Important Prop. 8 Ruling Today

[UtahDan]

Where? Not in the paragraphs you cited. Are you projecting?

They expressed their desire, through the democratic process, to keep traditional marriage as the bedrock of society, as it has been for generations.

So a vote in the other direction (against prop 8) is a vote to remove the bedrock of society. You aren't asserting the church has a neutral view of whether the bedrock of society gets undermined are you?

[Jacob]

Isn't interpreting the constitution as it applies to homosexuals different from "creating new laws"?

It certainly can be. But changing marriage in a substantive way regardless of what the people or their elected representatives say is tantamount to creating new laws.

The 5th amendment is now full of substantive due process protections that are not found in the text of the amendment. Are you equally opposed to all of them? The due process clause sets up a rational basis test. If you think there is a rational basis for that amendment, say what you think it is. But don't wax eloquent about the constitution being trampled unless you are advocating getting rid of all of those substantive due process protections.

Are you familiar with originalism as a method of interpreting the constitution? I consider myself an originalist.

As for the rational basis, I agree with the New York Court of Appeals (their supreme court):

T]he historical background of Loving is different from the history underlying this case. [...] But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.

[Jeff Lebowski]

What's wrong with that?

You are expressing shock that we all don't immediately recognize how right you are. Good luck with that strategy.

I believe you fall on the pr-gay marriage side of this issue, but I don't know what you think about the constitutional issue. Assuming you are on the side of the constitution requiring states to recognize gay marriage, are you saying that that position is not clearly right, and that it is a close call?

Allegations of judicial activism = code for "I don't agree with the ruling".

I think the system is working just fine.

Well, we don't have to worry about Bater-Ginsburg thinking its a close call:


This should be no surprise at all as she has proven more interested in applying those documents to our laws than actually interpreting the text of our own constitution.

How dare she not declare that ours is the most perfect constitution in the world? Why it would be impossible to improve it in any way.

[UtahDan]

Are you familiar with originalism as a method of interpreting the constitution? I consider myself an originalist.

:facepalm:

[Jeff Lebowski]

Newt Gingrich thinks we should get rid of judicial review as well. Also John McNaughton, FWIW.

[Green Monstah]

How dare she not declare that ours is the most perfect constitution in the world? Why it would be impossible to improve it in any way.

Whether perfect or not, it does bother me that a SC Justice would not use the US Constitution at all to draft a new one (quote may be cherry picked but that's what it sounds like she's saying).

[woot]

It certainly can be. But changing marriage in a substantive way regardless of what the people or their elected representatives say is tantamount to creating new laws.

I guess I don't see why that is. I thought one of the purposes of the constitution was to protect the minority from the will of the majority.

Particularly given that there is no advantage to withholding equal rights to the minority population in this case, what possible argument could there be against gay marriage other than irrationality (e.g., the "ick" factor, the simple human tendency to fear the "other", religion-based morality)?

[Viking]

I can't wait for the next Naughton painting based on judicial review

[TripletDaddy]

How dare she not declare that ours is the most perfect constitution in the world?

This is a more complete quote of RBG's quote. I'm not sure if there is a problem with what she is advocating. Jacob's snippet is misleading. Typical or originalists.

Ruth Bader Ginsburg: It is a very inspiring time – that you have overthrown a dictator, and that you are striving to achieve a genuine democracy. So I think people in the United States are hoping that this transition will work, and that there will genuinely be a government of, by, and for the people.
[...]
I met with the head of the elections commission. I think that the first step has gone well, and that elections have been held for the lower house that everyone has considered to be free and fair. So that’s one milestone, and the next will be the drafting of a constitution.
I can’t speak about what the Egyptian experience should be, because I’m operating under a rather old constitution. The United States, in comparison to Egypt, is a very new nation, and yet we have the oldest written constitution still in force in the world.
[...]
Let me say first that a constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom. If the people don’t care, then the best constitution in the world won’t make any difference. So the spirit of liberty has to be in the population, and then the constitution – first, it should safeguard basic fundamental human rights, like our First Amendment, the right to speak freely, and to publish freely, without the government as a censor.
[...]
You should certainly be aided by all the constitution-writing that has gone on since the end of World War II. I would not look to the US constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary… It really is, I think, a great piece of work that was done. Much more recent than the US constitution – Canada has a Charter of Rights and Freedoms. It dates from 1982. You would almost certainly look at the European Convention on Human Rights. Yes, why not take advantage of what there is elsewhere in the world?

[woot]

Whether perfect or not, it does bother me that a SC Justice would not use the US Constitution at all to draft a new one (quote may be cherry picked but that's what it sounds like she's saying).

It would seem a bit silly to not use the current US constitution at all, mostly because it would good to nod to our founders in the process of creating a far better and more useful document. I love the constitution for what it has allowed our nation to become, but it also contains some truly despicable ideas relative to modern morality. I can't think of something less relevant than the original intent of the founders. We are not less able, less moral, or less aware than were they; on the contrary, morality has progressed, and so have our laws.

That being said, I really hope that no one seriously tries to create a new constitution anytime soon. That would be a charlie foxtrot for the ages.

[Jacob]

You are expressing shock that we all don't immediately recognize how right you are. Good luck with that strategy.

No I didn't.

Allegations of judicial activism = code for "I don't agree with the ruling".

I think the system is working just fine.

What? That's totally non-responsive.

[DU Ute]

Are you familiar with originalism as a method of interpreting the constitution? I consider myself an originalist.

It's too bad the Founding Fathers didn't have the foresight to set up some sort of system to ensure the Constitution could evolve and change and set up a system to ensure the will of the many doesn't trample on the rights of the few.

[Jacob]

How dare she not declare that ours is the most perfect constitution in the world? Why it would be impossible to improve it in any way.

Your insistence on creating straw men reflects poorly.

This is a more complete quote of RBG's quote. I'm not sure if there is a problem with what she is advocating. Jacob's snippet is misleading. Typical or originalists.

In what way was it misleading? The section you quoted and bolded merely continues to inform us of how she would not look to the US constitution if she were to draft a new one. Your response is unhelpful. Typical or [sic] morans.

[falafel]

It's too bad the Founding Fathers didn't have the foresight to set up some sort of system to ensure the Constitution could evolve and change and set up a system to ensure the will of the many doesn't trample on the rights of the few.

What exactly are you trying to refer to?

[Jacob]

It would seem a bit silly to not use the current US constitution at all, mostly because it would good to nod to our founders in the process of creating a far better and more useful document. I love the constitution for what it has allowed our nation to become, but it also contains some truly despicable ideas relative to modern morality. I can't think of something less relevant than the original intent of the founders. We are not less able, less moral, or less aware than were they; on the contrary, morality has progressed, and so have our laws.

That being said, I really hope that no one seriously tries to create a new constitution anytime soon. That would be a charlie foxtrot for the ages.

I agree with this post almost entirely.

It's too bad the Founding Fathers didn't have the foresight to set up some sort of system to ensure the Constitution could evolve and change and set up a system to ensure the will of the many doesn't trample on the rights of the few.

I can't tell if you are trying to be funny or just dumb.

We have an amendment process. Are you trying to say that originalists are opposed to the amendment process? We are not. I guess your are unfamiliar with originalism. It is a pretty useful system to be aware of as at least 4 of our current justices subscribe to it in practice.