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View Full Version : John Banzhaf, I will address your silly comment about sex discrimination.




johnwk
06-23-2011, 03:13 PM
See: Law Prof Threatens Suit over University’s Plan to Reinstitute Single-Sex Dorms (http://www.abajournal.com/news/article/law_prof_threatens_suit_over_universitys_plan_to_r einstitute_single-sex_dor)

“Suppose a university decided that there would be less racial tension if all the blacks were in a black dorm, all the whites were in a white dorm,” Banzhaf told Inside Higher Ed. “Each one is, quote, getting their own dormitory, and maybe some of them would be happier that way. But surely no one would suggest that it’s lawful.”

And why would it not be lawful? Probably because the 14th Amendment was specifically adopted to preclude states from passing laws which made distinctions based upon race, color, or previous conditions of slavery! But, the 14th Amendment was never intended to forbid distinctions based upon sex! As a matter of fact, the legislative intent of the 14th Amendment was succinctly summarized as follows by one of its supporters:

“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ SEE: Rep. Shallabarger, Congressional Globe, 1866, page 1293 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=334)

Of course, our tyrannical supreme court has decided to do for the people what the people have not willing done for themselves via our Constitution’s amendment process, and the court has perverted the very intentions for which the 14th Amendment was adopted just as Mr. Banzhaf does when teaching his students.

For example, in delivering the Court’s opinion in the Virginia Military Institute (VMI) (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=000&invol=U20026) case, decided June 26, 1996, which commanded the Institute to accept women by citing the 14th Amendment as forbidding sex discrimination, Ginsburg pointed to previous Supreme Court rulings and tests invented by the court unknown to our founding fathers, and then asserted a party seeking to uphold government action making a distinction based upon sex must establish an "exceedingly persuasive justification" Forget whether or not the Constitution allows such action, it must also pass the court’s invented test of justification and the court‘s personal predilections without reference to the Constitution‘s defined and limited powers.

In addition, Ginsburg noted, “The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”

But the fact remains, Ginsburg, in delivering the opinion, never established that under the 14th Amendment the people of America decided to prohibit distinctions based upon gender in addition to prohibiting state legislation based upon “race and color”! The irrefutable fact is, Justice Ginsburg couldn’t establish this constitutional prohibition (sex discrimination) because time and again during the debates which framed the 14th Amendment the intended prohibition against discrimination was identified as being limited to discrimination based upon “race, color, or former condition of slavery”, and only intended to apply in a very narrow area and protect the inalienable right of Blacks: “to make and enforce contracts, to sue...to inherit, purchase...property as was then enjoyed by white citizens. “Congress did not assume...to adjust what may be called the social rights of men...but only to declare and vindicate these fundamental rights.”___ see the Civil Rights Cases, 109 U.S. 3,22 (1883)

The argument that the wording in the 14th Amendment: (a)“all persons”, (b)"No State shall make any law which shall abridge the privileges or immunities of citizens of United States.", (c) "[N]or deny to any person within its jurisdiction the equal protection of the laws", as being evidence the 14th Amendment was intended to forbid distinctions based upon sex, or intended to be a universal rule to bar every imaginable type of discrimination, such as in Martin vs. PGA Tour and also include distinctions based upon sex, falls flat on its face when reading the words of next Amendment to the Constitution! This Amendment (the 15th) prohibits a new type of discrimination not covered by the 14th Amendment! It prohibits discrimination, or to be more accurate, prohibits the right of voting to be denied or abridged on account of “race, color, or previous condition of servitude.” The intent of the 15th Amendment clearly being to enlarge the intended prohibition on state legislated race-based discrimination mentioned in the 14th Amendment, and enlarging it to include the prohibition at the voting booth ---forbidding discrimination at the voting booth to be based upon “race, color, or previous condition of servitude“, while gender, and in particularly females, were not yet included in the protection.

The argument that the 14th Amendment prohibits state discrimination based upon gender, becomes even weaker when reading the 19th Amendment which specifically forbids a new kind of discrimination. In this Amendment, the People of America finally decide to forbid gender discrimination [the discrimination mentioned by Ginsburg] but only extend the prohibition with respect to the right to vote being “denied or abridged” on account of “sex”

If the 14th Amendment prohibited every kind of discrimination, including discrimination based upon sex as Ginsburg alleged in the VMI Case, then why were these subsequent Amendments added to the Constitution after the adoption of the 14th Amendment?

Finally, why would there have been a proposed and so-call equal rights amendment attempted to be added to the Constitution of the United States in the 1980’s to prohibit sex discrimination but never received the required number of ratifying States, if the 14th Amendment already prohibited discrimination based upon sex as Ginsburg alleges?

Bottom line is, our SC, including Justice Ginsburg, and bottom feeders like John Banzhaf are acting in rebellion to our written Constitution and the documented intentions and beliefs under which it was adopted. Indeed, our Supreme Court is in fact "legislating from the bench" so as to impose its own visions and court ordered social reforms using a variety of tests which switch the subject of a law’s constitutionality, to a question of the lawmakers wisdom. And, to meet the Court’s standards a law must be “reasonable“ and reflect what progressives on the Court arbitrarily fancy as social justice. In fact, a questioned law to pass Ginsburg’s test, must have an "exceedingly persuasive justification" and “The justification must be genuine, not hypothesized or invented post hoc in response to litigation”, regardless of whether or not the law is within the four corners of our Constitution which no longer appears to be an important factor to Ginsburg and her progressive friends on the Court.

JWK

"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

Acala
06-23-2011, 03:22 PM
The states shouldn't be involved in running schools. Problem solved.

Bern
06-23-2011, 03:35 PM
I had just read an article earlier in the day critical of Mr. Banzhaf:

http://www.constitutionaldaily.com/index.php?option=com_content&view=article&id=745:john-banzhaff-professor-of-law-and-ticky-tack&catid=42:news&Itemid=71