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The Power of the SCOTUS Part VI - Roberts rules disorder

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ScoobyDoo said:
This is an interesting read. I realize it's left slanted but it does appear to state what is going on in Alambama.

http://www.msnbc.com/rachel-maddow-show/roy-moore-ignore-federal-courts-marriage

Short synopsis? The Chief Justice of Alabama believes that if the Federal Government rules that same sex marriage is the law of the land they don't have to follow it. They can just ignore whatever Federal Laws they want to ignore.

Interesting take.

I wonder how the country would function if that really were the case?
Click to expand...
Hmmm, I've heard this before...
 
Re: The Power of the SCOTUS Part VI - Roberts rules disorder

ScoobyDoo said:
This is an interesting read. I realize it's left slanted but it does appear to state what is going on in Alambama.

http://www.msnbc.com/rachel-maddow-show/roy-moore-ignore-federal-courts-marriage

Short synopsis? The Chief Justice of Alabama believes that if the Federal Government rules that same sex marriage is the law of the land they don't have to follow it. They can just ignore whatever Federal Laws they want to ignore.

Interesting take.

I wonder how the country would function if that really were the case?
Click to expand...

"John Marshall has made his decision; now let him enforce it!"

-Andrew Jackson, on the Worcester v. The State of Georgia decision (attributed, but probably apocryphal)
 
Re: The Power of the SCOTUS Part VI - Roberts rules disorder

FlagDUDE08 said:
What's being argued is that same sex marriage does not fall under anything in the Constitution, including the 14th Amendment, and therefore, the 10th Amendment takes precedence.
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If it can be given even that much credit, it is an "argument" that has no precedent and even less logic. It's like those guys who say the United States is illegal. The law just doesn't fit this guy's narrow Christian view of the world. I'll bet he has a strong record enforcing the establishment clause.
 
Re: The Power of the SCOTUS Part VI - Roberts rules disorder

burd said:
If it can be given even that much credit, it is an "argument" that has no precedent and even less logic. It's like those guys who say the United States is illegal. The law just doesn't fit this guy's narrow Christian view of the world. I'll bet he has a strong record enforcing the establishment clause.
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Especially since the literal question before SCOTUS is: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

Assuming SCOTUS answers "yes" as most everyone is expecting, how can anyone say it doesn't fall under the 14th Amendment?
 
Re: The Power of the SCOTUS Part VI - Roberts rules disorder

unofan said:
Especially since the literal question before SCOTUS is: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

Assuming SCOTUS answers "yes" as most everyone is expecting, how can anyone say it doesn't fall under the 14th Amendment?
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Until Justice Kennedy caught some leakage from the penumbra, legally it didn't.
 
Re: The Power of the SCOTUS Part VI - Roberts rules disorder

joecct said:
Until Justice Kennedy caught some leakage from the penumbra, legally it didn't.
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Sure it did. Just as it prohibited separate but equal schools. Society just didn't realize it until decades later.
 
Re: The Power of the SCOTUS Part VI - Roberts rules disorder

joecct said:
Until Justice Kennedy caught some leakage from the penumbra, legally it didn't.
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That notion that the concept of a "penumbra" of protection was a fiction created in Griswald and later applied in Roe v. Wade to haunt us ever since is, itself, a fiction. Even Robert Bork, strict constructionist extraordinaire, agreed in The Tempting of America, that courts often create a buffer zone by prohibiting a government from doing something not itself forbidden but likely to lead to the invasion of a right that is specified in the constitution. He didn't use the term "penumbra," and he certainly did not agree with the reasoning in Griswold, but he recognized the basic concept. There are bedrock constitutional law principles founded on principles not stated anywhere in the text of the constitution but derived from an overall understanding of the principles it is intended to protect. Conservative and liberal courts both use the concept of penumbras, even when they are not using that word to describe it. But the word serves as a convenient and oversimplified way to describe a decision one does not like as an example of judicial overreaching.

At least I think I read all that somewhere. :)
 
Re: The Power of the SCOTUS Part VI - Roberts rules disorder

burd said:
That notion that the concept of a "penumbra" of protection was a fiction created in Griswald and later applied in Roe v. Wade to haunt us ever since is, itself, a fiction. Even Robert Bork, strict constructionist extraordinaire, agreed in The Tempting of America, that courts often create a buffer zone by prohibiting a government from doing something not itself forbidden but likely to lead to the invasion of a right that is specified in the constitution. He didn't use the term "penumbra," and he certainly did not agree with the reasoning in Griswold, but he recognized the basic concept. There are bedrock constitutional law principles founded on principles not stated anywhere in the text of the constitution but derived from an overall understanding of the principles it is intended to protect. Conservative and liberal courts both use the concept of penumbras, even when they are not using that word to describe it. But the word serves as a convenient and oversimplified way to describe a decision one does not like as an example of judicial overreaching.
Click to expand...

This is the best post on the Cafe in a long time.
 
Re: The Power of the SCOTUS Part VI - Roberts rules disorder

burd said:
There are bedrock constitutional law principles founded on principles not stated anywhere in the text of the constitution but derived from an overall understanding of the principles it is intended to protect.
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e.g., there is no "right to privacy" in the Constitution.....
 
Re: The Power of the SCOTUS Part VI - Roberts rules disorder

FreshFish said:
e.g., there is no "right to privacy" in the Constitution.....
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Except, as we have been discovering to our horror these last 10 years, it's implicit to every other right.
 
Re: The Power of the SCOTUS Part VI - Roberts rules disorder

FreshFish said:
e.g., there is no "right to privacy" in the Constitution.....
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I don't think I've ever heard anyone claim that the right to privacy is expressed in the text of the constitution, including Justice Douglas. If you thought I was saying that it is, I did not make myself clear.

If your post was intended to convey another level of thought, you did not make yourself clear.
 
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Re: The Power of the SCOTUS Part VI - Roberts rules disorder

It's interesting that this is the issue the herpa-derps are going to the wall on. If they had done it with abortion they might have been able to argue it was principled. But this is just bigotry wrapped in fundamentalism draped in bogus political theory, and everybody except their ground troops can see it.

No doubt those sincere Constitutional scholars on the right will rush to the defense of the Supremacy clause. :rolleyes:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
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