Top Senator Backs Amendment Banning Gay Marriage - FRist,TN

Yahoo! News ^ | 6/29/03 | Peter Kaplan - Reuters

[aristeides]

I believe the one amendment that has been passed by state conventions was the 21st Amendment (repealing Prohibition). Conventions were chosen in that case, I believe I have read, because the amendment could thereby be ratified more quickly. And I think the 21st Amendment was in fact the amendment ratified most quickly, within a year.

[aristeides]

But a constitutional amendment can also accomplish what you want, by merely empowering states to legislate on a matter. That is precisely the kind of cautious measure you want. And where the Supreme Court has said the states cannot so legislate, an amendment may be the only solution.

[Rebellans]

You cannot ratify an Amendment to the U.S. Constitution via ballot initiative...

You are correct, but legislatures (unlike judges) are directly accountable to the people. If the people overwhelmingly support a proposition, then legislators will go along, so as not to lose their jobs. Had the referendum option not been available to Hawaiian voters, they might very well have voted out the legislators who refused to listen to their demands.

I say we should take this amendment to the several states and let the democratic process run its course. Let each legislator go on the record as either supporting or opposing this amendment; then let voters re-elect the legislators who agree with them and throw out those who do not. It's a much, much better way of making an important decision than letting rogue judges impose their will on the entire country.

[ellery]

I just have an admittedly knee-jerk reaction about amending the Constitution (for the same reason I reject all this "living, breathing document" business).

That said, it would be consistent with previous points about the Constitution limiting government, not individuals, if an amendment were worded to limit the feds' power over the states to decide such issues. That also seems like a wise way to deal with these issues -- base them on community standards. That way, communities would have the right to approve gay marriage, or ban it. And individuals would have the choice to mobilize their own communities or move to a community that best fit their values. It seems like the best way to go -- this "one size fits all" approach seems to be the antithesis of federalism.

[tortoise]

The Constitution exists to limit governments, not individuals -- this is a stupid idea. You don't write laws with the Constitution.

Never mind that they have far bigger skeletons and messes in the Congressional closet than this issue. They need to stop wasting their time on this crap and do something about the state of the Federal government. They can start by reducing it to a quarter of its size.

[Rebellans]

The Constitution exists to limit governments, not individuals -- this is a stupid idea. You don't write laws with the Constitution.

Do you oppose the Thirteenth Amendment?

They need to stop wasting their time on this crap and do something about the state of the Federal government.

The Lawrence decision significantly increased the power of the federal government -- specifically, the federal judiciary. And if we, the people, don't establish some boundries on the power of the federal courts, we're going to end up with an oligarchy of nine.

[jwalsh07]

Hawaii did so by ballot initiative because the legislature refused to do so. You cannot ratify an Amendment to the U.S. Constitution via ballot initiative...

No kidding?

[Rebellans]

Thanks for your comments, aristeides. What do you think is going to happen with the federal DOMA? I'm sure there are some Supremes who would like to overturn it, but hasn't Congress removed the issue from the Supreme Court's appellate jurisdiction, per Article III, Section 2?

[aristeides]

I haven't heard of Congress removing the issue from SCOTUS's jurisdiction, but I don't hear everything. On the other hand, it would kind of surprise me if I hadn't heard of that. When I was in law school, it was a matter of some controversy whether in fact Congress could constitutionally exercise its power in this way (although the text of the Constitution seems to make it pretty clear that Congress has the power, and the chastened post-Civil War SCOTUS acquiesced in one such restriction.)

[aristeides]

What do you think is going to happen with the federal DOMA?

I think this SCOTUS, as currently constituted, would strike down some or all of DOMA.

[Tahoe3002]

It seems to me the Executive, Legislative and Judicial branches of our government have been violating the Constitution for a long, long time. Demoncrats believe the Constitution is a living document so it means whatever they want it to mean in any context (kind of whatever your definition of is, is). Lots of Republicans also wrap themselves in the Constitution when they are trying to justify some position or action to us peons, oppps, I meant “the public.”

[Rebellans]

I think this SCOTUS, as currently constituted, would strike down some or all of DOMA.

Frightening. Amazingly enough, that would put our "conservative" Supreme Court to the left of Bill Clinton on this issue.

When I was in law school, it was a matter of some controversy whether in fact Congress could constitutionally exercise its power in this way (although the text of the Constitution seems to make it pretty clear that Congress has the power, and the chastened post-Civil War SCOTUS acquiesced in one such restriction.)

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." (Art. III, Sec. 2)

It seems pretty clear-cut to me -- then again, I only have a copy of the "old" Constitution, not the "living" Constitution SCOTUS uses. LOL

If Congress did vote to limit SCOTUS's appellate jurisdiction on this issue, would we be safe from court-imposed same-sex "marriage," at least in states with DOMA laws?

I appreciate your input.

[jwalsh07]

There are two problems as I see it.

The SCOTUS is part of the government. They are wielding power over the states like a club and need to be constrained. Quite consistent with "limiting the powers of government".

The second is that an issue like this should be debated widely and publicly or we risk what we have witnessed from Roe, thirty years of culture wars and animus to the point where, as Torie points out, federal judicial appointments become impossible.

[aristeides]

federal judicial appointments become impossible.

Regular federal judicial appointments become impossible for lack of Senate confirmation. That means the federal bench gets filled with (temporary) recess appointments. De facto term limits. I'm not sure it's such a bad idea.

[aristeides]

Bill Clinton (at least prior to 1996) had to get elected.

[ellery]

The second is that an issue like this should be debated widely and publicly or we risk what we have witnessed from Roe, thirty years of culture wars and animus to the point where, as Torie points out, federal judicial appointments become impossible.

I agree -- SCOTUS is just continuing to erode amendment 10. As with other issues related to the culture wars, I just don't see people finding common ground on this issue. That's why federalism seems like such a graceful solution -- let these issues be decided on a community by community basis (similar to the community standards judgement on pornography).

[jwalsh07]

You may have a point there aristeides.

[jwalsh07]

That's why federalism seems like such a graceful solution -- let these issues be decided on a community by community basis (similar to the community standards judgement on pornography

Absolutely but this court has set itself up as the arbiter of same and to top it all off cites Europe as precedent. I mean, enough is enough!

[ellery]

They cited Europe as a precedent?! Now I'm steamed.

[Rebellans]

The second is that an issue like this should be debated widely and publicly or we risk what we have witnessed from Roe, thirty years of culture wars and animus to the point where, as Torie points out, federal judicial appointments become impossible.

Exactly. And it's up to us conservatives to make sure that the people have their say on an issue as fundamental as this. That's why I think this amendment is so crucial. The Left would be more than happy to have five Justices simply wave their hands and -- voilà! -- the debate is "settled" in all 50 states.