N.C. Law Banning Cohabitation Struck Down

Raleigh, N.C. -- A state judge has ruled that North Carolina's 201-year-old law barring unmarried couples from living together is unconstitutional.

The American Civil Liberties Union sued last year to overturn the rarely enforced law on behalf of a former sheriff's dispatcher who says she had to quit her job because she wouldn't marry her live-in boyfriend.

Deborah Hobbs, 40, says her boss, Sheriff Carson Smith of Pender County, near Wilmington, told her to get married, move out or find another job after he found out she and her boyfriend had been living together for three years. The couple did not want to get married, so Hobbs quit in 2004.

State Superior Court Judge Benjamin Alford issued the ruling late Wednesday, saying the law violated Hobbs' constitutional right to liberty. He cited the 2003 U.S. Supreme Court case titled Lawrence v. Texas, which struck down a Texas sodomy law.

"The Supreme Court decision in Lawrence v. Texas stands for the proposition that the government has no business regulating relationships between two consenting adults in the privacy of their own home," Jennifer Rudinger, executive director of the ACLU of North Carolina, said in a statement.

Our inalienable rights to life, liberty, or property are not "dreamed up". -- It is the job of the USSC to issue opinions on any rights at issue, but you are hyping the issue to claim they are "final arbiters". The people retain final power.

Libertine wackos want SCOTUS to be the final arbiters, PROVIDED that they rule in the Hedonistic manner.

You laughably confer "final" power over our rights to "elected and accountable representatives"? Read Article VI. -- Both fed & state officials are bound to support our Constitution, which gives final power to the people. [see the 10th]

What's laughable is that you missed my point completely. I don't expect any less from a libertine though. (Remember what I said about retardation?) The point was that the PEOPLE through their elected represenatives SHOULD have the final power, but with the libertarian "interpretation" of the 9th amendment, JUDGES would have the final power.

Scalia, dissenting. "-- In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all men . . . are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage. --"

So not only are libertarians retarded, they are also dishonest. A creative use of ellipses can't hide what you are trying to do. Scalia IS NOT endorsing a libertine interpretation of the 9th Amendment, one which erronously claims that the 9th itself grants substantive rights.

Again, IN CONTEXT, without use of ellipses, he makes quite clear:

[T]he Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even afarther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people."

Please don't be a dishonest hack, although I realize that is a lot to ask.

There is no "rewrite" of the 9th. -- Our rights to life, liberty, or property can not be infringed upon, -- they can only reasonably regulated with due process of law.As Justice Harlan recognized:"-- [T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . "

*SIGH* Remember what I said about retardation? Justice Harlan wasn't referring to the 9th Amendment at all in the text you quoted. He was referring to the Due Process Clause. Harlan was arguing for something called "Substantive Due Process" which basically boils down to Judges making stuff up and putting it in the Constitution. It further shows that libertines like to worship at the feet of judges.

BUT WAIT, THERE IS MORE.

I suppose that you thought no one would bother to check up on your partial quote, or that you didn't read the opinion where it came from yourself, but relied on a partial quote from some libertine website. For the record, your partial quote (Which had nothing to do with the 9th Amendment) comes from Justice Harlan's dissent in POE v. ULLMAN, 367 U.S. 497 (1961).

Since the North Carolina Statute is about FORNICATION, it is of note that the very person you invoke would have upheld Fornication, adultery and homosexuality statutes, FROM THE VERY SAME OPINION, Justice Harlan stated:

Yet the very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical well-being of the community, [367 U.S. 497, 546] but has traditionally concerned itself with the moral soundness of its people as well. Indeed to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal. The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis. Compare McGowan v. Maryland, 366 U.S. 420 . Adultery, homosexuality and the like are sexual intimacies which the State forbids altogether, but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.

Basically, you've done more to prove my points than anything I could have posted.

Thank you tpaine.

Yes, there were many laws they endorsed in those days we wouldn't countenance today. As for freedom and morality, take a look at Benjamin Franklin. Adultery, fornication and other immoral acts didn't seem to prevent his freedom. And then there's Thomas Jefferson. Shall we discuss his morality? Was he free?

Again, The Constitution is a written document. It's not a living one, regardless of the private morals of the Founders, (They after all were human) the Constitution means now what it meant then. It doesn't change at the whim of judges. If a law against Adultery and Fornication was Constitutional then, and it most certainly was, IT IS CONSTITUTIONAL NOW, unless you want to bow down at the feet of statist judges.

No, another conservative as opposed to a religious repressive. I assume by that comment, you find disgusting laws and judicial decisions that prohibit discrimination, segregation, miscegenation, among others? The Constitution is not a living document, but in the area of the Bill of Rights and especially the 14th Amendment, America was slow to realize just what they meant. They aren't just words.

Ever hear of the 19th Amendment? Invidious racial discrimination was out of touch with the 14th Amendment. As the 13th and 14th Amendments were intended to rectify previous mistakes made on the basis of race. However, morphing the 14th Amendment into more than that, which libertines like to do, provided that they do so in hedonistic ways, is out of step with the intent of the framers of that amendment. And since you admit that the Constitution is not a living document, if the NC law was Constitutional in 1805, and 1868, then it's Constitutional now.

That answered my earlier question. We are better off with discrimination in every aspect of society in your view until the majority wants it removed. Who do you think the Bill of Rights was designed to protect? It wasn't the Bible toting, white male. It was everyone else who didn't have the power to decide anything. Fundamentalists are upset the the concept of rights applies to everyone, not just those in the pews next to them.

Here we get to the heart of your hatred. You hate the fact that there is an All-Powerful God, to whom you will bow before one day. Most libertines are democrats at heart, and try to pull out the "fundamentalist" card every chance they get.

I always love it when someone thinks they know exactly what the framers meant. First, the framers are irrelevant to the discussion. The Constitution became the supreme law of the land when it was ratified, not when it was first drafted. Second, if you read the anti-federalist papers, you see that there was much dispute and many differing opinions on virtually every article of the Constitution. The Federalist Papers were only the opinions of mainly Madison and Hamilton, who wrote them for the newspapers to advertise and promote the new Constitution. Many different opinions existed then, just as they do now.

I love it when libertine leftists who believe in a "living Constitution" and who want to give judges absolute power pretend that it's difficult to find what the framers intended. I'll let Justice Scalia rebuke you:

Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution. Panta rei is not a sufficiently informative principle of constitutional interpretation. What is it that the judge must consult to determine when, and in what direction, evolution has occurred? Is it the will of the majority, discerned from newspapers, radio talk shows, public opinion polls, and chats at the country club? Is it the philosophy of Hume, or of John Rawls, or of John Stuart Mill, or of Aristotle? As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful. I think that is inevitably so, which means that evolutionism is simply not a practicable constitutional philosophy. I do not suggest, mind you, that originalists always agree upon their answer. There is plenty of room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text. Often, indeed I dare say usually, that is easy to discern and simple to apply. Sometimes (though not very often) there will be disagreement regarding the original meaning; and sometimes there will be disagreement as to how that original meaning applies to new and unforeseen phenomena. How, for example, does the First Amendment guarantee of “the freedom of speech” apply to new technologies that did not exist when the guarantee was created - to sound trucks, or to government-licensed over-the-air television? In such new fields the Court must follow the trajectory of the First Amendment, so to speak, to determine what it requires-and assuredly that enterprise is not entirely cut-and-dried, but requires the exercise of judgment. But the difficulties and uncertainties of determining original meaning and applying it to modern circumstances are negligible compared with the difficulties and uncertainties of the philosophy which says that the Constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids; and that the key to that change is unknown and unknowable. The originalist, if he does not have all the answers, has many of them. The Confrontation Clause, for example, requires confrontation. For the evolutionist, however, every question is an open question, every day a new day. No fewer than three of the Justices with whom I have served have maintained that the death penalty is unconstitutional, even though its use is explicitly contemplated in the Constitution. The Due Process Clause of the Fifth and Fourteenth Amendments says that no person shall be deprived of life without due process of law; and the Grand Jury Clause of the Fifth Amendment says that no person shall be held to answer for a capital crime without grand jury indictment. No matter. Under The Living Constitution the death penalty may have become unconstitutional. And it is up to each Justice to decide for himself (under no standard I can discern) when that occurs. In the last analysis, however, it probably does not matter what principle, among the innumerable possibilities, the evolutionist proposes to determine in what direction The Living Constitution will grow. For unless the evolutionary dogma is kept a closely held secret among us judges and law professors, it will lead to the result that the Constitution evolves the way the majority wishes. The people will be willing to leave interpretation of the Constitution to a committee of nine lawyers so long as the people believe that it is (like the interpretation of a statute) lawyers’ work - requiring a close examination of text, history of the text, traditional understanding of the text, judicial precedent, etc. But if the people come to believe that the Constitution is not a text like other texs; if it means, not what it says or what it was understood to mean, but what it should mean, in light of the “evolving standards of decency that mark the progress of a maturing society,” well then, they will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they select to interpret it. More specifically, they will look for people who agree with them as to what those evolving standards have evolved to; who agree with them as to what the Constitution ought to be. It seems to me that that is where we are heading, or perhaps even where we have arrived. Seventy-five years ago, we believed firmly enough in a rock-solid, unchanging Constitution that we felt it necessary to adopt the Nineteenth Amendment to give women the vote. The battle was not fought in the courts, and few thought that it could be, despite the constitutional guarantee of Equal Protection of the Laws; that provision did not, when it was adopted, and hence did not in 1920, guarantee equal access to the ballot, but permitted distinctions on the basis not only of age, but of property and of sex. Who can doubt that, if the issue had been deferred until today, the Constitution would be (formally) unamended, and the courts would be the chosen instrumentality of change? The American people have been converted to belief in The Living Constitution, a “morphing” document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.

1997 statistics show that 50% of first time marriages ended in divorce, and 60% of second marriages ended in divorce. If you have any other statistics provide them rather than the usual insults.

I guess you didn't read the link I posted. I'll post it again, please don't lie any more.

www.truthorfiction.com/rumors/d/divorce.htm

Did you read it?

The 50% divorce rate is a LIE, a MYTH, a HOAX, based on a misreading of statistics.

Try again.

And you sir, haven't the freedom to decide which parts of society will benefit from the Bill of Rights and the 14th Amendment and which will not. Keep your Bible out of my bedroom, and I'll keep my moral compass out of yours.

Again with the Anti-Christian spew? You prove my point. Thanks

Glad to see that Justice Scalia noted the 19th Amendment, and how it was necessary to secure nationwide female suffrage, since the 14th Amendment did no such thing. Sadly, he's also correct that today it wouldn't take an amendment, just a judicial re-write.

He notes that if we have a Constitution that changes with time, who gets to decide how it changes? Of course, we all know the answer: LIBERALS.

But here's something to think about. Until the Romer decision in the late 1990s, the Supreme Court never held that homosexuals were a protected 14th Amendment class. Why did they rule in Romer that they are? Well, because homosexuals by then were all the rage among the fashionable people who teach law at prestige universities, who cover the judiciary for the New York Times and other big media, and who host the important cocktail parties around Washington. Anthony Kennedy and other judges no doubt got pulled aside at many a beltway party and asked, "When are you guys gonna read gays into the Constitution? You need to do it because those neanderthal conservatives out in flyover country will never agree to it democratically."

But here's a big "what if". What if gays had not become fashionable? What if instead polygamists became all the rage? Instead of gay marches and rallies, we turned on the news and saw politicians attending polygamy rallies. Instead of gay TV shows like "Queer Eye" and "The L Word", what if TV was filled with shows featuring polygamists, and what if Hollywood churned out sympathetic portraits of polygamist cowboys instead of gay cowboys? What if gays had no more political and "chic" clout than polygamists currently do, and polygamists were the ones being celebrated by big corporations. What if polygamists, and not gays, were demanding that kids be taught polygamy in the schools? What if all the "beautiful people" in Hollywood and Manhattan and Martha's Vineyard were celebrating polygamy, but never gave homosexuality a second thought?

Well, if that had happened, the Supreme Court would have read polygamists into the 14th Amendment, and gays would still be on the waiting list. The Supreme Court would have upheld Colorado's Amendment 2 by a 9-0 vote, but would have begun the process of overturning state bans on polygamy instead. The Massachusetts Supreme Court would have ruled 7-0 against gay "marriage", and instead would have ruled 4-3 for polygamous marriage. The courts can't create their own cases, of course, but if polygamy was as fashionable as homosexuality currently is, the germane lawsuits would have been filed and accepted.

Basically, our "living constitution" changes in whatever direction the left desires, mostly in whatever direction the most fashionable leftist group, with the most clout among big shots, demands. Gays became that group, and suddenly as a group they were grafted by fiat into the 14th Amendment. Had they not become fashionable, that wouldn't have happened. Had polygamists become fashionable instead, they would be the ones making gains in liberal courts right now, and we conservatives would be having to amend the various state constitutions to prevent polygamy.

G-monkey claims:

If one trys to morph the 9th Amendment into a magic guarentee of a specific right that someone dreams up, then you run into a fundamental problem, Judges, not the people become the final arbiters on what is included in the 9th Amendment.

Our inalienable rights to life, liberty, or property are not "dreamed up".
-- It is the job of the USSC to issue opinions on any rights at issue, but you are hyping the issue to claim they are "final arbiters". The people retain final power.

Libertine wackos want SCOTUS to be the final arbiters, PROVIDED that they rule in the Hedonistic manner.

Unable to refute your hyping of the issue, you hype even more. Weird .

What's dangerous about this is that it would be the unelected and largely unaccountable Judge, not the elected and accountable represenative, that would be making the final decision on the value of the claimed "right".

What's laughable is that you missed my point completely. I don't expect any less from a libertine though. (Remember what I said about retardation?)

Again, more "retard" hype rather than solid argument. Pitiful.

The point was that the PEOPLE through their elected represenatives SHOULD have the final power,

You concede my point -after- you call me a 'retard'.

but with the libertarian "interpretation" of the 9th amendment, JUDGES would have the final power.

Straw man 'reasoning', refuted by my words about "rewriting" the 9th earlier.

The fact of the matter is, [T]he Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even afarther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people." Troxel V Granville 530 US 57 (2000) (Scalia, J. Dissenting).

Scalia, dissenting.
"-- In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all men . . . are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage. --"

So not only are libertarians retarded, they are also dishonest. A creative use of ellipses can't hide what you are trying to do.

Scalia's quote is copied as it appears in Findlaw, ellipses & all.
Your personal attacks are unwarranted.

With all that said, I must add this caveat, please do not misinterpret what I am saying as to be "There are no unenumerated rights" as that reading would be patently incorrect.
It's just that the libertine rewrite of the 9th Amendment as actually granting substantive rights is patently flawed.

There is no "rewrite" of the 9th. --
-- Our rights to life, liberty, or property [substantive rights] can not be infringed upon, -- they can only reasonably regulated with due process of law.

As Justice Harlan recognized:
"-- [T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . "

SIGH* Remember what I said about retardation?

Sure I do. -- It's very strange that you think it's a valid way to make your point though.

Justice Harlan wasn't referring to the 9th Amendment at all in the text you quoted. He was referring to the Due Process Clause.

And I was referring to due process, as anyone can read.

BUT WAIT, THERE IS MORE.
Since the North Carolina Statute is about FORNICATION, it is of note that the very person you invoke would have upheld Fornication, adultery and homosexuality statutes,

I doubt it, seeing that he thought:

" -- `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . "

"Fornication" laws are the epitome of "-- arbitrary impositions and purposeless restraints --"

--- it's up to the voters of each state to determine which inalienable rights exist under the 9th Amendment.

Amazing 'theory' you have. The 14th makes it clear that all of our inalienable rights to life, liberty, or property cannot be abridged or denied by State gov'ts, or by any others.

He has an opinion on which ones do and which ones don't. As an American citizen, he's entitled to that opinion, but so are we all.

'We the people' are not entitled to ~enact~ laws that deprive others of life, liberty or property without due process. -- Scalia is hired to decide when such infringements on due process take place.

He's arguing that his status as a judge doesn't empower him to impose his opinion on the people when there is no constitutional authorization for it.

Lame argument, as the USSC has no power to enforce or 'impose' his decisions. The other two branches have that power.

Scalia understands that it's not his place to say, okay I agree with unenumerated rights A, B, and C, but don't agree with unenumerated rights D and F, so I'm going to order states to recognize the first three, but not the last two.

How weird that you deny it is Scalias job to decide issues "-- arising under this Constitution --". Art III, Sec 2.

What you want is very simple. You want a judge who will declare every possible right which you personally favor, but is not in the Constitution, to be under federal jurisdiction.

Ridiculous assertion. -- All of our rights to life, liberty, or property are protected by our Constitution. I want every level of gov't in the USA to support those rights.

Of course, if you don't personally favor that right, you have no interest in taking it any further.

Name one right you imagine I dis-favor.

You want arbitrary government.

Bull. I want a constitutionally limited government.

If tpaine favors "x", then it's an inaliable right and Justice Scalia damn well better enforce it. If tpaine opposes "y", well then it isn't really a right.

Rant on. You're only proving you can't make rational points, so you dream up ones you attribute to me.

I favor amending the Constitution in Massachusetts, however, the preferable thing to do would be to impeach the four judges for violating their oath of office.

I doubt the legislature of the state would go that far.

The sad thing is that we're having to amend our state constitutions to keep them as they are. Not a single state constitution anywhere in the country guarantees a right to gay "marriage"

I suspect most of those states recognize that the rights clauses contained in them can easily be interpreted to require equal protection of the law. Since no one thought about this issue, the appropriate thing to do is to amend their constitutions to ensure that equal protection does not include gay marriage.

What judges like Margaret Marshall do is go on search and destroy missions through their constitutions until they find some vague or general clause ratified 200 years ago, and they then "interpret" it to mean whatever they desire, be it gay "marriage", abortion on demand, ripping the cross out of the public square, or whatever.

Activist judges who believe that a constitution permits the recognition of activities, or as in the case of the cross, denies certain activities will rule that way. Conservative judges will refrain from making a decision that results in changes to customs. Both sides have a mixed record. Going back to Plessy, it was obvious that a wrong existed in this Country and conservative courts were refusing to acknowledge their duties. Going to Roe, it was obvious (to some) that the court looked for an out in determining that the fetus was not a person so that it could rest its case on privacy. Both decisions were wrong.

If judges can do that then there's really no point in having a written constitution in the first place. The idea of a written document is that it can't be changed except by amendment.

The problem you run into is that with respect to rights, most of the amendments are quite general. This requires a court to make some interpretations and define tests. The requirement for a Miranda warning was a court imposed test to ensure that the 5th Amendment was being adhered to. Your favorite, the 14th Amendment permits a discriminatory act if the state can show a compelling need for the discrimination.

It isn't supposed to change every time someone comes up with a revolutionary idea that can be forced, via a stretched "interpretation", into some century-old amendment that A) had nothing to do with the revolutionary new issue, and B) wouldn't have been ratified if it did.

Whether it would have been ratified is irrelevant. The language of most of the rights provisions is so clear though general that they must still be capable of pertaining to the changes in the Country over the years. Homosexuality is an example. For most of our history, it was simply a deep dark secret no one talked about. Now that it is in the open and most Americans accept it for what it is, naturally cases are going to come up to the USSC involving homosexuals. That is again the reason for the state laws and amendments ensuring that those "rights" do not include gay marriage.

In constitutional law, the assumption is that we the people have a right to govern ourselves, and that it can only be voided if the court PROVES that the laws we (or our elected reps) have passed violate the constitution.

I agree with that. Those who bring cases must substantiate their case. But in certain circumstances, it is easy to substantiate a condition of unequal treatment, or in other words to establish a prima facie case. The state then only need explain the purpose of the law. Sometimes it has a reason, sometimes it does not. An area where the courts are not in agreement is in the area of affirmative action. The Bakke case showed that discrimination was not justified in support of diversity, yet in the University of Michigan cases, the court went both ways. Permitting one student who is less qualified to step above another who is better qualified is wrong no matter the vision. This discrimination is the work of states.

The Internet is the next major area. Since it did not exist, the First Amendment could not have conceived of free speech issues that are quickly becoming a real issue with the Internet. Pornography, threatening speech, tax issues, election related issues will all become issues for the courts because of the Internet.

'We the people' are not entitled to ~enact~ laws that deprive others of life, liberty or property without due process. -- Scalia is hired to decide when such infringements on due process take place.

He's arguing that his status as a judge doesn't empower him to impose his opinion on the people when there is no constitutional authorization for it.

Lame argument, as the USSC has no power to enforce or 'impose' his decisions. The other two branches have that power.

How weird that you deny it is Scalias job to decide issues "-- arising under this Constitution --". Art III, Sec 2.

All of us, including Justice Scalia, can think of things that we would like to see as such rights. Scalia cited one. But he then stated that he has no authority as a judge under the 9th Amendment to make that one the law of the land

We all know "he has no authority" to make law. -- He is authorized to decide constitutional issues as per Art III.

while leaving the 456,987,321,076 other such rights not enforced. That's what he meant.

There you go again. You 'just know' what everyone "meant", --- in your dreams...

Now, you come along and tell us that any right we might wish to have should be declared into existence by the Supreme Court,

False again. - You insist on making claims about what you imagine I've said. -- Weird tactic.

or the court is shirking its responsibility. Why?

Never said it that way. Why do you insist I have?

Because that right exists outside the Constitution simply by virtue of our desire for it.

Another bizarre, unfounded conclusion you've dreamed up.

What you want is very simple. You want a judge who will declare every possible right which you personally favor, but is not in the Constitution, to be under federal jurisdiction.

Ridiculous assertion. -- All of our rights to life, liberty, or property are protected by our Constitution. I want every level of gov't in the USA to support those rights.

Of course, if you don't personally favor that right, you have no interest in taking it any further.

Name one right you imagine I dis-favor.

You ask me to name a possible unenumerated inalienable right we might have that you would oppose. How can I do that?

Exactly.. You admit you can not. -- But you imagined above that I did. How confused can you get?

If I name one, you'll say it isn't really an inalienable right. That's the point. You only think unenumerated rights are inalienable if you agree with them.

More unsupported supposition. Is that your only tactic?

If you don't, you don't regard them as inalienable.

More bull. You can't defend your straw man methods, so you just keep piling more on the dung heap.

That's what Scalia was saying about his own subjective opinions, and he was showing enough restraint not to force them on everyone else.

You're simply dreaming about what Scalia "was saying". --- He's paid as a Justice to make decisions on constitutional issues.

You want arbitrary government.

Bull. I want a constitutionally limited government.

If tpaine favors "x", then it's an inaliable right and Justice Scalia damn well better enforce it. If tpaine opposes "y", well then it isn't really a right.

Rant on. You're only proving you can't make rational points, so you dream up ones you attribute to me.

There's a difference between a technological change and a philosophical change. The former involves new methods of doing an old thing. The latter involves a new viewpoint.

The 1st Amendment protects (among other things) Free Speech. New methods of carrying out that freedom have been invented since the 1st Amendment was ratified. Television, internet, etc.

But the amendment protects the ACT of free speech. The fact that the methods of carrying out that act might change over time due to technology doesn't matter. Speech is still protected.

Suppose that in 1850, a law had been passed prohibiting taking a controversial drug (let's call it drug X) across state lines under the federal power to regulate interstate commerce. Would that mean you or I could today take that drug across state lines in car? After all, cars didn't exist in 1850, so would they not be covered by the law? Of course they'd be covered. The law prohibits the ACT of taking the drug across state lines. The method is irrelevant, and as methods change over time due to technology, the law incorporates them.

In the case of homosexuality, though, it's not a new thing relative to the Bill of Rights, or the 14th Amendment, like television is to the 1st Amendment. Homosexuality existed at the time the BOR was ratified. It existed at the time the 14th Amendment was ratified. It existed at the time the provisions of the Massachusetts constitution Margaret Marshall cited were ratified. And in all those ratification circumstances, it was unthinkable that gay "marriage" would have ever been the intent of any of those amendments. Had it even crossed anyone's mind that that might happen, the amendments in question would have either been rejected, or ratified only after being reworded to make sure they didn't sanction gay "marriage". Homosexuality was considered at the time to be a total abomination, so much so that no one in their wildest fantasies ever dreamed that anyone would ever interpret the amendment they were authoring as mandating it.

Now, you say that attitudes change. That's true, sometimes for the better, sometimes for the worse. But that's not constitutionally relevant. If attitudes change ENOUGH, then the votes will exist to enact gay "marriage" democratically. If they change at a literally revolutionary level, then the votes will exist to amend the Constitution to guarantee a "right" to gay "marriage".

But what if they change at a level below that? What if support for gay "marriage", which was at essentially zero when the 14th Amendment was adopted, rises to about 20% and stops? Is it the responsibility of the court to accommodate that 20% by reading it into the 14th Amendment? Why should that be the case when 20% could never be enough to ratify a constitutional amendment?

In the case of gay "marriage", and the gay agenda in general, we have a situation where only a minority of the poulation in general is supportive, but a majority of the ELITE population is supportive. The elite population has influence on the courts, via personal friendships with judges, via law review articles, via fluff pieces in the New York Times, via the power to socially mingle with the justices at various beltway functions. That's why gays now have so much clout in the courts, and why Romer got handed down.

Compare that to polygamists. I doubt that the public in general is any less supportive of polygamous marriage than they are of gay "marriage". Put polygamous marriage on the ballot in Texas and it would probably lose four-to-one, about the same margin as gay "marriage" lost by. The American people are strongly opposed to both polygamous marriage and gay "marriage". But there's a huge discrepancy among elites. Gay "marriage" is all the rage in elite circles. It's the hot new "human rights" issue. But polygamous marriage isn't currently a big deal among elites.

That's why we see gay shows all over TV, but not polygamy. We see Showtime and the Sundance Channel hosting gay directors weeks, but not polygamous directors weeks. We don't see polygamists painted as sympathetic victims of prejudice, as we do with gays in movies such as Brokeback Mountain and V For Vendetta.

And it's because of that difference in elite opinion that gay "marriage" is a judicial threat to us and polygamous marriage isn't. It's why the Supreme Court has declared homosexuals to be a protected 14th Amendment class, and not polygamists. If elite opinion were reversed, the judicial situation would likewise be reversed. Gays would be irrelevant people on the judicial sidelines, while polygamy would be advancing like a juggernaut through our courts.

That was Scalia's point at the close of his dissent in Romer. Homosexuality by then was fashionable within certain elite circles, so the court forces homosexuality on the public in a way they would never do with an unfashionable group, and that's the only difference.

It's not the function of the judiciary to force something on the public that we do not desire without clear constitutional mandate. Using a generally phrased passage such as the Equal Protection Clause to do that with homosexuality, when it's clear that was never intended by the phrase's authors and ratifiers, is tyrannical conduct by the court. And ironically, it's discriminatory conduct, since they only read new things into that amendment based on their own biases. Fashionable groups get added in, unfashionable ones don't.

There's a difference between a technological change and a philosophical change. The former involves new methods of doing an old thing. The latter involves a new viewpoint.

Perhaps, but there's little doubt that the Internet has impacted people in ways yet to be considered. Attitudes change with changes in technology and methods of communication. People are subjected to messages and philosophies they never before would have even thought about. Such is what is happening in China today, and part of what led to the downfall of the Soviet Union. When a state opens up communications, attitudes change, just as they have here. Previously, many if not most attitudes concerning race, gender and other such distinctions were formed and maintained in small communities dominated by religious beliefs. That is why attitude changes first take place in urban areas.

But the amendment protects the ACT of free speech. The fact that the methods of carrying out that act might change over time due to technology doesn't matter. Speech is still protected.

You may have missed all of the furor over free speech with respect to the Internet. Free speech has been challenged for years, some of which has far more impact than in earlier decades. Both cable/satellite TV and the Internet have dramatically changed the outlook on free speech.

Suppose that in 1850, a law had been passed prohibiting taking a controversial drug (let's call it drug X) across state lines under the federal power to regulate interstate commerce. Would that mean you or I could today take that drug across state lines in car? After all, cars didn't exist in 1850, so would they not be covered by the law? Of course they'd be covered. The law prohibits the ACT of taking the drug across state lines. The method is irrelevant, and as methods change over time due to technology, the law incorporates them.

No, but the technology of 24/7 news and the Internet affects the attitudes such that people in 1850 would not have questioned the law, whereas today, with instant knowledge, people may learn quickly that it is a good or bad law and start a movement to either protect it or to get it tossed out. Also technological advances in medicine may also show that it is either a very harmful drug or a harmless drug. So you can't ignore the impact of technology on attitudes, which translates into cultural changes.

In the case of homosexuality, though, it's not a new thing relative to the Bill of Rights, or the 14th Amendment, like television is to the 1st Amendment. Homosexuality existed at the time the BOR was ratified.

But what is different is that both the truths and distortions concerning homosexuality can be verified in minutes, where before you had no way of knowing anything other than what the Bible supposedly said about it.

It existed at the time the provisions of the Massachusetts constitution Margaret Marshall cited were ratified. And in all those ratification circumstances, it was unthinkable that gay "marriage" would have ever been the intent of any of those amendments.

At the time of the ratification of the 14th Amendment, complete racial integration and especially marriage across racial lines were not considered either.

Had it even crossed anyone's mind that that might happen, the amendments in question would have either been rejected, or ratified only after being reworded to make sure they didn't sanction gay "marriage".

That is completely irrelevant to the question of whether or not same sex marriages are right or wrong. Most Americans think it is wrong, and since 45 of 50 states outlaw it, there is every likelihood that it will not become the law unless attitudes change, which I don't see any time soon. As long as marriage is protected as necessary for procreation, the brouhaha this year will die out.

If attitudes change ENOUGH, then the votes will exist to enact gay "marriage" democratically. If they change at a literally revolutionary level, then the votes will exist to amend the Constitution to guarantee a "right" to gay "marriage".

The greatest danger to those who are in fear of the same sex marriages would be the few states that may actually try it like Massachusetts. If people perceive that in fact the same sex marriages do not cause any harm to traditional marriages, attitudes will likely change over time. But that will probably not happen in my lifetime. I'm content that states that want to prevent it can do so.

But what if they change at a level below that? What if support for gay "marriage", which was at essentially zero when the 14th Amendment was adopted, rises to about 20% and stops? Is it the responsibility of the court to accommodate that 20% by reading it into the 14th Amendment? Why should that be the case when 20% could never be enough to ratify a constitutional amendment?

Two points. First, the court would have to recognize gay marriage as a right, that is that the state did not have a compelling interest in preventing the gay marriage. Not likely. Second though, 20 percent represents a minority of opinion, and the BOR and 14th Amendments were enacted to ensure that the rights of minorities, not majorities were protected. So the 20 percent is irrelevant.

In the case of gay "marriage", and the gay agenda in general, we have a situation where only a minority of the poulation in general is supportive, but a majority of the ELITE population is supportive.

Only a minority of the population was in favor of interracial marriages too. Again, the % of the population that favors something is totally irrelevant to the question of whether it is in fact a right.

That's why we see gay shows all over TV, but not polygamy. We see Showtime and the Sundance Channel hosting gay directors weeks, but not polygamous directors weeks. We don't see polygamists painted as sympathetic victims of prejudice, as we do with gays in movies such as Brokeback Mountain and V For Vendetta.

True, and as a result, general attitudes have changed with respect to homosexuality in general.

That was Scalia's point at the close of his dissent in Romer. Homosexuality by then was fashionable within certain elite circles, so the court forces homosexuality on the public in a way they would never do with an unfashionable group, and that's the only difference.

Scalia's belief that customs and the attitudes of the population should somehow determine whether someone has a right or not is simply wrong. He is normally right on most issues, but not on this one. That was his religious convictions talking, not his supreme court role.

It's not the function of the judiciary to force something on the public that we do not desire without clear constitutional mandate.

Where in Article III does it require the judiciary to take a poll before deciding rights issues? Since all rights claims will always come from minorities, the judiciary would never uphold a rights claim, since the majority had not ok'd it.

Using a generally phrased passage such as the Equal Protection Clause to do that with homosexuality, when it's clear that was never intended by the phrase's authors and ratifiers, is tyrannical conduct by the court.

It is completely irrelevant what the authors or ratifiers believed or didn't believe. I certainly doubt they were all in concert, since the 14th Amendment was ratified through the barrel of a gun. In any case, the language must be the preeminent factor, not any of the attitudes of the authors (which was Congress).

You're correct that racial integration and interracial marriage weren't covered by the 14th Amendment. The Warren Court was engaging in judicial activism when it said they were. I'm not against those things, I'm just noting that the court overstepped its bounds.

You see, once you allow the government to break the law to do a good thing, you set the precedent for it to break the law routinely. Anytime the court oversteps its bounds, and people call for the judges to be reigned in, someone will pop up and say, "Oh, I suppose you want us to go back to racial segregation and bans on interracial marriage as well." And thus, the court just keeps expanding its power.

I disagree with your opinion on gay "marriage". I don't think people outside of Massachusetts would give a damn if they legalized it or not if it weren't for the judicial threat. But when it became legal there because of a dictatorial judicial decree, and when there's a threat looming over us of the federal courts spreading it to our states against our will, that's what causes our concern.

You're correct that the Constitution is there to protect the minority (at least in part) but that doesn't mean every demand of every minority is elevated to some specially protected status. Scalia's belief is not that the attitude of the population determines whose CONSTITUTIONAL rights are protected. His belief is that the majority has a right to prevail when dealing with matters that are NOT IN THE CONSTITUTION. He also believes that his fellow judges shouldn't grant special privileges to group A and not group B, just because group A is fashionable with the cocktail party crowd and group B isn't.

Why have courts been so willing to entertain demands for gay "marriage" but not polygamous marriage? Neither one is covered by the 14th Amendment. Neither one is popular with the general public. But gay "marriage" is popular with elite people in the media, political, and academic communities, while polygamous marriage doesn't much interest them. Gays in general are popular with that crowd, so liberal judges cater to gays in ways they would never cater to a group that was considered "gauche" instead of "chic". That's what happened in Romer.

The beliefs of the authors and ratifiers of the 14th Amendment are paramount. Otherwise, we're simply living under a judicial despotism since that amendment has enough vagueries in it to produce anything once the original meaning is discarded. Does the Equal Protection Clause mean there can be no progressive taxes? Does it mean prestige colleges can't charge high tuition since that keeps poor people out? You might note that the college may be private and thus not covered by the 14th, but the court itself has said that if even a penny of government aid goes to the school, the school is a branch of the government from a constitutional standpoint. What if a boy wants to live in the girls' dorm?

You see, once you toss aside the original meaning, it can mean anything in theory. In practice, of course, it means anything elite liberals are interested in. If owning kangaroos became a craze tomorrow among elite liberals, and they launched a political crusade over it that drew the support of Hollywood, the Times editorial board, and the beltway wine & cheese crowd, we'd soon have a judge somewhere issuing a ruling that the right to own a kangaroo is fundamental and that local ordinances against it violate the Equal Protection Clause by permitting dogs & cats but not kangaroos. If you asked whether the right to own an anteater is fundamental, the answer would be no because there's no faddish political movement on behalf of owning anteaters.

Instead of repeating your talking points after you get caught, why don't you try addressing what others write? I was the one who pointed out that it's you libertine wackos that wanted judges to retain power, instead of the people through their elected representatives.

Unable to refute your hyping of the issue, you hype even more. Weird .

If you are too stupid to realize the "elected and accountable" means "accountable to the people" than that's not my problem.

You laughably confer "final" power over our rights to "unelected judges". Read the Constitution, Judges are bound to support our Constitution, which gives final power to the people, through their elected representatives.

Again, more "retard" hype rather than solid argument. Pitiful.

If it walks like a duck, talks like a duck, well....

You concede my point -after- you call me a 'retard'.

Again, you prove my point about retardation. I didn't conceed nothing to you.

Straw man 'reasoning', refuted by my words about "rewriting" the 9th earlier.

You don't even know what "straw man reasoning is", you just saw some libertine buddy write it somewhere, then you quote it when you lose arguments. The fact is, the libertarian rewrite of the 9th amendment, gives JUDGES the final power and authority. This is dangerous, and patently unconstitutional.

Any reason why you cut him off there, trying to take his comment out of context? Yep, your dishonest.

In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all Men … are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.

So not only are libertarians retarded, they are also dishonest. A creative use of ellipses can't hide what you are trying to do.

Again, more "retard" hype rather than solid argument. Pitiful.

Sorry, there is no "retard hype", only pointing out "retard facts".

Scalia's quote is copied as it appears in Findlaw, ellipses & all. Your personal attacks are unwarranted.

No, Unedited Scalia's comment is thus:

Now, I understand that it's really hard for you to understand what Scalia is saying. But his comment completely destroys your position.

There is no "rewrite" of the 9th. -- -- Our rights to life, liberty, or property [substantive rights] can not be infringed upon, -- they can only reasonably regulated with due process of law.

There absolutely is a rewrite of the 9th. The 9th itself does not confer substantive rights, it's merely a rule of construction.

Sure I do. -- It's very strange that you think it's a valid way to make your point though.

If it walks like a duck, talks like a duck, well....

And I was referring to due process, as anyone can read.

If you were, you only prove my point on retardation, as I was talking about the 9th Amendment. You were the one who went off on a "Due Process" tangent for no reason.

I doubt it, seeing that he thought:

" -- `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . "

"Fornication" laws are the epitome of "-- arbitrary impositions and purposeless restraints --"

Again, you prove my point about retardation. In the VERY OPINION THAT YOU ARE QUOTING, JUSTICE HARLAN STATES THAT LAWS AGAINST ADULTERY, FORNICATION, AND HOMOSEXUALITY are valid.

You invoked him, he stated it, your stuck with his opinion.

Yet the very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical well-being of the community, [367 U.S. 497, 546] but has traditionally concerned itself with the moral soundness of its people as well. Indeed to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal. The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis. Compare McGowan v. Maryland, 366 U.S. 420 . Adultery, homosexuality and the like are sexual intimacies which the State forbids altogether, but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy. ..."[T]he family . . . is not beyond regulation," Prince v. Massachusetts, supra, and it would be an absurdity to suggest either that offenses may not be committed in the bosom of the family or that the home can be made a sanctuary for crime. The right of privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much [367 U.S. 497, 553] has been explicitly recognized in acknowledging the State's rightful concern for its people's moral welfare. Poe v. Ullman, 367 U.S. 497 (1961) (Harlan, J Dissenting).

He can't be any more clear. I realize that you don't have a law degree, and that you probably just cut and pasted a small portion of Justice Harlan's opinion that some libertine buddy gave you, but if you read what Justice Harlan actually wrote, (Here is a link for you: caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=367&invol=497) You will see that he would have upheld the Fornication laws in question here.

That's not what I was saying. Nothing specific was covered within the text of the 14th Amendment, though the black codes was the driving force behind the amendment. Had Congress intended it for only specific acts, it should have put that into the amendment. By not doing so, we have only the language of the amendment. And by the amendment's language, miscegenation and segregation were clear violations without any rationale from the states.

I disagree with your opinion on gay "marriage". I don't think people outside of Massachusetts would give a damn if they legalized it or not if it weren't for the judicial threat. But when it became legal there because of a dictatorial judicial decree, and when there's a threat looming over us of the federal courts spreading it to our states against our will, that's what causes our concern.

Well, I will admit the anti-gay lobby did have an effect on the attitude of the people, but most states that voted for an amendment did so with large margins. So whether Massachusetts got them moving in that direction, or the fear of federal intervention (not likely), who's to say?

Scalia's belief is not that the attitude of the population determines whose CONSTITUTIONAL rights are protected. His belief is that the majority has a right to prevail when dealing with matters that are NOT IN THE CONSTITUTION.

No, Scalia spoke directly about customs and the beliefs of the majority. As for something not being in the Constitution, how do you judge any act within the scope of the 14th Amendment, since no specific acts are cited? The rights of the minority to be treated the same as the majority under the law is the issue. If they establish a case that they were not, then the 14th Amendment does not say, what does the majority of citizens want? It requires a reason for that difference in treatment, ie: the black codes.

Why have courts been so willing to entertain demands for gay "marriage" but not polygamous marriage?

I'm only aware of two challenges to state laws in the last 110 years. Both found for the state, as both saw the state as having a legitimate reason for the law. One was fairly recently, I believe (not sure).

That's what happened in Romer.

Romer basically said that a class of citizens could not seek redress no matter what the discrimination, and that violated their due process rights.

Does the Equal Protection Clause mean there can be no progressive taxes? Does it mean prestige colleges can't charge high tuition since that keeps poor people out?

No, because neither selects groups for disparate treatment. If the tax code said homosexuals had to pay a 35% rate for their income, but others with the same income had to pay 28%, then that would be a 14th Amendment issue. Same with the college.

What if a boy wants to live in the girls' dorm?

Pretty easy to show a compelling reason for not allowing it. I do think the courts are now looking at restroom and dorm issues as they pertain to trans-gendered? (is that the right term?).

If you asked whether the right to own an anteater is fundamental, the answer would be no because there's no faddish political movement on behalf of owning anteaters.

If a law said that Hispanics cannot own anteaters, but others can, you would have a 14th Amendment issue. See the difference?

It really wasn't until the era of judicial activism that the 14th was interpreted to require states to sanction interracial marriage and to integrate the schools. I debated this a long time ago here, and we came up with a good solution. We should amend the constitution to protect the right to interracial marriage and to ban "Jim Crow" segregation. The amendment should contain a clause noting that it was being passed to constitutionalize the Brown and Loving Supreme Court rulings.

Otherwise, we're simply going to continue further and further down the road of judicial supremacy. The descent might slow on occasion, as it may be doing now with Roberts & Alito joining the court, but eventually events will transpire to give liberals a solid court majority again, and what will they do with it? Who knows? If you had told people in 1960 that the courts would legalize abortion, ban crosses from public property, legalize sodomy, start pushing a gay agenda on us, and many other things, they'd have thought you were crazy, but that's indeed what happened. What will the next solidly liberal court do? Order women into combat? Strip churches that don't sanction abortion of their tax exemption? Order nationwide gay "marriage"? Legalize human-animal sex? Lower the age of consent to twelve? Throw the borders open? Those things may sound impossible to you, but someone in 1960 would have been stunned if they could have seen where the Warren and Burger courts would take us.

There are general clauses in any Constitution that could be interpreted to mean anything. We need judges such as Scalia, who show restraint and only interfere with the people and the legislative branch when it can be demonsrated beyond any reasonable doubt that the Constitution has been violated. Otherwise, we're simply at the whim of judges.

People often justify judicial activism by giving extreme examples of possible laws, such as your law prohibiting hispanics from owning kangaroos. But you might just as well give the court the power to do everything if that's your concern. After all, it's theoretically possible that a Nazi could be elected president. But the likelihood of that happening seems pretty slim. Should we cancel future presidential elections and have appointed judges pick our presidents from now on, to eliminate the possibility of the people voting in a Nazi?

The people and our legislators may on occasion pass some bad laws, but they usually pale compared to a lot of court rulings.

The founding fathers only wanted the Constitution to change via amendment. That's how conservatives go about it if we want to change the Constitution. But not liberals. We need to get a two-thirds vote of both Houses of Congress and three-fourths of the states to go along with any changes we wish to make. That requires overwhelming public consent. But liberals don't need that at all. All they need is a well positioned minority to change the Constitution.

Equal Protection of the Laws, once ripped away from its original meaning, can mean anything. Does it mean gay "marriage"? It was certainly never intended to mean that. But if you argue that the original meaning is passe, then how do we know whether or not it means gay "marriage" or not? We don't. It's simply up to the court. We're completely at their mercy.

If they ruled tomorrow that the 14th Amendment requires states to sanction gay "marriage", what could we do about it? You might say, pass the FMA and overturn the ruling. Okay, but that means that opponents of gay "marriage" have to gather the overwhelming political force necessary to amend the Constitution, JUST TO PUT THINGS BACK WHERE THEY WERE BEFORE. No amendment to guarantee a right to gay "marriage" has ever been ratified. Has there ever been a point in American history where such an amendment could have gotten the super majorities necessary for ratification? No. So where would a gay "marriage" ruling come from? From nowhere. It would just be a case of judges taking an old amendment which had nothing to do with gay "marriage" and interpreting it to suit their fancy. Is that proper judgeship? And they could likely get away with it, because a well positioned minority could stop the ruling from being overturned. 34 members of the Senate would be all they would need. The Constitution would thus be changed by a minority. An amendment to guarantee a right to gay "marriage", which would be opposed by the majority of Americans and by all but one or two states, would still be "amended" into the Constitution, not by the people or our reps, but by five or six JUDGES.

Since the rise of the Warren Court we've lived in a world where liberals can change the Constitution without legitimately amending it, simply via the process of "interpretation". Is that something conservatives should simply accept? If so, we're doomed, because there will never be an end to the uses of the 14th Amendment. Nor is there any reason to expect any consistency in this "compelling state interest" nonsense. Right now, most federal courts would likely agree that there's a compelling interest in keeping marriage heterosexual. But will they always rule that way? What if liberals regain a solid court majority? What if the Democrats have enough senate seats to block the FMA from getting two-thirds? What is there to stop the court from mowing down the marriage laws of every state and imposing gay "marriage" as the law of the land? Once the original intent of the 14th is abandoned, there's nothing to stop it but the judges' own sense of restraint and their own ideological leanings. That's not the rule of law, it's the rule of men.

The conservative journal FIRST THINGS held a symposium a few years ago, shortly after Romer, in which numerous conservative scholars sadly concluded that the Constitution is, while not yet totally dead, severely wounded and unlikely to recover. They felt the American experiment in constitutional governance was over and that the number of issues decided by the voters would steadily decrease in future years as liberal courts take more and more issues away from us, confident that conservatves can't garner the super majorities necessary to amend the Constitution to restore those issues to the voters and the states. Thus, liberal amendments to the Constitution will continue to be added, not by the difficult legitimate amendment process, but by five or six appointed judges "reading" them into the 14th Amendment or some other general clause. Conservatives will then be told that we have to gather the huge majorities to amend the Constitution to overturn the ruling, which in most, if not all, cases will be impossible to gather.

It really wasn't until the era of judicial activism that the 14th was interpreted to require states to sanction interracial marriage and to integrate the schools.

Plessy set the standard that the courts would ignore the very discrimination that was at the heart of ratifying the 14th Amendment. That decision was wrong, and showed that at that time, justices did look at what the majority would want rather than whether or not someone's rights were being violated. Plessy led to 60 years of segregation and completely ignored rights violations. That the court finally found its cojones in the 60's does little to justify it's long history of ignoring its constitutional duties.

We should amend the constitution to protect the right to interracial marriage and to ban "Jim Crow" segregation. The amendment should contain a clause noting that it was being passed to constitutionalize the Brown and Loving Supreme Court rulings.

There is no need because those cases were clear violations of both due process and the absolute right to equal protection of the law. Now if you want to try and pass an amendment changing the 14th Amendment, fine. Try. Most today would likely say no.

If you had told people in 1960 that the courts would legalize abortion, ban crosses from public property, legalize sodomy, start pushing a gay agenda on us, and many other things, they'd have thought you were crazy, but that's indeed what happened.

I am complete agreement with many of those First Amendment issues that have been, IMO, wrongly decided. I sense this court will turn that around. But don't look to this court to reverse anything involving privacy or other rights issues, other than perhaps Roe. It is because I suspect Roberts and Alito both understand that all Americans have the same rights, and when a religiously conservative part of the Country tries to change that, the courts must step in. But I could be wrong there.

What will the next solidly liberal court do? Order women into combat? Strip churches that don't sanction abortion of their tax exemption? Order nationwide gay "marriage"? Legalize human-animal sex? Lower the age of consent to twelve? Throw the borders open?

I don't know, but I doubt many of those, since a number of those would clearly garner an outcry from most of the Nation. I am of course, less concerned with the outcome of 14th Amendment cases, because with the exception of affirmative action cases, I doubt anyone can show any harm from recognizing the rights of minorities. Has the Texas sodomy case caused any harm to anyone? Has the end of segregation caused anyone harm? You accept some of those but then not others. The USSC cannot operate that way. It cannot look to any group, whether liberal or conservative for guidance. And for rights cases, a tremendous history now exists for decision making using the criteria used over and over again.

There are general clauses in any Constitution that could be interpreted to mean anything.

Therein lies the problem. But since I lean in favor of the 14th Amendment, I will generally accept those decisions, whereas, I don't accept many if not most of the decisions relating to the First Amendment that prevent the reasonable expression of religious beliefs in public. So even there, I am opting for more freedom not less. One reason why I oppose a flag amendment. Restraint kept the courts from stepping in to stop slavery and a host of egregious actions by a majority that saw only white male landowners as any value to America. Times have changed, and we may not like it, but the courts will likely always have a say where the Constitution is concerned. Anytime Congress wants, it can stop it all, by simply passing a law preventing the courts from engaging in certain types of cases. It has done so in the past.

People often justify judicial activism by giving extreme examples of possible laws, such as your law prohibiting hispanics from owning kangaroos.

It was your law you raised. I merely said that in order for it to be a 14th Amendment issue, you had to prevent certain groups from owning kangaroos, not everyone in general.

But you might just as well give the court the power to do everything if that's your concern.

They don't do everything. But according to Article III, they have jurisdiction over everything related to the Constitution. That can always be changed if the Country wants to. Personally I don't. I am comfortable with where they are going, in spite of decisions I don't like.

The people and our legislators may on occasion pass some bad laws, but they usually pale compared to a lot of court rulings.

I have not seen a single court ruling since perhaps Plessy that came close to slavery laws, the black codes, laws permitting children to work 18 hour days for nothing, laws holding back classes of people from participating in the American dream either economically or through the vote. Those laws and many more were clearly done to keep white males in power, and to do an end run around the separation of church and state. The very law that started this thread is a prime example. America still has a way to go before there is true equality, but we are on our way. And to the best of my knowledge, no harm has come to anyone as a result of this transition. Much harm was caused before it though.

The founding fathers only wanted the Constitution to change via amendment. That's how conservatives go about it if we want to change the Constitution. But not liberals. We need to get a two-thirds vote of both Houses of Congress and three-fourths of the states to go along with any changes we wish to make. That requires overwhelming public consent. But liberals don't need that at all. All they need is a well positioned minority to change the Constitution.

That's because conservatives were in charge, while liberals represented the underclass. Conservatives represented the status-quo, while liberals searched for ways to bring everyone into the mainstream. The courts were the only way, if the ruling conservatives would not budge and permit the integration of all into society. Maybe it's now gone too far. I would submit it has with regard to the First Amendment and the commerce clause. But I'm generally satisfied with the 14th Amendment.

Equal Protection of the Laws, once ripped away from its original meaning, can mean anything.

You tend to get tied to the vague concept of original meaning. Congress didn't pass it with an original meaning. They certainly had an original reason for it, but the language is what is important. If Congress had intended it to sunset after the black codes had been eliminated fine. They should have put that into the wording. Today, we have only the wording to go by.

It's meaning is simple. A state simply cannot treat classes differently without good cause. That's not a difficult concept. The only real issue is how the courts will treat "good cause". We may agree sometimes, other times disagree.

I understand your concerns, but disagree as to the meaning of the 14th Amendment. I simply can't think of a rights issue other than affirmative action that actually causes harm to others. It may outrage your sense of morals such as the sodomy law being rightfully struck down, or it may traumatize those who see segregation as "keeping people where they belong", or it may insult someone's religious beliefs by striking down laws preventing birth control, but for the most part such decisions only help define rights and cause no harm to others. Whereas the First Amendment decisions do cause harm when they prevent simple prayers or expressions of religious belief... and they help no one. They are the polar opposite of the 14th Amendment decisions. I guess it's my turn to let you have the last word.

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