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Berzerker
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topeka, kansas,USA
May 1999
time: 23:27
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Obiwan - quote:
The state does have the right to regulate marriage, because marriage is a social institution recognised by the state. |
Agreed, but as MtG has pointed out, the state does have cause to be involved with regards to inheritance, the transfer of property, etc, since these are not strictly social institutions.
quote:
Sodomy is quite different, as sex between two men. |
I'm not one of these people who believes in "gay marriage" since "marriage" has, as far as I know, always been between men and women. But aside from that aspect, I see no relevant difference between heterosexual and homosexual behavior wrt government.
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This right to intervene wrt marriage means that bigamy and polygamy fall outside the 'privacy' concerns with sodomy, hence Santorium's arguments fall apart. |
Why? Let's deal with the issue and leave marriage out of it since that is just a social contract. Why is homosexuality and polygamy different wrt "privacy"? I think Santorum was right when he lumped homosexuality together with bygamy and polygamy, one of his mistakes was that he didn't begin his argument with heterosexual sex. If adults have a privacy right to engage in heterosexual sex (which he undoubtedly accepts), then there's no valid reason to claim adults don't have the right to engage in homosexual sex, bygamy, and polygamy. But he ignored the sex engaged in by the majority...including it would have only served to highlight that he was advocating unequal treatment under the law.
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Lincoln
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quote:
Originally posted by Berzerker
Lincoln -
Isn't it obvious? He's a catholic and believes he can use violence to force the rest of us to behave in accordance with his religious beliefs (at least when he can get away with it).
He gave up that right when he took an oath to uphold the Constitution and the legal argument he supports is unconstitutional.
WTF? Are you nuts? He advocates punishing people for having sex without his approval and you accuse his victims of intolerance?
So he can express his opinion but they can't?
Is Santorum being arrested for expressing his opinion? No, but he wants them arrested. |
You seem to mix up "opinions" with actions. Where have gays been denied their opinions here? And where did Santorum advocate that gays be arested for their opinions? The thought police are the gays. They are the ones trying to force him out of office because his opinions differ from theirs.
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Ben Kenobi
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McGregornobi!
Oct 2002
time: 21:27
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quote:
"Traditional definition"? Don't you mean biblical (NT)? Face it, the reason bygamy and polygamy are illegal is because "Christians" decided to use violence to impose their religion on the rest of us, even some people who claim to be Christians - the Mormons.
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Founding Fathers were Christians, hence the definition of marriage sustained by the state.
However, we have kept these traditions since the founding fathers, so what does that say about the United States?
Tradition is the correct term, what the state has chosen to abide by for the last 230 years even though the state cannot favour Christianity.
Are there not many non-Christians who get married? If marriage were a solely Christian tradition, then how does it make sense for non-Christians to be married?
quote:
Freedom. It's not about approving of traditions, it's about allowing them because people are free. I don't approve of people praying in public for the reason Jesus condemned the practice, but it should be allowed in the name of freedom.
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The state has the right to regulate marriage. In 'recognising' polygamy, this would imply the approval of the state, since polygamous relationships would also received tax benefits, etc.
It is one thing to argue that the state should allow, but in the case of marriage, to allow is no difference from approval.
Secondly, there is no 'right to be married' within the context of the constitution, at least not in the case of bigamy and polygamy.
LoA:
quote:
Marriage and traditions like Channuka, should all be accepted because they are consensual and they do not infringe on the rights of others to practice their own religion.
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There is a large difference between Channuka and marriage. Two seperate issues. The state cannot regulate who practices Channuka under freedom of religion, whereas, the state takes upon itself the right to recognise marriage.
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Berzerker
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topeka, kansas,USA
May 1999
time: 23:27
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Lincoln - quote:
You seem to mix up "opinions" with actions. Where have gays been denied their opinions here? |
Who said they were denied their opinions?
quote:
And where did Santorum advocate that gays be arested for their opinions? |
Jeez, he advocates they be arrested for having sex, not for having opinions. Got any other strawmen?
quote:
The thought police are the gays. They are the ones trying to force him out of office because his opinions differ from theirs. |
Being forced from office is not being arrested which he advocates for them (and they haven't said he needs to be removed from office, only that he resign his leadership position in the Senate). If anything, they are being more tolerant than he is.
Obiwan - quote:
Founding Fathers were Christians, hence the definition of marriage sustained by the state. |
Some were, some weren't. There was no federal law against bygamy or polygamy until the 1870's when "Christians" could no longer harass the Mormons because they went west. That's when they told Congress to outlaw polygamy and the SCOTUS defended the law by taking the absurd position that the religious freedom clause of the 1st Amendment only protected religious thought. Hell, even communist countries couldn't prevent religious folks from thinking about their religions.
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However, we have kept these traditions since the founding fathers, so what does that say about the United States? |
No we haven't, there was no tradition concerning marriage written into the Constitution.
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Tradition is the correct term, what the state has chosen to abide by for the last 230 years even though the state cannot favour Christianity. |
When "Christians" outlawed polygamy (Mormonism), wasn't that favoring "traditional Christianity" over Mormonism?
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Are there not many non-Christians who get married? |
Yes, but they can't marry outside the bounds established by "Christians" either.
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If marriage were a solely Christian tradition, then how does it make sense for non-Christians to be married? |
Marriage preceded Christianity.
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Berzerker
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topeka, kansas,USA
May 1999
time: 23:27
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Obiwan - quote:
The state has the right to regulate marriage. In 'recognising' polygamy, this would imply the approval of the state, since polygamous relationships would also received tax benefits, etc. |
The state has the power to regulate the results of a marriage, i.e., property, inheritance, etc., not decide who can or cannot marry.
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It is one thing to argue that the state should allow, but in the case of marriage, to allow is no difference from approval. |
So Paul actually approved of slavery when he allowed it?
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Secondly, there is no 'right to be married' within the context of the constitution, at least not in the case of bigamy and polygamy. |
Yes there is, the 9th Amendment and the requirement that we are treated equally under the law. You cannot argue that two people have the right to get married and not 3 or 4. That is giving the 2 people a special right denied the 3rd and 4th, etc...
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Lincoln
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Berzeker, they are trying to have him removed from his leadership position because he voiced his opinion. There is no escape from that conclusion regardless of semantics about what an "office" is. They are punishing him for expressing his views. Like I said, they are playing the part of thought police here.
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Kontiki
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Canada
Aug 2001
time: 00:27
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quote:
Originally posted by Lawrence of Arabia
It has no right to recognise a marriage. The marriage is between individuals and their church. By recognising the catholic marriage, the state is leavaing the secular sector and moving onto the non secular sector. |
Perhaps, but the reality is that the state does recognize marriage in various non-religious ways (tax treatment, rights of survivorship, etc.). You can certainly argue that these should not exist, but they've become rather entrenched in society. It seems unlikely that people would stand for the removal of these "issues".
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Kontiki
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Canada
Aug 2001
time: 00:27
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quote:
Originally posted by Lawrence of Arabia
If they dont stand for these issues then I hope they dont stand for individual rights and freedoms. |
Most people don't to the same degree you do. That's why libertarians are a fringe group pretty much everywhere in the world.
And for the record, I'm not debating your position, just pointing out some major stumbling blocks.
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korn469
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Poetic Justic
Apr 1999
time: 00:27
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obiwan18
quote:
Sorry, not what I meant by sexual practice. Practice implies action. You will always have lusts to deal with that you should not act upon. |
while you may differentiate between practice and thought, Matthew chapter 5 really doesn't, simply by looking at a person with lust you have committed adultery in Jesus's view, this is thought not action, and throughout the chapter it centers on thoughts such as anger in Matt 5:22, lust in Matt 5:28, revenge in Matt 5:39, hating your enemies in Matt 5:44
while the state doesn't have the power to truly enforce thought crimes (at least not yet), Jesus still says that they will result in going to hell, so saying that only sin gets punished (from a religious view) when a person acts on it isn't correct, it is when a person thinks it, but this is probably fodder for another thread
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Christianity helps you to deal with this, to understand why you act in the way that you do. When you learn this, you will gain greater control over your actions. |
lol I could see a person praying, "Oh Lord, why do I lust after men?" with god responding
"Don't you see my child, you are gay."
i'm joking, but I have a question, do you believe that people are born gay, or is it something else? do you think that they are demon possesed or at least under the influence of satan when they engage in gay acts? i'm just curious about your stand on this issue, i personally believe that people are born gay, that it is something biological
Lincoln
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Well I'm off to bed. I am sleeping alone so I don't think that Santorum can get me |
actually since you don't have a wife and children (according to the gist of your post) you are tearing away at the social fabric of our society! how dare you!
as for everything else you said, i think Berzerker's responces were right on target
Kontiki
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the reality is that the state does recognize marriage in various non-religious ways (tax treatment, rights of survivorship, etc.). You can certainly argue that these should not exist, but they've become rather entrenched in society. |
agreed, though i think the implications of this is that the state controls which marriage rights it respects, and not the actual ceremony, i mean if a person had Captain Stubing of the love boat (who since he is an actor, has no powers vested in him, and can't legally marry a person) marry him to 4 different women simultaneously yet he only claimed one legally, would a SWAT team really have the authority to come and arrest him?
Straybow
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His examples were covering sexual activity, and his "anything" was just a polite way of not enumerating bestiality, necrophilia and other sexual acts he may not have felt comfy bringing up |
Actually he did bring up bestiality before the interviewer cut him off, he said man on dog, however even if bestiality, necrophilia etc. was legal, I doubt the number of people of doing it would increase. I mean it isn't the fact screwing a corpse is illegal that I don't do it, instead it is the fact that it is digusting, gross, icky, nasty, sickening, etc. If a person really gets off on giving some stiffy to a stiff, I bet that they are already doing it, and the law won't prevent this. However, homosexual acts between two consenting adults isn't anything like bestiality or necrophilia, because animals can't consent since they lack sentience and neither can corpses. Though, if we did encounter another species that was sentient why shouldn't some hot consensual interspecies action be legal? 
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Ben Kenobi
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McGregornobi!
Oct 2002
time: 21:27
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korn:
Fodder for another thread, but good points nonetheless I'll answer them here, but after this we should take this to another thread.
For the purposes of law, it does not make sense to punish people for what they think.
Morality, Christian morality in particular takes a different tack.
While I did say that who you are is not necessarily what you do, what you do will determine what you eventually become.
Does this make any sense?
You are entirely correct that Jesus emphasises the connection between our thought and our actions, that we have to address what we are thinking about before we can ever hope to deal with our actions. The sermon on the mount is a big part of this.
What it would be more accurate for me to say that your sexuality may be a part of you, it cannot define who you are in your entirety.
Your sexuality can change, while your identity does not.
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Jesus still says that they will result in going to hell,
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Indeed. At least he gives us a choice, we can decide which road we want to follow.
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i'm joking, but I have a question, do you believe that people are born gay, or is it something else? do you think that they are demon possesed or at least under the influence of satan when they engage in gay acts? i'm just curious about your stand on this issue, i personally believe that people are born gay, that it is something biological
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Are people born gay? That's a good question. I use an analogy with alcoholism. People can be born with a predisposition to drink, but this predisposition will not completely determine whether the person becomes an alcoholic. Certain environmental factors are also required.
Suppose you have someone who is an alcoholic raised as a strict Muslim? Without exposure to alcohol, this person will never develop and alcohol problem.
Secondly, even in an environment with alcohol, you will find some people who are alcoholics and some who are not, even with the same proclivities. That is really a function of will why they choose not to become alcoholics.
The same is with homosexuality. I think people are born with a proclivity to certain sexual activity, but that they also have the capacity to disregard this proclivity.
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I bet that they are already doing it, and the law won't prevent this.
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That's where the first part of my hypothesis comes in. When the state approves of homosexual marriage, it is likely that more people will be encouraged to practice, if from nothing than the increase in opportunity to practice. This is a cost you have to weigh when making such substantial changes to society.
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Imran Siddiqui
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The Potterverse
Jan 1970
time: 00:27
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quote:
Furthermore, the Constitution says Congress can REGULATE interstate commerce, not ban it. |
Banning is a regulation... duh.
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I know, but you then argued the states could deny us our rights. |
If you want to go on the Framers, then yah, the states CAN deny the rights. Like you said, they never extended the Bill of Rights to the states, and the states didn't have to follow them until selective incorporation.
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substantive due process derives from the premise that even if Congress can take away a person's right to life or liberty via trial, Congress cannot do it prior to conviction for a crime by simply outlawing our rights. |
No, you are wrong. Substantive Due Process derives from the what the justices believe to be 'traditional notions of fair play and substantial justice'. Go ahead, read Lochner v. New York.
Congress could outlaw what it wanted, as long as the Constitution gave it the power and the Bill of Rights didn't say it couldn't.
Btw, most Subtantive Due Process law is on state regulations. Why are we going to allow unenumerated rights to triumph over the will of the people?
Let's think about this. The clause says you cannot deprive a person of life, liberty, and property without due process of law. This obviously means that life, liberty, and property CAN be denied if there is due process. If a law is passed restricting privacy (banning abortion, say), the ONLY way to enforce that law is through the legal system (better known as DUE PROCESS).
Btw, which rights should be protected and which shouldn't?
Though I'm still confused why a 'strict constructionalist' would back substantive due process. You must be the first.
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So you're both wrong. |
Actually we are both right.
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I said they couldn't write a law depriving you of your right to life and then execute you for living. |
Like I said, that's a Bill of Attainder.
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Where in the Constitution have you found the phrase "state's rights"? Of course the issue of our uneneumerated rights was left up to the people and the states, THAT CHANGED with the 14th Amendment. That amendment took power away from the states and gave it directly to the people with Congress as our protector against state infringement. |
So what you are saying is that after the 14th Amendment, states rights and federalism does not exist anymore? So Congress, under the idea of 'right to privacy', can legalize homosexual marriage all by itself?
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When the Framers said no one can be deprived of life, liberty or property without due process (5th Amendment), did they mean Congress can write laws outlawing your life, liberty and property? No, they meant Congress could not take these from you without the constitutional authority which includes trial by jury. Substantive due process deals with whether or not the Congress has the constitutional authority to take our rights by writing future laws. |
Actually they did, and Congress can. Death penalty statutes are laws that outlaw life if you do something. Eminent Domain is a legislative function that outlaws private property over the condemned area.
So, yes, Congress and state legislatures could invalidate 'rights' by statute. They still can... as long as those rights aren't protected by a majority of justices.
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If Congress wanted you dead, can the Congress write a law saying you can't live and then - after a trial - execute you for living? |
ONCE AGAIN: That's a Bill of Attainder, so no!
However, Congress can write a law saying that all drug dealers cannot sell their wares (ie, their property) and then, provided they sold drugs after the statute was passed, after a trial, lock them up for selling drugs. That IS Constitutional, so I have no idea what you are on about.
quote:
Where in the Constitution did you find "except for a good (compelling) reason? Does the 1st Amendment begin with the words, "Congress shall make no law, except with a good reason"? |
Where in the Constitution do you find 'Substantive Due Process'? Due Process to me means right to a trial, not this legal fallacy that it means you can't make any law at all dealing with certain rights.
Of course, the court realized it was making things up, so it allowed these 'rights' to be circumvented with a 'compelling reason' by the state that was 'narrowly tailored' to the classification. Once it did this though, it allowed every fundamental right to be circumvented with 'compelling reason'. Classifications on gender only require 'intermediate reason'. Everything else is rational basis.
Last edited by Imran Siddiqui on 25-04-2003 at 10:24
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korn469
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Poetic Justic
Apr 1999
time: 00:27
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obiwan18
if you want to create another thread about the first part of your post, i'll respond to it there (but most likely it'll be in the morning)
as for your position on people being born gay I can respect that, althought I don't completely agree with it, I will give you that since no definitive evidence exists either way afaik that what you describe is quite possible
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That's where the first part of my hypothesis comes in. When the state approves of homosexual marriage, it is likely that more people will be encouraged to practice, if from nothing than the increase in opportunity to practice. This is a cost you have to weigh when making such substantial changes to society |
The issue isn't gay marriage, it's sodomy, and I think there is a big difference between the two.
The way I see it marriage (as recognized by the state) is closer to a legal privledge such as having a legal right to practice medicine than a right, like the right to attend peacably attend any church you want though I think it falls somewhere in between. Allowing gay marriages is to me is granting benefits to people. Enforcing sodomy laws on the other hand takes away people's liberty. Sodomy has a specific target, homosexuals, and little to no justification on how it actually protects the public welfare from the consensual actions of adults, while similar actions of heterosexuals is completely legal; it appears to me that this is a highly intolerant law. Gays receive punishment for their sexual actions while straight people don't. That to me smacks of intolerance. It's one thing to prevent a group from gaining a privledge, that is debatable ground I think, but it is quite another to make a group forfeit its rights. The right to liberty is quite possibly the most important individual right a person has. I have yet to see any convincing arguments as to why gay sex should be illegal while straight sex remains legal. Since Santorum supports sodomy laws, he obviously supports imprisoning gays for violating these laws, and therefore he supports an intolerant position. What angered me, was that it appeared that he was taking the position, "I'm not intolerant because I support the law," with the implication that laws can never be intolerant, or racist, or sexist, or any -ist you can think of. To me history proves that laws aren't always neutral, and that they can be intolerant of a group, or unfair, or even unjust.
Also, Santorum makes his own strawman when he says that by not having sodomy laws everything will suddenly because legal. As far as I know gay sex is quite legal in California, while incest, polygamy, bigamy, and beastiality are all still quite illegal, so his entire argument is just another strawman. While I agree that making beastiality or necrophilia legal would increase it, I certainly don't think either would ever become mainstream sexual practices, nor would homosexuality even if all sodomy laws were repealed. If you truly believe in your alcoholic analogy, then you know that not everybody has gay tendencies, just as everyone doesn't have alcoholic tendencies. Since from a non-moral standpoint I don't seem any harm arrising from being gay I don't think legal gay sex would damage, much less destroy our society. In fact, the expense of investigating, prosecuting, and imprisoning practictioners of gay sex seems like it has a far greater negative impact on society.
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Berzerker
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topeka, kansas,USA
May 1999
time: 23:27
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Imran - quote:
Banning is a regulation... duh. |
No, regulation within the context of the interstate commerce clause meant allowing for the free flow of trade, not banning trade. The Constitution would have never been ratified if the states knew they were giving Congress the power to shut down commerce. But given how you don't understand the difference between interstate and intrastate commerce, I'm not surprised to see you butcher that definition too.
quote:
If you want to go on the Framers, then yah, the states CAN deny the rights. Like you said, they never extended the Bill of Rights to the states, and the states didn't have to follow them until selective incorporation. |
But that [selective] incorporation is part of the Constitution. You keep ignoring that when you claim the states can deny us our rights.
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No, you are wrong. Substantive Due Process derives from the what the justices believe to be 'traditional notions of fair play and substantial justice'. Go ahead, read Lochner v. New York. |
Which derives from the notion that Congress cannot outlaw liberty and property and then prosecute us for exercising our liberty and having property without constitutional authority.
quote:
Congress could outlaw what it wanted, as long as the Constitution gave it the power and the Bill of Rights didn't say it couldn't. |
True, and? The Constitution says Congress can outlaw polygamy?
quote:
Btw, most Subtantive Due Process law is on state regulations. |
That's because of the 14th Amendment.
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Why are we going to allow unenumerated rights to triumph over the will of the people? |
Because majority rule was condemned by the Framers and they gave us a republican system with a Constitution to limit the majority.
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Let's think about this. The clause says you cannot deprive a person of life, liberty, and property without due process of law. This obviously means that life, liberty, and property CAN be denied if there is due process. If a law is passed restricting privacy (banning abortion, say), the ONLY way to enforce that law is through the legal system (better known as DUE PROCESS). |
Gee, you didn't say "regulating" abortion after you claimed banning an activity is regulating an activity. Due process doesn't just mean the courts and trials, it means the Constitution too. If the Constitution doesn't give Congress the power to ban abortion, then Congress doesn't have the power and a law banning abortion violates the due process clause (substantive due process). Due process begins with the Constitution and legislation and ends with the courts and prisons.
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Btw, which rights should be protected and which shouldn't? |
All rights should be protected.
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Though I'm still confused why a 'strict constructionalist' would back substantive due process. You must be the first. |
Because I know what it means and it is perfectly in keeping with the 5th Amendment.
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Like I said, that's a Bill of Attainder. |
Bill of Attainder only means a trial and conviction are required to deprive someone of their rights.
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So what you are saying is that after the 14th Amendment, states rights and federalism does not exist anymore? |
No, the balance of power shifted with the states losing power and the people gaining power. Again, state's rights is a fiction, governments have powers, people have rights.
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So Congress, under the idea of 'right to privacy', can legalize homosexual marriage all by itself? |
Congress has no power to be involved at all, nor do the states (except with laws regarding inheritance, transfer of property, etc...
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Actually they did, and Congress can. Death penalty statutes are laws that outlaw life if you do something. Eminent Domain is a legislative function that outlaws private property over the condemned area. |
You aren't reading what I typed. The powers you mention are IN the Constitution, substantive due process deals with laws that are NOT authorised by the Constitution.
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So, yes, Congress and state legislatures could invalidate 'rights' by statute. |
Only if the Constitution(s) allows for the statutes.
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They still can... as long as those rights aren't protected by a majority of justices. |
Yes, but that doesn't mean the statutes are constitutional. If a majority of the SCOTUS said tomorrow that a law banning people from going to church was constitutional, that wouldn't mean they were right.
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ONCE AGAIN: That's a Bill of Attainder, so no! |
After a trial. What is your answer? According to the arguments you've made in this thread, Congress could execute you for violating a law that prohibited you from living as long as you were convicted in a court of law first. That's where substantive due process enters the picture...
Bill of Attainder means: A legislative act that singles out an individual or group for punishment without a trial.
So, what's your answer?
quote:
However, Congress can write a law saying that all drug dealers cannot sell their wares (ie, their property) and then, provided they sold drugs after the statute was passed, after a trial, lock them up for selling drugs. That IS Constitutional, so I have no idea what you are on about. |
Aside from the fact Congress has no such power in the Constitution to ban the selling of drugs, what if Congress didn't like you and they passed a law that says you cannot live? Can Congress have you executed after you're tried and convicted of living in violation of the law?
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Where in the Constitution do you find 'Substantive Due Process'? Due Process to me means right to a trial, not this legal fallacy that it means you can't make any law at all dealing with certain rights. |
You didn't answer my question. But I'll answer yours, substantive due process is based on the 5th Amendment (and the 10th) and says that Congress cannot legislatively deprive us of life, liberty, or property without constitutional authority and then physically deprive us of life, liberty, or property after we are convicted in court. The laws Congress writes MUST have backing by the Constitution...
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Of course, the court realized it was making things up, so it allowed these 'rights' to be circumvented with a 'compelling reason' by the state that was 'narrowly tailored' to the classification. |
Lol, so the court that sought to reduce state power in favor of our rights created a loophole for the states to regain that lost power and take away our rights? Wrong, judges didn't create do this, the 14th Amendment did it by creating dual citizenship for the citizenry.
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Once it did this though, it allowed every fundamental right to be circumvented with 'compelling reason'. |
So you've cited a power that doesn't appear in the Constitution and complain about substantive due process which IS based on the 5th Amendment?
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Berzerker
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topeka, kansas,USA
May 1999
time: 23:27
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Obiwan - quote:
I'll see if I can't find out some more about the current law against polygamy. I do believe the defense is rooted in the Constitution. |
It isn't, the federal law was challenged by Mormons and the SCOTUS re-wrote the 1st Amendment to allow the law. The court said the phrase, "Congress shall make no law prohibiting the free exercise thereof (religion)" now meant only the freedom to have religious thoughts, not act in accordance with one's religion. Think about that! Congress could, according to the SCOTUS, prohibit churches and reading the Bible because those are actions. Many Christians claim the attack on religion is a rather recent phenomenon, they're wrong, "Christians" began using government to attack other people's religions more than a century ago. The irony is that what the SCOTUS said is no different than communism. You can have religious thoughts under communism too, just not the freedom to practice your religion.
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We dealt with this already. How is encouraging slaves to leave their masters an endorsement of slavery? |
Paul didn't encourage slaves to leave their masters. Can you answer my question now? If allowing polygamy means approving of polygamy, then did Paul approve of slavery when he allowed it?
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Paul had a mission to build up the church, no sense in allowing the church to be crushed with actively freeing the slaves. |
He didn't have to free any slaves, only condemn slavery instead of condoning it. Paul condemned all sorts of behaviors, but not slavery.
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If he were to free the slaves, the slaveowners would simply get more. If he can convert the slaveowners, then slavery will end. |
It won't by telling slaveowners that slavery is allowed by "Christianity", just treat the slaves well.
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You quote the ninth amendment? |
I can, but I'll paraphrase it instead. It says the enumeration of a handful of rights in the preceding amendments should not be used to deny or disparage the multitude of unenumerated rights retained by the people.
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One of the defenses of monogamy is that it ensures equality for women. Most bigamous and polygamous relationships exist to the detriment of the woman. |
That's up to the women to decide, not you or me. Btw, monogamy doesn't ensure equality. Ever hear the phrases, "barefoot and pregnant" or "a woman's place is in the kitchen"?
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"The government, on the other hand, focused directly on polygamy. Attorney General Charles Devens stressed the individual and social inequities he claimed were inherent in a form of marriage that sacrificed the sensibilities of women at the behest of priests."
Interesting that the argument has not changed. |
So you accept the opinion of the guy charged with enforcing the law banning polygamy and charged with convincing the SCOTUS to uphold the law? Would you also dismiss the opinions of the Mormon women who wanted their marriages kept legal? Btw, nothing there explains why the ban on polygamy was constitutional. I've known polygamists and this AG's opinion is BS, there is no inherent social or individual inequity in either polygamy or monogamy. I don't even know why you quoted him, that quote doesn't even try to identify the constitutional authority for banning the practice.
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Sikander
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Boulder, Colorado, United Snakes of America
Jan 2000
time: 22:27
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quote:
Originally posted by Lawrence of Arabia
Thanks for the definition. And I agree, polygamy falls outside the traditional christian definition of marriage, but our government is supposed to be secular, meaning that they should accept all types of tradition and when it comes to marriage and that means mormon, muslim, raelian etc. |
You assume that our (U.S.) traditions are based upon religion rather than on culture, which I think is a mistake. There's a fair deal of polygamy in the Bible, but it wasn't the way that the Western Europeans who founded this country did things, and this has remained the case thus far. Some Muslims think that it is their duty to kill Americans, but I doubt that you'd try to make the argument that we have to keep our hands off of them in order to allow them the free practice of their religion. The same is true with marriage, albeit in a less dramatic sense. Pairing people up is good for the economy and public order and for children. There's more than enough there for even a libertarian like me to see a compelling state interest in the subject.
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Imran Siddiqui
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The Potterverse
Jan 1970
time: 00:27
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quote:
No, regulation within the context of the interstate commerce clause meant allowing for the free flow of trade, not banning trade. |
 If they wanted free flow of trade they easily could have written that states are not allowed to interfer in interstate commerce (which the court found under the 'dormant commerce clause'). HOWEVER, they gave the federal government the power to regulate! Regulation means barriers. It's simple as that.
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But that [selective] incorporation is part of the Constitution. You keep ignoring that when you claim the states can deny us our rights. |
I know it is difficult for you to read, but I never said the states can take away enumerated rights. I said the states can take away unenumerated rights, which the founders would probably agree with.
Substantive Due Process includes these unenumerated rights and basically makes them as powerful as enumerated rights. This is a bastard reading of the 9th Amendment.... Hell, it really isn't a reading of the 9th. It's the 'penumbra' of rights argument.
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Which derives from the notion that Congress cannot outlaw liberty and property and then prosecute us for exercising our liberty and having property without constitutional authority. |
No it doesn't. I DARE you to find that line of reasoning in Lochner or Griswold, which created substantive due process.
And btw, you can easily do things without constitutional authority. Doing things AGAINST constitutional authority is the problem. Silence does not restrict the states or people.
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Due process doesn't just mean the courts and trials, it means the Constitution too. If the Constitution doesn't give Congress the power to ban abortion, then Congress doesn't have the power and a law banning abortion violates the due process clause (substantive due process). |
Congress can ban abortion by preventing hospitals or other institution from doing the act (commerce clause). Hospitals engage in interstate commerce.
A law against abortion violates substantive due process because 5 justices decided there was a right to abortion somewhere in the Constitution. If one majority justice went the other way, then it would be declared that there IS no right to abortion.
I'm glad you are in favor of legislating by the judiciary, but I'm not, and I'm sure most of your libertarian friends aren't either.
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All rights should be protected. |
REALLY?! So the court can decide tomorrow there is a 'right to healthcare' and thus the court must provide for it? After all, that is a 'right' recognized by plenty of countries (and the UN).
If not, then why not?
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Because I know what it means and it is perfectly in keeping with the 5th Amendment. |
Hmmm, an amendment that deals with the right to full procedure in a trial allows the Imperial Judiciary to declare that there are certain 'fundamental' rights that the states or congress can't touch?!
Sorry, can't see it... and neither did the court for almost 150 years (and after the 14th for about 50 years).
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Bill of Attainder only means a trial and conviction are required to deprive someone of their rights. |
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Bill of Attainder means: A legislative act that singles out an individual or group for punishment without a trial. |
ZZZZT! Wrong!
Bill of Attainders are bills that declare someone is guilty. You'd probably still go through a trial. You know, this why before the court invented substantive due process, the government could say, oh, being Thomas Jefferson from Virginia is a crime.
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No, the balance of power shifted with the states losing power and the people gaining power. Again, state's rights is a fiction, governments have powers, people have rights. |
People have no rights that the government does see fit to give them. The states sure didn't purposely want to give up all their rights and power, and neither did their represenatives in Congress.
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The powers you mention are IN the Constitution, substantive due process deals with laws that are NOT authorised by the Constitution. |
No it doesn't. Substantive due process deals with laws that some justices considered to be against the Constitution. Just because they believed it to be true, it doesn't mean they are. Of course, it is next to impossible to invalidate precedent these days.
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If a majority of the SCOTUS said tomorrow that a law banning people from going to church was constitutional, that wouldn't mean they were right. |
Exactly! And when a majority of SCOTUS says that a law against a made up 'right to privacy' was constitutional doesn't mean they are right.
Their decisions may always be constitutional, but they may not be correct.
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Aside from the fact Congress has no such power in the Constitution to ban the selling of drugs, what if Congress didn't like you and they passed a law that says you cannot live? Can Congress have you executed after you're tried and convicted of living in violation of the law? |
In addition to Bill of Attainder concerns, it would violate Equal Protection.
You may say that Congress has no power regulating drugs (ignoring the Commerce Clause, of course), but what about the states? What prevents them from doing so? A substantive due process right to property? Funny how the court hasn't said that's a protected right, ya?
Hmmm... maybe it is because the court simply makes up protected rights as it goes along?
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substantive due process is based on the 5th Amendment (and the 10th) and says that Congress cannot legislatively deprive us of life, liberty, or property without constitutional authority and then physically deprive us of life, liberty, or property after we are convicted in court. The laws Congress writes MUST have backing by the Constitution... |
a. No it doesn't. Due process simply means a fair trial.
b. Most of substantive due process applies to the states, who do NOT have to backing by the Constitution to pass a law. If they want, the states can do things (zoning laws) that the federal government cannot.
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so the court that sought to reduce state power in favor of our rights created a loophole for the states to regain that lost power and take away our rights? Wrong, judges didn't create do this, the 14th Amendment did it by creating dual citizenship for the citizenry. |
The 14th Amendment didn't create anything known as substantive due process. The court did by making it up to protect right to contract. Of course a few years later, the court said that was silly... but then a few decades later it brought it back up to protect personal rights. Yeah, I'm sure you know that the court says substantive due process doesn't apply to property rights (right to contract, etc).
And great loophole . Compelling reasons are soooo often found by the courts... didn't think so. Sometimes though, there just may be a really, really good reason for the state restrict a right, you know such as not stating that men have the right to abortion.
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So you've cited a power that doesn't appear in the Constitution and complain about substantive due process which IS based on the 5th Amendment? |
And 'strict scrutiny' IS based on the Equal Protection Clause. You want a total equal protection clause? I'm sure you'd love it when laws were struck down because men weren't covered under a state law requiring private hospitals to perform abortions.
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25-04-2003 06:13
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