Why Judge Reinhardt’s opinion on same sex marriage is dangerous to our Republic!

[johnwk]

. .
One of the most important provisions in our Constitution is that judges and Justices are bound by the very words of our Constitution to support and defend “this Constitution”! The Court is not given the latitude when deciding upon the constitutionality of a law to base its opinion on its personal judgment call if the law in question furthers any “legitimate purpose” or promotes the values of the State. By contrast, there are a number of constitutions which do give the Court this very despotic authority, e.g., under Israel’s Basic Law: “Human Dignity and Liberty” (http://www.mfa.gov.il/MFA/MFA-Archive/1992/Pages/Basic Law- Human Dignity and Liberty-.aspx) we find a number of rights listed and secured. But then, under No.8, “Violation of rights” we find:

”There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”

This constitutionally authorized power in effect makes the previous rights listed in Israel’s Basic Law meaningless and subject to the mere discretion and fancies of the court. But that authority, one which intentionally allows Israel's judges to determine if a law promotes the values of the State of Israel and is enacted for a "proper purpose", is not a power granted to our judges and Justices, although they have despotically exercised such power over the years beginning with the Warren Court of the 1960s and it is now used by the court to blatantly and with impunity decide what a law should be instead of the court deciding if a law is in harmony with the documented intentions under which our constitution’s, federal and state, were adopted. In effect, the power when exercised by the court today is both arbitrary and capricious and is openly used by the court to circumvent the will of the people as expressed in a written Constitution, while assuming an unaccountable and despotic legislative authority.

After studying the 9th Circuit Court opinion (http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=9&cad=rja&uact=8&ved=0CFsQFjAI&url=http%3A%2F%2Fcdn.ca9.uscourts.gov%2Fdatastore% 2Fopinions%2F2014%2F10%2F07%2F14-35420.pdf&ei=CztEVOfLEIfGgwSXlIGICw&usg=AFQjCNHwhJEJMPSDOwxVLsfYM4NHB6o1Bg&sig2=mvydLmB1H6EukxBTq7OMrA&bvm=bv.77648437,d.eXY) written by Judge Reinhardt, it becomes alarmingly clear that Judge Reinhardt never demonstrated from the debates of the 39th Congress which framed the 14th Amendment that it forbids a State to make distinctions based upon sex when issuing a marriage license. Judge Reinhardt simply asserted “defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.” See page 44 of Reinhardt’s opinion. In fact, it is Judge Reinhardt who failed to demonstrate the legislative intent of the 14th Amendment is in harmony with his personal views and he assumed a despotic power to judge what a law should be.


But Judge Reinhardt is not clothed with authority by our Constitution to judge if a law passed by a State furthers any legitimate purpose. That authority is placed in the hands of the Legislature or law making body and includes our system’s amendment process in which the people may decide to make necessary changes to their constitution to accommodate changing times __ see Article V of the Constitution of the United States!

It is not obvious that Judge Reinhardt has ignored a fundamental principle stated by our Supreme Court which wrote:

”… we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be…The wisdom of Congress' action, however, is not within our province to second guess.”___ ELDRED et al. v. ASHCROFT, ATTORNEY GENERAL (2003)

In fact, Judge Reinhardt failed, or intentionally avoided to substantiate his assertion that a state is forbidden by the 14th Amendment, to make distinctions based upon sex, or sexual orientation when issuing a marriage license. Instead, he took it upon himself to arbitrarily declare ”… defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.”

If this ruling is allowed to stand, our Constitution becomes a meaningless document, including the various provisions intended to restrict federal government actions, e.g., see the first ten amendments, which would then be subject to the courts arbitrary predilections, its views of fairness, reasonableness or justice, even when the Court is in direct conflict with the expressed intentions under which the people of the United States adopted a particular provision such as the 14th Amendment which was never, even remotely, intended to forbid state laws which make distinctions based upon sex when issuing a marriage license.

The bottom line is, Judge Reinhardt’s opinion is judicial tyranny at its worst and he ought to be immediately removed from the bench and severely punished to set an example for other judges and Justices who have, and intend to supplant their personal views of fairness, reasonableness or justice as court ordered law while shredding the very document which the people adopted to protect themselves from judicial tyranny.

JWK


"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968

[scottditzen]

http://en.wikipedia.org/wiki/Rational_basis_review

History is rife with stupid laws that have been struck down by the Court. Now I'm not passing judgment on this topic, but merely commenting that it's a good thing that there are, in fact, limits to the legislative branch.


. .
One of the most important provisions in our Constitution is that judges and Justices are bound by the very words of our Constitution to support and defend “this Constitution”! The Court is not given the latitude when deciding upon the constitutionality of a law to base its opinion on its personal judgment call if the law in question furthers any “legitimate purpose” or promotes the values of the State. By contrast, there are a number of constitutions which do give the Court this very despotic authority, e.g., under Israel’s Basic Law: “Human Dignity and Liberty” (http://www.mfa.gov.il/MFA/MFA-Archive/1992/Pages/Basic Law- Human Dignity and Liberty-.aspx) we find a number of rights listed and secured. But then, under No.8, “Violation of rights” we find:

”There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”

This constitutionally authorized power in effect makes the previous rights listed in Israel’s Basic Law meaningless and subject to the mere discretion and fancies of the court. But that authority, one which intentionally allows Israel's judges to determine if a law promotes the values of the State of Israel and is enacted for a "proper purpose", is not a power granted to our judges and Justices, although they have despotically exercised such power over the years beginning with the Warren Court of the 1960s and it is now used by the court to blatantly and with impunity decide what a law should be instead of the court deciding if a law is in harmony with the documented intentions under which our constitution’s, federal and state, were adopted. In effect, the power when exercised by the court today is both arbitrary and capricious and is openly used by the court to circumvent the will of the people as expressed in a written Constitution, while assuming an unaccountable and despotic legislative authority.

After studying the 9th Circuit Court opinion (http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=9&cad=rja&uact=8&ved=0CFsQFjAI&url=http%3A%2F%2Fcdn.ca9.uscourts.gov%2Fdatastore% 2Fopinions%2F2014%2F10%2F07%2F14-35420.pdf&ei=CztEVOfLEIfGgwSXlIGICw&usg=AFQjCNHwhJEJMPSDOwxVLsfYM4NHB6o1Bg&sig2=mvydLmB1H6EukxBTq7OMrA&bvm=bv.77648437,d.eXY) written by Judge Reinhardt, it becomes alarmingly clear that Judge Reinhardt never demonstrated from the debates of the 39th Congress which framed the 14th Amendment that it forbids a State to make distinctions based upon sex when issuing a marriage license. Judge Reinhardt simply asserted “defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.” See page 44 of Reinhardt’s opinion. In fact, it is Judge Reinhardt who failed to demonstrate the legislative intent of the 14th Amendment is in harmony with his personal views and he assumed a despotic power to judge what a law should be.


But Judge Reinhardt is not clothed with authority by our Constitution to judge if a law passed by a State furthers any legitimate purpose. That authority is placed in the hands of the Legislature or law making body and includes our system’s amendment process in which the people may decide to make necessary changes to their constitution to accommodate changing times __ see Article V of the Constitution of the United States!

It is not obvious that Judge Reinhardt has ignored a fundamental principle stated by our Supreme Court which wrote:

”… we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be…The wisdom of Congress' action, however, is not within our province to second guess.”___ ELDRED et al. v. ASHCROFT, ATTORNEY GENERAL (2003)

In fact, Judge Reinhardt failed, or intentionally avoided to substantiate his assertion that a state is forbidden by the 14th Amendment, to make distinctions based upon sex, or sexual orientation when issuing a marriage license. Instead, he took it upon himself to arbitrarily declare ”… defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.”

If this ruling is allowed to stand, our Constitution becomes a meaningless document, including the various provisions intended to restrict federal government actions, e.g., see the first ten amendments, which would then be subject to the courts arbitrary predilections, its views of fairness, reasonableness or justice, even when the Court is in direct conflict with the expressed intentions under which the people of the United States adopted a particular provision such as the 14th Amendment which was never, even remotely, intended to forbid state laws which make distinctions based upon sex when issuing a marriage license.

The bottom line is, Judge Reinhardt’s opinion is judicial tyranny at its worst and he ought to be immediately removed from the bench and severely punished to set an example for other judges and Justices who have, and intend to supplant their personal views of fairness, reasonableness or justice as court ordered law while shredding the very document which the people adopted to protect themselves from judicial tyranny.

JWK


"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968

[anaconda]

I was thinking Judge Reinhold when I read the title of the OP.

http://1.bp.blogspot.com/_Ue8tda5cPZg/SVpHeteepLI/AAAAAAAAAFo/VNLFOAD8F3E/s320/Judge_Reinhold_from_Fast_Times.jpg

[Ender]

The problem is government in marriage, where it should have NO JURISDICTION.

Let's start there.

[johnwk]

History is rife with stupid laws that have been struck down by the Court. .

We are here talking about the Court ignoring the very intentions under which the 14th amendment was adopted and imposing its personal opinion as to what the Amendment should mean. Why have a constitution of the court can make the constitution mean whatever it wants it to mean?


JWK

[Acala]

Maybe by preventing government from restricting marriage the way it wants we will be able to get government out entirely. I could certainly make a case to Christians that they are better off with NO government marriage than they are with government marriage that is contrary to the Bible.

[Zippyjuan]

I was thinking Judge Reinhold when I read the title of the OP.

http://1.bp.blogspot.com/_Ue8tda5cPZg/SVpHeteepLI/AAAAAAAAAFo/VNLFOAD8F3E/s320/Judge_Reinhold_from_Fast_Times.jpg

Me too!

[Occam's Banana]

I was thinking Judge Reinhold when I read the title of the OP.

http://1.bp.blogspot.com/_Ue8tda5cPZg/SVpHeteepLI/AAAAAAAAAFo/VNLFOAD8F3E/s320/Judge_Reinhold_from_Fast_Times.jpg


Me too!

Same here.

http://www.squaredcirclereviews.com/wp-content/uploads/2014/07/I-am-Disappoint.jpg

[Keith and stuff]

Me too!
I thought so as well!

http://pixel.nymag.com/imgs/daily/vulture/2012/12/19/19-arrested-development-mock-trial-j-reinhold.o.jpg/a_250x375.jpg

[johnwk]

The primary question to be answered is: Does the 14th Amendment forbid distinctions based upon sex as Judge Reinhardt alleges?

The fact is, Judge Reinhardt merely asserted but never confirmed with documentation from the 39th Congress which framed the 14th Amendment that it forbids a state to make distinctions based upon sex, or “sexual orientation” when issuing a marriage license. What we do know and cannot be successfully refuted when reading the 39th Congressional debates is that the 14th Amendment was intended to forbid State legislation which made distinctions based upon race, color or previous condition slavery. It was not meant to be a rule to bar every imaginable kind of “discrimination” and certainly not intended to be a rule to forbid distinctions based upon sex or “sexual orientation”. How do I know my above assertions are true aside from reading the Congressional debates? Let us take a look at the very next amendment added to the Constitution, the 15th Amendment.

Is it not a fact that the 15th Amendment was adopted to prohibit a new type of discrimination? Discrimination at the voting booth ---forbidding discrimination at the voting booth to be based upon “race, color, or previous condition of servitude“, while sex was not included in the protection?


The argument that the 14th Amendment prohibits state discrimination based upon sex or “sexual orientation” is proven to be without foundation when reading the 19th Amendment which specifically forbids a new kind of discrimination. In this Amendment, the People of America as authorized under Article V of our Constitution decide to forbid sex discrimination, the discrimination mentioned Judge Reinhardt, but only extend the prohibition with respect to the right to vote being “denied or abridged” on account of “sex”!



Finally, if Judge Reinhardt is correct in asserting the people of American have forbidden state legislation which makes distinctions based upon sex or sexual orientation when issuing a state marriage license, why was there a proposed “Equal Rights Amendment” (ERA) proposed in 1972, specifically stating, "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex"?


The truth is, the American People, as provided in Article V of our Constitution, intentionally rejected the ERA amendment, and one of the reasons was, if adopted it would force the States to embrace homosexual marriage!


And so, instead of Judge Reinhardt abiding by its oath to support and defend “this Constitution” he took it upon himself to falsely assert a state law making a distinction based upon sex when issuing a marriage license was a “violation of the Equal Protection Clause” of the 14th Amendment.

If those who support requiring the States to issue homosexual marriage licenses, and you also support our constitutionally limited system of government, then why not work within our Constitution’s framework and promote an amendment to our Constitution to achieve your purported goals?

For example, why not work to have the following amendment adopted and denounce federal judges and Justices who ignore our Constitution and impose their arbitrary sense of fairness, reasonableness, or justice as court ordered law which is nothing less than judicial tyranny?


AMENDMENT _ _ _

SECTION 1


No state shall make distinctions based upon sex when issuing a state marriage license nor deny the equal protection of its laws within its jurisdiction to married couples.

SECTION 2

The Congress shall have power to enforce this article by appropriate legislation


Why do homosexuals think they are better than Blacks who struggled to end state laws which made distinctions based upon race by having amendments added to our Constitution? Why do homosexuals constantly complain but refuse to work within the four walls of our Constitution to achieve their goal by amending our Constitutions? Instead of following the constitutional rout, why do homosexuals rejoice when judges and Justices engage in judicial tyranny as did Judge Reinhardt who decided to ignore the very Constitution he took an oath to support and defend?

JWK


"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968

[phill4paul]

How does an institution remain in power? It does so by dividing those they hold power over from ever coming together. How do they hold power? They grant special privilege to one group and not another. Voila. Division. They know that in the heart of most individuals there is a petty tyrant. Give some a bit of power and an enemy to fight against and they know that those without privilege will fight those that have privilege. In this way they will be safe in their halls while those they hold power over fight for the bones and dinner scraps from their dinner plate.

[Christian Liberty]

Maybe by preventing government from restricting marriage the way it wants we will be able to get government out entirely. I could certainly make a case to Christians that they are better off with NO government marriage than they are with government marriage that is contrary to the Bible.

I guess the pragmatic question would be whether government sanctioned gay marriage would lead to what we want (which is no govt. involvement in marriage) or if it would just lead to more slavery and tyranny. I oppose "gay marriage" because I fear the latter is the case.

[mczerone]

Yup, this circuit court opinion is the ONE that's a threat to the Republic. Before letting the gays marry, there was never a court decision on this level or higher that ever expanded protections to positive rights/privileges. Everything just just fine before this decision, Constitutionally. Sure, there may have been some issues at the edges, but the core structure of the Republic has been secure all along.

/sarcasm

Seriously, if you think that this decision threatens the stability of "your Republic" - then I hope that it falls. Quickly.

[mczerone]

I guess the pragmatic question would be whether government sanctioned gay marriage would lead to what we want (which is no govt. involvement in marriage) or if it would just lead to more slavery and tyranny. I oppose "gay marriage" because I fear the latter is the case.

Case 1: no gay marriage. There's marginally extra bureaucrats employed in every county in the country to make sure that each marriage certificate doesn't have same-sex couples on it. There's more investigations into insurance fraud for same-sex couples trying to get spousal benefits. There are more un-adopted kids on the state dole because two people of the same sex can't be trusted to raise them to not be pedophiles or serial killers. There are "legitimate state reasons" to inquire about every person seeking a marriage, granting them continued legitimacy in micro-managing the population. There are continued protests, court cases, and general civil unrest over "inequality" in the laws. Also, you're placing yourself with a minority of people and activists who are shrinking as a percent of the population, making it harder to find people who sympathize with your positions on other issues.

Case 2: Gay Marriage allowed: Marriage licenses are largely a formality. More kids can be adopted into private care. State tax law and employment benefits turn into a basic "+ 1" policy. The state's role in marriage is limited by society to a strictly epidemiological role (this is still too large, I think we'll agree). And those upset over this policy either lead more focused, productive lives, or turn to protesting more egregious violations (maybe they'll start supporting higher minimum wage protests, but they may also become more active in the anti-war mission). Also, if you support gay marriage, you may influence more to form coalitions with you on your issues in the future.

Supporting gay marriage seems to be the better pragmatic option if you're concerned about gov't overreach, growing the private sector, freeing up people to discuss and focus on more important political battles, and growing the number of people that are willing to work with you on those other battles.

[Antischism]

Case 1: no gay marriage. There's marginally extra bureaucrats employed in every county in the country to make sure that each marriage certificate doesn't have same-sex couples on it. There's more investigations into insurance fraud for same-sex couples trying to get spousal benefits. There are more un-adopted kids on the state dole because two people of the same sex can't be trusted to raise them to not be pedophiles or serial killers. There are "legitimate state reasons" to inquire about every person seeking a marriage, granting them continued legitimacy in micro-managing the population. There are continued protests, court cases, and general civil unrest over "inequality" in the laws. Also, you're placing yourself with a minority of people and activists who are shrinking as a percent of the population, making it harder to find people who sympathize with your positions on other issues.

Case 2: Gay Marriage allowed: Marriage licenses are largely a formality. More kids can be adopted into private care. State tax law and employment benefits turn into a basic "+ 1" policy. The state's role in marriage is limited by society to a strictly epidemiological role (this is still too large, I think we'll agree). And those upset over this policy either lead more focused, productive lives, or turn to protesting more egregious violations (maybe they'll start supporting higher minimum wage protests, but they may also become more active in the anti-war mission). Also, if you support gay marriage, you may influence more to form coalitions with you on your issues in the future.

Supporting gay marriage seems to be the better pragmatic option if you're concerned about gov't overreach, growing the private sector, freeing up people to discuss and focus on more important political battles, and growing the number of people that are willing to work with you on those other battles.

Great points.

[johnwk]

How does an institution remain in power? It does so by dividing those they hold power over from ever coming together. How do they hold power? They grant special privilege to one group and not another. Voila. Division. They know that in the heart of most individuals there is a petty tyrant. Give some a bit of power and an enemy to fight against and they know that those without privilege will fight those that have privilege. In this way they will be safe in their halls while those they hold power over fight for the bones and dinner scraps from their dinner plate.

What does all that have to do with the subject of the thread?


JWK

[johnwk]

I guess the pragmatic question would be whether government sanctioned gay marriage would lead to what we want (which is no govt. involvement in marriage) or if it would just lead to more slavery and tyranny. I oppose "gay marriage" because I fear the latter is the case.

What does that have to do with the subject of the thread which is a despotic opinion written by Judge Reinhardt. If you are not interested in the subject, why post in the thread?


JWK

[johnwk]

Yup, this circuit court opinion is the ONE that's a threat to the Republic. Before letting the gays marry, there was never a court decision on this level or higher that ever expanded protections to positive rights/privileges. Everything just just fine before this decision, Constitutionally. Sure, there may have been some issues at the edges, but the core structure of the Republic has been secure all along.

/sarcasm

Seriously, if you think that this decision threatens the stability of "your Republic" - then I hope that it falls. Quickly.

So, you have no problem with our courts ignoring the Constitution and imposing their personal opinions as the rule of law?


JWK

[johnwk]

Great points.

Only for those who have little minds and are incapable of focusing on the subject of the thread.


I didn't not this forum was taken over by trolls.


JWK

[fr33]

You're worried about a "republic's" fate over 140 years after the 14th amendment. How cute.

You don't live in a republic.

[Ender]

So, you have no problem with our courts ignoring the Constitution and imposing their personal opinions as the rule of law?


JWK

You just noticed? ;)

[mczerone]

So, you have no problem with our courts ignoring the Constitution and imposing their personal opinions as the rule of law?


JWK

Did you comprehend my post?

Marbury v. Madison (211 years ago), McCulloch v. Maryland (195 years ago), Texas v. White (145 years ago), Missouri v. Holland (94 years ago), West Coast Hotel Co. v. Parrish (77 years ago, overturning Lochner), Wickard v. Filburn (72 years ago), and Kelo v. New London (9 years ago) are all examples of court over-reach from a libertarian perspective. And this list is not exhaustive; I'm sure I could find examples from EVERY term of the SCOTUS and most terms of the various Circuit courts.

And these examples are only the ones where the outcome was unreasonable. Taking into account the justification actually used in the opinions of otherwise tolerable opinions (like the one in this thread, IMO), NEARLY EVERY Court decision violates a libertarian view of the constitution.

I have a problem with the wording in this case, but not as much as some other decisions. For instance, in the recent Heller decision (6 years ago), Scalia said that, in that case, the right to have a firearm was okay, but rights can be attenuated generally. This just said that the 2nd amendment is open to the interpretation of the courts, and your "constitutional rights" are left to be bounded, regulated, and made into state-granted privileges by the personal opinions of the judges and legislatures.

I was just wondering why it took you so long to notice that the very nature of the state is to "impose their personal opinions as the rule of law."

[heavenlyboy34]

What republic? I live in a fascist State called teh USA.

[johnwk]

You just noticed? ;)

What does your insulting remark have to do with judge Reinhardt's written opinion?


JWK

[johnwk]

Did you comprehend my post?

Marbury v. Madison (211 years ago), McCulloch v. Maryland (195 years ago), Texas v. White (145 years ago), Missouri v. Holland (94 years ago), West Coast Hotel Co. v. Parrish (77 years ago, overturning Lochner), Wickard v. Filburn (72 years ago), and Kelo v. New London (9 years ago) are all examples of court over-reach from a libertarian perspective. And this list is not exhaustive; I'm sure I could find examples from EVERY term of the SCOTUS and most terms of the various Circuit courts.

And these examples are only the ones where the outcome was unreasonable. Taking into account the justification actually used in the opinions of otherwise tolerable opinions (like the one in this thread, IMO), NEARLY EVERY Court decision violates a libertarian view of the constitution.

I have a problem with the wording in this case, but not as much as some other decisions. For instance, in the recent Heller decision (6 years ago), Scalia said that, in that case, the right to have a firearm was okay, but rights can be attenuated generally. This just said that the 2nd amendment is open to the interpretation of the courts, and your "constitutional rights" are left to be bounded, regulated, and made into state-granted privileges by the personal opinions of the judges and legislatures.

I was just wondering why it took you so long to notice that the very nature of the state is to "impose their personal opinions as the rule of law."


What does your insulting remark and post have to do with Judge Reinhardt's written opinion?


JWK




At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results and as Benjamin Franklin emerged from the long task now finished asked him directly, `Well, Doctor, what have we got? A republic or a monarchy?' `A republic, if you can keep it,' responded Franklin.

[mczerone]

What does your insulting remark and post have to do with Judge Reinhardt's written opinion?


JWK




At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results and as Benjamin Franklin emerged from the long task now finished asked him directly, `Well, Doctor, what have we got? A republic or a monarchy?' `A republic, if you can keep it,' responded Franklin.


I didn't insult you, but if this trolling continues, I might not be able to restrain myself.

Notice that I cited actual Constitutional case law, and your opinions are based on (1) a non-binding lecture by one of the worst justices from a libertarian perspective, and (2) an apocryphal quote from someone who was never a judge or any other type of representative of the Constitution.

Further, I agreed that this was a bad decision.

So my questions to you are: (1) How were ANY of the other opinions I cited not based on personal notions of fairness rather than strict obedience to the text of the Constitution? (2) What's the value in preserving a "republic" that has turned out the way that this one has? And (3) are you sure your protestations aren't just because the decision was about homosexual people?

[Sonny Tufts]

I'm not sure how Marbury is necessarily anti-libertarian or anti-textual. After all, the Constitution explicitly bestows the "judicial power" upon the federal courts, and it's not beyond reason to argue that this authority includes the power of judicial review.

Several of the cases you cited involved legislative overreach (Parrish, Wickard, Kelo), which the Court upheld. But without the power of judicial review the overreaching legislation would have stood anyway. Are you suggesting the Court should have overturned the statutes in these cases?

[Lucille]

I was thinking Judge Reinhold when I read the title of the OP.

http://1.bp.blogspot.com/_Ue8tda5cPZg/SVpHeteepLI/AAAAAAAAAFo/VNLFOAD8F3E/s320/Judge_Reinhold_from_Fast_Times.jpg


https://www.youtube.com/watch?v=CaK_FgrIlYY

[Acala]

I'm not sure how Marbury is necessarily anti-libertarian or anti-textual. After all, the Constitution explicitly bestows the "judicial power" upon the federal courts, and it's not beyond reason to argue that this authority includes the power of judicial review.

Several of the cases you cited involved legislative overreach (Parrish, Wickard, Kelo), which the Court upheld. But without the power of judicial review the overreaching legislation would have stood anyway. Are you suggesting the Court should have overturned the statutes in these cases?
I would suggest that it is WAY beyond reason to assume the SCOTUS was meant to have the final word on what the Constitution means. It doesn't make sense that the framers of the Constitution, who were trying very hard to restrain the power of the Federal government would grant to that government the power to decide beyond appeal the limits of its own power. Both Jefferson and Madison opposed that doctrine.

[Acala]

So, you have no problem with our courts ignoring the Constitution and imposing their personal opinions as the rule of law?


JWK

The courts drained almost any substantive content from the US Constitution before I was even born, and that was a long time ago.

[Lucille]

http://andreguantanamo.files.wordpress.com/2013/03/9cybi2.jpg

[Sonny Tufts]

I would suggest that it is WAY beyond reason to assume the SCOTUS was meant to have the final word on what the Constitution means.

But it doesn't. Its decisions on constitutional law can always be overridden by constitutional amendments, so in that sense the people (acting through state legislatures) have the last word. From a more paractical standpoint, the Court has to be careful to not go off the deep end in its decisions because it has no power to enforce its rulings and must rely on the executive branch to do so.

[johnwk]

It is so sad to see that most of those who have entered the thread have ignored the topic of the thread which questions the legitimacy of Judge Reinhardt’s written opinion alleging homosexual marriage is protected under the 14th amendment. In fact, most of those posting fail to realize, or could care less, that Judge Reinhardt never demonstrated from the debates of the 39th Congress which framed the 14th Amendment that it forbids a State to make distinctions based upon sex when issuing a marriage license. Instead, Judge Reinhardt decided to use his office of public trust to pretend the 14th Amendment means what he thinks it should mean rather than enforcing what the amendment means as it was understood by those who framed and ratified the 14th Amendment. And this notion, that a judge or Justice in deciding a constitutional question may ignore the very intentions as expressed and understood by the people when adopting a particular provision of our Constitution, and assert the provision means what that judge or Justice thinks the provisions should mean, is a very, very dangerous path for the American people to accept and tolerate. To do so not only violates the fundamental rules of constitutional construction, but encourages judges and Justices to totally exceed their authority, ignore the people’s reasoning for adopting each provision of our Constitution, and supplant their own ideas of what the Constitution should mean as court ordered law!

Are we to forget this very notion, that judges and Justices are clothed with authority to declare the Constitution means what they believe it should mean was recently used by our Supreme Court to allow the force of government to be used to take the property of one individual and transfer it to another in a profit making business venture? Of course, I am referring to the Kelo decision when Justice Stevens brazenly and with impunity tells us he will ignore the meaning of “public use” as it was understood when our Constitution was adopted, and he will impose what he believes the words “public use” should mean ___ justifying his court ordered tyranny because of the “evolving needs of society”!

Justice Stevens in delivering the opinion of the Court writes:


“… while many state courts in the mid-19th century endorsed "use by the public" as the proper definition of public use, that narrow view steadily eroded over time. Not only was the "use by the public" test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?),7 but it proved to be impractical given the diverse and always evolving needs of society.8 Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as "public purpose.”

The irrefutable fact is, the people did not erode the meaning of “public use” via an appropriate constitutional amendment process which is the only lawful way to change the meaning of words in our Constitution. The Court took it upon itself to do for the people what they did not willingly and knowingly do for themselves with a constitutional amendment as required by our Constitution. The Court, acting beyond its lawful duty shamelessly appealed to the “evolving needs of society” to justify its own “broader and more natural interpretation” of “public use”, and to allow personal property being taken from one individual and transferred to another for a profit making business venture.

On the other hand, Justice Thomas, in his dissenting opinion, observes the time honored rules of constitutional construction and carefully documents the meaning of the words “public use” as they were understood during the time the Constitution was adopted. After providing sufficient documentation concerning the meaning of “public use” as understood during our Constitution making, Justice Thomas then concludes:

”
The Court relies almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result. See ante, at 8-12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning. For the reasons I have given, and for the reasons given in Justice O'Connor's dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners' favor. I would reverse the judgment of the Connecticut Supreme Court.”

And what is the fundamental rule of constitutional construction regarding the meaning of words and phrases in our Constitution?

“Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption… (my emphasis), see: 16 Am Jur 2d Constitutional law, Meaning of Language

Unfortunately while shallow thinking people engage in endless and irrelevant postings instead of the legitimacy of the 9th Circuit Court’s opinion, the very fabric and meaning of our Constitution is being cleverly shredded by Judge Reinhardt who has decided to ignore the meaning of the 14th Amendment as it was understood by those who framed and ratified it, and he has supplanted as court ordered law what he believes the 14th Amendment should mean, just as Justice Stevens did when authorizing the theft of personal property by government. How sad it is to see that so many are oblivious or apathetic to our Constitution being subverted by those entrusted to preserve and protect it.


JWK

"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968

[Ender]

It is so sad to see that most of those who have entered the thread have ignored the topic of the thread which questions the legitimacy of Judge Reinhardt’s written opinion alleging homosexual marriage is protected under the 14th amendment.


What is even sadder is those who fail to understand that the gov does not belong in marriage at all.

THAT is what we should be focusing on.

[Sonny Tufts]

You're wrong if you believe Judge Reinhardt simply invented his equal protection analysis out of thin air instead of basing it on over a century of Supreme Court precedent applying the EP Clause to matters other than discrimination against African-Americans and in particular on the Court's decision in Windsor. You apparently want a lower court judge to ignore all this SCOTUS precedent and use an originalist approach that hasn't been adopted by a majority of the Court and that wasn't even argued by any of the parties in the case.

No doubt you also consider McLaughlin v. Florida and Loving v. Virginia (which invalidated anti-miscegenation laws) to be illegitimate, since at the time of the adoption of the 14th Amendment such laws were prevalent and were even declared constitutional by the Court in 1883.

[Acala]

But it doesn't. Its decisions on constitutional law can always be overridden by constitutional amendments, so in that sense the people (acting through state legislatures) have the last word. From a more paractical standpoint, the Court has to be careful to not go off the deep end in its decisions because it has no power to enforce its rulings and must rely on the executive branch to do so.

I would say that every government employee has a duty to refrain from exceeding Constitutional authority no matter what SCOTUS says. Furthermore, every state has a duty to protect its citizens from Federal over-reaching through nullification and ultimately secession.

[Sonny Tufts]

I would say that every government employee has a duty to refrain from exceeding Constitutional authority no matter what SCOTUS says. Furthermore, every state has a duty to protect its citizens from Federal over-reaching through nullification and ultimately secession.

I don't think that worked out very well for Governor Faubus in 1957 or Governor Wallace in 1963.

[johnwk]

You're wrong if you believe Judge Reinhardt simply invented his equal protection analysis out of thin air instead of basing it on over a century of Supreme Court precedent applying the EP Clause to matters other than discrimination against African-Americans and in particular on the Court's decision in Windsor. You apparently want a lower court judge to ignore all this SCOTUS precedent and use an originalist approach that hasn't been adopted by a majority of the Court and that wasn't even argued by any of the parties in the case.

No doubt you also consider McLaughlin v. Florida and Loving v. Virginia (which invalidated anti-miscegenation laws) to be illegitimate, since at the time of the adoption of the 14th Amendment such laws were prevalent and were even declared constitutional by the Court in 1883.

I never suggested Reinhardt’s opinion came out of thin air. Let me assure you our Courts have been very active in ignoring the meaning of our Constitution’s legislative intent for many, many years and imposing its personal views of fairness, reasonableness, or justice as court ordered law. The purpose of me starting this thread is to document another instance of this type of judicial tyranny!

And with respect to the Loving decision, why would I believe it to be an illegitimate decision when the 14th Amendment was specifically adopted to forbid state laws which made distinctions based upon race.

Finally, and with regard to your comment about “an originalist approach”, the unavoidable truth is, when questions arise concerning the text of the Constitution, those question are to be resolved by the time honored rule of establishing the documented intentions under which the words in question were adopted. In the case of the 14th Amendment, a review of the 39th Congressional debates establishes the intentions of the lawmaker, which the court is then bound to observe as opposed to supplanting its own views on what the Amendment should mean. But don’t take my word for this, let us recall what our very own Supreme Court stated with reference to enforcing the intentions of the lawmaker:

In Hawaii v. Mankichi, 190 U.S. 197 (1903), our Supreme Court notes the cardinal rule to enforce the intention of the lawmaking power!

But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :

"A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law."

And the noteworthy Chancellor James Kent, in his Commentaries on American Law (1858) expresses the rule as follows:

"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void.

In fact, The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)

I could provide countless other quotes to establish the fact that enforcing the documented intentions and beliefs under which our Constitution was adopted is one of the courts primary functions. Even our very own Congress is aware of this rule and emphasized it as follows:

"In construing the Constitution we are compelled to give it such interpretation as will secure the result intended to be accomplished by those who framed it and the people who adopted it...A construction which would give the phrase...a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional as a departure from the plain and express language of the Constitution."_____ Senate Report No. 21, 42nd Cong. 2d Session 2 (1872), reprinted in Alfred Avins, The Reconstruction Amendments’ Debates 571 (1967)

Now, aside from the fact that honoring the intentions and beliefs under which our Constitution adopted ___ or any of its particular provisions ___ the important question to be answered here is, was the 14th Amendment intended to be a rule barring every imaginable type of discrimination? And the answer to this question is immediately answered by reviewing the 15th Amendment.

Is it not a fact that the 15th Amendment was adopted to prohibit a specific type of discrimination __discrimination at the voting booth ---forbidding discrimination at the voting booth to be based upon “race, color, or previous condition of servitude“, while sex was not included in the protection? How can the 14th Amendment be said to forbid a state to pass laws which discriminate if the 15th amendment had to be passed?

The argument that the 14th Amendment prohibits state discrimination based upon sex or “sexual orientation” as alleged by Judge Reinhardt is proven to be without foundation when reading the 19th Amendment which specifically forbids a new kind of discrimination. In this Amendment, the People of America as authorized under Article V of our Constitution decide to forbid sex discrimination, the discrimination mentioned by Judge Reinhardt, but only extend the prohibition with respect to the right to vote being “denied or abridged” on account of “sex”!

Finally, If Judge Reinhardt is correct in asserting the people of American have forbidden state legislation which makes distinctions based upon sex or sexual orientation when issuing a state marriage license, why was there an “Equal Rights Amendment” (ERA) proposed in 1972, specifically stating, Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.?

The truth is, the American People, as provided in Article V of our Constitution, intentionally rejected the Amendment, and, one of the reasons it was rejected was it would, if adopted, force the States to embrace homosexual marriage. I remember those arguments being made and ERA supporters saying it could not be used to force homosexual marriage upon the States,

And so, instead of Judge Reinhardt abiding by his oath to support and defend “this Constitution” he took it upon himself to falsely assert a state law making a distinction based upon sex when issuing a marriage license was a “violation of the Equal Protection Clause” of the 14th Amendment. But that conclusion is nothing more than what Judge Reinhardt believes the 14th Amendment should mean, and is not what the 14th Amendment actually states or was intended to accomplish.

If you have any evidence from the 39th Congressional debates supporting Reinhardt’s assertions, feel free to post that information here. But the truth is, Judge Reinhardt supplanted his personal views of fairness, reasonableness, or justice when declaring ”… defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.”

JWK




"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968

[johnwk]

I would say that every government employee has a duty to refrain from exceeding Constitutional authority no matter what SCOTUS says. Furthermore, every state has a duty to protect its citizens from Federal over-reaching through nullification and ultimately secession.

Your thinking is very much in line with a people determined to remain free!



”Submit to despotism for an hour and you concede the principle. John Adams said, in 1775, “Nip the shoots of arbitrary power in the bud.” It is the only thing a people determined to be free can do. Republics have often failed, and have been succeeded by the most revolting despotisms; and always it was the voice of timidity, cowardice, or false leaders counseling submission, that led to the final downfall of freedom. It was the cowardice and treachery of the Senate of Rome that allowed the usurper to gain power, inch by inch, to overthrow the Republic. The history of the downfall of Republics is the same in all ages. The first inch that is yielded to despotism - the first blow, dealt at the Constitution, that is not resisted - is the beginning of the end of the nations ruin.” __ THE OLD GUARD, A MONTHLY JOURNAL DEVOTED TO THE PRINCIPLES OF 1776 AND 1787.


JWK




If the America People do not rise up and defend their existing Constitution and the intentions and beliefs under which it was adopted, who is left to do so but the very people the Constitution was designed to control and regulate?