Should judges be prohibited from overriding the will of the people?

[Pokinfun]

JB I'm not arguing with you, you understand the law better than I do. However, we do have the Tenth Amendment, which is suppose to limit federal power. Using the 14th Amendment as an elastic clause is exactly what the Founding Fathers intended to prevent.

That's kind of like "love it or leave it." Why should someone have to move away from their business, their families, their friends and their property?

How about State legislatures respecting the Supremacy Clause and stop passing blatantly unconstitutional laws that end up discriminating against some citizens and costing all citizens tax dollars defending this BS drivel?

 

[RickN]

No matter what you think of the current issue, the rights protected in the Constitution are there to protect the unpopular minority, not the tyrannical majority. And as gun owners, we better be glad that is so.

But the activists judges who think it is ok to re-invent the Constitution to suit THEIR political agenda threaten the basic fabric of the Republic.

I wish we had more statesmen and fewer politicians. Somehow "Power" seems to have replaced "Service to the Country."

This!!!! We have gone from being a Constitutional Republic to a judicial dictatorship.

 

[vvvvvvv]

No. Unless that judge is going off half cocked at making rulings blatantly against the constitution. Like the 4 justices on the SC that ruled against the 2A as an individual right in Heller.

Even the 5 that ruled in favor of Heller ruled against the Constitution to a degree... and especially so in McDonald, but McDonald was because the NRA decided it was more important to secure their jobs than to protect RKBA.

 

[vvvvvvv]

Using the 14th Amendment as an elastic clause is exactly what the Founding Fathers intended to prevent.

Not really.

Do some research on the debate surrounding the Fourteenth Amendment. Much of the purpose of the Fourteenth Amendment was to re-assert clauses in the Constitution-proper that had been severely neutered by the SCOTUS.

(Unfortunately, Slaughter-House basically struck-through part of the 14th Amendment. McDonald was originally going to revisit it, but when the NRA stepped in they changed the argument to Due Process to ensure their survival. Even the majority in the SCOTUS said that perhaps Slaughter-House was a very flawed set of rulings.)

You mean the Supremacy Clause that says fed law trumps state law if the fed law is passed *purusant to* the constitution? I'm not seeing anything in the constitution about marriage.

The Constitution does not have to mention anything specifically. Equal protection means equal protection. If a law is passed, it must apply equally.

By codifying the denial of same-sex marriage, Oklahoma was singling out gay people who wanted a legal relationship and giving special privilege to heterosexual people who wanted a legal relationship. If it hadn't been codified, then the argument would be on the unequal protection based on gender. (And actually, the gender argument is in all likelihood a stronger argument than sexual orientation because there is a good amount of precedents that have already been set.)

 

[Old Fart]

I think as long as king obama can over-rule them, then they can do anything they want.

 

[Dave70968]

Judicial rulings shouldn't be about popular vote or anything else, it should strictly be about weather or not it's legal, Constitutional.

But in regards to the current issue, is it Constitutional for a federal judge to strike down a state law? Because, honestly, that's my issue with the ruling. My solution to the issue is to remove government from the matter all together.

The Supremacy clause absolutely gives the Federal government the power to strike down state laws when they implicate a right under the Federal Constitution.

You have it exactly backwards. Under a ban on homosexual marriage everyone, gay and straight alike, has an equal right to marry a person of the opposite sex in compliance with the equal protection clause. Legalizing same sex "marriage" creates another equal right for all people, gay and straight, to "marry" a person of the same sex. Bans on gay marriage do not violate the U.S. Constitution. Further, the U.S. Constitution does not give the federal government the right to regulate marriage, nor does it prevent the many states from doing so.

...except that the Equal Protection clause requires states to apply laws equally. Your "right to marry a person of the opposite sex" is just as bass-ackwards as the "right to marry someone of the same race" that existed before Loving v. Virginia struck down anti-miscegenation laws.

We live in a republic.

Majority vote doesn't rule.

What if a majority voted to outlaw firearms? Would you be okay with it then?

Bingo.

+1......fed gov. stepping in to state matters is an issue with me as well! Problem for me is that it's a one way street. Where are all these judges and their rulings as it pertains to ones right to bear arms? Funny how they attack OK and UT "gay marriage" issues but they won't touch CO, CA, or any other state where the leftist no guns agenda is being rammed down the minority views throat!

They're in DC and Illinois, and at the Supreme Court, giving us rulings like Heller and McDonald.

JB I'm not arguing with you, you understand the law better than I do. However, we do have the Tenth Amendment, which is suppose to limit federal power. Using the 14th Amendment as an elastic clause is exactly what the Founding Fathers intended to prevent.

Without addressing what the Founders wanted, if there's a specific amendment, then original intent is null and void; that's specifically the reason for the amendment process. An Amendment can directly reverse what was previous, and it's perfectly valid; this is as it should be. Intent--as evidenced by the words written--should be followed, but when subsequent words of equal stature (i.e. an amendment) are passed, they win. That's what "amendment" means: to change.

 

[Kyle78]

A quote I always remember, can't remember the author.

"What is right is not always popular, and what is popular is not always right".

I seen it on a post in high school and it's always stuck with me.

 

[Pokinfun]

If an amendment is going to override or reverse another amendment, it has to amend the exact wording it is replacing. Therefore, the 14th Amendment does not over ride or nullify the 10th Amendment. It is very clear what the founding father intended when the made the 10 amendment. You sound like an intelligent guy who understands the amendment process and why the 10 the amendment written, so I do not need to explain it to you.

Without addressing what the Founders wanted, if there's a specific amendment, then original intent is null and void; that's specifically the reason for the amendment process. An Amendment can directly reverse what was previous, and it's perfectly valid; this is as it should be. Intent--as evidenced by the words written--should be followed, but when subsequent words of equal stature (i.e. an amendment) are passed, they win. That's what "amendment" means: to change.

 

[vvvvvvv]

If an amendment is going to override or reverse another amendment, it has to amend the exact wording it is replacing. Therefore, the 14th Amendment does not over ride or nullify the 10th Amendment. It is very clear what the founding father intended when the made the 10 amendment. You sound like an intelligent guy who understands the amendment process and why the 10 the amendment written, so I do not need to explain it to you.

No one said the 14th overrides or nullifies the 10th... It's supplemental and re-asserts in a much more detailed manner parts of Article IV that had been severely neutered in the early courts.

 

[Dave70968]

If an amendment is going to override or reverse another amendment, it has to amend the exact wording it is replacing. Therefore, the 14th Amendment does not over ride or nullify the 10th Amendment. It is very clear what the founding father intended when the made the 10 amendment. You sound like an intelligent guy who understands the amendment process and why the 10 the amendment written, so I do not need to explain it to you.

What VeggieMeat said. The Fourteenth doesn't repeal the Tenth, but it does clarify that rights protected under the United States Constitution may not be violated by state law any more than they may be violated by Federal law.

As an interesting historical note, Madison's original draft of the First Amendment not only forbade the creation of an established national religion, but explicitly forbade the individual states do so either. That state-specific language was stricken in the debates over the Bill of Rights. The rules of statutory construction actually look at such things, and if something is proposed and rejected, it's very specifically considered to treat the statute as not extending the statute to include the rejected language...which is exactly what happened. Several states maintained official state religions even after ratification of the Bill of Rights.

The Fourteenth Amendment specifically extended the rights protected by the United States Constitution to enjoin the several states as well; the legal term of art is "incorporation," and it's the reason the McDonald court ruled that the Second Amendment applies to Illinois law, not just Federal law. Given the history, it's pretty clear that the Founders didn't initially intend the Bill of Rights to be binding upon the various state governments, just the Federal government. The Fourteenth, though, having been subsequently ratified, modified that original understanding and extended the protection from Federal infringement to include protection from state infringement as well.