28-11-2003 01:09									#211
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Imran -

quote: That's the point. The wording of the Constitution doesn't cut out the states... judicially created (maybe rightly) DCC does. It's judicial activism you like, basically .

The wording of the Constitution doesn't cut out the states when confirming nominees for the SCOTUS either, that doesn't mean the states share the power to confirm judges. According to you, they should be able to vote because they share that power with the Senate.

quote: Once again, why does this preclude the states from regulating parts of interstate trade?

Because the states don't share the power to regulate ICC with Congress. That power was delegated to Congress, not the states...

quote: Can you explain to me why Land's End asks you to include sales tax for EVERY state, except those that don't have one? Wouldn't that be illegal under your formulation?

Kansas has a sales tax and we're not on that list. The obvious answer is these states asked Congress for permission and got it or the courts have re-written the ICC to allow the states leeway.

quote: Furthermore, I just paid Georgia sales tax on a sweater I just purchased, even though the UPS tracking said it came from a warehouse in Kentucky and crossed over Tennessee and will soon go into Georgia. Oh, the company is based in Wisconsin. How are they able to do this if you say states can't charge sales tax on 'interstate commerce'?

Geez Imran, maybe they asked Congress for permission? Why are the states lobbying Congress for the power to charge sales taxes on internet commerce? If you were right, they wouldn't need to ask...

quote: No, but at least you admit the clause is primarily a restriction .

I admitted that? No, the restriction is the ICC, this provision is an exception to that restriction.

quote: If the ICC foreclosed all restriction by states on interstate commerce, then why have that restriction on tariffs against other states?

That question makes no sense. Replace "restriction" with "exception" and it makes sense. I already explained why...

quote: Because that would be power over the federal government.

No it isn't, I didn't ask if the states alone can vote on nominees, just why they can't also vote. How is that any different than what you propose wrt the ICC. Congress has the power to regulate commerce among the states and you claim the states can regulate trade among the states too, obviously these "shared" powers are in conflict if Congress and a state disagree. So why can't the states add their votes to the Senate when considering nominees to the SCOTUS? According to your argument, that since the Constitution doesn't forbid the states from having a power given to Congress, then the states should have the power to vote on nominees too. This is just one example why your argument is invalid...

quote: They don't have power over the federal superstructure, but they do have soveriegn power over anything that enters their borders, except where specifically closed off to them (and not by inference).

What is "federal superstructure"? Why don't the states share power to determine the make-up of this federal superstructure? Does the Constitution prohibit the states from voting on federal judicial nominees or not? That's your argument! You're just pulling...ahem...stuff out of your behind... They don't have the shared power because powers aren't shared...

quote: The States get their power from a vastly different source than the Federal government. The States are soveriegn over everything. They can do whatever they want except where the Constitution specificially says they can't. The Federal Government can only do what the Constitution says.

That isn't what the 10th Amendment says.

quote: Once again, why does this preclude the state courts from excersizing jurisdiction over those cases as well? Where does it say the SCOTUS only has original jurisdiction over those cases?

Once again, read the 10th Amendment. Those powers not delegated to the US government are reserved to the states. It doesn't say, "those powers delegated to the US government are shared by the states".

quote: Got an A

Just goes to show a student can get an A without understanding what the 10th Amendment means wrt the Constitution.

quote: Or rather, getting your ass whupped . You are trying to argue that states can't regulate interstate commerce without the Dormant Commerce Clause, and as the SCOTUS found out, you can't do that, at least not well.

I've never mentioned this "dormant" Commerce Clause, and it isn't in the Constitution. It's a creation of the courts to allow the states to regulate IC under certain circumstances... The DCC is basicly a test to scrutinise whether or not a state regulation infringes too much on interstate trade - an attempt by the courts to balance the internal interests of a state with IC. The courts have blurred the line at the behest of competing legislative jurisdictions, allowing the states to regulate IC and Congress to regulate intrastate commerce (partially) beyond that allowed by the Constitution. Contrary to your claims, I'm not the one using judicial activism to support my argument, that would be you, but what else is new...

	28-11-2003 01:26									#212
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quote: The concept of marriage preceded government, and the term for that concept preceded government.

Which concept of marriage? That of a heterosexual monogamous sexual relationship? Because that isn't necessarily marriage. See incestual people. Marriage by definition is sanctioned by the state.

Marriage in the US is between one man and one woman only because the US gov't says it is.

quote: Stealing and murder are also concepts that preceded government as did the terms for these actions.

No, the concepts of taking and killing preceded government, but stealing and murdering did not. Since stealing is by definition illegal taking and murder is by definition illegal killing.

quote: Only in these debates do we hear people claiming the Nazis didn't steal and murder people...quite telling...

Which debates? In any debate, I'd say that the Nazi's (when in power), did not steal and murder. A state by definition cannot steal and murder or do anything else that's illegal.

quote: And that is what the states have done. Marriage doesn't include same sex unions even according to how government defines marriage

Not Canada and a few other states. Once again, you missed my entire point: the US can redefine marriage, and it should.

quote: , but I reject this notion that one group of people - government - can walk in and start re-defining words.

A gov't can't redefine its own laws?

quote: That's why I don't have to put forth the argument that the Nazis didn't steal or murder people, they did and you won't find survivors of their crimes agreeing with you that they didn't.

Oh come on, this is a totally loaded argument. Let's go over this again:

Murder is defined as (acccording to dictionary.com's primary definition):
The unlawful killing of one human by another, especially with premeditated malice.

The state by definition cannot do anything illegal.

Thus, the state cannot murder.

	28-11-2003 01:39									#213
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We stopped talking about that long ago. Try to keep up Ramo.

	28-11-2003 02:07									#214
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Don't worry, DD... it isn't like Berz is reading my posts anyway

quote: Kansas has a sales tax and we're not on that list.

OMG... reading is fundamental:

Group 2 States: all others, except AK, DC District of Columbia, DE, MT, NH, and OR.

Are you asserting Kansas isn't a US state?

quote: Congress has the power to regulate commerce among the states and you claim the states can regulate trade among the states too, obviously these "shared" powers are in conflict if Congress and a state disagree.

If they disagree, Congress wins... supremacy clause.

quote: So why can't the states add their votes to the Senate when considering nominees to the SCOTUS? According to your argument, that since the Constitution doesn't forbid the states from having a power given to Congress, then the states should have the power to vote on nominees too.

Yes, according to your twisted reading of my argument. The Supreme Court and federal judiciary are things created by the federal government Constitution, and thus can only be subject to regulation from the federal government. Trade is something that had been excersized since the beginning by the states and therefore they have that power until taken away from them.

The Supreme Court is in DC, therefore no state has power over it anyway (not in their borders), and the other federal courts were created by Congressional law, which stated the manner of their appointment. Since it was created by Congress, only Congress can decide how they are appointed, or how they are managed.

However, until McCulloah v. Maryland, the states believed they COULD regulate federal structures in their states. Marshall said that the states cannot control federal institutions for the survival of the federal government. And because the federal government has its own soveriegnty as well.

However, plenty of framers believed that states could do what Maryland did. Many states had taxes on the Bank of the US at the time (which wasn't very popular).

quote: Those powers not delegated to the US government are reserved to the states.

Where does that amendment say the powers delegated to the US government are totally prohibited from being excersized by the states, without specific prohibition somewhere else in the document? Your argument assumes that the federal government took all the powers of the states, delegated some of it to itself, and then said that stuff we haven't talked about the states can have back. This is totally contrary to Supreme Court decisions talking about the 11th Amendment, which talk about this history of soveriegn immunity.

edit:Read my excerpt of my Con Law book and an opinon by Justice Scalia in post below.

quote: It's a creation of the courts to allow the states to regulate IC under certain circumstances.

Bzzzt. Wrong again. The DCC was created as a mechanism to prevent the states from infringing on interstate commerce.

	28-11-2003 02:15									#215
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Here is a quote from my Con Law textbook (American Constitutional Law: Structure and Reconstruction by Charles A. Shanor)

quote: Whatever legislative powers Congress does not have reside with the states or the people. On a conceptual level, both courts and commentators have had difficulty sorting out whether, concerning a particular matter, (1) Congress has exclusive power, (2)Congress and the states have concurrent power, or (3) the states have exclusive power

p. 201

---

Here is a portion of Justice Scalia's opinion in Tyler Pipe Industries, Inc. v. Washington State Department of Revenue, 483 U.S. 232 (1987)

quote: [To] the extent that we have gone beyond guarding against rank discrimination against citizens of other States - which is regulated not by the Commerce Clause but by the Privileges and Immunities Clause - the Court for over a century has engaged in an enterprise that it has been unable to justify by textual support or even coherant nontextual theory, that it was almost certainly not intended to undertake, and that it has not undertaken very well***. There is no concievable reason why congressional inaction under the Commerce Clause should be deemed to have the preemptive effect elsewhere accorded only to congressional action. There as elsewhere, "Congress' silence is just that - silence."

The argument is that when Congress is silent on interstate commerce, it should not have preemptive effect on the states on interstate commerce. Scalia also says it has little textual or coherant nontextual support. Preemption in other parts of the document is only for Congressional action, not simply because Congress has a power (and once again, the states have no power over the federal judiciary because they are part of the federal structure created by the federal government and the states cannot overrule the government).

	28-11-2003 03:33									#216
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Perhaps the Defense of Marriage Act is unconstitutional as a violation of an essential liberty known as the right to travel? Not recognizing gay marriages in states where the gay couple migrate imposes a significant burden on the right to travel.

Here is clip from Shapiro v. Thompson, 394 U.S. 618 (1969):

" This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. It suffices that, as MR. JUSTICE STEWART said for the Court in United States v. Guest, 383 U.S. 745 (1966): "The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.

". . . The right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution." In Corfield v. Coryell, 6 F. Cas. 546 (C. C. E. D. Pa. 1825) the right to travel interstate was grounded upon the Privileges and Immunities Clause of Art. IV, § 2. In concurring opinions in Edwards v. California, 314 U.S. 160, reliance was placed on the Privileges and Immunities Clause of the Fourteenth Amendment. In Edwards v. California and the Passenger Cases, 7 How. 283 (1849), a Commerce Clause approach was employed. See also Kent v. Dulles, 357 U.S. 116 (1958); Aptheker v. Secretary of State, 378 U.S. 500(1964); Zemel v. Rusk, 381 U.S. 1 (1965), where the freedom of Americans to travel outside the country was grounded upon the Due Process Clause of the Fifth Amendment."

	28-11-2003 12:22									#217
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First I donot see same sex marraige as the biggest threat we are faceing there are far more pressing threat like climate canges, glodal warming and etc.

Makeing too many unpopluar or unenforceable laws unmine law enforcement and the legal system an lead normal law aidding people to have conpent to the legal system( dislike).
Than good example of this was when they try to stop people from drink alcohol drink in the 1920's. Than other good example is when we have than woman president try to make girl's watching illegal and how are you going to enforce that.

Than constitution agendment to ban same sex marraige is just plain silly just as the 18 amendment which ban allochol manufacture,sale or transportation but not the drinking of it. It was pass by the state as the state legulator was control
by religious zeal which was than tiny minitores of the america
people of that time. The 21 amendment was arrange use the other menthord to have the people of the state vote on and approve of the amendment without going throught the state
legalature at all.The 21 th repeal the 18th amendment.

	28-11-2003 14:08									#218
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Murdoch:

quote: So you're arguing that people are sinning when they don't have large families to increase the population.

I fail to see where I have employed the term 'sin' anywhere in my previous post to you. I argue that the state has an interest in sustaining the population.

quote: This still doesn't particularly seem relevant given that the widespread availability of artifial insemination allows gay men to father children and lesbians to have kids if they choose.

Would the gay men, as a unit be fertile? No. You always need the third person, so why don't you argue for a contract of three or more?

quote: I can tell you that in the last dozen years Colorado has had a huge increase in population and its defiantely harmed the general quality of life through issues such as the loss of open space and far worse traffic congestion. You simply can't solve these issues with management techniques, even the most effective solution such as apartments reduce the amount of living space individuals can enjoy, thereby harming their quality of life. You also seem to be ignoring issues with worldwide enviromental damage being magnified by a general population increase.

Traffic congestion cannot be blamed on population increase. Perhaps more efficient controls would relieve the congestion, or perhaps benefits for those who choose to take transit and relieve the burden on the roads. There are plenty of ways to relieve congestion without resorting to population control.

Secondly, is this the argument we see from those handing out condoms? Wear a condom and reduce congestion on our roads? No.

quote: such as apartments reduce the amount of living space individuals can enjoy, thereby harming their quality of life.

Why does living in a NY apartment signify a drop in quality of life? Some people enjoy living in small places close to their workplace, while others prefer the long commute to live in their stand-alone house in the suburbs. Perhaps if more people lived in apartments, they would have a shorter commute, increasing their quality of life, and thus the quality of those around them?

In short, overpopulation problems have more to do with the system, than with the population. In most cases, wealth can be directly attributed to areas with large rather than sparse populations. When you get enough people together, you can begin to specialise in much greater amounts than when seperated over long distances.

quote: I certainly am willing to take a close look at any studies you'd like to present, and at the very least you may convince me you have some sort of scientific basis to support your view that children raised in heterosexual families are in general better off. The fact that I feel its necessary to examine the legitimacy of any study you present, as would be true in any argument involving anyone with any subject, is certainly not justification for you failing to show any examples if you have of through studies with valid methodologies involved.

Said critiques must be more substantive than "oh, they have an agenda." All scientists have an agenda. The better ones recognise their blindspots. I'll post the studies when I have more time. Trying to hammer out a paper tonight.

	28-11-2003 14:19									#219
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quote: Without any other issues being brought up, you fail to show why marrying a man of his choice would be a bad thing, and therefore any reason for the restrict to restrict his right to do this. You certainly may be reducing or eliminating his chance at personal happyness by restricting who he can marry.

By the analogy, if you don't vote, you should not whine about who's elected. Just as it would be wrong to count the vote of someone who voted through the proper channels as the equivalent of the person who did not bother to vote.

	28-11-2003 14:31									#220
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David Floyd:

quote: Ideally, the contract would be between two people, and that's it. At best, the state is a neutral observer.

The state, in recognising marriages provides benefits to the couple. Therefore the state has a vested interest. Unless one were to remove the benefits surrounding marriage, the state has a right to regulate the marriages.

quote: Yes, but the fact remains that your religious beliefs have a lot to do with your beliefs about gay marriage. To deny that is preposterous.

Ad hominem. I'm disappointed.

quote: And what proportion of marriages, adjusted for population, would be between gays and lesbians? Not a lot, I assure you.

On the whole, what benefits could society expect to receive from recognising gay unions as marriage? That's the relevant counter-point to the question of the benefits provided by marriage.

quote: And if it didn't, I seriously doubt you'd have a big problem with it. It might disgust you, on the same lines that making out in public disgusts some people, but don't tell me you'd call for the criminalization of homosexuality and denying homosexuals the right to marry.

All of my arguments in this thread would still stand. This is another ad-hominem argument.

Secondly, is their a right to marry under the constitution? If so, how are homosexuals abrogated from exercising the same right as everyone else has? Any man can marry the woman of his choice, provided it is with her consent.

quote: Really? So if I make a contract with you, to, for example, work on your roof, am I also making a contract with the government? And is the nature of that contract such that the government can tell both of us that we have no right to contract with each other for roofing work, unless it's a certain color? And if you answer yes to either of those questions, is that MORAL?

Is the state paying benefits to either one of you? No. Do you want to remove the state's recognition of all marriages, civil or otherwise, and leave the matter to the churches?

	28-11-2003 14:53									#221
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quote: Than constitution agendment to ban same sex marraige is just plain silly just as the 18 amendment which ban allochol manufacture,sale or transportation but not the drinking of it. It was pass by the state as the state legulator was control by religious zeal which was than tiny minitores of the america people of that time.

Refuted earlier in this thread. The majority of Democrats do not support gay marriage, let alone the Republicans.

As for unenforceable, if it is not a marriage, you don't pay out the benefits. Not hard.

	28-11-2003 22:16									#222
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BK,

quote: I fail to see where I have employed the term 'sin' anywhere in my previous post to you. I argue that the state has an interest in sustaining the population.

If that's the case, then surely you wouldn't object to laws obligating couples to have children, right?

quote: The state, in recognising marriages provides benefits to the couple. Therefore the state has a vested interest. Unless one were to remove the benefits surrounding marriage, the state has a right to regulate the marriages.

That's the problem - the State should not be providing benefits.

quote: Ad hominem. I'm disappointed.

It isn't an ad hominem unless you think that I think religion is bad. I don't. I'm simply pointing out that it sounds like ultimately, your position is based on your religious beliefs, and I still haven't seen you deny this.

quote: On the whole, what benefits could society expect to receive from recognising gay unions as marriage?

Why should a private contract between two individuals necessarily "benefit society"? In fact, I don't even really know what that phrase means, but you seem to be saying that it is more important to take actions "beneficial to society" than it is to be free.

quote: All of my arguments in this thread would still stand. This is another ad-hominem argument.

It's not an ad hominem, and you still haven't denied it.

quote: Secondly, is their a right to marry under the constitution?

Actually I'd argue that there IS a Constitutional right to marry, both as a result of due process, and, looking at it from another direction, there is no enumerated power that allows the government to restrict marriage.

quote: If so, how are homosexuals abrogated from exercising the same right as everyone else has? Any man can marry the woman of his choice, provided it is with her consent.

Let's try another argument. Let's say that the government passes a law against speaking against the government. According to you, we still have free speech, because we all have the right to say whatever we want, as long as it doesn't offend the government.

quote: Is the state paying benefits to either one of you? No.

Let's take benefits out of it, for a second. I don't think the government should pay benefits, and if that were the case, most of your arguments would go away.

quote: Do you want to remove the state's recognition of all marriages, civil or otherwise, and leave the matter to the churches?

I think that marriage, as far as the state is concerned, should simply be an issue of contract law, same as the roof work example. That is, the government is still involved, but only in the capacity of enforcing valid contracts, not in the capacity of telling people what they can and cannot contract to do (unless, of course, a certain contract violates someone's rights, which even you can't argue that a homosexual marriage contract does).

So, then, let me pose this question to you:

Do you think homosexual marriage in any way violates anyone's rights? If so, whose rights and how? If not, if homosexual marriage does not result in rights violations, how can you possibly say it shouldn't be allowed?

	28-11-2003 22:18									#223
	Help yourself to an AD-FREE life

By the way, WRT my religion comments, I'm not denying that your arguments, at face value, are non-religious - I'm simply questioning their motivation. I just can't see a non-religious motivation, and I wait for you to refute that.

	29-11-2003 04:29									#224
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quote: Originally posted by Ben Kenobi Refuted earlier in this thread. The majority of Democrats do not support gay marriage, let alone the Republicans. As for unenforceable, if it is not a marriage, you don't pay out the benefits. Not hard.

First I think the Democrats pol are too afraid to stand for anything compare to the General Public. I talk to afew bus driver and they agrees if two man or two woman want to get marraige let then do so. The reason some people who hold extrem religious view want than Constitution Amendment is that the Defence of Marriage Act might be rule Unconstitution by the Federal Court. An what are going to do when same sex marriage take place in Churches and the general public get more acception of the idear.

	29-11-2003 09:15									#225
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Ramo -

quote: Which concept of marriage? That of a heterosexual monogamous sexual relationship? Because that isn't necessarily marriage. See incestual people. Marriage by definition is sanctioned by the state. Marriage in the US is between one man and one woman only because the US gov't says it is.

Polygamy and yes, even incestuous - half-sisters/brothers - marriages with a certain amount of separation - qualify under the definition based on tradition. I'm not using the US definition, just the definition as marriage has been practiced.

quote: No, the concepts of taking and killing preceded government, but stealing and murdering did not.

Huh?

quote: Since stealing is by definition illegal taking and murder is by definition illegal killing.

No, these were moral considerations before they became legal or illegal. You don't need a government to know if someone trying to kill you without justification is trying to murder you.

quote: Which debates? In any debate, I'd say that the Nazi's (when in power), did not steal and murder. A state by definition cannot steal and murder or do anything else that's illegal.

These debates. That's ridiculous, Ramo.

quote: Not Canada and a few other states.

So what? I didn't say anything about Canada.

quote: Once again, you missed my entire point: the US can redefine marriage, and it should.

I'm not missing the point, I reject the notion that any state can simply re-define words because some special interest group wants words re-defined.

quote: A gov't can't redefine its own laws?

Re-read that quote, I said words, not laws.

quote: Oh come on, this is a totally loaded argument. Let's go over this again: Murder is defined as (acccording to dictionary.com's primary definition): The unlawful killing of one human by another, especially with premeditated malice. The state by definition cannot do anything illegal. Thus, the state cannot murder.

The definition of murder is broader than that, it's just that the broader definition has become less significant as states have come to rule. Would you call genocide a "lawfull" act? There is a difference between "lawful" and "legal", lawful acts can refer to codes beyond the legal statutes of a state.

Imran -

quote: OMG... reading is fundamental: Group 2 States: all others, except AK, DC District of Columbia, DE, MT, NH, and OR. Are you asserting Kansas isn't a US state?

I mis-read the policy.

quote: Don't worry, DD... it isn't like Berz is reading my posts anyway

You just mis-read Dinos post. Shall I use this as an opportunity to make a snide comment about your reading comprehension?

quote: If they disagree, Congress wins... supremacy clause.

Then the power is not shared.

quote: Yes, according to your twisted reading of my argument. The Supreme Court and federal judiciary are things created by the federal government Constitution, and thus can only be subject to regulation from the federal government. Trade is something that had been excersized since the beginning by the states and therefore they have that power until taken away from them.

The federal power to regulate interstate commerce was created by the Constitution too. So if the states share federal powers created by the Constitution, why not the power to advise and consent on judicial nominees? You just quoted an opinion from Scalia where he says the states are not pre-empted from regulating commerce if Congress has been silent on the matter, doesn't that mean if Congress is not silent, the states are pre-empted? So which body has the power, Congress, the states or both? Congress can choose to act on the power or not, but the power belongs to Congress. The states only enter the picture once Congress has made it's choice (and that relies on Scalia's opinion, not the Framers)...

quote: The Supreme Court is in DC, therefore no state has power over it anyway (not in their borders), and the other federal courts were created by Congressional law, which stated the manner of their appointment. Since it was created by Congress, only Congress can decide how they are appointed, or how they are managed.

But you said the states share the enumerated powers with Congress unless specifically prohibited. And it doesn't matter where the SCOTUS is, nominees aren't members of the SCOTUS until confirmed. The power to create federal courts comes from the Constitution, not Congress, so that is an enumerated power which, according to your argument, is shared by the states.

quote: However, until McCulloah v. Maryland, the states believed they COULD regulate federal structures in their states. Marshall said that the states cannot control federal institutions for the survival of the federal government. And because the federal government has its own soveriegnty as well.

And that is a doctrine that supports my position, the federal government is also sovereign. Therefore it's powers cannot be shared with the states any more than the states' powers are shared with Congress. That's why the 10th Amendment says those powers not delegated to the US government are reserved to the states.

quote: Where does that amendment say the powers delegated to the US government are totally prohibited from being excersized by the states, without specific prohibition somewhere else in the document?

Those powers not delegated to the US government are reserved to the states. If a power is delegated to the US government, that power is not reserved to the states.

quote: Your argument assumes that the federal government took all the powers of the states, delegated some of it to itself, and then said that stuff we haven't talked about the states can have back. This is totally contrary to Supreme Court decisions talking about the 11th Amendment, which talk about this history of soveriegn immunity.

No Imran, I assume the 10th Amendment means what it says - that certain powers were given (delegated) to the US government and those powers not given are kept (reserved) by the states.

quote: Bzzzt. Wrong again. The DCC was created as a mechanism to prevent the states from infringing on interstate commerce.

You're right, I'm thinking of the Pike test. The DCC is a mechanism to prevent the states from infringing on interstate commerce when Congress is silent on an issue, i.e., "dormant".

quote: The Commerce Clause (Article I, Section 8, Clause 3) grants gives Congress the power to regulate interstate commerce. While states share certain powers with the federal government (eg.the power to tax their own citizens), the Supreme Court has held that the power to regulate interstate commerce is an exclusive one. When the citizens of the United States ratified the Constitution, and within it the delegation of such regulation to the federal government, there arose a negative inference that States surrendered their power to regulate interstate commerce. Even where Congress chooses not to exercise such power, States cannot regulate (even when Congress sleeps, that exclusive power is dormant). However, the Supreme Court recognizes that States may exercise police powers to safeguard their citizens. At times, laws passed under such authority affect interstate commerce. The Supreme Court created the Pike test (Pike v. Bruce Church) to see whether such a law can survive: so long as state laws do not regulate commerce qua commerce, discriminate against interstate commerce, or overly burden commerce, the courts will refuse to strike them down. Note that where a law has an extraterritorial effect, courts will often presume its purpose was one of economic protectionism and outside a state's police powers. But where a state law does not violate the exclusive nature of the Commerce Clause (always present,ie.dormant), and is not preempted by federal law, the state law will survive a constitutional challenge. Note that so long as the Constitution does not expressly prohibit the action, Congress may delegate power back to the Sates. But where there is not such express authorization, States may not regulate interstate commerce, even in a vacuum of Congressional action.

http://faculty.lls.edu/~manheimk/cl1/dormant2x.htm

Here is an example of the DCC being enforced recently:

http://www.gigalaw.com/articles/200...001-07-all.html

quote: Here is a quote from my Con Law textbook (American Constitutional Law: Structure and Reconstruction by Charles A. Shanor) (2)Congress and the states have concurrent power, or (3) the states have exclusive power

And? The states and Congress have the power to prosecute murderers within their respective jurisdictions, and that is a concurrent power. That doesn't mean the states share Congress' power to regulate interstate commerce. Powers cannot conflict and they do if the states share the power to regulate IC...

From Scalia's opinion:

quote: There is no concievable reason why congressional inaction under the Commerce Clause should be deemed to have the preemptive effect elsewhere accorded only to congressional action. There as elsewhere, "Congress' silence is just that - silence."

According to that logic, if Congress doesn't opt to exercise a delegated power, the states can. That flies in the face of the 10th Amendment. Scalia's opinion contradicts the history of the ICC and DCC dating back to Justice Marshall who recognised the legitimacy of Congress' dormant power wrt ICC.

If you and I agree to a contract where I have the delegated power to sell a car we've built, then you don't get that power if I choose not to sell the car.

Now, why do you keep avoiding my question? Why are the states lobbying Congress for the power to regulate the internet? Congress has said no up until now and the states continue their effort, why?

	29-11-2003 10:22									#226
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quote: Polygamy

Except it isn't practiced in much of the West. So it isn't marriage, by your definition, in the West, right?

quote: and yes, even incestuous - half-sisters/brothers - marriages with a certain amount of separation - qualify under the definition based on tradition.

Why not biological siblings? Look at the Appalachians?

quote: I'm not using the US definition, just the definition as marriage has been practiced.

As been practiced by whom? By Canadians, the practice of marriage includes gay couples.

But you can ignore that, because it's so recent and not part of tradition, right? But considering that monogamous sexual relationships, historically speaking, have tended to be about squirting out kids and cementing relationships between families, perhaps "love marriages" should be renamed civil unions by the state. For tradition, you know. And to hell with the evil gov't that would try to stop me by redefining words!

Let's get down to the point: are you trying to tell me that one can get married in the US against the US gov't's consent? If there is, I'm sure there are lots of gay people who would be interested.

By what we mean by marriage (not what some proto-Indo-Europeans or lifeforms from some other galaxy mean by marriage), it is a sexual relationship that the state confers with certain privilidges and a certain societal status. Nothing more, nothing less. Depriving gays of marriage means denying them of this societal status. Giving them civil unions instead of marriage is saying that gays relationships aren't good enough to have this societal status, and this bullshit about tradition is a poor excuse to do that.

quote: Huh?

Would you like me to repeat it?

quote: No, these were moral considerations before they became legal or illegal. You don't need a government to know if someone trying to kill you without justification is trying to murder you.

Who said anything about moral considerations? I'm talking specifically about legal considerations, and am using the legal terms - murder, theft, and marriage. Which is my original point, that marriage is a legal term, and the state can redefine it.

quote: These debates. That's ridiculous, Ramo.

Why is that rediculous?

quote: Re-read that quote, I said words, not laws.

Re-read my posts, I fully understand that. Murder is a legal word. It's constrained by laws. Thus, if a state can't redefine murder, it can't redefine its own laws.

quote: The definition of murder is broader than that, it's just that the broader definition has become less significant as states have come to rule.

1. I'm sure "murder" is a relatively recent word (as is usually the case with words - they tend to change over time). I'd be suprised if it has existed in the English language for more than several centures (well, well after state formation in England).
2. Regardless of what some proto-Indo-Europeans might have meant by murder (for all I know, it meant sticking sharp things up one's arse), I'm talking about what it means here and now.

Murder is illegal killing. Assisted suicide is murder in the US, but if the gov't suddenly decides that assisted suicide is legal, it isn't murder here.

quote: Would you call genocide a "lawfull" act? There is a difference between "lawful" and "legal", lawful acts can refer to codes beyond the legal statutes of a state.

Law is tied to whoever has authority. If someone can't enforce a demand, it ain't a law. By what we generally mean by "states," they often have the authority to enforce lots of stuff - even genocide. During such cases, genocide is lawful. As soon as the state can't enforce the genocide (because of, say, popular resistance or foreign invasion), it becomes unlawful.

	29-11-2003 10:26									#227
	Remove this text

Hey Berz, let's suppose the Civil War recently ended, and blacks are nonpersons according to the laws. And, suppose that federal gov't comes along and instead of calling blacks persons, a new legal term is invented called "civil animals." Now, a civil animal has all the same rights as a person, but it's just a different legal phrase. We don't want to have the gov't go ahead and redefine words now, so this is just fine isn't? It's not a gov't insult to blacks or anything, right?

	29-11-2003 11:12									#228
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I haven't read the whole thread, but I somehow agree with Ben.

Don't get me wrong, I'm all for Gay marriage. In our societies, marriage is a strong symbol of love, and of willingness to spend the rest of their life together. Gays shouldn't be banned of such a strong symbol .

But I think it is absurd to provide Gay couples with the same tax / subsidies benefits as Hetero couples, because gay couples simply don't provide the same services to society than married couples, in terms of making and raising children.
Now, if there are no specific benefits for being married, but only specific benefits for having children, this is a moot point. I don't know how it is in the US, but there are many tax/subsidies benefits that still require the couples to be married in France, and I think it is obsolete (things have progressed dramatically a few years back, but we haven't obliterated it completely AFAIK).

	29-11-2003 12:49									#229
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quote: Originally posted by Spiffor But I think it is absurd to provide Gay couples with the same tax / subsidies benefits as Hetero couples, because gay couples simply don't provide the same services to society than married couples, in terms of making and raising children. Now, if there are no specific benefits for being married, but only specific benefits for having children, this is a moot point. I don't know how it is in the US, but there are many tax/subsidies benefits that still require the couples to be married in France, and I think it is obsolete (things have progressed dramatically a few years back, but we haven't obliterated it completely AFAIK).

The thing is, if this is your goal, the second method makes vastly more sense than the first one. With artificial insemination, lesbians certainly can have and raise children, and gay couples can be fathers, but the benefits for marriage are given to heterosexual couples who are infertile, too old to have children when they get married, and even those who make a concious decision not to have children. Basicly I see no legitimate argument on why the benefits have to given simply with marriage, as opposed to when couples actually have children if your actual goal is to target this issue.

	29-11-2003 12:52									#230
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So, why don't we do this, then? Divvy out tax breaks based on children, not marriage, and then tell the gay mafia to shove their "gay marriage" bullshit up their asses?

	29-11-2003 13:15									#231
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quote: Originally posted by Drake Tungsten So, why don't we do this, then? Divvy out tax breaks based on children, not marriage, and then tell the gay mafia to shove their "gay marriage" bullshit up their asses?

The issue is that there are other key aspects of being married that gay rights groups are fighting for. A huge one is that there are divorce laws set up for marriages, but if a gay couple who has been together for a long time end up seperating under unpleasant circumstances, the legal fights over assets and the like can be a nightmare since divorce laws don't apply. (One particular detail is that currently many states will give no rights whatsoever to the non-biological parent when a lesbian couple seperating get involved with a custody battle. This issue could even be raised as a concern simply with regards to the potential welfare of any children involved.) Another major issue is that hospitals often won't allow the other partner to visit their gravely ill companion in the hospital, they only give these rights to people who are direct relatives by blood, or are legally married according to the state.

	29-11-2003 13:17									#232
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quote: The issue is that there are other key aspects of being married that gay rights groups are fighting for. A huge one is that there are divorce laws set up for marriages, but if a gay couple who has been together for a long time end up seperating under unpleasant circumstances, the legal fights over assets and the like can be a nightmare. (One particular detail is that currently many states will give no rights whatsoever to the non-biological parent when a lesbian couple seperating get involved with a custody battle. This issue could even be raised as a concern simply with regards to the potential welfare of any children involved.) Another major issue is that hospitals often won't allow the other partner to visit their gravely ill companion in the hospital, they only give these rights to people who are direct relatives by blood, or are legally married according to the state.

All these issues can be solved by allowing domestic partnerships. There's no need for gay marriage.

	29-11-2003 13:24									#233
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quote: Originally posted by Drake Tungsten All these issues can be solved by allowing domestic partnerships. There's no need for gay marriage.

My view is if this is what you want, the state should give civil unions for everyone, and say marriage is something that the terms of can be determined by individual organizations, which happen to be primarily religious in nature. Personally I think domestic partnerships for eveyone might be a workable immediate compromise, but I see how many in the gay community resents a seperate designation for gay marriage which seems to express an opinion by the state on the appriopriateness of their personal relationships.

	29-11-2003 13:26									#234
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quote: My view is if this is what you want, the state should give civil unions for everyone, and say marriage is something that the terms of can be determined by individual organizations, which happen to be primarily religious in nature.

I would have no problem with this solution.

	29-11-2003 13:51									#235
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Ramo, first States and Nations are than pretty new issue in man history. Than state can say it is legal to all of it citzen to kill black people or Jew. It might be legal but it arenot lawful.
Ali (the Arbaic word for GOD even the Christian Arab use that
word in they prayer and bibble) sent many messager to mankind to treach it than moral code to live by which came from Ali which cannot be change by mere man for on the day when Ali judge us worldly power mean nothing. Ali define murder,rape.stealing an other criminal acts. Alot of people are going to find this hard to believe that there where member of the Nazie Party oppose to Hilter polcy on genocide
on mortal ground, alot of his best general didnot like that idear. There are member of the SS who refuse to murber unarm jewish people in fact there was than Standing order in the SS that member who refuse to murber Jewish people cannot be make to do so than no bad action will be taken later against then, the regulator Germany Military was cover by this standing order. There was than case when three decorate solider refuse to commitee mass murder on jewish woman and childern as they where marraige than have childern of they own. They have to guard the mass grave at night untril it was cover up. They happly stop some sick people who want to mistreat the dead bodies. And people like these lead the Allies to these mass graves
and help put certain criminal away.

	29-11-2003 14:05									#236
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Imran, at first it sounded like you were arguing the states shared the power to regulate interstate commerce but are now arguing the states only have that power when Congress remains silent on an issue, i.e., Congress' power is "dormant". Is that your position?

Regarding the 10th Amendment, it says those powers not given to the US government by the Constitution, nor prohibited by it to the states, are reserved to the states. That is a declaration that the powers among the various jurisdictions are separate and cannot conflict under an accurate reading of the Constitution. Congress has it's powers and the states have theirs, and regulating IC belongs to Congress.

So wrt "dormancy", Scalia is wrong, the power to regulate interstate commerce is a power given to Congress regardless of whether or not Congress acts since silence on a matter of ICC is still within it's power. If Congress decides to remain silent, then Congress has seen fit to leave commerce under their jurisdiction the way it is. If you and I are engaged in IC and Congress decides to leave us be in our pursuit, then Congress has exercised it's power by leaving us be...

Ramo -

quote: Except it isn't practiced in much of the West. So it isn't marriage, by your definition, in the West, right?

There are maybe 50,000 people in this country who practice polygamy and there were more before the feds banned the practice. Then there are other parts of the globe where the practice is widespread, if not dominant. And then there's the history of polygamy which was widespread as well, so I don't know where you're getting the idea polygamy was not or is not a traditional practice wrt marriage.

quote: Why not biological siblings? Look at the Appalachians?

I mentioned incestuous relationships with certain degrees of separation. Even in this country we allow marriage between biologically related people as long as there is a minimum separation - that certainly is part of the traditional definition of marriage.

quote: As been practiced by whom?

The world.

quote: By Canadians, the practice of marriage includes gay couples.

A very recent phenomenon created by pressure from special interest groups who seek to re-define the word. That ain't a traditional form of marriage...

quote: But you can ignore that, because it's so recent and not part of tradition, right?

Yup, that's what I've been saying all along.

quote: But considering that monogamous sexual relationships, historically speaking, have tended to be about squirting out kids and cementing relationships between families, perhaps "love marriages" should be renamed civil unions by the state.

"Love marriages"? Don't matter to me if a married couple loves each other.

quote: And to hell with the evil gov't that would try to stop me by redefining words!

Or inventing phrases like "love marriages"?

quote: Let's get down to the point: are you trying to tell me that one can get married in the US against the US gov't's consent?

The government shouldn't be involved with marriage at all. Government's only concerns are enforcing wills and dealing with custody and inheritance when there is no will. That is not what government is doing, so I'm certainly not telling you anyone can get married without the state's consent.

quote: By what we mean by marriage (not what some proto-Indo-Europeans or lifeforms from some other galaxy mean by marriage), it is a sexual relationship that the state confers with certain privilidges and a certain societal status. Nothing more, nothing less.

Why should married people have special privileges?

quote: Depriving gays of marriage means denying them of this societal status.

What status? If I want the government to say I'm a black person, should government proclaim my new "status" and compel others to accept it?

quote: Giving them civil unions instead of marriage is saying that gays relationships aren't good enough to have this societal status, and this bullshit about tradition is a poor excuse to do that.

No, it's saying you can call a pig a red rose all you want but it's still a pig no matter how many politicians you can get to join your chorus.

quote: Would you like me to repeat it?

I'd settle for an explanation.

quote: Who said anything about moral considerations?

I did, murder and stealing did not come into existence once a group of politicians told us they exist.

quote: I'm talking specifically about legal considerations, and am using the legal terms - murder, theft, and marriage. Which is my original point, that marriage is a legal term, and the state can redefine it.

I know what you're saying, and I'm saying these actions existed before politicians passed laws "inventing" them. What is "murder" if not an unjustified, (malicious?) and intentional taking of another person's life? We don't need government to exist for an action to fit the criteria we use for murder... for theft... or marriage...

quote: Murder is a legal word. It's constrained by laws. Thus, if a state can't redefine murder, it can't redefine its own laws.

Murder describes an act. If the law "defining" murder fits that description, fine. If the law does not, then the law is bogus. We don't refer to slavery as something other than slavery simply because some politicians made slavery legal.

quote: 1. I'm sure "murder" is a relatively recent word (as is usually the case with words - they tend to change over time). I'd be suprised if it has existed in the English language for more than several centures (well, well after state formation in England).

It has ME roots I believe, but the concept is obviously as old as man.

quote: 2. Regardless of what some proto-Indo-Europeans might have meant by murder (for all I know, it meant sticking sharp things up one's arse), I'm talking about what it means here and now.

And if "murder" had a different meaning 2,000 years ago, then there was undoubtedly another word back then to reflect the concept we now have. Even the Bible says "Thou shalt not murder" so even though that was written in a different language, the concept wasn't foreign ~3,000 years ago.

quote: Murder is illegal killing. Assisted suicide is murder in the US, but if the gov't suddenly decides that assisted suicide is legal, it isn't murder here.

Then the genocide of Jews wasn't mass murder...but it was nonetheless...

quote: Law is tied to whoever has authority.

Which is why moral considerations are more important when defining words with moral overtones than laws.

quote: If someone can't enforce a demand, it ain't a law. By what we generally mean by "states," they often have the authority to enforce lots of stuff - even genocide. During such cases, genocide is lawful. As soon as the state can't enforce the genocide (because of, say, popular resistance or foreign invasion), it becomes unlawful.

That's where we part company, genocide may be legal, but it's never lawful. Why? Because lawfulness isn't the same thing as legalness. I believe in natural law...

quote: Hey Berz, let's suppose the Civil War recently ended, and blacks are nonpersons according to the laws. And, suppose that federal gov't comes along and instead of calling blacks persons, a new legal term is invented called "civil animals." Now, a civil animal has all the same rights as a person, but it's just a different legal phrase. We don't want to have the gov't go ahead and redefine words now, so this is just fine isn't? It's not a gov't insult to blacks or anything, right?

Your analogy is illogical. Blacks were re-defined as non-persons by governments and you would have had to support that definition because according to you, government defines words. I would have rejected that definition because I reject the notion that governments get to re-define words... Now, marriage is a word that describes a situation...a certain kind of relationship between men and women. That just happens to be how the word is defined. Are we to argue that a broken leg is not a broken leg because someone with a broken arm, for God only knows what reason, resents the fact his arm is broken and not his leg?

	30-11-2003 00:21									#238
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BTW, I don't exactly understand why so many people are uncomfortable at the idea of two men or two women marrying. Is there any fathomable reason, or is the hostility to gay marriage purely gut-instinct?

	30-11-2003 00:45									#239
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quote: Regarding the 10th Amendment, it says those powers not given to the US government by the Constitution, nor prohibited by it to the states, are reserved to the states. That is a declaration that the powers among the various jurisdictions are separate and cannot conflict under an accurate reading of the Constitution. Congress has it's powers and the states have theirs, and regulating IC belongs to Congress.

Actually it isn't. If you read the excerpt I gave from my Con Law book, both Court and commentators have acknowledged the idea that states and federal government have concurrent powers. It is just when those powers exist is the tricky part.

By giving the federal government power over something does that mean the states have no more? The reading doesn't support that at all. It simply means those powers are not reserved to the states, but what if they already had those powers, then there would be no need to reserve them. For example, Congress has the power to call forth the militia, does that mean the states don't? Congress has the power to constitute tribunals inferior to the Supreme Court, does that means the states don't (remember every state court is inferior to the Supreme Court).

And remember, if you want to talk about intent, the Bill of Rights was meant to be a limit on the federal government. To read in a clause that strengthens the federal government would be contrary to why it was there in the first place.

quote: Imran, at first it sounded like you were arguing the states shared the power to regulate interstate commerce but are now arguing the states only have that power when Congress remains silent on an issue, i.e., Congress' power is "dormant". Is that your position?

No. The states and federal government (should) share interestate commerce power. When Congress is silent on the issue, the state power over interstate commerce is fully realized. When Congress speaks on that issue, then due to the Supremecy Clause, the state power on that issue is no more. They both share the power, but which ever one wins out is determined if Congress acts.

	30-11-2003 02:08									#240
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quote: Originally posted by Spiffor BTW, I don't exactly understand why so many people are uncomfortable at the idea of two men or two women marrying. Is there any fathomable reason, or is the hostility to gay marriage purely gut-instinct?

I am surprised no one had mentioned Reynolds v. U.S., 98 U.S. 145 (1878). It based its decision against polygamy on the odiousness of polygamy to Western civilization. I am sure something similar lies at the root of oppostion to gay marriages.

Here is a snippet from the case:

"Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void, and from the earliest history of England polygamy has been treated as an ofence against society....

From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? The permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances...."