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Federal judge rules gay marriage ban unconstitutional (Nebraska)
Omaha World Herald ^ | 5/12/05 | Todd Cooper

Posted on 05/12/2005 1:32:13 PM PDT by jebanks

U.S. District Judge Joseph Bataillon struck down Thursday Nebraska's constitutional provision prohibiting gay marriage or civil unions.

The constitutional amendment, known as Initiative 416, passed in 2000 with 70 percent of the vote. It prevents homosexuals who work for the state or the University of Nebraska system from sharing health insurance and other benefits with their partners.

A group of lesbian and gay couples sued the state of Nebraska, contending the act barred "lesbian, gay and bisexual people from using the ordinary political process to seek important legal protections that all other Nebraskans already have."

Forty states have so-called "Defense of Marriage'' laws, but Nebraska's ban is the only one that explicitly prohibits same-sex couples from enjoying many of the legal protections that heterosexual couples enjoy.


TOPICS: News/Current Events; US: Nebraska
KEYWORDS: cary; clintonlegacy; homosexualagenda; josephbataillon; judicialactivism; judiciary; marriage; marriageamendment; nebraska; ruling
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To: goldstategop
Its not just gay marriage. This judge's ruling strengthen the case for a constitutional amendment abolishing judicial review. When a single judge takes it on himself to disregard the views of 70% of the voters in the American heartland, we are heading for a constitutional crisis. I stated yesterday my conviction judges have no business deciding questions of a social or political nature. Their only duty ought to be to see how the law is enforced and to punish offenders.

As an EX-CA....I remember voting YES for "term limits" and Prop 187. Along with Prop. 208, and 5...all being overturned in the courts.

I dunno why anyone is surprised when we have political office holder's dominated by lawyers..that they turn to the courts..when they don't like what the peon peasants vote for...or against.

FWIW-

151 posted on 05/12/2005 4:00:20 PM PDT by Osage Orange (Bill Clinton's heart is blacker than the devil's riding boots.....................................)
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Comment #152 Removed by Moderator

To: goldstategop
"...then minorities will have to convince a majority in an elected legislature to grant them a new right."

Grant them a new right!!!!

This is FreeRepublic.com, not Democratic Underground.

Madison argues "rights retained by the people" (Amendment IX) directly constrained congressional power.

Madison [is] committed to the dual strategy of limiting powers and protecting rights.

Senator Lyman, principal draftsman of both the Thirteenth Amendment and the Civil Rights Act of 1866, posed the question “…what rights do citizens of the United States have?” He answered, “They are those inherent, fundamental rights which belong to free citizens or free men, in all countries, such as the rights enumerated in this bill, and they belong to them in all the States of the Union.” As examples of “natural rights” and “inalienable rights” he offered these: “The right of personal security, the right of personal liberty, and the right to acquire and enjoy property.”

If the founding generation that adopted the Ninth Amendment and the generation that adopted the Fourteenth Amendment were correct about natural rights, then constitutional legitimacy requires a lawmaking process that provides an assurance that the rights retained by the people, or the privileges and immunities of citizens, will not be disparaged, denied, or abridged.

We do not get our "rights" from the legislature. I am stunned that you would make such a remark.

153 posted on 05/12/2005 4:42:24 PM PDT by tahiti
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To: Grampa Dave

You're welcome.

Might be a silver lining here. Isn't Chuck Hagel from Nebraska and also one of the Senators who are on the fence as far as pushing the rules change through on the judicial fillibusters?

Nebraska has got to be the reddest of the red states. I suspect this will prompt quite a few Nebraskans to let Hagel know how they feel about this Judge's trashing of a law that they voted in and that something has to be done to put a stop to this crap.


154 posted on 05/12/2005 4:43:48 PM PDT by planekT (Go DeLay, Go!)
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To: Maceman
We have to have a system of checks and balances."

133 – Constitutional Convention explicitly assumed this power (judicial power) to reside in the judiciary. No one disputed the power of the judiciary to set aside unconstitutional laws passed by states. Nor did anyone question that federal judges would have the same power to set aside unconstitutional legislation from Congress. Federal judges had the inherent power to hold federal laws unconstitutional.

134 - …judicial nullification was included within the original meaning of the “judicial power.” Throughout the duration of the Convention no one disputed the existence of a judicial power to nullify unconstitutional laws.

136 – Without a judiciary, the injunctions of the Constitution may be disobeyed, and the positive regulations neglected or contravened.

137 – James Madison –Asserting the importance of judicial nullification. “If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”

139 – In our system, absent a legislative supermajoritarian override of a presidential veto, all three branches must concur before it (a law) is constitutional. Any one branch may scuttle a law because it alone deems it unconstitutional.

No one in Congress rose to object to this assertion of “judicial power.”

"What checks and balances exist now to control an out-of-control judiciary run amok? Answer? None."

Congress is free to correct such judicial interpretations if it wishes.

268 – That it often does not evidences Congress’s all-too-common strategy of passing vaguely worded statutes so that administrative agencies or courts provide the rules of law that Congress would not.

In the event that Congress disagrees with an assessment by the Supreme Court that a particular enactment is either unnecessary or improper, and there is a strong popular support for the statute, Congress has the power to propose a constitutional amendment.

155 posted on 05/12/2005 4:55:24 PM PDT by tahiti
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To: tahiti

This is going to be appealed. Which court will it go to and what is the makeup of that court? Anyone know?


156 posted on 05/12/2005 6:05:31 PM PDT by queenkathy (Don't give up. Moses was once a basket case.)
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To: december12

Law Professor Eugene Volokh gives a lengthy explanation of why this decision was wrong and predicts that it will be overturned at http://volokh.com/archives/archive_2005_05_08-2005_05_14.shtml#1115938636


157 posted on 05/12/2005 6:19:44 PM PDT by december12
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To: jebanks

I bet if you had 1000 grammarians and gave them 1000 years they would not be able to find the judge's little gem in the Constitution.


158 posted on 05/12/2005 6:22:03 PM PDT by yarddog
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To: yarddog
I don't have a problem with Judicial Review... I have a problem with Judges creating laws that don't exist, I have a problem with Judges who ORDER legislatures to pass the laws they want, and I have a problem with Judges who ORDER the death of innocent civilians.

If the Federal Constitution doesn't EXPLICTLY address an issue, the courts HAVE ABSOLUTELY NO BUSSINESS butting their noses into what a state chooses to do or not do.
159 posted on 05/12/2005 7:05:16 PM PDT by Nyboe
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To: tahiti
Ok. Our rights are inherent and God-given. Its not a legislature's place to give them or take them away. I should have expressed it in the sense of new privileges. Which is what gays really want. There is no entitlement to get married nor ought there to be one.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
160 posted on 05/12/2005 7:09:23 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: Grampa Dave; Squantos; B4Ranch; Travis McGee
Today was an awful day for the republic.

No words suffice.

161 posted on 05/13/2005 1:41:54 AM PDT by risk
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To: wk4bush2004
But it affects the morals of our country. America was founded as a Christian nation and homosexuality is immoral.

Many Freepers dont comprehend that and have succumb to the culture of moral relativism.

162 posted on 05/13/2005 5:18:17 AM PDT by Evolution (Tolerance!? We don't need no stinking Tolerance ! ! !)
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To: goldstategop

YOur comments show clearly that you do not understand the distinction but that matters not since the Founders did. That is why they established judicial review which only followed the tradition of the states that is also why they did not want "democracy" but established representative governmnent with divided powers.

Court rulings contrary to our wishes can only stand if they are not completely out of step with the views of the majority but changing them takes a long time as planned. Changing the Courts is the slowest process in government and not easily done as FDR found out. And he was far more powerful than any leader we have had since Lincoln.

However, hysterical reactions to bad rulings are not going to accomplish anything. It is doubtful that this ruling will stand upon appeal in any case.

But without judicial review there is no real constitutional law for there would be no body that could tell Congress it cannot pass unconstitutional laws hence the Constitution would mean nothing.


163 posted on 05/13/2005 6:49:22 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: jebanks

I want to hear from all the RINOs in the Senate that say we don't need an amendment to the USC to protect marriage. Obviously anything less will just be through out by our masters the judges.


164 posted on 05/13/2005 6:53:45 AM PDT by Pietro
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To: goldstategop

Rutgers v. Weddington in no way "limited the powers of the federal government vs. the states" quite the contrary. It threw out NY state law which was contrary to the Peace Treaty with Great Britain ending the Revolutionary War. (And the ruling was extremely unpopular with the majority of New Yorkers.)

You clearly do not understand the history of the Founding if you say things like that which are completely false. And Madison v Marbury was not even the first case of judicial review by the USSC. That case came almost a decade after the USSC ruling that the Carriage Tax Act was constitutional. This also had nothing to do with limiting federal power.

You can't just make up stuff and expect that anyone knowledgeable is just going to accept it. THAT is what you complain of wrt these judges.


165 posted on 05/13/2005 7:03:19 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: Borges

While we hate these rulings as much as the more emotional we understand that the Founders had good reason to form the Constitution as they did. Fortunately they did such a good job that the nation has survived horrible court rulings in the past and will in the future.

It is disturbing to watch "conservatives" prepare to throw out the baby with the bath water after rulings they don't like. This tendency was given great impetus by the reaction to the Schiavo rulings and its danger becomes more obvious.


166 posted on 05/13/2005 7:07:15 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: jebanks
I heard this yesterday on the news.

Now, I want any of you to correct me if my thinking is wrong.

It is nearly impossible to create a "law" on things like this because it will be struck down as unconstitutional. So the logical thing is to amend the constitution. So, the people of the state voted - by an overwhelming majority - to amend their constitution but a judge struck it down because it is unconstitutional.

Am I following this correctly so far? So, if I am not mistaken, if we happen to gather enough momentum and amend our U S Constitution to, let us say, a marriage amendment. Does this mean a Supreme Court Justice can strike down an amendment because it is unconstitutional?

My next question is what else is there to do if you cannot change the law or change the constitution?

167 posted on 05/13/2005 7:08:45 AM PDT by 7thson (I think it takes a big dog to weigh a hundred pounds!)
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To: goldstategop

I see no problem with amending the Constitution to change tenure but it will take that. Without Judicial Review, however, there is no Constitution. The concept has no meaning if there is no means of maintaining its supremacy over ordinary law.


168 posted on 05/13/2005 7:09:24 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: Brilliant

Recall him.


169 posted on 05/13/2005 7:11:59 AM PDT by international american (Tagline now flameproof....purchased from "Conspiracy Guy Custom Taglines"LLC)
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To: wk4bush2004

The Constitution is the HIGHEST form of the Will of the People and it established the judiciary to bring ordinary law into accord with the Constitution. I believe this judge was wrong but not because he went against the will of the people. However the people of Nebraska cannot impose its will contrary to the Constitution.

There would have been no end to slavery if the will of the people had been consulted or even a Revolution since only about a third of them wanted independence.


170 posted on 05/13/2005 7:13:24 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: tahiti

No I never heard of him. My understanding of the constitution is based upon Hamilton and Marshall.


171 posted on 05/13/2005 7:15:11 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: tahiti

Excellent points.


172 posted on 05/13/2005 7:18:05 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: escapefromboston
Question: If I was an employee of the State of Nebraska (a guy can dream can't he) could I share benefits with someone who was just a good friend?

It'll be interesting when the first straight, unmarried couple applies for insurance under this act. Telling them that unmarried gay couples can have insurance but not unmarried straight couples is clearly discriminatory.

173 posted on 05/13/2005 7:21:23 AM PDT by Terabitten (I have a duty as an AMERICAN, not a Republican. We can never put Party above Nation.)
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To: international american

There is no recall of a federal judge nor impeachment for poor rulings. This is why there is judicial review. His ruling will be reviewed and likely overturned on appeal.


174 posted on 05/13/2005 7:21:33 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: justshutupandtakeit

Brain cramp....thanks for the correction.


175 posted on 05/13/2005 7:48:23 AM PDT by international american (Tagline now flameproof....purchased from "Conspiracy Guy Custom Taglines"LLC)
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To: tahiti

Its only 'correct Constitutionally' if one adheres to the absurd 'living document' theory and believes that Judges have the legitimate authority to read into the Constitution things that clearly aren't there.

Not one part of the Constitution was ever ratified with the intent that it be used by the Left as it does today. To take provisions of the Constitution and extend and apply them to things for which they were never envisioned or intended by its framers or the nation that ratified them is to extend to the Courts a power they were never intended to have, and is to guarantee victory for the Left in the Culture War.

To take the 14th Amendment and use it to create a right to gay marriage is to violate the principle of having the consent of the governed because, again, the people have never given consent to such nonsense. The nation that ratified the 14th knew who and what it applied to, and it wasn't gay marriage. It is for judges to respect that original intent, and leave such matters to the people to decide as the 10th Amendment says.


176 posted on 05/13/2005 11:24:14 AM PDT by Aetius
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To: princess leah

"Betcha he's a Clinton Nominee! We need a list of all the judges who've ruled "against the mainstream" on the liberal side and send it up to Washington to have made into a CHART for those damn senators!"


Exactly. I can't remember how many times I've heard some true extremist like Sen Schumer, Kennedy, Clinton, Boxer, etc go on about how Bush's judges are 'out of the mainstream' and are radical. The best retort the GOP seems to have is that judges shouldn't legislate from the bench, and while that is true, it lacks bite.

To give it more power, the GOP must be ready to list one absurd leftwing decision after another. Make it clear how judges have made impossible even the most reasonable, mainstream restrictions on abortion; how they have arrogantly disregarded the people and the Constitution in creating a right to gay marriage; how they have twisted the Establishment Clause beyond recogintion to where they can use it to ban public nativity scenes and prayer before highschool football games; how they have given citizen-like status to illegal aliens, etc.

The GOP needs to make it clear that in reality conservative judges are much closer to the mainstream than anything you'd get from the Dems. They need to make it clear that the worst thing conservatives would do (from the pt of view of a liberal-moderate) is to leave the decision to the people and/or their representatives. They will not impose anything, which stands in stark contrast to liberal judges who repeatedly impose one thing after another that the people would reject, or already have rejected.

There is no excuse for not going to great lengths to make it known to the public what exactly constitutes a mainstream judge to the likes of Schumer and Kennedy.


177 posted on 05/13/2005 11:33:57 AM PDT by Aetius
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To: yellowdoghunter; B Knotts

I agree with you both. Federal Marriage Amendment.

If insurance companies want to allow employees to cover a significant other (sister, mother, best friend, surrogate lover, etc.) then let 'em. They durn shure find enough excuses not to pay as it is.

We know same-sex unions are un-Christian. What they really want is to have that rewritten. This should be an INSURANCE issue IMHO, and NOT a morality issue.


178 posted on 05/13/2005 11:40:30 AM PDT by Froufrou (Froufrou Loves The Spurs!)
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To: Aetius
"To take the 14th Amendment and use it to create a right to gay marriage is to violate the principle of having the consent of the governed because, again, the people have never given consent to such nonsense."

The "right to privacy" to have sexual relationship with the gender of your choice is clearly a right "retained by the people," as protected by Amendment IX.

If two consenting adults wish to have a contractual union of their lives and thus their assets, why would they not be afforded "equal protection of the laws?"

I am not a homosexual. I believe homosexuality, in particular for males, is a death wish.

But I think it is textually clear in the constitution that a citizen has a right to make a dumb decision about their sexual lifestyle.

As to your remark about "consent of the governed," I have never consented to being governed.

I have "consented" to give up the natural right of protecting my natural rights on my own by "delegating" in an enumerated and limit amount, to my government, the "power" to help me protect my natural rights, in conjunction with my fellow citizens.

In the absence of actual consent, a law must be shown to be necessary and proper for it to bind in conscience. To be proper it must, amount other things, not violate the rights "retained by the people."

179 posted on 05/14/2005 8:47:20 PM PDT by tahiti
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To: tahiti

Well that is the heart of the entire debate here -- who is to decide what these unenumerated rights are. The Ninth Amendment does not say that it is for the judiciary to declare for all what constitutes one of these rights.

That you apparently take the view that it is proper for the Courts to decided for all how the 'spirit' of the Constitution conveys rights never envisioned as an extension of the parts of the Constitution they use to derive them from, places you firmly on the side of the Left in this debate.

If there is a right to privacy and abortion and gay marriage then that is for the people and their elected represenatives to decide.

My comments about the consent of the governed have to do with Original Intent. There is a certain understanding of what the Constitution and its following Amendments meant when passed, or given consent through the ratification process.

You think that the right to privacy, and all that entails, is 'clearly' a right retained by the people. Who says? The people haven't said that. That you support the notion that its proper for judges to make these sweeping decisions is to place them on a footing clearly superior to its allegedly coequal branches, and to confer a level of power to them not intended by the Founders. And it gets into all sorts of inconsistencies. Tell me, since the Sup Court in the late 80s said that state sodomy laws were constitutional, does that then mean that was in fact no right to the private sexual relations you speak of until the Court reversed itself a couple of yrs ago? What if they reverse themselves again? By accepting the notion that its proper for the Courts to be the final arbiters of what does and does not constitute one of these enumerated rights means one must accept this seesaw back and forth.

And then of course you take it further by saying that not only does this 'right' to private sexual relations exist, but that it is also a right to have it recognized in the public realm. That's ridiculous. Society is under no obligation to grant recognition to something of no societal value.

You say for a law to be proper and necessary it must not violate one of these unenumerated rights retained by the people. So I ask again; who is to say what these rights are? You apparently favor having judges determine this, while I prefer it be left to the people. At the time of Roe, when the Courts overstepped its proper bounds and made national law, some more liberal states were already moving to liberalize their abortion laws. This would have continued. Connecticut's legislature, in a first, just volunatarily decided to grant civil unions to homosexuals in their state. On the other hand, the people of 10 states last year voted to bar gay marriage and civil unions. That, in the absence of a Constitutional Amendment, is how it should be handled. If one does not like it, then they can always vote with their feet and move. Its the United States, not the Uniform States.

The problem the Left has is that they are an intolerant bunch. They know that most states disagree with them about what constitutes a Constitutional right. They know they can't win via the proper political and popular channels. So they turn to the one branch that can impose their radical, out-of-the-mainstream views on the entire nation, and in doing so dress it up under the umbrella of protecting Constitutional rights that apparenlty never occured to those who actually crafted and ratified the Constitution.


180 posted on 05/15/2005 7:32:52 AM PDT by Aetius
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To: Aetius
Thank you for your lengthly and cordial reply.

"That you apparently take the view that it is proper for the Courts to decided for all how the 'spirit' of the Constitution conveys rights"

I do not believe for one moment that the Courts "convey" rights.

Rights are inherent to a human beings existence.

The 9th Amendment is textually clear on what it says and means" "others (rights) retained by the people."

"Retained" is the key phrase.

Individuals or organizations file suits in courts exerting "retained rights," petitioning the court that those "retained" rights have been violated by the legislature and the executive branch, and subsequently ask for nullification of the law that violates "retained" rights.

The judiciary is thus not declaring rights. It is agreeing with the plainiffs claim of a "retained" right.

181 posted on 05/15/2005 8:46:49 AM PDT by tahiti
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To: Aetius
"If there is a right to privacy and abortion and gay marriage then that is for the people and their elected represenatives to decide."

If you have read Roe v. Wade then you would know that the reason "the right to privacy" is the reason for legal abortions is because the fetus has been declared a non-human until the fetus is "viable" by the Supreme Court.

That being the case, the non-human is considered "tissue," such as a kidney and thus the "right to privacy" allows a free citizen to be the final arbiter of what to do with their kidney.

Abortion is not allowed after about 6 months of pregnancy because the fetus is now considered "viable."

The "people" can fix Roe v. Wade by petitioning the Congress to declare a fetus a human being at the time of conception.

Then the fetus has a "right to privacy" as well and cannot be murdered.

Rep. Ron Paul has introduced such a bill in the House. You and me and all of the anti-abortionist should be contacting our House representatives to pass this legislation.

182 posted on 05/15/2005 11:54:14 AM PDT by tahiti
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To: tahiti

"The judiciary is thus not declaring rights. It is agreeing with the plainiffs claim of a "retained" right."


Are we not getting into semantics here?

Declaring marriage among homosexuals to be a 'retained right' is no different than creating the right out of thin air, in my humble opinion.

We'll just have to agree to disagree, as I don't think it is a proper role for judges to be discovering rights that never occured as such to the citizenry of the this nation.


183 posted on 05/15/2005 12:03:00 PM PDT by Aetius
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To: Aetius
"...proper for judges to make these sweeping decisions is to place them on a footing clearly superior to its allegedly coequal branches, and to confer a level of power to them not intended by the Founders."

Let me let Prof. Randy E. Barnett, of Boston University, answer this queston of "Founders" intent from his book, "Restoring the Lost Constitution, A Presumption of Liberty," I highly recommend that you read this book.

132 - Far more evidence exists to suggest that the original public meaning of the term “judicial power” included the power to nullify unconstitutional legislation.

133 – Constitutional Convention explicitly assumed this power (judicial power) to reside in the judiciary. No one disputed the power of the judiciary to set aside unconstitutional laws passed by states. Nor did anyone question that federal judges would have the same power to set aside unconstitutional legislation from Congress. Federal judges had the inherent power to hold federal laws unconstitutional.

134 - …judicial nullification was included within the original meaning of the “judicial power.” Throughout the duration of the Convention no one disputed the existence of a judicial power to nullify unconstitutional laws.

136 – Without a judiciary, the injunctions of the Constitution may be disobeyed, and the positive regulations neglected or contravened.

137 – James Madison –Asserting the importance of judicial nullification. “If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”

No one in Congress rose to object to this assertion of “judicial power.”

139 – In our system, absent a legislative supermajoritarian override of a presidential veto, all three branches must concur before it (a law) is constitutional. Any one branch may scuttle a law because it alone deems it unconstitutional.

140 – These provisions (Article III, Section 2 and Article VI) support the following construction: Courts are empowered under Article III to decide “all cases…rising under this Constitution and Laws of the United States.” When deciding such a case, a court is required to apply the laws that are applicable to the case at hand. In cases where both the Constitution and a statute apply and the latter is in conflict with the former, the court must decide which is a superior authority. The Supremacy Clause suggests that the Constitution should take precedence over a statute. Therefore, when the court finds that a statute is in conflict with the Constitution, it is bound to obey the Constitution and disregard the statute.

141 - Alexander Hamilton: “A constitution is, in fact, and must be regarded by the judges as, a fundamental law.

“No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.” 142 - “It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority.”

143 – The modern power of judicial review is not limited to refusing to enforce an unconstitutional law being applied to an individual – a power that is warranted by the original meaning of the “judicial power.” Modern judicial review also includes a power to command or order other branches of the government to follow the judiciary’s interpretation of the Constitution – a power that is sometimes called “judicial supremacy.”

A power of nullification is not one of supremacy, but one of judicial equality, (with the two other branches of government.)

Judicial negation is not legislation.

Only if the Congress enacts a measure because enough of its members believe it to be constitutional (or do not care) and the president signs the bill believing it is constitutional (or does not care) may the Court have the opportunity to express its opinion on its constitutionality.

144 – The court’s power to negate unconstitutional legislation renders it equal, not superior, to the other branches. 147 – Is Congress entitled to a benefit of the doubt when it claims the existence of a power? Or does the benefit of the doubt go to the citizen who claims that the restriction on his or her liberty was beyond the proper power of the legislature that enacted it?

184 posted on 05/15/2005 12:25:23 PM PDT by tahiti
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To: wk4bush2004
It is absolutely clear from your impassioned rant that you have no understanding of the manner in which our judiciary works. Certain rights, some of which are enumerated in the text of the US Constitution, and others which have been derived from interpretations of the US Constitution, are considered to be fundamental and **cannot** be stripped from Americans citizens merely because the majority of the American people wish to do so. I should have thought that this would be something that you would understand before throwing a hissy fit. These rights include the right to intimate and expressive association (have you read the First Amendment, or any of the long line of US Supreme Court cases that deal with interpretations of this Amendment?), the right to petition the legislature for redress of grievances, and the right of all persons to enjoy the equal protection of the laws. Any state constitutional amendment that classifies one group of people and declares that they, as a group, cannot avail themselves of the same right to petition their legislature for redress of grievances as is enjoyed by all other groups of people, is unconstitutional on its face (see Romer v. Evans, 517 U.S. 620). Your comments also indicate that the district court was absolutely correct when it found, as a matter of law, that Section 29 of the Nebraska constitution was enacted as the direct result of animus directed towards the group impacted by the amendment. Clearly, you harbor animus towards gay people and wish to inscribe this animus into state constitutional law.

Let me ask you this: Using your own logic, were the overwhelming majority of the citizens of Nebraska to amend their constitution to permit the summary execution of people determined to be gay, would this be acceptable? I am not being facetious -- I want to know your answer to this question. Please be honest -- tell us what you think should be done with, or to, gay people.
185 posted on 05/23/2005 9:56:34 AM PDT by PhilipChandler (Fundamental rights cannot be voted away......)
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To: JoeV1

You most certainly were mistaken. A state constitution can be modified to grant to its citizens rights that are not granted to them under the US Constitution, but it cannot be modified to take away rights that are guaranteed to them under the US Constitution. The US Constitution sets a floor, but not a ceiling, to the rights that a state can bestow upon its citizens.

You are probably thinking of a related issue. If a state supreme court premises its logic on the state constitution alone, without reference to the US Constitution, then the decision of the state court is binding and cannot be reviewed by the US Supreme Court. However, this is subject to the above qualification. For example, if a state constitution is interpreted by a state supreme court to grant to the citizens of that state a right to privacy that includes the right to abortion on demand, and the state supreme court does not invoke US Constitutional analysis, then that decision cannot be reviewed by the US Supreme Court. However, if a state constitution is amended in such a way as to deprive citizens of that state the rights that they are guaranteed by the US Constitution, then the state constitutional amendment can be challenged in federal court, as happened in this case. The federal judge found that Section 29 of the Nebraska Constitution violated the First and Fourteenth Amendment rights of gay Nebraskans, and (impeccably correctly) enjoined the state from enforcing the amendment.


186 posted on 05/23/2005 10:06:30 AM PDT by PhilipChandler (Fundamental rights cannot be voted away......)
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To: PeoplesRepublicOfWashington

When that vote restructures the political process in such a manner as to "keep the outs out", and "keep the ins in." In other words, when that vote results in a restructuring of the democratic process that forces certain named groups to surmount obstacles that the rest of the populace does not have to face. That is exactly what happened in Colorado, and what has again happened in Nebraska. The state conceded that the amendment could be construed to invalidate co-tenant agreements (leases) between gay couples, could be construed to prevent gay couples from naming each member in the other member's will, etc. This amendment was clearly about a great deal more than marriage. It was about spitting into the faces of gay Nebraskans, and the district court saw through this from the start. I refer you to the work of James Hart Ely ("Democracy and Discontent") in which this scholar describes the manner in which a democracy can restructure itself so as to make it more difficult for specific groups of citizens to seek redress than for all other citizens. He refers to this as a "malfunction" of the democracy, and his work is highly regarded as being authoritative. The US Supreme Court also noted that this "malfunction" could occur and raised the issue of judicial review in the case of democratic "malfunctions" in Footnote 4 of United States v. Carolene Products Co., 304 U.S. 144 (1938), said footnote reading as follows:

"It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S. 242, and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365."

In short, the district court saw that the amendment imposed a special disability on gay Nebraskans, and consistent with Romer v. Evans, 517 U.S. 620 and Lawrence v. Texas, 53 U.S. 558 (2003).

You may not like it, but the fact remains that the US Supreme Court lifted from me an impediment that classified me as an unconvicted felon in several states prior to the handing down of Lawrence. It indicated most strongly that it was waiting for the correct opportunity to accomplish this in Romer v. Evans, 517 U.S. 620 (1996).

All of you who are clamoring to abolish judicial review -- do you really think that you can pass a US Constitutional Amendment to do this? If so, you are in deep denial. At the end of the day, gay Americans no longer have to live with a badge of shame pinned to us. You have lost. Now grow up and accept this fact with a modicum of good grace.


187 posted on 05/23/2005 10:34:55 AM PDT by PhilipChandler (Fundamental rights cannot be voted away......)
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To: mlc9852
We are wasting our time trying to fight. We are obviously losing.

Not using the right tactics yet. You hsven't heard of any activist judges being hanged yet, have you?

188 posted on 05/23/2005 10:39:14 AM PDT by Aarchaeus
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To: Aarchaeus

Not yet but one can always hope. :)


189 posted on 05/23/2005 10:40:49 AM PDT by mlc9852
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