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View Diary: Stephanie Herseth and the Hate Amendment (423 comments)

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  •  That got me, too (none)
    That struck me as odd, because the FMA expressly prevents states from doing anything for same-sex couples, domestic partnerships, civil unions, the whole ball o' wax.

    Thing is, the whole thing is such a distraction. Do the courts get to weigh in on constitutional amendments? Because this strikes me as a federal overreach.

    Kerry:Dean::Pat Boone:Little Richard

    by hamletta on Thu Feb 26, 2004 at 01:37:10 AM PST

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    •  it may strike you... (none)
      I guess one person's federal overreach is another person's cure for judicial overreach...  oh the irony.

      Dean Democrat for life. stand with us.

      by alli at notre dame on Thu Feb 26, 2004 at 01:40:56 AM PST

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      •  Constitutional Amendment- Unconstitutional? (2.50)
        Actually, I think that it's possible.  The "Hate Amendment" would actually (I believe) conflict with the fair faith and credit clause of the Constitution.  (Though they won't let this stop them, I know).

         I don't know what would happen if somebody tried to pass an amendment that was clearly in violation of existing statues.  For example, what would happen if someone tried to pass an amendment that barred women from owning property. Hypothetically- what if it passed?  Wouldn't it have to be struck down by the Supreme Court?

        Kerry for President 2004; Clark for President 2008; Bush for Human Being... ?

        by ABB on Thu Feb 26, 2004 at 02:15:56 AM PST

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        •  aoeu (none)
          The newest amendment would count.

          What can't we face if we're together? What's in this place that we can't weather? Apocalypse? We've all been there. The same old trips. Why should we care?

          by TealVeal on Thu Feb 26, 2004 at 02:20:55 AM PST

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        •  Not sure (none)
          If the ERA had passed, we could claim unconstitutionality of this amendment based on that one - that is of course, if you believe that discrimination against homosexuals is sex discrimination (which I do).  There's a lot of rationale for that, such as the fact that gender and sex are not as biologically simple as Republicans would like to believe.  MAJeff will be the first to tell you that there are more than two genders/sexes and this is SO important as to make the question of sexual orientation irrelevant, because there is no longer just "hetero" and "homo."  

          I think this summer I'm going to write a major research paper on this issue.  Until then, my work for actual classes is trump :-)

          But your question is a good one.  Does the Supreme Court have the power to strike down a federal amendment?  I almost don't think they can, because they have to rule based on constitutional law and legal precedent, and neither of those would be in their favor.  Plus, cases are brought before the court based on violations of the constitution - not that the constitution was violated.  I'm not sure if there's a situation where SCOTUS could strike the Hate Amendment down.

          Dean Democrat for life. stand with us.

          by alli at notre dame on Thu Feb 26, 2004 at 02:24:37 AM PST

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        •  Newer replaces older (none)
          It's that simple.

          You may notice the 12th Amendment changes the part of the Constitution about Presidential elections. Under the original Constitution, Al Gore would be the Vice President.

          •  Not so simple (none)
            No, it's not that simple. The 21st amendment gives states the right to regulate liquor, but courts have used the Interstate Commerce Clause to strike down state laws which restrict liquor sales (typically those of wine being sold inter-state).
        •  Nope (none)
          If it were a constitutional amendment there would be no way for the SCOTUS to dump it.  All they could do would be to interpret as much as possible in the light of the other articles.  But if it explicitly prohibited any form of gay marriage or civil union, it would be game over.  
          •  At least theoretically (none)
            the Supreme Court has the power to negate a Constitutional Amendment if it fundamentally offends the entire purpose and spirit of the document.  For example, you can't amend the constitution to create a monarchy or to nullify the entire Constitution. This hasn't been tested though. Something tells me that this Supreme Court wouldn't take that step.

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