26-02-2004 06:29									#241
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quote: The only thing giving power to amend is Art. 5? How else do you amend the Constitution? Nothing else in the document allows for Amendment. Since the grant of power is limited to what it is, there is no way to exceed the power granted. Art. 5 provides a procedure to amend, but also limits on those amendments. So where is this power to amend beyond Art. 5 limitations come from? It cannot come from Art. 5 ...

But I'm saying you can remove those limits by using the same procedure. Why would an amendment which ONLY said that the last clause of Art. 5 is stricken be unconstitution?

quote: Actually, Art. 5 does say you can't strike parts of Art. 5.

No it doesn't.

quote: The bit that says that no amendment may deprive a state of equal sufferage in the senate can't be amended out since that would require amending it out.

Where does it say it can't be edited out? Where does it say that nothing in Art 5 can be amendment? You'd think they would have thought of that at the time.

	26-02-2004 06:30									#242
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quote: Originally posted by Ned But what was very interesting is that traditional marriages in France are in serious decline, and the out-of-wedlock percentage of births has risen to 46%, a percentage which is common throughout all countries that have legalized civil unions. The point of this is that the existence of the civil unions does appear to weaken the whole concept of marriage and seemingly give society's approval to the raising of children outside of traditional marriages.

Post Hoc fallacy. Marriage rates in France and the rest of Europe were in decline prior to the legalization of civil unions, as they were in every Western country. There was no increase in the rate of decline after adopting civil unions. This is just another bit of statistical slight-of-hand the religious right is trying to use, but it's so easy to see the logical fallacy it's painful.

	26-02-2004 06:45									#243
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quote: Originally posted by Imran Siddiqui But I'm saying you can remove those limits by using the same procedure.

You're bootstrapping ...

quote: No it doesn't. Where does it say it can't be edited out? Where does it say that nothing in Art 5 can be amendment? You'd think they would have thought of that at the time.

The first part of Art.5 says:

quote: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;

That's the procedure. Fair enough - the nation could amend the constitution using this proceedure to change this procedure. E.g. the people could allow the president acting alone to amend the constitution. Not a good idea, but doable.

The second part reads:

quote: Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

This is not procedural - this is a flat out limit to the amendment power. Whatever procedure we might change to, these things cannot be put in the Constitution. Since Art. 5 is the only source of amendment power, these limitations are built into the power to amend.

Art. 5 states that no state may be deprived of equal sufferage without consent via amendment. Therefore, if you amend that prohibition out of Art. 5 you create a procedure whereby a state can be deprived of equal sufferage. But Art. 5 does not allow for you to amend the constitution to deprive a state of equal sufferage. Ergo, Art. 5 lacks the power to allow for an amendment that purports to do more than Art. 5 allows. Therefore, Art. 5 says that the prohibition cannot be removed - even if not in those words.

	26-02-2004 06:50									#244
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quote: This is not procedural - this is a flat out limit to the amendment power. Whatever procedure we might change to, these things cannot be put in the Constitution. Since Art. 5 is the only source of amendment power, these limitations are built into the power to amend.

What says this can't be struck by an amendment? A amendment which simply says Article 5 will be the first part and first part alone. The limitations can be struck out.

quote: But Art. 5 does not allow for you to amend the constitution to deprive a state of equal sufferage. Ergo, Art. 5 lacks the power to allow for an amendment that purports to do more than Art. 5 allows. Therefore, Art. 5 says that the prohibition cannot be removed

I don't see how Sentance 2 leads to Sentance 3. Seems like a large leap to me. Why can't the prohibition be removed? Because Art 5 says you can't make an amendment that does more than Art 5 allows? But striking a clause is NOT more than Art 5 allows. There is nothing that says that Art. 5 cannot be amended. If that was the case, it should have been stated.

That argument is similar to ones saying the Congress can't use federal money to entice the states to do certain actions Congress can't do under the Commerce Clause. The Supreme Court didn't buy that one.

	26-02-2004 10:03									#245
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quote: Originally posted by Imran Siddiqui quote: But Art. 5 does not allow for you to amend the constitution to deprive a state of equal sufferage. Ergo, Art. 5 lacks the power to allow for an amendment that purports to do more than Art. 5 allows. Therefore, Art. 5 says that the prohibition cannot be removed I don't see how Sentance 2 leads to Sentance 3. Seems like a large leap to me. Why can't the prohibition be removed? Because Art 5 says you can't make an amendment that does more than Art 5 allows? But striking a clause is NOT more than Art 5 allows. There is nothing that says that Art. 5 cannot be amended. If that was the case, it should have been stated.

Quick answer: your reading fails to give any meaning to the actual text of Art. 5. It is phrased as a limitation, but if the limitation can be removed it is not really a limitation is it?

Longer Answer:

Trivial Case: one amendment purporting to deprive a state of equal sufferage.

- can't be done since the text of Art. 5 prohibits an amendment that does such a thing. Even if s1 abrogates the limitation while s2 deprives, the fact that s2 deprives means the whole amendment runs afoul of the limitation.

Complex Case: one amendment abrogates the limitation, another deprives. Thereby the first does not run afoul of the limitation, and if the first is successful, there is no limitation for the second to run into.

quote: Provided ... that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

(1) the plain text reads most easily as a blanket prohibition on using any amendement process to deprive. I don't see any other non-tortured reading to be made here. This is essentially my quick answer. If we allow what you want, the text cannot be given its meaning.

(2) Suppose Amend. X passes, abrogating the limitation on deprivation of sufferage.

Presumably, X cannot do anything Art. 5 does not empower. It's like passing the original Gun Free School Zones law under the commerce clause - the constitutional power that putatively allows the legislation must have sufficient power to support the legislation. Likewise, if Art. 5 empowers amendments, amendments cannot exceed the power of Art. 5.

Since the text of Art. 5 outright bans a deprivation, no future amendment can go further than Art. 5 allows.

So if the people then pass Amend. Y which deprives Texas of equal sufferage in the senate on the basis of Amend. X, X being itself limited by Art. 5 cannot be a sufficient basis for Y. X itself would be a nullity as Art. 5 did not grant sufficient power for X to do what it says it will. In other words, Amend. X needs a 520V outlet to operate and Art. 5 is only a 120V outlet.

quote: That argument is similar to ones saying the Congress can't use federal money to entice the states to do certain actions Congress can't do under the Commerce Clause. The Supreme Court didn't buy that one.

I see a commerce clause parallel (see above), but I just don't see your spending power parallel. Elaborate ...

	26-02-2004 10:10									#246
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quote: your reading fails to give any meaning to the actual text of Art. 5. It is phrased as a limitation, but if the limitation can be removed it is not really a limitation is it?

Of course it is... it is simply a removable limitation... just like how Congress gets around the Commerce Clause by spending penalities.

quote: Since the text of Art. 5 outright bans a deprivation, no future amendment can go further than Art. 5 allows.

Unless the text is altered. Then any future amendment can go further than Art. 5. MANY amendments have gone further than original Constitutional mandates. They have gone further than the original Constitution allows. That was the point.

quote: I see a commerce clause parallel (see above), but I just don't see your spending power parallel. Elaborate ...

Congress can get around it's Commerce Clause limitations by using its spending power. Such as there can be federally supported Gun Free Zones, but through the coercion of saying you don't get 100% of the education money we said you were.

The Commerce Clause doesn't allow them to do so, but they can get around it. Under your argument the Congress should not be able to do so. The Commerce Clause is a limit, and by using the spending clause they are going over the Commerce Clause limit.

In South Carolina v. Dole, the SCOTUS said that was alright for Congress to do.

	26-02-2004 10:24									#247
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quote: Originally posted by Imran Siddiqui Of course it is... it is simply a removable limitation... just like how Congress gets around the Commerce Clause by spending penalities.

That's closer to if there were two ways to amend the Constitution. But if Art. 5 is like the commerce clause, where is the metaphorical spending power? Legislation may have at least two hooks, but amendments only have the one.

quote: Unless the text is altered. Then any future amendment can go further than Art. 5. MANY amendments have gone further than original Constitutional mandates. They have gone further than the original Constitution allows. That was the point.

And Art. 5 is designed to extend the constitution - but two directions are prohibited. No biggie. Another way to think of this is if the northern states back in 1795 had passed Amend. X to disable the prohibition on amendments ending the slave trade, followed by Amend. Y that ended the slave trade in 1796. Would this have been acceptable to the south? Would the southern states that fought to add that prohibition on the amendment power understand this as a proper reading? I just don't think so.

quote: Congress can get around it's Commerce Clause limitations by using its spending power. Such as there can be federally supported Gun Free Zones, but through the coercion of saying you don't get 100% of the education money we said you were. The Commerce Clause doesn't allow them to do so, but they can get around it. Under your argument the Congress should not be able to do so. The Commerce Clause is a limit, and by using the spending clause they are going over the Commerce Clause limit. In South Carolina v. Dole, the SCOTUS said that was alright for Congress to do.

I know that (hey, I took con law and 11th Amend jurisprudence). I just don't see what parallel you are trying to draw with Art. 5.

Both the spending power and the commerce power (and Amend 13, s2 and Amend 14, s5 for that matter) are limited. E.g. the commerce power post Lopez can only support legislation that actually has some connection to commerce, and the spending power can only bribe, not compel. Likewise, the power to amend the constitution has its limits.

	26-02-2004 10:50									#248
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quote: Another way to think of this is if the northern states back in 1795 had passed Amend. X to disable the prohibition on amendments ending the slave trade, followed by Amend. Y that ended the slave trade in 1796. Would this have been acceptable to the south?

If there was a chance of this happening (not likely with Southern states being more than 1/3rd) they would have probably included in the article a provision saying that statement could not be struck out by amendment.

quote: Both the spending power and the commerce power (and Amend 13, s2 and Amend 14, s5 for that matter) are limited. E.g. the commerce power post Lopez can only support legislation that actually has some connection to commerce, and the spending power can only bribe, not compel. Likewise, the power to amend the constitution has its limits.

But can be gotten around. This way by striking the offending clause itself. My point is that there are ways to get around clauses in the Constitution. The spending clause and commerce clause are only relatively limited. They can be gotten around. Article 5 can also be gotten around by striking the 2nd part of the article, which is not a forbidden act by that article... it's just creative lawyering.

	26-02-2004 14:44									#249
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quote: Originally posted by chegitz guevara Traditional marriage is in decline in much of Europe, Ned. More and more couples are content to co-habitate for their whole lives.

Agreed. But the question is this: Is the decline greater in countries that permit homosexual civil unions?

	26-02-2004 14:51									#250
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quote: Originally posted by Boris Godunov Post Hoc fallacy. Marriage rates in France and the rest of Europe were in decline prior to the legalization of civil unions, as they were in every Western country. There was no increase in the rate of decline after adopting civil unions. This is just another bit of statistical slight-of-hand the religious right is trying to use, but it's so easy to see the logical fallacy it's painful.

It may be related to the decline of religion as a whole in Europe, which does correspond, in a sense, to the legalization of gay marriages.

	26-02-2004 14:53									#251
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BTW, I understand Kerry is against gay marriages, but voted against the DoMA.

He is also in favor of the state's right to decide, but voted to strip them of this right by his vote against the DoMA.

He appears to have changed his position.

Last edited by Ned on 26-02-2004 at 15:19

	26-02-2004 15:08									#252
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Kerry is all over the map. He's a raving hypocrite and he can't hold an opinion without flipping. I hate him a lot more than any dislike I have for Bush for pushing this amendment.

	26-02-2004 15:26									#253
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Giancarlo, there is no possibility that an amendment will get passed in the Senate until the Supremes have had a change to weigh in on the DoMA. If they sustain the Act, the question of a constitutional amendment may be moot. If they overturn it, then action might be needed, but it is not often that Congress acts to overturn the Supreme Court by passing a constitutional amendment. It took a civil war to effectively overturn the Dred Scott decison.

	26-02-2004 15:34									#254
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Well doesn't an amendment need 2/3 of the congress to pass? Which I think is highly unlikely for it to pass.

	26-02-2004 16:18									#255
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The States could call a constitutional convention if the Senate and House refuse to act. There are enough states that have passed anti-gay marriage legislation to make such a call.

But the real crisis will happen shortly when some gay couple files a US tax return and is denied their filing status due to the DoMA. I expect a lawsuit could be on file by March 2, which is the next filing deadline. The court action could ge fast and furious very shortly.

	26-02-2004 17:53									#256
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I found a way to clarify the fallacy behind Bennie's argument by way of another example:


If a white person is prohibited from marrying a black person, there is no racial discrimination against black people, since white people are also subjected to the same prohibition, AND because black people can still marry other black people -- just not white people.

	26-02-2004 18:25									#257
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quote: Originally posted by MrFun I found a way to clarify the fallacy behind Bennie's argument by way of another example: If a white person is prohibited from marrying a black person, there is no racial discrimination against black people, since white people are also subjected to the same prohibition, AND because black people can still marry other black people -- just not white people.

I agree with you
that it technically would be no Discriminatiopn.

It could be considered to be some kind of Apartheid,
as Apartheid means "Separation" in Afrikaans,
but it would be IMHO no Discrimination.

	26-02-2004 18:53									#258
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quote: Originally posted by Proteus_MST After thinking some time about it I wouldnīt say that it is neither Discrimination against Gender nor sexual Orientation. So I would call it rather some form of Discrimination against the "homosexual lifestyle", as homosexual lifestyle involves living together with a partner of the same sex.

Basically, you are saying that there is no such thing as sexual orientation; or that if there is, and your orientation is gay, you must not act your life in accordance with your orientation.

Very enlightened.

	26-02-2004 19:01									#259
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Here is the point.

A loving couple who are spend 30 years of their life co-habitating. One gets terminally ill. The other is prohibtied from visiting them in hospital beacuse they are not related.

The illness advances to death. Despite the fact that the couple were also economic partners who shared the same household for 30 years, the survivor is ineligible for the survivor benefit of the dead persons pension.

This a legal matter. It clearly violates the Consitution AS IT EXISTS, as Sava mentioned. It also violates ALL HUMAN DECENCY.

Any of you, including BK, who think this is perfectly allright, are a poor excuse for a member of human society, IMO.

	26-02-2004 19:11									#260
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quote: Originally posted by Proteus_MST I agree with you that it technically would be no Discriminatiopn. It could be considered to be some kind of Apartheid, as Apartheid means "Separation" in Afrikaans, but it would be IMHO no Discrimination.

You guys are hopeless.

	26-02-2004 21:00									#261
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quote: Originally posted by The Mad Viking Basically, you are saying that there is no such thing as sexual orientation; or that if there is, and your orientation is gay, you must not act your life in accordance with your orientation. Very enlightened.

Not exactly.

I say that homosexuals after all arenīt prevented to act on their sexual orientation and sleep with someone of the same sex, because you donīt need to marry to do this.

I also donīt say that it is absolutely no discrimination. But discrimination against something much more harder to grasp.
I think the example you gave in your last Posting illustrates it more clearly.

Here you have a gay couple living together who share their lifes just as some heterosexual couples do.
Thatīs the reason why I called it "Discrimination against a gay lifestyle" in my first posting.

Gay arenīt prevented from living out their sexuality and they arenīt prevented from marrying someone from the opposite sex, so there is no discrimination against their sexual orientation.

But, here comes what I call gay lifestyle:
Living together as a married couple like some Heteros do.

As there are a lot of Homos and Heteros around the world who donīt think of marrying their partners but instead, aside from going out with their partners on a regular basis and having sex with them, live their separate lifes,
I donīt see marriage as something which is necessary to live a life according to your sexual orientation.

So "only" those homosexual people are discriminated, who really would like to marry the partners they love.
In Absence of a better concept I just called it "Discrimination against a homosexual Lifestyle".

Maybe you couldīve also called it "Discrimination against homosexual couples living together"

	26-02-2004 21:03									#262
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quote: Originally posted by Proteus_MST Not exactly. I say that homosexuals after all arenīt prevented to act on their sexual orientation and sleep with someone of the same sex, because you donīt need to marry to do this. I also donīt say that it is absolutely no discrimination. But discrimination against something much more harder to grasp. I think the example you gave in your last Posting illustrates it more clearly. Here you have a gay couple living together. Thatīs the reason why I called it "Discrimination against a gay lifestyle" in my first posting. Gay arenīt prevented from living out their sexuality and they arenīt prevented from marrying someone from the opposite sex, so there is no discrimination against their sexual orientation. But, here comes what I call gay lifestyle: Living together as a married couple like some Heteros do. As there are a lot of Homos and Heteros around the world who donīt think of marrying their partners but instead, aside from going out with their partners on a regular basis and having sex with them, live their separate lifes, I donīt see marriage as something which is necessary to live a life according to your sexual orientation. So "only" those homosexual people are discriminated, who really would like to marry the partners they love. In Absence of a better concept I just called it "Discrimination against a homosexual Lifestyle"

First off, gays do not want to marry someone of the same gender just to have sex.

Secondly, stop using the same fallacy that Bennie has used in that gays are free to marry someone of the opposite gender, since that is not the problem we have, in the first place.

Third, gays want a more meaningful life, which, for a number of them, means having recognition of their marriage with someone of the same gender.

	26-02-2004 21:14									#263
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And if I were in Power,
I would see no Problem in allowing gays to marry,
as I donīt see that marriage nowadays is as close connected to producing children as christian fundamentalists want it to be.
After all there are many hetero couples who donīt have any children and didnīt even plan to have any as they planned their marriage.
And I donīt have any problem if gays would be allowed to adopt children, as I think that homosexual couples could be as good parents as heteros would be (often maybe even better parents )

But I also donīt see it as a discrimination against sexual orientation that gays arenīt allowed to marry, but as a discrimination against something other, as I already tried to explain.

	26-02-2004 21:20									#264
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quote: Originally posted by Ned He is also in favor of the state's right to decide, but voted to strip them of this right by his vote against the DoMA.

Maybe he doesn't like to vote for clearly unconstitutional leglistation. DoMA will be ruled unconstitutional with the first Federal test. It violates the "full faith and credit" clause.

	26-02-2004 23:58									#265
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quote: Originally posted by chegitz guevara Maybe he doesn't like to vote for clearly unconstitutional leglistation. DoMA will be ruled unconstitutional with the first Federal test. It violates the "full faith and credit" clause.

More likely, he is liar.

	27-02-2004 00:00									#266
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quote: Originally posted by Ned More likely, he is liar.

The truth is probably both.

	27-02-2004 00:01									#267
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quote: Originally posted by The Mad Viking Here is the point. A loving couple who are spend 30 years of their life co-habitating. One gets terminally ill. The other is prohibtied from visiting them in hospital beacuse they are not related. The illness advances to death. Despite the fact that the couple were also economic partners who shared the same household for 30 years, the survivor is ineligible for the survivor benefit of the dead persons pension. This a legal matter. It clearly violates the Consitution AS IT EXISTS, as Sava mentioned. It also violates ALL HUMAN DECENCY. Any of you, including BK, who think this is perfectly allright, are a poor excuse for a member of human society, IMO.

BOGUS!!!!

All of this is adjustible by contract. Particularly, a person name his beneficiary and can give a deed to his property to his partner.

	27-02-2004 00:07									#268
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quote: Originally posted by Ned BOGUS!!!!

Unacceptable

Hospitals absolutely are permitted to deny non-family members visitation access. The fact that they don't always, doesn't mean they can't.

You're right about the will part, but thats a private function, not public.

	27-02-2004 00:13									#269
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quote: Originally posted by chegitz guevara The truth is probably both.

No it is not.

	27-02-2004 01:23									#270
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quote: Originally posted by Ned But whether it is unconstitutional under the equal protection clause critically depends on whether society has a significant governmental interest in being discriminatory in this fashion and whether the legislation is narrowly focused on addressing this governmental need. Discriminatory legislation is not per se unconstitutional if it is justified and narrowly focused.

Yet I'd argue your focus is too broad, because you're going to disenfranchise perfectly competent, loving, married adoptive parents. There would be no compelling interest for the state to deny your proposed tax benefit to such a couple solely because the child was not biologically theirs. It's not only discriminatory towards the couple, it's discriminatory towards the child (I didn't think of this before) -- the court will take a much stricter view on that score. It's very easy to argue that that child is deserving of the same support that the child being raised by his/her biological parents is, and that that interest is compelling enough to overturn any block on the tax benefit to the adoptive parents.