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 17:54:44 GMT
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Viewed:
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3085 times
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In lugnet.off-topic.debate, David Laswell wrote:
> In lugnet.off-topic.debate, Larry Pieniazek wrote:
> > In lugnet.off-topic.debate, David Laswell wrote:
> 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.
I'm not convinced that the enjoyment value of the .debate group is added to when
you make statements such as that one, which some may perceive as unnecessarily
combative. I suggest you temper your words.
I'm comfortable with the extraction I did and with the analysis I performed.
> > > Same-sex marriage is not mentioned anywhere in the constitution, so the
> > > 10th Amendment bumps it down to the states and/or people.
I hold that a thing doesn't have to be explicitly mentioned by name in order for
it to be covered or treatable. For example there are no explicit mentions of
telephones in the constitution, yet there have been rulings about the
constitutionality of wiretapping, the constitutionality of regulations on
telephone companies and a host of other topics related to telephones. Ditto a
large number of other things, and concepts (privacy for example, there's no
explicit privacy right, only a mention of search and seizure, a mention of
secure in their effects and so forth) not mentioned in the constitution
explicitly.
I hold that marriage is a type of association and a type of contract and
therefore need not be explicitly mentioned in order to be a protected activity
that people can engage or not engage in, as they choose. Finding otherwise, in
my view, is unconstitutional, barring an amendment that explicitly modifies it.
> 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.
See above, it is, in my view, a class of activity already covered by various
provisions of the Bill of Rights. The intent of the FFs, after all, was to
preserve most freedom of action at the individual citizen level, not to give
states all powers not explicitly enumerated to individuals or the federal
goverment.
> Therefore, it drops down to state jurisdiction by
> default, until such time as a US constitutional amendment says otherwise.
>
> > > If a state declares it illegal, it's illegal.
>
> 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.
Not to my satisfaction it hasn't been so established. I think you're asserting
things that aren't necessarily true. I've already addressed how the constitution
applies to marriage upthread and it wasn't challenged except by John, and not
very effectively by him at that.
> 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.
>
> > > > Wrong again. It is the judical branch's right and responsibility to strike
> > > > down any law which is unconstitutional.
> > >
> > > Until such time as the Judiciary does strike it down,
> >
> > Or a jury nullfies it.
>
> Technically, the jury qualifies as part of the "Judiciary", so that falls
> under the same category.
Indeed. Not everyone realises this so it's worth explicitly reiterating. Thanks
for the emphasis.
> > > you can be prosecuted and sentanced under that law.
> >
> > 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.
I would invite you to read that bit again.
> 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.
Yes, for it to be struck. No, for it to be unconstitutional.
The point I think I've failed to make clearly here is that in my view it isn't
the striking down that makes a previously constitutional thing now un. That's
merely the recognition of the fact, not the fact itself. The sky is blue most
mornings even before I open my eyes and look at it and it's not the act of my
looking that makes it blue. More specifically it isn't red until just before I
glance upwards either.
You can say that something is defacto constitutional prior to being struck if
you like, I suppose, but if it is struck, it never really WAS constitutional.
This breaks down a bit in that the supremes aren't perfect.
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