Subject:
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Re: Santorum Fails In His Effort To Pervert The Constitution
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Newsgroups:
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lugnet.off-topic.debate
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Date:
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Wed, 28 Jul 2004 17:14:31 GMT
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Viewed:
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2827 times
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In lugnet.off-topic.debate, Larry Pieniazek wrote:
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In lugnet.off-topic.debate, David Laswell wrote:
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If a state declares it illegal, it’s illegal.
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Unless the state declares something illegal that it is unconstitutional to so
declare. For example, if a particular state prevented the right of free
assembly or free association, that would be unconstitutional. The supremes
might not rule on it on the first try, until someone brought a properly
construed test case that they could not decide more narrowly, but lets not
confuse defacto with dejure.
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You ripped that sentance totally out of context, and by doing so totally failed
to add anything new or even contradictory to my original statement as a whole.
Let’s look at the key points of the original text:
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Also, state governments don’t need to be given specific permission to do
something as long as it is not forbidden to them or specifically given over
to either the federal government or general populace (and the 9th Amendment
does not specifically mention same-sex marriage, so it [doesn’t] preclude
state rights).
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I accidentally left a word out previously (it’s added in brackets), but it
pretty much covers the idea that states have to avoid making laws under the two
basic situations where it would be unconstitutional for them to do so: 1) where
they are specifically forbidden to make such laws, and 2) where such rights have
already been assigned to either the federal government or the general populace,
and not to them. Free speech is protected under the 1st Amendment, and as such,
is disqualified from state jurisdiction.
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Same-sex marriage is not mentioned anywhere in the constitution, so the
10th Amendment bumps it down to the states and/or people.
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In the discussion at hand, same-sex marriage is the topic, and there’s no
mention of marriage anywhere in the US constitution. Therefore, it’s neither
prohibited to the states, nor assigned to either the federal government or the
general populace. Therefore, it drops down to state jurisdiction by default,
until such time as a US constitutional amendment says otherwise.
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If a state declares it illegal, it’s illegal.
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And this line is implied, by context, as reading “If a state declares [same-sex
marriage] illegal, it’s illegal,” and it’s already been established that
marriage rights, in general, are not specifically assigned in the US
constitution. Therefore, the only constitutionality problems states could
have in declaring it legal or illegal is whether or not their individual
constitutions declare one way or the other. The US doesn’t outlaw polygamy, but
Utah can’t make a law to allow it because their own constitution prohibits it.
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Wrong again. It is the judical branch’s right and responsibility to strike
down any law which is unconstitutional.
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Until such time as the Judiciary does strike it down,
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Or a jury nullfies it.
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Technically, the jury qualifies as part of the “Judiciary”, so that falls under
the same category.
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you can be prosecuted and sentanced under that law.
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Defacto, yes. It still may be unconstitutional though.
Doesn’t mean it’s necessarily constitutional or un, just that it may not yet
have been found so.
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It doesn’t help you much if you’ve plea-bargained yourself into a sentance.
Your options for appealling the result will be much more limited, and the jury
doesn’t get a say. I think your only chance at that point is that the presiding
judge feels that it’s a stinky enough law to refuse to accept your plea-bargain.
Either way, there has to be an active case in the system for a law to be struck
down for being unconstitutional.
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