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Remember, the 'compelling government interest' angle is a losing legal argument, created to limit government action. Not expand it.
That's how you have characterized it, but that's not how it's used. The 'compelling interest' excuse is invoked to accommodate the government regulating behavior in ways that would otherwise be unconstitutional. It's used to justify the exercise of government power, not limit it. It's seem odd that you're trying to invert it. What's your angle?
I'm citing 'compelling government interest' as it was actually recognized: As a limit to government power, one of a checklist of conditions that had to be met before rights be significantly regulated by the State. Other such requirements would be that the measure was the absolute least interference with rights plausibly possible to reach that legitimate purpose of 'compelling government interest'.
If a State is tapping 'compelling government interest', they're hitting the wall of the Strict Scrutiny test. A test the States overwhelmingly fail. States when arguing 'compelling government interest' are trying to convince a judge that their laws meet the Strict Scrutiny standards. Generally regarded as one of the strictest, most difficult to satisfy standards in all of law.
The standard exists to limit state power.
'Strict Scrutiny' exists to limit state power. 'Compelling Interest' is one of its exceptions - one of the ways government can get around strict limits on power. Again, I'm curious why you're claiming otherwise. How do you think it changes the debate?
The question of which rights government should protected (I've always seen 'all of them' as the correct answer) is really secondary to the topic. If we're discussing that, we're already on the same page, we're just discussing details.
'Compelling state interest' becomes a problem when the 'interest' in question is something beyond protecting our rights. The 'compelling interest' excuse often promotes the idea that a government's well-being is more important than the liberty of its citizens. This is compounded by the majoritarian notion that government IS the people, that it is the ultimate representation of society. From that perspective, the argument boils down to the 'greater good' debate, which is essentially how 'compelling interest' is usually used.
Indeed, but the gay rights example as ruled by the Supreme Court is the antithesis of the notion that "the government IS the people, that it is the ultimate representation of society"
I can't speak to the specifics of what you're referring to, but the most important role of the Court, in my view, is standing firm against the majority when what they want violates individual rights.
The U.S. Constitution does not protect all individual rights.
That's a matter of interpretation and opinion. Sad to say, your view currently prevails. Some argued against the Bill of Rights specifically because they feared it would be used to promote the idea that the only rights the Constitution protects are those explicitly listed. That's why they added the 9th Amendment. Sadly, it didn't work.
All if it is a matter of interpretation and opinion. The question what methods of interpretation are best in keeping the court from legislating and keeping the U.S. Constitution from changing without the people's say. It is indeed offensive that people protest the SCOTUS over issues that aren't in the U.S. Constitution. They protest because court has become ideological, as if they were a branch of congress. Gay Marriage, Abortion, Affirmative Action: The U.S. Constitution sanctions none of it. gay marriage and abortion can be left up to the states (Democratic Choice), and Affirmative Action is clearly a violation of the equal protections clause unless you're a private university. Issues like these make a mockery out of the court.
Remember, the 'compelling government interest' angle is a losing legal argument, created to limit government action. Not expand it.
That's how you have characterized it, but that's not how it's used. The 'compelling interest' excuse is invoked to accommodate the government regulating behavior in ways that would otherwise be unconstitutional. It's used to justify the exercise of government power, not limit it. It's seem odd that you're trying to invert it. What's your angle?
I'm citing 'compelling government interest' as it was actually recognized: As a limit to government power, one of a checklist of conditions that had to be met before rights be significantly regulated by the State. Other such requirements would be that the measure was the absolute least interference with rights plausibly possible to reach that legitimate purpose of 'compelling government interest'.
If a State is tapping 'compelling government interest', they're hitting the wall of the Strict Scrutiny test. A test the States overwhelmingly fail. States when arguing 'compelling government interest' are trying to convince a judge that their laws meet the Strict Scrutiny standards. Generally regarded as one of the strictest, most difficult to satisfy standards in all of law.
The standard exists to limit state power.
'Strict Scrutiny' exists to limit state power. 'Compelling Interest' is one of its exceptions - one of the ways government can get around strict limits on power. Again, I'm curious why you're claiming otherwise. How do you think it changes the debate?
No more so than 'probable cause'. The Compelling interest is a standard that the State had to meet. Before Compelling Interest......there was 'whatever the fuck the state wanted to do'. Now they are limited to necessary and crutial interests rather than mere preferences.
And Compelling Interest is a standard of Strict Scrutiny. Compelling interest isn't an 'exception' to Strict Scrutiny. Its the application of it.
Remember, the 'compelling government interest' angle is a losing legal argument, created to limit government action. Not expand it.
That's how you have characterized it, but that's not how it's used. The 'compelling interest' excuse is invoked to accommodate the government regulating behavior in ways that would otherwise be unconstitutional. It's used to justify the exercise of government power, not limit it. It's seem odd that you're trying to invert it. What's your angle?
I'm citing 'compelling government interest' as it was actually recognized: As a limit to government power, one of a checklist of conditions that had to be met before rights be significantly regulated by the State. Other such requirements would be that the measure was the absolute least interference with rights plausibly possible to reach that legitimate purpose of 'compelling government interest'.
If a State is tapping 'compelling government interest', they're hitting the wall of the Strict Scrutiny test. A test the States overwhelmingly fail. States when arguing 'compelling government interest' are trying to convince a judge that their laws meet the Strict Scrutiny standards. Generally regarded as one of the strictest, most difficult to satisfy standards in all of law.
The standard exists to limit state power.
'Strict Scrutiny' exists to limit state power. 'Compelling Interest' is one of its exceptions - one of the ways government can get around strict limits on power. Again, I'm curious why you're claiming otherwise. How do you think it changes the debate?
No more so than 'probable cause'. The Compelling interest is a standard that the State had to meet. Before Compelling Interest......there was 'whatever the fuck the state wanted to do'. Now they are limited to necessary and crutial interests rather than mere preferences.
It's considerably "more so" [an exception to government power] than probable cause. 'Probably cause' is quite specific in comparison. Compelling interest has no such constraints, or at least none that I know about.
I was hoping someone more knowledgeable in case law might be able to cite the guiding principles that the Court uses when assessing where such 'interests' are a valid use of government or not. Haven't found much in my own research.
Also, I've noticed you keep trying to suggest this is a state's rights issue, but I'm actually discussing it's use by the federal government. Not that it matters, it's the same debate. Point, it's not a state's right's debate. It's a limited government debate,
And Compelling Interest is a standard of Strict Scrutiny. Compelling interest isn't an 'exception' to Strict Scrutiny. Its the application of it.
Heh... whatever. I'm still not sure what your angle is with this, but it seems irrelevant at best. My point is that compelling interest is too vaguely defined, and too broadly applied. It allows government to violate our rights for virtually any reason that Congress, and five SC Justices, find 'compelling'.
That's how you have characterized it, but that's not how it's used. The 'compelling interest' excuse is invoked to accommodate the government regulating behavior in ways that would otherwise be unconstitutional. It's used to justify the exercise of government power, not limit it. It's seem odd that you're trying to invert it. What's your angle?
I'm citing 'compelling government interest' as it was actually recognized: As a limit to government power, one of a checklist of conditions that had to be met before rights be significantly regulated by the State. Other such requirements would be that the measure was the absolute least interference with rights plausibly possible to reach that legitimate purpose of 'compelling government interest'.
If a State is tapping 'compelling government interest', they're hitting the wall of the Strict Scrutiny test. A test the States overwhelmingly fail. States when arguing 'compelling government interest' are trying to convince a judge that their laws meet the Strict Scrutiny standards. Generally regarded as one of the strictest, most difficult to satisfy standards in all of law.
The standard exists to limit state power.
'Strict Scrutiny' exists to limit state power. 'Compelling Interest' is one of its exceptions - one of the ways government can get around strict limits on power. Again, I'm curious why you're claiming otherwise. How do you think it changes the debate?
No more so than 'probable cause'. The Compelling interest is a standard that the State had to meet. Before Compelling Interest......there was 'whatever the fuck the state wanted to do'. Now they are limited to necessary and crutial interests rather than mere preferences.
It's considerably "more so" [an exception to government power] than probable cause. 'Probably cause' is quite specific in comparison. Compelling interest has no such constraints, or at least none that I know about.
Sure it does. It has to be necessary and crucial. Not simply preferential. And it has to be the minimum necessary to reach the compelling interest and no more.
With the restrictions before the Strict Scrutiny test being essentially nothing.
The Strict Scrutiny Test (and all of its criteria, including the Compelling Government Interest test) are limits to state power. Standards that the government has to meet before it can act. Where before there were no such limits and it could do essentially anything it wanted.
I was hoping someone more knowledgeable in case law might be able to cite the guiding principles that the Court uses when assessing where such 'interests' are a valid use of government or not. Haven't found much in my own research.
Its pretty situational. 'Necessary' and 'crucial' tend to be the standards most commonly cited.
Also, I've noticed you keep trying to suggest this is a state's rights issue, but I'm actually discussing it's use by the federal government. Not that it matters, it's the same debate. Point, it's not a state's right's debate. It's a limited government debate,
I don't believe I've even mentioned 'state's rights'. I may focus more on the application of the Strict Scrutiny standard as it applies to the State.....as the standard you cited in the OP was 'compelling state interest'. Which is a standard applies to States.
And perhaps because the State has such broad power to do pretty much whatever it wants in comparison to the Federal Government. Limited with such provisions like the Strict Scrutiny standard by individual rights. And limited in the past by nothing but their own will.
And Compelling Interest is a standard of Strict Scrutiny. Compelling interest isn't an 'exception' to Strict Scrutiny. Its the application of it.
Heh... whatever. I'm still not sure what your angle is with this, but it seems irrelevant at best. My point is that compelling interest is too vaguely defined, and too broadly applied. It allows government to violate our rights for virtually any reason that Congress, and five SC Justices, find 'compelling'.
My 'angle' is that before the 'strict scrutiny' standard.....there was no restrictions. The State could do pretty much whatever it wanted. The strict scrutiny standard (with the compelling government interest test being part of it) were applied to limit government action.
It would be akin to a road not having any speed limit. And then a speed limit of 65 being imposed. And you complaining that the speed limit existed to empower drivers to go as fast as they want.
Um, no. The speed limit exists to limit speeds. Just like the compelling government interest test exists to limit power.
Authoritarians, of both the liberal and conservative varieties, love to cite 'compelling state interest' as an excuse for their ambitions. What the hell is that supposed to mean? Near as I can tell, it's just a catch-all for anything they want to cram down our throats.
When Utah enacted Amendment 3, prohibiting same-sex couples from marrying in that state, the measure was invalidated by the courts because Utah failed to establish a compelling governmental interest in doing so.Issues of public interest or concern that don't violate rights, generally speaking. And yes, its ridiculously broad.
But then, so is the 10th amendment.
I haven't noticed the "don't violate rights" part. In fact, the "compelling interest" excuse is usually only invoked as justification for laws that DO violate rights.
Our rights are often safeguarded by the Constitution and its case law from unwarranted attack by the state.
When demonstrators sought to stage a ‘sleep-in’ on public property in Washington, D.C., to bring attention to the problem of homelessness, the City prohibited the demonstration. The Supreme Court upheld the City’s decision to do so, as the City established a compelling governmental interest to keep public areas free from obstructions and accessible citizens (see Clark v. Community for Creative Non-Violence).
Again, our rights are not absolute, they are indeed subject to reasonable restrictions by government, consistent with the Constitution and its case law, and the rule of law.
The first example is an excellent one. The "right" of Gay marriage is nowhere to be found in the text, our history, or our traditions, but the Supreme Court made up an additional right out of substantive due process. Thus it was deemed incumbent on the states to prove a compelling interest to prevent a "right" that fails all Constitutional reasoning except for those who believe in substantive due process. Now I believe that gays should have the opportunity to be wed. But the legal reasoning behind it is a bastardization of the U.S. Constitution.
The right to gay marriage was set up well in our legal precedent. The line from Romer to Lawrence to Windsor to Obergefell didn't involve any large leaps. With Loving and other decisions making it clear that a right to marriage most definitely did exist.
The primary impediment to gay marriage as it relates to the institution itself.....wasn't gender. It was the power dynamic of marriage. In the past it was an expressly asymmetric relationship with a man leading and a woman being subordinate. The husband had far more rights and protections than did the wife. This made same sex unions fundamentally incompatible with marriage. As it was always the union of equals, which marriage never was.
As the law changed and marriage became a legal union of equals with both parties having equal rights and protection.....the fundamental incompatibility between same sex unions and marriage disappeared.
Once again, Gay marriage is not sanctioned in the text of the U.S. Constitution, the history of our country/laws, nor the traditions of our country/laws. In fact, the history and traditions of our country reflects an nearly exclusive ban on gay marriage. No views of legal equality changes this fact. Once again I approve of gay marriage, just don't feed me the BS that the U.S. Constitution guarantees it as a right. It is another substantive due process fiction.
