[YT2095]

if the above is True, then how the hell do you explain the patriot act that Actively persecutes home chemist/scientists and deprives them of their Liberty and property?
and they get no "due Process"!

[doG]

The Patriot Act was written and passed by our Representative Federal Government and it specifies the due process related to its application. Yes, its a dirty piece of law but it was written and passed legitimately.

[Severian]

doG said:

IMO. using democracy via the ballot to circumvent representative democracy violates that due process when the majority uses it to oppress a minority.

Democracy is by definition the oppression of the minority by the majority. But if you try and circumvent democracy by legislation (rather than persuasion) I think you are on a very slippery slope.

[doG]

Slippery it may but that is our form of government. Would it be OK if the majority voted slavery back in to avoid that legislation that is against it?

[jackson33]

California laws related to 'Same Sex Marriage' or more specifically the recognition of, are identical to the US. Family Law Codes, state that "A man and women". Then add to this Prop.22 in 2000 and entered into this same code (section 308.5), voted on by the people; "ONLY marriage between one man and one woman is VALID or recognized in the State of California.

The Supreme Court of California, also operates in the same manner as the US SC, where interpretations of their Constitution and laws are used to judge actions, in this case the Mayor of SF. They found those actions under to be consistent with the US Constitution under A14 and other law. The people then voted once again on the issue, affirming their original stance in 2000. Keep in mind here, that the California Legislature, has the authority and duty to clarify what they want, as lawful recognition, or to legislate law, to overthrow previous law, and has not. There is nothing they can do, to enforce laws which are already on the books, which is the duty of the Governor, Courts and when required their SC.

In the meantime, Bush has requested the US Congress to amend the US Constitution, to settle the issue on what US would recognize. The Governor of California has also asked his Congress to address the issue, saying he would sign legislation in either direction, knowing in both cases it would be tested, probably to the US Supreme Court.

Please note, this is my interpretation and obviously there is no possible way to determine what or how actions taken on any State level, can determine the final outcome. Since day one on this issue, I have suggested the US Congress or at minimal the US SC, needs to weigh in and settle where States or Communities with in States can establish independent laws. As mentioned, this issue needs addressing at the National Level, since by Constitution laws pertaining to individual rights must be recognized by all States if legal in one State and was the original intent of the 14th A.

[Severian]

doG said:

Would it be OK if the majority voted slavery back in to avoid that legislation that is against it?

That is the price you have to pay for democracy. Banning slavery even though the majority want it is undemocratic. I would argue that the majority is "wrong" if they want slavery, but who am I to enforce my will on the majority. I would rather persuade them to my point of view with reasoned argument.

[jackson33]

Severian said:

Democracy is by definition the oppression of the minority by the majority. But if you try and circumvent democracy by legislation (rather than persuasion) I think you are on a very slippery slope.

The difference between a Democracy and our system of a Representative Republic, has established a system where local issues can be determined by local popular vote, but to the limits of the Nation Interest or Constitution. Corporate Law, for instance is purely a State issue, for structuring but has limitations by regulations of Congress and/or the Executive branch. Many laws, including seat belts, insurance, taxes, road structures, education k-12 and others are State driven...but in funding controlled by the Federal to a degree.


doG; Yes, even amendments can be overturned, the Constitution changed or the total electorate ignored. Prohibition the most referred to, but suffrage, election of Senators by popular vote or the total of House Members, all directly addressed in the Constitution are not what was intended. Of course slavery will not come back, but under our system, this could happen...where it starts from, not material.

[iNow]

jackson33 said:

California laws related to 'Same Sex Marriage' or more specifically the recognition of, are identical to the US. Family Law Codes, state that "A man and women".

The Defense of Marriage Act (DOMA) that you referenced could also be struck down by the Establishment Clause, which is why I mentionded that.

There is no relevant secular reason for a law preventing homosexual unions from being equivalent to heterosexual unions in the United States, and no harm is being done to others, so such a law is not in place for reasons of protection or avoidance of harm to our citizens. With that said, the only remaining foundation for such a law is the invocation of morality. Since it is the invocation of morality, it has no place being viewed by due process, and is best analyzed under the Establishment Clause in the first amendment to our constitution.

jackson33 said:

Amentioned, this issue needs addressing at the National Level, since by Constitution laws pertaining to individual rights must be recognized by all States if legal in one State and was the original intent of the 14th A.

Indeed, but I find that to be the most frustrating part of this. It is ALREADY addressed at the national level.

1st Amendment - Establishment Clause
Article IV - Full Faith & Credit Clause
14th Amendment - Equal Protections Clause


It's only a matter of time before SCOTUS comes to bat and tells the witch-burning angry mobs to back the hell off. >:D

This post has been edited by iNow: 20 November 2008 - 06:01 PM
Reason for edit: multiple post merged

[doG]

Severian said:

That is the price you have to pay for democracy. Banning slavery even though the majority want it is undemocratic. I would argue that the majority is "wrong" if they want slavery, but who am I to enforce my will on the majority. I would rather persuade them to my point of view with reasoned argument.

Again, we are not a democracy.

jackson33 said:

doG; Yes, even amendments can be overturned, the Constitution changed or the total electorate ignored. Prohibition the most referred to, but suffrage, election of Senators by popular vote or the total of House Members, all directly addressed in the Constitution are not what was intended. Of course slavery will not come back, but under our system, this could happen...where it starts from, not material.

I didn't imply that amendments could not be overturned or slavery returned. I only asked if it would be right to do so. The only point made is that a will of the majority does not necessarily make it right. That is why the founders chose a republic.

[jackson33]

doG said:

Again, we are not a democracy.

I didn't imply that amendments could not be overturned or slavery returned. I only asked if it would be right to do so. The only point made is that a will of the majority does not necessarily make it right. That is why the founders chose a republic.

The Republic is at the National Level, based on common interest. States and lower governments are democracies, even if to degree. Majorities do rule, and a good thing when interest in Wyoming or New Jersey, NYC or NY may be totally different. State rights were a determining cause for the ratification of the Constitution, in the first place. Common interest of the Federal is based on issue, which directly of indirectly effect all States, regardless each States opinions on that issue. This is why, House members create the Legislation, although where majority (Democracy) ends...

iNow; Based on laws today and IMO, the US SC could only rule against 'Same Sex Marriage' or at best against those legislatures interpretations, especially in California, where their laws indicate exactly what US Codes already indicate and based on recognition to certain rights. I agree, under any other name any Union, could no longer be found other than 'Legal Consenting Adults'. Again, SF under California law has the authority to grant rights, which are not authorized or mandated acceptable to California, the question there being, where those rights infringe on the rest of the population.

On the personal level, I feel to much US law is already based on Religious concept, but not anywhere near the levels of the 19th Century. However to me it falls both direction and religious sects should be allowed the same privileges you suggest for gays, but limited to other laws and restricted from public funds or benefits, until or if it is acceptable to the majority.

[doG]

jackson33 said:

States and lower governments are democracies...

Please name the States that DO NOT have a House of Representatives in their own structure. They all use representative democracy, a republic, as opposed to direct democracy. As far as I know they are all technically Constitutional Republics.

[jackson33]

doG said:

Please name the States that DO NOT have a House of Representatives in their own structure. They all use representative democracy, a republic, as opposed to direct democracy. As far as I know they are all technically Constitutional Republics.

"To a degree": But all representatives with in any State, represent only the people of that State. I mentioned this in comparing the needs of people in NYC and NY...The founders literally hated the idea of "mob rule" (Democracy) but wanted the input of the populace.

The House, when designed (though democracy never mentioned) was for districts of 30k people. Those 30K then chose the one person to represent them and sent to (today) Washington DC., or if you prefer the 'Representative Democracy', but beyond this and the controlling factor for our Federal 'Common Interest' Republic takes hold. To illustrate this if we had held to a maximum of 30K per district, we would have near ten thousand districts today...totally unrealistic.

For the record, however some city, even a few counties do use pure Democracy or the 'Town Hall' system and most all States have some form of the 'Referendum System' (Individual vote) for major issues. Democracy is a term used, but degree of more relevant. Even the Greek word for democracy was to the degree of a quorum. I realize this is nitpicking, but I feel strongly misunderstood as you drop from the Federal to lower levels of government. Remember of the 2M or so populace in the late 1700's, the electorate, those allowed to vote was probably less than 200K or about 10% of the total.

[iNow]

jackson33 said:

The Republic is at the National Level, based on common interest. States and lower governments are democracies, even if to degree. Majorities do rule...

As doG has already shown, the States are also representative democracies. They are not direct democracies as your words suggest.

Further, the Federal laws regarding rights of the citizen always supercedes State laws regarding rights of the citizen. This means that any laws passed by the states which are counter to the principles spelled out in the federal constitution (equal protections clause, establishment clause, full faith and credit clause, etc.) will be struck down as being unconstitutional at the federal level, regardless of what process put said laws into place at the state level.

For the same reason that a city or county cannot make laws counter to the laws of the state, the state cannot make laws counter the laws of the nation.

[Pangloss]

Let's get off this definitions issue, please. Yes, we have a representative government, it's reasonable in modern context to call it a "democracy", and that is not relevant to the issue at hand.

[iNow]

Pangloss - I think you're wrong in this context. Nothing personal, but I do. Let me explain quickly.

In general parlance, we call it a democracy and everyone understands what we mean. No problems there. However, in this thread the suggestion was made that majority sentiment matters when writing laws, and it was in this context which the discussion of democracy arose. This was not a correct representation of our system, as we are a representative republic with a system in place to prevent the minority from being overrun by tyranny of the majority.

Hence, if someone argues their position on the assertion that we are a democracy, and they implicitly suggest that we are a direct democracy in the process of doing so, it MOST CERTAINLY warrants correction as it's a false representation and hence a bunk argument.


Precision is important, and if we're going to use words which have several meanings, we need to be clear about which meaning we are going by and which ones apply to the discussion.

I'm quite content to move past this, but it's not acceptable to let such things go uncorrected. This IS a science forum after all.

[Severian]

What rubbish. The USA was founded on democratic principles. It doesn't matter one bit whether that is direct or representative democracy. The fact of the matter remains that the question under discussion was put to the vote and the electorate made its opinion clear.

If you do not want to follow the decision of a democratic vote, then your representative democracy should not ask the electorate to vote on the issue. Would you still be saying that this is too important a decision to place before the electorate if your opinion had been reflected by the majority vote?

[Pangloss]

Um. On second thought, I'm quite wrong. Pardon me.

[iNow]

Severian said:

What rubbish. The USA was founded on democratic principles. It doesn't matter one bit whether that is direct or representative democracy. The fact of the matter remains that the question under discussion was put to the vote and the electorate made its opinion clear.

We may be getting into territory which warrants its own thread, but the fact of the matter is that regardless of the number of citizens who want something, that something still must fit within the conditions and guidelines laid out in the constitution.

Majority rule is explicitly protected against, ergo arguments to the contrary are moot since all laws within the US must first abide by and align with the guidelines of our federal constitution. Now, with that said, the issue under discussion here is whether or not the Supreme Courts will find these laws/amendments/changes to be against the federal constitution or not.

My feelings about how I might respond if I found myself as part of the majority are also irrelevant, since this thread has focussed explicitly on constitutionality.


So, put that in your pipe and smoke it, Ozymandias! :D

[Pangloss]

Yes. But like I said before, if the people want it enough to make a constitutional amendment to enforce it, no court in the land can do anything about that. The amendment could later be rejected, but that also would be an act of the people.

Like I said, we need to focus on hearts and minds, not legislating from the bench. People don't like getting pushed around. The heart of what Severian is saying above is just as valid as what you're saying.

[john5746]

http://en.wikipedia....ing_v._Virginia


Loving v. Virginia(1964) - overturned Virginia's Racial Integrity Act of 1924, which made it a felony for a white and non-white person to marry. Bans on interracial marriage were NOT done by democratic means, but via the courts. No one can argue that the South wanted to end racial descrimination.

The arguments against interracial marriage included:

God seperated the races, so they were not intended to mix
Interracial marriage(sex) would result in a degraded population
Mixed offspring would cause much grief to their families and society

whites and non-whites were punished in equal measure for the offense of engaging in interracial sex, so equal protection doesn't apply



Against using this case to support same sex marriages:

Quote

[T]he historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil. This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950s and 1960s, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.[10]

I disagree with the above in that homosexuality has been regarded as sinful for a very, very long time, so that marriage could not be considered. Why would same sex marriage be considered by a culture that thinks their God hates it? I just think it seems like a bigger stretch than interracial marriage because we were not alive 50 years ago. This resulted in offspring - you could see the result! Must have been very scary.



Brief History of US Marriage