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Final Arbiter of Constitutionality: Supreme Court or the People?
With the issue of same-sex marriage all but over as more and more states are recognizing it legally, many people have questioned whether it is right that the will of the people (in some states, not all) is being overruled by our judicial system. Others say that it is the role of the courts in this situation to protect a minority from the majority, especially on constitutional issues.
So who do you believe should be the final arbiter of Constitionality in this Constitutional Republic of ours: The Supreme Court of the United States (Judicial Branch), or the people at large, via a pure-democratic method (such as a referendum)?
It is for the people, through representation, to determine the content the Constitution. It is for the Supreme Court to interpret how that content applies to society. SCOTUS can set precedent, people can hold Constitutional conventions. This relationship doesn't have any finality.
The 10th amendment clearly states that powers not granted to the federal government by the constitution NOR prohibited by it to the states, are reserved to the states. Gay marriage clearly falls under this 10th amendment constitutional right. The states have the right to decide if gay marriage is good for their state.
Now, gay marriage proponents argue that they have a 14th amendment right under the equal protection clause. Lets take a closer look at the 14th amendment, shall we.
The 14th amendment was proposed and ratified for one narrow reason. To deal with the freed slaves and the reintegration of the southern states. The 14th amendment dealt with the 1866 Civil Rights Act. The drafters of the 14th amendment focused on only 1 of 3 rights.
The 3 are social, political, and civil. The 14th focused on your CIVIL rights, not your social and political rights. To further strengthen my point, the framers specifically left out the right to vote under the 14th amendment. That was later dealt with under the 15th amendment. (political)
The 14th amendment was framed and passed to deal with only a person's CIVIL rights. The framers never intended to use the 14th amendment for your political or social rights. Gay marriage is CLEARLY a SOCIAL right. Therefore, gay marriage does not fall under the 14th amendment. It is reserved for the 10th amendment.
Finally, and let me be very clear here. The framers of the constitution never intended for the 14th amendment to overrule the 10th amendment. They were very specific when drafting the 14th amendment. Gay marriage is NOT a constitutional right under the 14th amendment. Each state has the right to decide if they want gay marriage, as the constitution has given to the states that right.
"The 14th amendment was proposed and ratified for one narrow reason. To deal with the freed slaves and the reintegration of the southern states. The 14th amendment dealt with the 1866 Civil Rights Act. The drafters of the 14th amendment focused on only 1 of 3 rights." Original intent is pretty flimsy, as essentially every amendment has been applied in more ways than intended. Heck, the Constitution wasn't intended to apply to women or slaves, and the right to vote wasn't intended for those without land. Additionally, marriage was ruled to be a civil right by the Supreme Court under Loving v. Virginia, which is why the 14th amendment would apply to it (Due Process and Equal Protections).
Regardless, this thread was not meant to be a same-sex marriage argument or a "living doccument" vs "original intent" argument, it was meant to be an argument on the final arbiter of the Constitution. So aside from a specific issue, do you think that a pure-democratic vote should be the final say on issues of constitutionality, or the Supreme Court? Aside from Congress and the States passing an amendment, of course.
I will answer your question in a moment. You did bring up gay marriage in your original post. If the supreme court rightly rejects gay marriage as a constitutional right, only 14 states and the DC will have legal gay marriage. So it is far from becoming the norm.
I believe the people have the final right in all circumstances where the rights are not clearly defined in the constitution. The supreme court should only decide cases where lower courts have split in their rulings or where a constitutional breach has occurred. An example is the 2nd amendment.
I brought it up as an issue to help explain the topic.
Additionally, your argument is a non sequitor: There is no "gay marriage", only marriage (a recognized civil right as per Loving v. Virginia) being recognized for same-sex couples.
Now if the lower courts have split rulings, it goes to the SCOTUS and they roll against the wishes of the people (see Loving v. Virginia), do you still support the ruling?
The people refer to the whole of a society. In this case, the people of a particular state. The supreme court must rule on gay marriage since the lower courts split. The people who voted for a ban on gay marriage should have it upheld. States where people voted for a state constitutional amendment, their rights should not be infringed by courts ruling just because the judge doesn't like it. That is judicial activism.
Marriage is between a man and a woman. It is not a civil right. It is a social right. Just because one judge misinterprets the constitution doesn't make it legal.
First off, it isn't "just because the judge doesn't like it". I recognize you do not like the ruling, but don't lie.
Second, so you are saying that ultimately, the Constitution should be enforced based on public support?
Third, marriage is clearly not just between a man and a woman, as in many places that definition is more than that.
Fourth, I have already cited the precedent that made marriage a recognized civil right in the U.S., so simply declaring over and over that it isn't one doesn't contribute much. It really isn't a legal or constitutional argument.
First off, judges do make rulings based on faulty law and unfounded constitutional beliefs. Why do you think so many decisions are over turned on appeal? If a state wants to vote for gay marriage, then good for them. The constitution does not deny a state the right to have gay marriages. But the constitution does not state anywhere that gay marriage is a constitutional right. If the framers of the constitution wanted gay marriage, they would have addressed it back then. Simple solution, pass a constitutional amendment if you think their is support for it. I will go along with it.
The constitution should be based on a strict, literal interpretation. That is why they allow amendments. Public support has nothing to do with it.
Supreme court decisions can also be wrong, based on faulty law, or unfounded constitutional beliefs. Do you accept every supreme court ruling as correct and accurate. If so, then you must agree that married women at one time should not have been allowed to practice law. 1873 bradwell vs Illinois. If not, then my belief that basing the Loving vs Virginia on civil rights was wrong. We have a different opinion on how strict to interpret the constitution. You seem to think that almost everything falls somewhere inside the constitution. I don't.
If I can find a judge who agrees that my civil rights have been violated because I can't have sex with a 13 year old girl, would you go along with it if he says it is mine and hers constitutional right under the 14th amendment? Would you tell everyone an adult has the right to have consensual sex with a 13 year old?
"First off, judges do make rulings based on faulty law and unfounded constitutional beliefs. Why do you think so many decisions are over turned on appeal? If a state wants to vote for gay marriage, then good for them. The constitution does not deny a state the right to have gay marriages. But the constitution does not state anywhere that gay marriage is a constitutional right. If the framers of the constitution wanted gay marriage, they would have addressed it back then. Simple solution, pass a constitutional amendment if you think their is support for it. I will go along with it." A lack of sufficient cited precedent or an insufficient legal reasoning is not the same as "because they feel like it", and, again, saying that "gay marriage" (no such thing) is not a constitutional right is a non sequitor, because, AGAIN, Lawrence v. Virginia recognized MARRIAGE (since this is simply a matter of a marriage between two people) as a civil right, and thus protected by the Constitution.
"We have a different opinion on how strict to interpret the constitution. You seem to think that almost everything falls somewhere inside the constitution. I don't." No, I definitely do not, I simply think that if something has been recognized as a civil right, that means it is legally protected by the Constitution, at least until a new precedent changes its status as a civil right.
"If I can find a judge who agrees that my civil rights have been violated because I can't have sex with a 13 year old girl, would you go along with it if he says it is mine and hers constitutional right under the 14th amendment? Would you tell everyone an adult has the right to have consensual sex with a 13 year old?"
One of the weakest arguments. A child can not consent, and thus there is no possible "right" to it. You could try to argue that 13 year olds have a right to consent if they wish, but that is an ENTIRELY different argument.
Your final argument about a 13 year old is not correct. 12 states ALLOW a 13 year old to have an abortion without parental consent or notification. So there goes your argument right down the drain. 13 year olds DO have the right to consent.
Now, if you think a 13 year old can have a surgery without her parents consent but can't spread her legs for whoever she pleases then you are a hypocrite. I contend that neither should be allowed. But to say she can't consent to sex is just ludicrous in those 12 states.
It doesn't matter what the law says, it is her constitutional right to have sex with whoever she pleases. If this would ever make it to the supreme court, they would have to rule in favor of the girl. Her rights under the 14th amendment have clearly been violated.
Now if you believe that the 12 states are in the wrong, then I agree with you. But as it stands now, 12 states believe 13 year olds have consensual rights.
"Your final argument about a 13 year old is not correct. 12 states ALLOW a 13 year old to have an abortion without parental consent or notification. So there goes your argument right down the drain. 13 year olds DO have the right to consent."
The right to consent refers to sex and contracts. Abortion is neither, so I fail to see how you think that nullifies my argument in any way.
"Now, if you think a 13 year old can have a surgery without her parents consent but can't spread her legs for whoever she pleases then you are a hypocrite. I contend that neither should be allowed. But to say she can't consent to sex is just ludicrous in those 12 states." First off, that wouldn't be hypocrisy, it would just be a strange double standard. Second, abortion is not "surgery", but a medical procedure. Third, she can not legally consent to sex in those states. Fourth, I am against children of that age being able to have pretty much ANY medical procedure done without parental consent, including abortion.
"It doesn't matter what the law says, it is her constitutional right to have sex with whoever she pleases. If this would ever make it to the supreme court, they would have to rule in favor of the girl. Her rights under the 14th amendment have clearly been violated." Can you provide any legal basis for that? I have yet to see any precedent that supports that claim, and seeing as how the consent of underage individuals has been taken to court many times, it calls into question the legitimacy of your claims that the outcome would be predetermined.
"Now if you believe that the 12 states are in the wrong, then I agree with you. But as it stands now, 12 states believe 13 year olds have consensual rights." I do believe they are wrong, but those states do not have "consensual rights" for 13 year olds when it comes to sex or contracts, just abortion (which, again, seems very weird and wrong to me).
Here is what I am getting at. Minors DO have the same rights under the constitution as adults do. Thanks to Roe vs Wade, everyone has a right to privacy. The constitution never has mentioned it, but the supreme court now has given EVERYONE the right to privacy.
If abortion is a right to privacy, so is sex. You know the old saying, "stay out of my bedroom." Well, sex is the same thing. Sex is a private matter.
While minors have some restrictions to the constitution (voting age, drinking age, etc) this is based on maturity. If a 13 year old girl has sex with a 13 year old boy, she NOW has the maturity to have sex . Therefore, age is now irrelevant. We are not talking marriage here, just sex.
Her constitutional rights have been violated under the right to privacy. Precedent has been set. 13 year olds can have sex and they do have privacy rights.
If a 13 year old girl took this to court she SHOULD win hands down under the constitution. Now, would she. No, because society is not ready for it. No supreme court would rule in her favor, although it should.
Lastly, you do know I am totally against minors having these types of rights. Minors should not be able to have abortions without their parents consent.
"Here is what I am getting at. Minors DO have the same rights under the constitution as adults do." No, they don't. Courts have ruled time and time and time again that minors have limited Constitutional and Civil rights. Marriage, the signing of contracts, voting, self determination, etc.
"If abortion is a right to privacy, so is sex. You know the old saying, "stay out of my bedroom." Well, sex is the same thing. Sex is a private matter." I agree it is a private matter, but it still requires one person to consent to another, and the courts have ruled the children do not have the ability to legally consent to sex.
"While minors have some restrictions to the constitution (voting age, drinking age, etc) this is based on maturity. If a 13 year old girl has sex with a 13 year old boy, she NOW has the maturity to have sex . Therefore, age is now irrelevant. We are not talking marriage here, just sex." She may have, in your mind, the "maturity" to do so, but she does not have the legal right to do so.
"Her constitutional rights have been violated under the right to privacy. Precedent has been set. 13 year olds can have sex and they do have privacy rights." No precedent has been set that indicates what you are saying. You are trying to employ the "right to privacy" in a way that no court has agreed to. I am not saying it is impossible for that to maybe happen, but as of right now what you are saying does not have legal backing.
"If a 13 year old girl took this to court she SHOULD win hands down under the constitution. Now, would she. No, because society is not ready for it. No supreme court would rule in her favor, although it should." You may think it should, but I, and I would admit most judges, disagree, for the reasons I have stated.
"Lastly, you do know I am totally against minors having these types of rights. Minors should not be able to have abortions without their parents consent." I know you do not support it, and I agree with you regarding minors having abortions (or any medical procedure) without parental consent.
The original framers of our Constitution and its "Bill of Rights" took great care to be as clear as possible by rewriting as often as needed to capture their intent accurately. It follows that a direct interpretation is most likely to contain their intent. The SCOTUS should be interpreting with only this in mind.
When a question of rights is at issue, it is reasonable to conclude that the framers intended what they wrote to be directly interpreted.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The SCOTUS was intended to rule only where the Constitution applied. This then established the limits on the power of the SCOTUS.
The people were left to be the final deciders of all States rights.
You and Zico both made the mistake of posting arguments on a different issue entirely. This argument was not about differing schools of thought on Constitutional law or the merits of strict original intent (a problem I have addressed with Zico already).
do you think that a pure-democratic vote should be the final say on issues of constitutionality, or the Supreme Court? Aside from Congress and the States passing an amendment, of course.