically forbids that to happen. 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. Consider Virginia's Constitution: The authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted; and a specific grant of authority in this Constitution upon a subject shall not work a restriction of its authority upon the same or any other subject. The omission in this Constitution of specific grants of authority heretofore conferred shall not be construed to deprive the General Assembly of such authority, or to indicate a change of policy in reference thereto, unless such purpose plainly appear. 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? 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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Vaderize03 Title: Manager Emeritus Registered: Oct '99	Date Posted: 11/12/05 8:30am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	But judges at all levels interpret laws all the time, Kimball. Are you telling me that the Constitution leaves no room for interpretation, at all? 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. Do you really think the Framers intended to allow states to intrude people's private sex lives? I personally find the concept nauseating, but hey, I agree with OBM-let's amend the Constitution and end the debate. Peace, V-03 -----signature----- "Bring your pretty face to my axe....." B-O-H-I-C-A !! (that was funny DM!) "I'm what Willis was talking about"
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 11/12/05 9:03am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	KK posted: 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? Kimball, if you think about all of the rights the Bill of Rights entails, again, as laid out in my last post, even that is not specifically mentioned by the constitution, you would realize that many rights are implied by the constituiton. Again, in addition to the numerous examples I have given, the right to determine whether your child will be educated in a religous institution or not is a right gaurunteed by the 1st amendmnent, but nowhere is it mentioned as such. Families have rights protected by the constitution, but nowhere does it explicitly say so. I can just see the campaign now, strict constructionists are anti-family! That's why local governments can make restrictions on how many NON-RELATED people live in a dwelling, but cannot interfere with the family relationship. IMagine if a state determined that no child will be educated at a religous institution, it would be a clear 1st amendment violating, but according to your standard, it would seem that because such a right is not clearly enumerated in the constitution, no such right would exist, Judges don't "intrepret" rights out of thin air, they are grounded in the constitution and 200 years of constitutional jurisprudence. Again, your view seems to be more French than American, in this country, we respect the rule of common law, its about time you accepted that. I'm not saying that my expansive view of the constitution is the be all end all correct view, but what I'm saying is that even Scalia realizes that their are rights protected by the Constitution that aren't explicitly spelled out, 1st amendment rights, family rights, for example. Branthoris posted: 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. No way, Branthoris, when you look at a law, you look at the intent of the legislature as well, the practical effect. O'Conner's conncurrance should have you satisfied as it leaves Bowers intact. Regardless, there was a 1st amendment case about a florida law that banned animal sacrifice, even if it was performed in compliance with state laws about killing animals. It was written to target an action, animal sacrifice, but it was clearly intended to specifically target a particular religion in the area to keep them from practicing. The state had no compelling interest here accept to attack the religion. Here, while the law technically attacks conduct, it is clearly targeting homosexuals as a classification. If a law has a flimsy premise, if it's true aim is to achieve an unconstituional end rather than a legitimate state purpose, then it shall be struck down even if technically the law can be read as targeting conduct and not classification. -----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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