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To: Aetius
Checking back in one last time.
When the Constitution and its subsequent Amendments were ratified, that represented an approval from the people for the purposes put forth by the authors. For the Courts to take it upon themselves to declare that now these provisions apply to thing for which they were never intended is a violation of the whole principle of having the consent of the governed.

No, that's pretty much how the Constitution was intended to work, and I have yet to meet anyone -- conservative or otherwise -- who really thinks it's always a bad thing when the SCOTUS applies a Constitutional limitation in a new way.

I assume you're happy the police have to get a warrant before tapping your phone. Well, prior to 1967 they didn't, as long as they didn't place the wiretap on your property; the SCOTUS ruled on that in 1920-something (Olmstead), holding that a wiretap wasn't a 'search' within the meaning of the Fourth Amendment (as of course it wasn't if we stick to what the framers and, more importantly, the ratifiers expressly had in mind). However, in Katz (1967), the SCOTUS overturned Olmstead and famously held that the Fourth Amendment protects people, not places; ever since then, the Fourth Amendment word 'search' has been expanded to apply to something that was clearly not intended in 1789.

I'm not saying the same-sex marriage case is completely parallel, but that example ought at least to give you a little reason to reconsider whether '[f]or the Courts to take it upon themselves to declare that now these provisions apply to thing for which they were never intended is a violation of the whole principle of having the consent of the governed' always and in principle.

This is clearly one of those things for which the Founders designed the 10th Amendment.

Well, I think the Ninth and Fourteenth are implicated as well. To make a long story short, I think that the Tenth Amendment reserves to the states the power to regulate the exercise of, but not to violate or infringe, the liberty rights 'retained by the people' according to Amendment IX, and the Fourteenth Amendment imposes additional limitations on such regulation. The question is whether the right to marry whom you please is such a right, and I take it we'll continue to disagree about that. No biggie; I'd have been surprised if very many FReepers did agree with me on that point.

331 posted on 03/14/2005 6:34:42 PM PST by OhioAttorney
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To: OhioAttorney; Aetius
No, that's pretty much how the Constitution was intended to work...

Not so. It is a recent development -judicial activism -see post # 330

335 posted on 03/14/2005 6:39:22 PM PST by DBeers
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To: OhioAttorney
No, that's pretty much how the Constitution was intended to work, and I have yet to meet anyone -- conservative or otherwise -- who really thinks it's always a bad thing when the SCOTUS applies a Constitutional limitation in a new way.

Then you need to review the Lochner era supreme court. Obviously you support such extra-constitutional activism.

356 posted on 03/14/2005 7:52:56 PM PST by Clint N. Suhks
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