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2005-02-05 Home Front: Culture Wars

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Posted by Korora 2005-02-05 8:31:50 AM|| || Front Page|| [5 views since 2007-05-07] Top

#1 Sure this is scrappleface?

Posted by CrazyFool 2005-02-05 9:45:58 AM|| 2005-02-05 9:45:58 AM|| Front Page Top

#2 "counter-sex" couples; brilliant.

Posted by Jeamp Ebbereting9472 aka Jarhead 2005-02-05 11:33:53 AM|| 2005-02-05 11:33:53 AM|| Front Page Top

#3 While the piece is satire, the point is accurate: The judiciary has created a theory which permits it to be able make any law which suits the fancy of the individual judge. The process is called "substantive due process", a phrase which encapsulates a contradiction: there is substantive law (a directive or prohibition) and procedural law (time limits for filing a response, the form of the pleading, et cetera). The phrase âdue processâ refers to the procedure by which the government acts: the procedure must be âdueâ, that is, fair or rational.

The Courts performed this rather silly trick: (1) âDue processâ means âfair processâ. (2) âProcessâ means âlawâ. (3) âDue processâ means âfair lawsâ. (4) âFairâ means whatever I happened to like. (5) Therefore, if I donât like the law, itâs not âfairâ. If itâs not âfairâ, than it is âunconstitutionalâ.

In short, a phrase that merely meant that the government canât take my property or life without some kind of a fair procedure now means the judge can make-up anything, literally out of the judgeâs own imagination. Thus, the decisions of the entire electorate, previous courts, the legislature, are irrelevant if the judge does not like the outcome. The judge merely needs to say, ânot fairâ, and the law is âunconstitutionalâ. This is called reading the constitution like a âliving documentâ.

Posted by Kalchas 2005-02-05 12:38:08 PM|| 2005-02-05 12:38:08 PM|| Front Page Top

#4 # 3 how correct you are - When I read the story I thought unconstitutional right away, but could not think of how to compose what I needed to say.

a whole new set of statutes needs to be written on
homosexual marriage. Am I correct??

Andrea Jackson

Posted by Andrea 2005-02-05 1:23:00 PM|| 2005-02-05 1:23:00 PM|| Front Page Top

#5
A âstatuteâ cannot resolve the issue, because there is a hierarchy of law: At the top is the US Constitution; next, the constitutions of the various states. If a provision in a state constitution conflicts with the federal constitution, the state constitution loses. A constitution always trumps a statute. Likewise, a state statute always loses to the federal constitution. (There is a bizarre California Supreme Court case which holds that a state statute must be âbalancedâ against the federal constitution in certain circumstances). There is a complicated set of issues involving the interaction between state and federal statutes and the potential for a federal statute which conflicts with a state constitution.

Statutes are much easier to pass into law than amendments to constitutions.

I have not read the decision, but it seems that the New York judge found that the state statute conflicted with her idea of âfairnessâ in the state constitution. The decision was most likely made under the state constitution, as opposed to the federal constitution, to avoid federal review of the question. (I am guessing on this point, but it is the typical technique to avoid a federal review.)

There is an additional problem: Appellate courts (those courts above the trial level) are well-known (among lawyers) to actually make-up facts to suit their decision. But that is a different issue . . .

Posted by Kalchas 2005-02-05 2:49:06 PM|| 2005-02-05 2:49:06 PM|| Front Page Top

#6 tell me about it - I'm under the 9th circuit

Posted by Frank G 2005-02-05 3:00:18 PM|| 2005-02-05 3:00:18 PM|| Front Page Top

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