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View Diary: The Supreme Court won't uphold Prop 8, but ... (207 comments)

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  •  Well, Olson avoided a trap (20+ / 0-)

    If Olson had actually answered and given a date, be it 1791 (constitution itself), 1868 (14th amendment, due process & equal protection clause), or some other date corresponding to a relevant SC decision, then two things would have happened:

    (1) in giving a date, Olson would have narrowed his argument in a big way, and made it about a particular clause/amendment/decision, and

    (2) Scalia would have had a ready answer as to why that particular clause/etc. was not relevant, and therefore Olson's argument that it's unconstitutional is false.

    As Olson noted, in its opinions, the SC does not state when a particular thing became unconstitutional, only that it is and why it is.

    Liberalism is trust of the people tempered by prudence. Conservatism is distrust of the people tempered by fear. ~William E. Gladstone, 1866

    by absdoggy on Tue Mar 26, 2013 at 12:45:24 PM PDT

    [ Parent ]

    •  Exactly (9+ / 0-)

      It becomes unconstitutional when the S.Ct. rules it to be unconstitutional.  At that point, it is unconstitutional, by definition.

      Not that a buffoon like Scalia cares.

      •  Maybe the correct answer would be that it becomes (4+ / 0-)

        unconstitutional at least as early as the S.Ct. would recognize it as being unconstitutional in a case presented before them and because it is not possible to know exactly when the earliest moment the Court would have ruled it unconstitutional, neither is it possible to tell when it became unconstitutional. When the S.Ct. rules it unconstitutional in June, we will be able to say that it has been unconstitutional since at least as early as June 2013.

        Seek not that the things which happen should happen as you wish; but wish the things which happen to be as they are, and you will have a tranquil flow of life.

        by Montreal Progressive on Tue Mar 26, 2013 at 01:13:07 PM PDT

        [ Parent ]

      •  I'm going to partially disagree here (6+ / 0-)

        In effect, yes, this is the case.

        But, there must be some basis in the constitution, the amendments thereto, the body of relevant SC decisions, etc. that provides the SC the basis to declare it so.

        But I believe where Olson was coming from is that these things must be considered in their totality.

        "All men are created equal . . life, liberty, the pursuit of happiness"

        The 5th amendment, the 14th amendment, relevant cases deciding that LGBT is a class of persons, etc.

        All of these things taken together, IMHO, leads to the conclusion that Prop 8 and DOMA are unconstitutional.

        But, it would be a perilous argument to stake that any one of these things, in and of itself, makes it so. Therefore, Olson refrained from giving a date and doing so.

        Liberalism is trust of the people tempered by prudence. Conservatism is distrust of the people tempered by fear. ~William E. Gladstone, 1866

        by absdoggy on Tue Mar 26, 2013 at 01:17:52 PM PDT

        [ Parent ]

      •  That puts a whole lot of power in the hands (3+ / 0-)
        Recommended by:
        Clem Yeobright, VClib, koNko

        of five justices.  That would mean that they can find (as five justices once did) that the Constitution gives adults the right to contract on any basis they wanted, so labor laws restricting their rights to contract were unconstitutional.

        •  They do have a whole lot of power (2+ / 0-)
          Recommended by:
          JesseCW, MPociask

          They rule on the constitutionality of laws that are not clearly defined as constitutional or not constitutional, and thus require a ruling.

          Of course there must be a basis for the decision, but that basis may not be spelled out perfectly, as a buffoon like Scalia seems to think it should be.  If that were the case, why have justices at all?  Rulings should take all of five minutes and could be done by a junior clerk.

          •  There have to be some standards a Justice applies (2+ / 0-)
            Recommended by:
            Clem Yeobright, VClib

            when he/she analyzes a constitutional issue.  

            That's the ultimate constitutional debate -- what standards should the justices apply when interpreting the Constitution -- (1) the meaning attributed to it by the people who voted to put it in place (with the notion that if you want to change it, you should amend it) or (2) the meaning we would attribute to it, based on the times we live in, even if nobody ever voted for that meaning to be in the Constitution?

            Justices are always going to have to apply the Constitution to new facts and new situations.  The question is, what did the people put in the Constitution, and does that change over time from what the people intended to put in the Constitution?

            The first approach, when applied correctly, would put less power in the hands of the Justices than would the second.  

            •  Er... (1+ / 0-)
              Recommended by:
              JesseCW
              The first approach, when applied correctly, would put less power in the hands of the Justices than would the second.
              Isn't that a bit like declaring that Communism, when applied correctly, inevitably creates a worker's paradise?
            •  The first approach has the same amount of power (0+ / 0-)

              Arguably, the first approach gives even MORE power to Supreme Court justices, if we treat them as wise sages who can reach back in time and read the minds of the people who... did what?  The drafters of the Constitution?  The people at the Constitutional Convention?  The voters of the the states that initially ratified the Constitution (but not the men who voted again, nor the mass of people who didn't vote on it at all?)

              The Constitution clearly belongs to "We, the People."  We, the People have the power to decide what it means - not amateur-hour historians like Scalia who project their own right wing fantasies onto what the founding fathers would have thought about any particular issue.

      •  BUT BUT BUT (0+ / 0-)

        At Free Republic they keep telling me that Obamacare really is unconstitutional. You can't mean that the Tea Party Express is lying to me, can you?

    •  Indeed, if Olson had given a date, then he would (8+ / 0-)

      be saying that originalism is the correct method of constitutional interpretation, which is it is not, even though Scalia thinks it is.

      Seek not that the things which happen should happen as you wish; but wish the things which happen to be as they are, and you will have a tranquil flow of life.

      by Montreal Progressive on Tue Mar 26, 2013 at 01:03:52 PM PDT

      [ Parent ]

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