US: Bill to be introduced by Kansas US Rep. would constitutionally ban equal marriage

  • metta

    Posts: 39155

    Jun 28, 2013 1:29 AM GMT
    US: Bill to be introduced in Kansas would constitutionally ban equal marriage

    http://www.pinknews.co.uk/2013/06/28/us-bill-to-be-introduced-in-kansas-would-constitutionally-ban-equal-marriage/
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    Jun 28, 2013 1:44 AM GMT
    "An amendment to the constitution of the US state of Kansas, to be introduced this week, would define marriage specifically as between one man and one woman."

    This story from a foreign source has all kinds of problems. Huelskamp is a U.S. Representative from the state of Kansas. He can't introduce a bill to amend the constitution of the state of Kansas.

    "A constitutional amendment cannot be found in itself to be unconstitutional."

    While an amendment to the U.S. Constitution cannot be found to be unconstitutional by SCOTUS, if this was actually an amendment to the Kansas constitution, yes it can be found unconstitutional by SCOTUS.
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    Jun 28, 2013 1:46 AM GMT
    Coming next week : a bill to rename the state Kabul.
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    Jun 28, 2013 1:51 AM GMT
    The actual story to correct what is wrong in the Pink News story:

    http://www.huffingtonpost.com/2013/06/26/tim-huelskamp-gay-marriage_n_3505465.html
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    Jun 28, 2013 1:52 AM GMT
    Iceblink said"An amendment to the constitution of the US state of Kansas, to be introduced this week, would define marriage specifically as between one man and one woman."

    This story from a foreign source has all kinds of problems. Huelskamp is a U.S. Representative from the state of Kansas. He can't introduce a bill to amend the constitution of the state of Kansas.

    "A constitutional amendment cannot be found in itself to be unconstitutional."

    While an amendment to the U.S. Constitution cannot be found to be unconstitutional by SCOTUS, if this was actually an amendment to the Kansas constitution, yes it can be found unconstitutional by SCOTUS.


    Metta8 rarely reads these articles that he floods the forums with here. If he did, he'd spend his entire day reading articles and copying and pasting links here on RJ. Oh wait...
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    Jun 28, 2013 2:25 AM GMT
    theantijock said
    Iceblink saidWhile an amendment to the U.S. Constitution cannot be found to be unconstitutional by SCOTUS.


    I googled info earlier on that question while considering another thread but I only found some discussion. I didn't find anything definitive. Do you have a source stating that?

    EDIT: I just found this

    http://law2.umkc.edu/faculty/projects/ftrials/conlaw/articlev.htm
    The United States Constitution is unusually difficult to amend...The Court has at various times considered the validity of constitutional amendments. Importantly, the Court has considered the method of proposal and ratification, as well as the constitutionality of the subject matter of the amendment

    If you read beyond that quote, none of the amendments discussed were found to be unconstitutional because of the subject matter. When they say subject matter, they are talking about the scope of the amendment and how it should be applied. Article V is the only way to remove or add an amendment to the constitution and SCOTUS has taken an oath to uphold that constitution.
    Edit- Hawke v Smith (1920)mentioned in your link is not a case that concerns what is in the 18th Amendment, but a case about whether the correct process was used in ratifying the amendment.
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    Jun 28, 2013 2:35 AM GMT
    I've been reading much more than just that quote, thank you. At issue is not what they find but whether they can review. If you have a source, I'd appreciate your posting that. I don't know the answer either way, I'm finding arguments both ways and I find it interesting.

    I just provided a link in above post to another discussion. There a poster brings up the following....

    Polycarp05-27-2009, 01:47 PM
    This is the Thirteenth Amendment to the Constitution:
    Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

    Section 2. Congress shall have power to enforce this article by appropriate legislation.

    The supreme court has no power to overturn it -- assuming it was so foolish as to want to!

    However, look at the following:

    A RESOLUTION

    Submitting to the legislatures of the several States a proposition to amend the Constitution of the United States.

    Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two—thirds of both houses concurring), That the following article be proposed to the legislatures of the several States as an amendment to the constitution of the United States, which, when ratified by three—fourths of said Legislatures, shall be valid, to all intents and purposes, as a part of the said Constitution, namely: Article XIII. Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.

    SCHUYLER COLFAX

    Speaker of the House of Representatives.

    H. HAMLIN

    Vice President of the United States, and President of the Senate.

    Approved, February 1. 1865.

    This is the joint resolution adopting the Thirteenth Amendment and proposing it to the states for ratification. Like any other measure enacted by Congress, it is subject to the constitutional and other provisions for enactment -- and that is at least in principle reviewable by the Court. A proposed amendment not properly enacted by Congress or properly ratified is not an effective amendment, and no part (at least yet) of the Constitution.
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    Jun 28, 2013 2:48 AM GMT
    ^^^Unfortunately the sources I can find are things like Ask.com and WikiAnswers which are not trustworthy because you do not actually know who is answering the question.
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    Jun 28, 2013 2:53 AM GMT
    yeah, I found those too. I don't trust them either.

    I did read through that entire link I posted (the 2nd one) the first also has good stuff though. In the 2nd I don't know who the people are, they seem lawyerish, I've no idea of course, but there's every opinion under the sun expressed there.

    I'd post that spock fascinating youtube but I already used it in another thread.
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    Jun 28, 2013 4:02 AM GMT
    The one thing about this sentence "Like any other measure enacted by Congress, it is subject to the constitutional and other provisions for enactment -- and that is at least in principle reviewable by the Court." is that it also seems to concern enactment.

    I cannot imagine the purpose of going through the very difficult process of ratifying an amendment, and what would distinguish it from statutory law, if it could be found unconstitutional by federal courts. There are some who want to overturn the decision in Citizens United v FEC and I can't see any incentive in doing that if SCOTUS could just turn around and find it unconstitutional again. I can't see why there would have every been any amendment ratified. I've just always thought of it as a basic lesson of civics and have never questioned it before.
  • The_Guruburu

    Posts: 895

    Jun 28, 2013 4:33 AM GMT
    Iceblink saidThe one thing about this sentence "Like any other measure enacted by Congress, it is subject to the constitutional and other provisions for enactment -- and that is at least in principle reviewable by the Court." is that it also seems to concern enactment.

    I cannot imagine the purpose of going through the very difficult process of ratifying an amendment, and what would distinguish it from statutory law, if it could be found unconstitutional by federal courts. There are some who want to overturn the decision in Citizens United v FEC and I can't see any incentive in doing that if SCOTUS could just turn around and find it unconstitutional again. I can't see why there would have every been any amendment ratified. I've just always thought of it as a basic lesson of civics and have never questioned it before.


    The U.S. Constitution is the supreme law of the land. That means no treaties and no state constitutions may violate it (Art. VI). Under your misunderstanding, a state could amend their constitution to allow slavery. Doesn't make much sense, does it?

    A state constitution functions the same way as the U.S. Constitution: it provides guidance for all other laws (statutes) that follow. It is usually less precise and detailed than a statute and is harder to change because it affects all other laws. A statute is usually more limited in scope and can be as detailed as legislators (or their paid lobbyists) care to write it. All statutes are bound by the constitution, but they're not necessarily bound to each other.

    I'm not a law professor (...yet), so this is based on my 2L understanding of constitutional law and federalism.
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    Jun 28, 2013 4:42 AM GMT
    The_Guruburu said
    The U.S. Constitution is the supreme law of the land. That means no treaties and no state constitutions may violate it (Art. VI). Under your misunderstanding, a state could amend their constitution to allow slavery. Doesn't make much sense, does it?


    Under my misunderstanding? You've dropped in on the middle of a conversation and if you look above, I've already said the same thing:

    Iceblink saidWhile an amendment to the U.S. Constitution cannot be found to be unconstitutional by SCOTUS, if this was actually an amendment to the Kansas constitution, yes it can be found unconstitutional by SCOTUS.


    What was being discussed at the point you came in was the U.S. Constitution, as someone had questioned whether my statement about a U.S. constitutional amendment not being able to be found unconstitutional was true.

    Edit- I think with your post both theantijock and I would have both already agreed with. Since you are a student in this field, please comment on the question about U.S. constitutional amendments.
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    Jun 28, 2013 5:11 AM GMT
    Iceblink saidThe one thing about this sentence "Like any other measure enacted by Congress, it is subject to the constitutional and other provisions for enactment -- and that is at least in principle reviewable by the Court." is that it also seems to concern enactment.

    I cannot imagine the purpose of going through the very difficult process of ratifying an amendment, and what would distinguish it from statutory law, if it could be found unconstitutional by federal courts. There are some who want to overturn the decision in Citizens United v FEC and I can't see any incentive in doing that if SCOTUS could just turn around and find it unconstitutional again. I can't see why there would have every been any amendment ratified. I've just always thought of it as a basic lesson of civics and have never questioned it before.


    I don't even know if they could review never mind when, during the process or after enactment. The enactment might trigger that, even if it is just their review of procedures of the process, but then the states fix that and kick it back as mentioned in the 2nd link I posted, I think.

    The more I read the more interesting it becomes. Seems there's some debate in international law. For instance, in India...

    http://en.wikipedia.org/wiki/Amendment_of_the_Constitution_of_India
    "...There has been a conflict between the Supreme Court and Parliament, where Parliament wants to exercise discretionary use of power to amend the constitution while the Supreme Court wants to restrict that power"

    So I don't know that this is a settled issue.

    The Supreme Court website says that the way around their ruling is by amendment, as we know, though it does not mention review of that in either direction. Just says nothing about it.

    What you say sounds more or less right and would probably most likely be the case I just don't know if it is always the case. I can hardly think of an example extreme enough that might warrant such a review--some amendment to become a dictatorship?--but this world never ceases to surprise me, so I wonder.
  • The_Guruburu

    Posts: 895

    Jun 28, 2013 7:19 AM GMT
    Iceblink said
    The_Guruburu said
    The U.S. Constitution is the supreme law of the land. That means no treaties and no state constitutions may violate it (Art. VI). Under your misunderstanding, a state could amend their constitution to allow slavery. Doesn't make much sense, does it?


    Under my misunderstanding? You've dropped in on the middle of a conversation and if you look above, I've already said the same thing:

    Iceblink saidWhile an amendment to the U.S. Constitution cannot be found to be unconstitutional by SCOTUS, if this was actually an amendment to the Kansas constitution, yes it can be found unconstitutional by SCOTUS.


    What was being discussed at the point you came in was the U.S. Constitution, as someone had questioned whether my statement about a U.S. constitutional amendment not being able to be found unconstitutional was true.

    Edit- I think with your post both theantijock and I would have both already agreed with. Since you are a student in this field, please comment on the question about U.S. constitutional amendments.


    That's what I get for multitasking and typing on two different devices...

    From what I understand, the amendment process, as you noted, would be subject to constitutionality concerns. The court's role is to compare a (proposed) law against the Constitution and see if it passes muster (I.e., Constitutional interpretation). Once the Constitution itself has changed, the amendment becomes part of what the courts use to interpret other laws. So yes, the Constitution can't invalidate itself and neither SCOTUS nor any other court can pull up an older version of the Constitution to deem a new amendment unconstitutional.

    I probably ought to post this in the morning, seeing as I'm running on empty, but I hope this is a somewhat coherent response.
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    Jun 28, 2013 1:50 PM GMT
    The_Guruburu saidFrom what I understand, the amendment process, as you noted, would be subject to constitutionality concerns. The court's role is to compare a (proposed) law against the Constitution and see if it passes muster (I.e., Constitutional interpretation). Once the Constitution itself has changed, the amendment becomes part of what the courts use to interpret other laws. So yes, the Constitution can't invalidate itself and neither SCOTUS nor any other court can pull up an older version of the Constitution to deem a new amendment unconstitutional.

    I probably ought to post this in the morning, seeing as I'm running on empty, but I hope this is a somewhat coherent response.


    Actually, what I bolded there was my concern. Particularly, what I underlined I'd be interested in seeing a proper citation if you know of one to provide.

    Yesterday I'd found this on interpretation http://www.supremecourt.gov/about/constitutional.aspx what seems to me to imply but not explicitly state the review might be from that this:

    "Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit."

    What I would like to see if it exists is a citation from a good source which says definitively whether or not the court may review to test for constitutional muster before enactment an amendment to the US Constitution proposed in order to negate a prior Supreme Court ruling.
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    Jun 28, 2013 2:03 PM GMT
    Kansas already has a state amendment banning equality.

    This is about a US representative *from* Kansas who's introducing a *federal* constitutional amendment to ban equality nationwide.
  • The_Guruburu

    Posts: 895

    Jun 28, 2013 3:28 PM GMT
    theantijock said
    The_Guruburu saidFrom what I understand, the amendment process, as you noted, would be subject to constitutionality concerns. The court's role is to compare a (proposed) law against the Constitution and see if it passes muster (I.e., Constitutional interpretation). Once the Constitution itself has changed, the amendment becomes part of what the courts use to interpret other laws. So yes, the Constitution can't invalidate itself and neither SCOTUS nor any other court can pull up an older version of the Constitution to deem a new amendment unconstitutional..


    Actually, what I bolded there was my concern. Particularly, what I underlined I'd be interested in seeing a proper citation if you know of one to provide.

    Yesterday I'd found this on interpretation http://www.supremecourt.gov/about/constitutional.aspx what seems to me to imply but not explicitly state the review might be from that this:

    "Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit."

    What I would like to see if it exists is a citation from a good source which says definitively whether or not the court may review to test for constitutional muster before enactment an amendment to the US Constitution proposed in order to negate a prior Supreme Court ruling.


    Regarding the court's role in Constitutional interpretation, see Marbury v. Madison (the first U.S. Supreme Court case to apply the principle of "judicial review" -- the power of federal courts to void acts of Congress in conflict with the Constitution.)

    As to your second concern:

    At the bottom of the page you cited reads:
    When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.


    Here's a paper written by a Con law professor at U. of St. Thomas that addresses your very question: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1104529. Some useful tidbits from it:

    The Supreme Court is the highest federal court, to be sure. And indeed, it is now widely accepted (by nearly everyone except me) that the Court’s decisions are binding on the other branches of government. But that doesn’t make it right for the Supreme Court to “overrule” the Thirteenth or Fourteenth amendment! The justices don’t legitimately, rightfully have the power to do such a thing! It would be a violation of the Constitution, of their sworn oaths to be bound by it, for the justices to “strike down” the plain text of a constitutional amendment!


    Another law prof. at of U. of Missouri Kansas City has a page that goes into the details of judicial review and Constitutional amendments: 
    http://law2.umkc.edu/faculty/projects/ftrials/conlaw/articlev.htm

    Because any amendment can be blocked by a mere thirteen states withholding approval (in either of their two houses), amendments don't come easy...The very difficulty of amending the Constitution greatly increases the importance of Supreme Court decisions interpreting the Constitution, because reversal of the Court's decision by amendment is unlikely except in cases when the public's disagreement is intense and close to unanimous.


    I don't have the wherewithal to go through every single SCOTUS decision where the Court basically says "if you don't like it, change the Constitution," but that has been the precedent it set for itself since Marbury v. Madison

    I could see someone bringing a Constitutional challenge to an amendment if it exceeded Congress' power beyond what Article I grants, unless of course the Amendment is expanding its scope of power. I imagine it's possible that if Congress were to amend the Constitution in a way that completely undermines the spirit of the law, say reinstate slavery or disenfranchise women, then the court could again point to other parts of the Constitution that are contrary, or as a last resort, appeal to the "spirit of the law", tradition, civilization, or any combination of the three.

    Again, it goes back to what the actual power of the court is. Although we use the language "review", courts don't go about looking for laws to review--someone must bring an issue before the court, and that someone must have standing (i.e., past or impending harm due to the law). If no one complains or on one can bring about a claim, the court can't do anything. Most cases are based on the fact that some statute is violating the Constitution. If part of the Constitution itself is the issue, it would have to conflict with another part of the Constitution, and then it would be up to the politics of the Justices to decide how best to rule icon_wink.gif
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    Jun 28, 2013 6:18 PM GMT
    Thank you, Guruburu. I was aware of where the court derived judicial review from my other readings but I hadn't seen this as succinctly put as in the link you provided that..."an act of the legislature repugnant to the constitution is void." In other words, when the Constitution--the nation's highest law--conflicts with an act of the legislature, that act is invalid."

    You laid out other interesting points. Though I'm still not sure that answers the see-saw question, because new amendments can repeal pre-existing ones which conflict.

    The ideas of the spirit of the law and repugnancies against that are powerful concepts.

    I find it interesting to consider avenues of remedy when amendments serve as a check on that judicial review because you never know when The Penguin might put something in our water supply.

    Where I think all that applicable here is the spirit of the law embodied in the Declaration of Independence that all men are created equal. So then would a proposed amendment repugnant to that spirit be stricken even before it might be ratified. If they can't bring back slavery, if they can't take away a woman's right to vote, then how could they take away our humanity by law?
  • Lukehiker

    Posts: 161

    Jun 28, 2013 7:19 PM GMT
    theantijock saidWhere I think all that applicable here is the spirit of the law embodied in the Declaration of Independence that all men are created equal. So then would a proposed amendment repugnant to that spirit be stricken even before it might be ratified. If they can't bring back slavery, if they can't take away a woman's right to vote, then how could they take away our humanity by law?


    You are referring to something often cited as "The will of the people" and its power to redefine what the spirit of the law means.

    This is a common tactic used by the anti-equality crowd to justify a law that directly targets a specified group.

    Using Michigan's 2004 Prop. 2 as an example here:
    A measure is placed before the people, designed to directly target a subject class of people with a negative result, and the people vote on it. The measure passes, and becomes law.

    Regardless of the existing spirit of the law, the will of the people was used to redefine it, to enact a negative status on a specific group. Such an action is in direct conflict with the spirit of the law.
  • The_Guruburu

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    Jun 28, 2013 7:32 PM GMT
    theantijock saidThank you, Guruburu. I was aware of where the court derived judicial review from my other readings but I hadn't seen this as succinctly put as in the link you provided that..."an act of the legislature repugnant to the constitution is void." In other words, when the Constitution--the nation's highest law--conflicts with an act of the legislature, that act is invalid."

    You laid out other interesting points. Though I'm still not sure that answers the see-saw question, because new amendments can repeal pre-existing ones which conflict.

    The ideas of the spirit of the law and repugnancies against that are powerful concepts.

    I find it interesting to consider avenues of remedy when amendments serve as a check on that judicial review because you never know when The Penguin might put something in our water supply.

    Where I think all that applicable here is the spirit of the law embodied in the Declaration of Independence that all men are created equal. So then would a proposed amendment repugnant to that spirit be stricken even before it might be ratified. If they can't bring back slavery, if they can't take away a woman's right to vote, then how could they take away our humanity by law?


    The Declaration of Independence isn't binding law, of course—we don't follow it, but it does represent what we believe. As such, the Court could use it as proof of what the underlying purpose of the Constitution is and why a particular amendment is/n't in line with the Constitution.

    The least radical form of judicial review to an Amendment would be for the Court to find the process violates explicit rules. A step up from that would be if SCOTUS ruled an amendment is directly outside the scope of powers given to the legislature. We'd start moving towards an "activist" court once the spirit of the law, tradition, natural law, moral law, and all those esoteric and non-legal concepts are used as justifications, and if an amendment got the 2/3 vote needed to pass, then you know overruling it would cause quite a national uproar.

    To be frank, my impression is that law is whatever the Mighty 5 says it is. They believe X, then find a legal hook to justify X. It sounds cynical, but that's what Constitutional "interpretation" really is. The document has only been amended 27 times since it was first created, yet things are "constitutional" according to one court, but illegal in the next with nary a comma altered. It's a very elaborate, self-important ruse that there's some Truth that the SCOTUS is discerning in their deliberations when that is far from the case.
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    Jun 28, 2013 7:38 PM GMT
    Lukehiker said
    theantijock saidWhere I think all that applicable here is the spirit of the law embodied in the Declaration of Independence that all men are created equal. So then would a proposed amendment repugnant to that spirit be stricken even before it might be ratified. If they can't bring back slavery, if they can't take away a woman's right to vote, then how could they take away our humanity by law?


    You are referring to something often cited as "The will of the people" and its power to redefine what the spirit of the law means.

    This is a common tactic used by the anti-equality crowd to justify a law that directly targets a specified group.

    Using Michigan's 2004 Prop. 2 as an example here:
    A measure is placed before the people, designed to directly target a subject class of people with a negative result, and the people vote on it. The measure passes, and becomes law.

    Regardless of the existing spirit of the law, the will of the people was used to redefine it, to enact a negative status on a specific group. Such an action is in direct conflict with the spirit of the law.

    .
    What might appear or even momentarily be a violation of spirit at the micro level might very well be part of metaphorical God's plan. We won't know until that plays out. Will Michigan be reinstituting slavery any time soon? And that's my Penguin scenario, where I wonder if we've safeguards against that sort of thing at the macro level, the level not of a state but of the U.S. Constitution.
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    Jun 28, 2013 7:52 PM GMT
    The_Guruburu said
    The Declaration of Independence isn't binding law, of course—we don't follow it, but it does represent what we believe. As such, the Court could use it as proof of what the underlying purpose of the Constitution is and why a particular amendment is/n't in line with the Constitution.

    The least radical form of judicial review to an Amendment would be for the Court to find the process violates explicit rules. A step up from that would be if SCOTUS ruled an amendment is directly outside the scope of powers given to the legislature. We'd start moving towards an "activist" court once the spirit of the law, tradition, natural law, moral law, and all those esoteric and non-legal concepts are used as justifications, and if an amendment got the 2/3 vote needed to pass, then you know overruling it would cause quite a national uproar.

    To be frank, my impression is that law is whatever the Mighty 5 says it is. They believe X, then find a legal hook to justify X. It sounds cynical, but that's what Constitutional "interpretation" really is. The document has only been amended 27 times since it was first created, yet things are "constitutional" according to one court, but illegal in the next with nary a comma altered. It's a very elaborate, self-important ruse that there's some Truth that the SCOTUS is discerning in their deliberations when that is far from the case.


    Yes, and as such I presented the Declaration here as guiding spirit. I also mentioned in a prior post the review of rules of the process and how I understand that. Interesting your mention of what might be beyond a legislator's scope v. judicial activism which I had considered but did not bring into discussion which I guess would amount to some sort of constitutional crisis (I don't know if that is a proper term but probably that's how it would be described).

    Your notion of what the 5 says becomes the law was brought up in another discussion (link provided in prior post) whereby someone mentioned that even if a Court's decision was skirted by a later amendment, that the justices might then simply interpret the new amendment in a way that coincides with their past ruling. Tricky men in gowns.
  • Lukehiker

    Posts: 161

    Jun 28, 2013 8:10 PM GMT
    theantijock said
    Lukehiker said
    theantijock saidWhere I think all that applicable here is the spirit of the law embodied in the Declaration of Independence that all men are created equal. So then would a proposed amendment repugnant to that spirit be stricken even before it might be ratified. If they can't bring back slavery, if they can't take away a woman's right to vote, then how could they take away our humanity by law?


    You are referring to something often cited as "The will of the people" and its power to redefine what the spirit of the law means.

    This is a common tactic used by the anti-equality crowd to justify a law that directly targets a specified group.

    Using Michigan's 2004 Prop. 2 as an example here:
    A measure is placed before the people, designed to directly target a subject class of people with a negative result, and the people vote on it. The measure passes, and becomes law.

    Regardless of the existing spirit of the law, the will of the people was used to redefine it, to enact a negative status on a specific group. Such an action is in direct conflict with the spirit of the law.

    .
    What might appear or even momentarily be a violation of spirit at the micro level might very well be part of metaphorical God's plan. We won't know until that plays out. Will Michigan be reinstituting slavery any time soon? And that's my Penguin scenario, where I wonder if we've safeguards against that sort of thing at the macro level, the level not of a state but of the U.S. Constitution.


    We do: the 14th Amendment.

    The point I was bringing up is that the will of the people is cited as not bound by the Constitution, and therefore, can freely violate and redefine it's spirit.

    It is only a small series of steps from:
    Voting to take away a right from a specific group, to
    Voting to take away more rights from said group, to
    Voting to remove all rights from said group,
    and so and and so forth.

    The first line of defense is in keeping with the spirit of the law. In this case, the spirit is defined by the intent within "created equal." Regardless of the religious connotations therein, there is an inherent equalness that cannot be abridged. Once it is, the precedent is set, and it wont be long until the next step is taken.

    This isn't just speaking to gay individuals, or black individuals, or any specified group at all. Indeed, the danger lies in the precedent itself. Once set, it can be taken anywhere.
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    Jun 28, 2013 8:25 PM GMT
    Lukehiker said...The point I was bringing up is that the will of the people is cited as not bound by the Constitution, and therefore, can freely violate and redefine it's spirit....


    Constant vigilance, of course. But I don't know that the will of the people "can freely violate". Apparently there's quite a few hoops we make them jump through. But what you're saying here does turn back to my original questioning whether or not SCOTUS can rule a constitutional amendment to be unconstitutional.
  • The_Guruburu

    Posts: 895

    Jun 28, 2013 8:33 PM GMT
    theantijock said
    Lukehiker said...The point I was bringing up is that the will of the people is cited as not bound by the Constitution, and therefore, can freely violate and redefine it's spirit....


    Constant vigilance, of course. But I don't know that the will of the people "can freely violate". Apparently there's quite a few hoops we make them jump through. But what you're saying here does turn back to my original questioning whether or not SCOTUS can rule a constitutional amendment to be unconstitutional.


    I think part of the confusion lies in how you think of Amendments. They're not separate from the Constitution—they ARE the Constitution. So, you're basically asking if SCOTUS can rule the Constitution to be unconstitutional. I can't think of any legal precedent, nor any form of logic, really, that says such a thing is possible. Maybe I'm being too simplistic in my understanding?