Nullification of Constitution by Elected/Appointed State Officials

[cinepro]

3 hours ago, USU78 said:

Can you clarify where it is the case anywhere in the Anglo-American world that a government is permitted to allow default judgments to be entered against it?

California?

Edited April 19, 2016 by cinepro

[thesometimesaint]

17 hours ago, mtomm said:

One of the first hits on google seems to indicate that this really isn't a matter that's been settled and it pretty much depends on the attorney general and their own political viewpoint. Quite fascinating. 

Not really under the California system all proposed and actual laws must conform to the state constitution. Prop 8 failed that test.

[SeekingUnderstanding]

36 minutes ago, thesometimesaint said:

Not really under the California system all proposed and actual laws must conform to the state constitution. Prop 8 failed that test.

You are saying that Prop 8 (which amended the California state constitution) did not conform to the state constitution? Even though it was part of the state constitution? 

[cdowis]

A warning about a final death blow to the Constitution.  How the thread ("hanging by a thread") may eventually be broken.

http://video.foxnews.com/v/4852963637001/is-the-supreme-court-compromised/?#sp=show-clips

NOTE:  Do not see this as a partisan issue, but look at his underlying argument about the nature of the Constitution.

Edited April 20, 2016 by cdowis

[thesometimesaint]

In California we still have to comply with the US constitution. When there is a disagreement between the two the USSC gets to decide.

[SeekingUnderstanding]

7 minutes ago, thesometimesaint said:

In California we still have to comply with the US constitution. When there is a disagreement between the two the USSC gets to decide.

If this was directed at me (a full supporter of SSM BTW), I assume that you concede the point that by definition an amendment to a constitution conforms to the constitution?

[Mark Beesley]

20 hours ago, USU78 said:

CFR.

Perry v Schwarzenegger and related apellate decisions.  The Ninth Circuit certfied the question to The Cal Supremes in the context of whether proposition sponsors had standing to defend in light of the AG'sfailure to defend.

[thesometimesaint]

21 minutes ago, SeekingUnderstanding said:

If this was directed at me (a full supporter of SSM BTW), I assume that you concede the point that by definition an amendment to a constitution conforms to the constitution?

I'm not a supporter of SSM, but I don't see any US Constitutional way to make or keep it illegal. My only argument is that ALL state laws must conform to not only that state's constitution but the US constitution as well. In California we already had laws making SSM the legal equivalent of Different Sex Marriage. Prop 8 tried to remove that law. Setting up a legal confrontation that was ultimately resolved by the USSC.

Edited April 20, 2016 by thesometimesaint

[cdowis]

49 minutes ago, thesometimesaint said:

 In California we already had laws making SSM the legal equivalent of Different Sex Marriage. Prop 8 tried to remove that law. Setting up a legal confrontation that was ultimately resolved by the USSC.

[USU78]

18 hours ago, cinepro said:

California?

Is this an acknowledgement that the government of the People's Bear Flag Republic is a tyranny?

[USU78]

2 hours ago, Mark Beesley said:

Perry v Schwarzenegger and related apellate decisions.  The Ninth Circuit certfied the question to The Cal Supremes in the context of whether proposition sponsors had standing to defend in light of the AG'sfailure to defend.

This is post hoc reasoning, MB:  at the point where the elected and appointed officials of the State of CA decided not to defend the suit, they acted as tyrants, ignoring the will of the unwashed and benighted plebs who had overturned an act of judicial adventurism by plebescite.

In other words:  you got nothin'.

[thesometimesaint]

1 hour ago, USU78 said:

This is post hoc reasoning, MB:  at the point where the elected and appointed officials of the State of CA decided not to defend the suit, they acted as tyrants, ignoring the will of the unwashed and benighted plebs who had overturned an act of judicial adventurism by plebiscite.

In other words:  you got nothin'.

The US and the state of California are not governed by plebiscite. We are guaranteed a republican form of government. Not a  rule by the mob. We are governed by the Constitution with its three co-equal branches. For the US we can change the constitution by one of two ways; a Constitutional Convention or an amendment that passes Congress and is ratified by 3/4 of the state legislatures. Not a plebiscite.

If you really want to make illegal SSM pass a Constitutional Amendment barring it. Otherwise you got nothing but a complaint.

[cinepro]

1 hour ago, USU78 said:

Is this an acknowledgement that the government of the People's Bear Flag Republic is a tyranny?

Interestingly, it appears the only other time this has happened was Jerry Brown's dad (who was governor in the 1960s).

 

Quote

 

SACRAMENTO -- When Gov. Jerry Brown decided he wouldn't defend California's ban same-sex marriage in court, he was following in the footsteps of his father, former Gov. Pat Brown.

Both men decided they wouldn't go to bat for voter-approved measures because they considered them unconstitutional. The ballot initiatives -- Proposition 8 in 2008 and Proposition 14 in 1964 -- are the only two in California history to go undefended by state leaders.

Proposition 14 was an attempt to undo fair-housing laws championed by the elder Brown, who wanted to prevent landlords from discriminating based on race, sex and other factors.

Black residents sued after voters approved the measure, saying they were being unfairly denied housing. Brown refused to mount a legal defense of Proposition 14, and it was ruled unconstitutional by the California Supreme Court. The decision was upheld by the U.S. Supreme Court in 1967.

http://www.latimes.com/local/political/la-me-pc-california-jerry-brown-proposition-8-20130628-story.html

Even more interesting, both propositions were ultimately ruled unconstitutional by the Supreme Court.

As for California being a "tyranny", it is my recollection that both Governor Jerry Brown and AG Kamela Harris were very open during their campaigns about their plan to not defend Prop 8, so if it bothered the people of California so much, we probably wouldn't have voted them in (and for the record, I didn't vote for either of them).

So if your definition of "tyranny" is having two state leaders doing what they said they were going to do when they were campaigning, and then not defending a law that was later ruled unconstitutional by the Supreme Court, then yes, we do live under that type of tyranny.

Edited April 20, 2016 by cinepro

[USU78]

27 minutes ago, thesometimesaint said:

The US and the state of California are not governed by plebiscite. We are guaranteed a republican form of government. Not a  rule by the mob. We are governed by the Constitution with its three co-equal branches. For the US we can change the constitution by one of two ways; a Constitutional Convention or an amendment that passes Congress and is ratified by 3/4 of the state legislatures. Not a plebiscite.

If you really want to make illegal SSM pass a Constitutional Amendment barring it. Otherwise you got nothing but a complaint.

Got it  ...  the people work for the government and better sit down, shut up, and obey.

[USU78]

29 minutes ago, cinepro said:

Interestingly, it appears the only other time this has happened was Jerry Brown's dad (who was governor in the 1960s).

Yup.  Both radical Socialists.  Both disdained the people's choice.  Both tyrants.

[cinepro]

26 minutes ago, USU78 said:

Yup.  Both radical Socialists.  Both disdained the people's choice.  Both tyrants.

Just so I'm clear, you're mad that a man who was popularly elected governor not once, not twice, not three times but four times "disdained the people's choice" on an issue that was decided (in his favor) by the Supreme Court a year or two later?  And in your view, that makes him a "tyrant"?

Sorry, I'm not a fan of Brown on many things, but calling him a "radical Socialist" and "tyrant", especially on this issue, sounds more like being a poor loser than offering any sort of lucid political observation.

Edited April 20, 2016 by cinepro

[The Nehor]

3 hours ago, USU78 said:

Is this an acknowledgement that the government of the People's Bear Flag Republic is a tyranny?

Tyranny of the masses maybe. Just say no to plebiscites on law!

[thesometimesaint]

17 hours ago, USU78 said:

Got it  ...  the people work for the government and better sit down, shut up, and obey.

That is a stretch. But obeying the law is the basis of all government.

[thesometimesaint]

17 hours ago, cinepro said:

Just so I'm clear, you're mad that a man who was popularly elected governor not once, not twice, not three times but four times "disdained the people's choice" on an issue that was decided (in his favor) by the Supreme Court a year or two later?  And in your view, that makes him a "tyrant"?

Sorry, I'm not a fan of Brown on many things, but calling him a "radical Socialist" and "tyrant", especially on this issue, sounds more like being a poor loser than offering any sort of lucid political observation.

Agreed.

[thesometimesaint]

16 hours ago, The Nehor said:

Tyranny of the masses maybe. Just say no to plebiscites on law!

Tyranny of minority isn't any better. We need to respect the rights of both.

[halconero]

None of this would be a problem if you guys still had the process of Royal Assent in your governmental structure.

Bend the knee, and Brittania will graciously accept you back into her bosom.

[cinepro]

23 hours ago, USU78 said:

Got it  ...  the people work for the government and better sit down, shut up, and obey.

Keep in mind that the people of California did fire the governor a little more than 13 years ago, so again, it's tough to argue for the docility of California voters. A good current example is the "high speed" train that the government is currently trying to build (and which won voter approval back 2008).  Things have changed, and the people are fighting back on the issue against the government.   So it does happen. 

Sorry it didn't happen over Prop 8 though (even though it wouldn't have mattered anyway).

[Daniel2]

On Tuesday, April 19, 2016 at 1:02 PM, Stargazer said:

I'm not USU78, but that's the old apple vs orange red herring. 

It's immaterial.  Subject matter is not the same.  You can use the same argument that you're implying to justify my marriage to the Statue of Liberty.  And it would be just as invalid and just as immaterial.  Don't bother arguing with me.  I'm not entertaining any doubts that you could use to pry me away from the facts of the matter. Race is not gender.

With regards to asserting that Loving vs. Virginia is "not the same" as Obergefell vs. Hodges, you make the claim that it's "immaterial," that "the subject matter is not the same," that "race is not gender," and that using the same arguments (advanced in Loving) to justify same-sex marriage is as "invalid and immaterial" as attempting to "justify [your] marriage to the Statue of Liberty."

While I understand you've recommended not to "bother arguing with you," because you claim no one can "pry [you] away from the facts of the matter," from a legal perspective, you are simply incorrect, insofar as the Obergefell decision quoted Loving and used the legal precedent that Loving set as part of the basis upon which Obergefell was decided. 

A quick search of the Obergefell ruling itself demonstrates this legal reality:

 

Quote

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is "one of the vital personal rights essential to the orderly pursuit of happiness by free men." The Court reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley, 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause. See, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 116 (1996); Cleveland Bd. of Ed. v. LaFleur, 414 U. S. 632, 639–640 (1974); Griswold, supra, at 486; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942); Meyer v. Nebraska, 262 U. S. 390, 399 (1923).

It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part. This was evident in Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.

Still, there are other, more instructive precedents. This Court’s cases have expressed constitutional principles of broader reach. In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond. See, e.g., Lawrence, 539 U. S., at 574; Turner, supra, at 95; Zablocki, supra, at 384; Loving, supra, at 12; Griswold, supra, at 486. And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453–454; Poe, supra, at 542–553 (Harlan, J., dissenting).

This analysis compels the conclusion that same-sexc ouples may exercise the right to marry...[/quote]

 

Quote

A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki, supra, at 384 (observing Loving held "the right to marry is of fundamental importance for all individuals")

 

Quote

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Windsor, 570 U. S., at ___– ___ (slip op., at 22–23). There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12 ("[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State")

 

Quote

Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which called for a "‘careful description’" of fundamental rights. They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent "right to same-sex marriage." Brief for Respondent in No. 14–556, p. 8. Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask about a "right to interracial marriage"; Turner did not ask about a "right of inmates to marry"; and Zablocki did not ask about a "right of fathers with unpaid child support duties to marry. "Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right. See also Glucksberg, 521 U. S., at 752–773 (Souter,J., concurring in judgment); id., at 789–792 (BREYER, J., concurring in judgments).

That principle applies here. If rights were defined bywho exercised them in the past, then received practicescould serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the rightto marry and the rights of gays and lesbians. See Loving 388 U. S., at 12; Lawrence, 539 U. S., at 566–567.

 

Quote

The Court’s cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause. The Court first declared the prohibition invalid because of its unequal treatment of interracial couples. It stated: "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." 388 U. S., at 12. With this link to equal protection the Court proceeded to hold the prohibition offended central precepts of liberty: "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law." Ibid. The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions.

 

Quote

Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution.

In it's ruling that banning marriage licenses for same-sex couples in unconstitutional, Obergefell quoted and made reference to the legal precedent from Loving at least 8 or 9 times. 

From a legal perspective, the two cases are obviously similar enough to rest on shared legal precedents.

So, there's "the facts" of the ruling.

Edited April 21, 2016 by Daniel2

[Stargazer]

2 hours ago, Daniel2 said:

With regards to asserting that Loving vs. Virginia is "not the same" as Obergefell vs. Hodges, you make the claim that it's "immaterial," that "the subject matter is not the same," that "race is not gender," and that using the same arguments (advanced in Loving) to justify same-sex marriage is as "invalid and immaterial" as attempting to "justify [your] marriage to the Statue of Liberty."

While I understand you've recommended not to "bother arguing with you," because you claim no one can "pry [you] away from the facts of the matter," from a legal perspective, you are simply incorrect, insofar as the Obergefell decision quoted Loving and used the legal precedent that Loving set as part of the basis upon which Obergefell was decided. 

A quick search of the Obergefell ruling itself demonstrates this legal reality:

 

In it's ruling that banning marriage licenses for same-sex couples in unconstitutional, Obergefell quoted and made reference to the legal precedent from Loving at least 8 or 9 times. 

From a legal perspective, the two cases are obviously similar enough to rest on shared legal precedents.

So, there's "the facts" of the ruling.

Yep, those are "the facts", all right.  And the quote marks are entirely appropriate.

As Justice Roberts in his dissent wrote: " Many people will rejoice at this decision, and I begrudge none their celebration."

But I think his dissent makes clear the unwisdom of the entire decision.  He continues:

But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept. The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are? It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become." I have no choice but to dissent.

And now back to my opinion: SCOTUS has been wrong before (e.g. Dred Scott v. Sandford).  SCOTUS was wrong in this case.

Edited April 21, 2016 by Stargazer

[thesometimesaint]

Justice Roberts is simply wrong.  The 14th Amendment precludes treating US citizens, and those under its jurisdiction, as unequal.