For Constitutionalists Only!

[xotoxi]

1. When the Constitution was signed, there was some fear that it could lead to a repressive central government- so they passed the 10 amendments known as the Bill of Rights, basic rights to protect citizens against abuse by the federal government.

2. But in America, there are two government: the federal, and the government of the state in which we live. The Bill of Rights only limits what the federal government can do to us; there are no protections against human and civil rights violations by state governments. And state laws are the ones that affect our lives much more directly: police matters, public works, real estate, auto regulations, domestic relations, wills, and civil lawsuits, among other aspects of daily life.

3. After the Civil War, the Thirteenth Amendment was enacted to prohibit slavery. But in the South and in the North, state legislatures passed hundreds of laws discriminating against blacks, such as voting, holding office, using public facilities, testifying in court, etc.
So Congress proposed the Fourteenth Amendment, which included: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

4. How is an amendment ratified? Article 5: “it does not become part of the Constitution unless it is ratified by three-quarters of the states (either the legislatures thereof, or in amendment conventions).”
The requisite number of states (28) ratified it in 1868. Maybe.

5. But-
a. . When a fair vote was taken on it in 1865, in the aftermath of the Civil War, it was rejected by the Southern states and all the border states. Failing to secure the necessary three-fourths of the states, the Republican party, which controlled Congress, passed the Reconstruction Act of 1867 which placed the entire South under military rule (designed to remove with "Military force'' the lawfully constituted State Legislatures of the 10 Southern States), and they were ‘forced’ to ratify.

b. The Joint Resolution proposing said amendment was not submitted to or adopted by a Constitutional Congress per Article I, Section 3, and Article V of the U. S. Constitution.

c. The Joint Resolution was not submitted to the President for his approval as required by Article I, Section 7 of the U. S. Constitution.

d. When the State of Louisiana rejected the 14th Amendment on February 6, 1867, making the 10th state to have rejected the same, or more than one fourth of the total number of 36 states of the Union as of that date, thus leaving less than three fourths of the states possibly to ratify the same, the Amendment failed of ratification in fact and in law, and it could not have been revived except by a new Joint Resolution of the Senate and House of Representatives in accordance with Constitutional requirement.

e. Ohio and New Jersey-withdrew support after it was ratified.


So, ladies and gentlemen of the jury:

Was the Fourteenth Amendment legally and constitutionally ratified and enacted?

And, what are the ramifications if it is ruled unconstitutional?

So does that mean that blacks actually shouldn't be able to vote, hold office?

Let Orally Titz know because she can abandon her Obama-wasn't-born-here schtick and instead go with Obama-can't-hold-office.

 

[BasicGreatGuy]

While we're sort of recently on the subject, what do you think will be the result of the Lawrence decision?
Some to my left think (hope) it will clear the way for sexual orientation to become a protected class. I'm not so sure.
Or do you just think it's all hooey since it's from the SCOTUS and not the original document?

I am reading over the case again. It has been a while since I studied it.

 

[goldcatt]

The whole 14th Amendment is not legally ratified thing was officially debunked some pages back. (Sorry, Orly)
I'm thinking my Lawrence question should probably go to a new thread, if there's any interest in SCOTUS prognostication?

 

[goldcatt]

While we're sort of recently on the subject, what do you think will be the result of the Lawrence decision?
Some to my left think (hope) it will clear the way for sexual orientation to become a protected class. I'm not so sure.
Or do you just think it's all hooey since it's from the SCOTUS and not the original document?

I am reading over the case again. It has been a while since I studied it.

Have fun with that. My PC's turning into a pumpkin, actually shoudl have a long time ago. I'll check in another time though, I love playing "Those Crazy Supremies".

 

[BasicGreatGuy]

While we're sort of recently on the subject, what do you think will be the result of the Lawrence decision?
Some to my left think (hope) it will clear the way for sexual orientation to become a protected class. I'm not so sure.
Or do you just think it's all hooey since it's from the SCOTUS and not the original document?

I am reading over the case again. It has been a while since I studied it.

Have fun with that. My PC's turning into a pumpkin, actually shoudl have a long time ago. I'll check in another time though, I love playing "Those Crazy Supremies".

Have a good night gold.

 

[lawbuff]

First things first, my friend.

First, what you refer to as the "Comity Clause" is usually referred to as the Privileges and Immunities Clause (Article 4 Section 2 Clause 2, for those who want to look it up). Comity is not the same thing as Full Faith and Credit, which requires States to recognize each other's judicial proceedings when certain guidleines are followed - like registering the foreign judgment. Comity is a recognition of other State's laws generally not because they are forced under Full Faith and Credit, but because they choose to do so out of respect and tradition. Or because another, higher court has decided they "should" out of respect and tradition. Which, BTW, is where the "Federalism" term comes in.

Comity and FFC are similar. The P&I clause of the 14th AM is also an argument proposed since it defacto states, no "State"...

Q: Have you ever seen a lawsuit where at least on of the Causes of Actions was based on Article 4 or the 14th's P-I? If you can cite one, was it successful?

I am not saying it is not a valid argument to proffer, but has it ever been done? I do know of FFC challenges though and all have been struck down. I believe, if I am correct, I even saw a lawsuit based on the Guarantee Clause once, it was struck down.

Nevada v. Hall does not apply here, since Full Faith and Credit (for many reasons) does not apply to marital status. Hall is a Full Faith and Credit case, it has nothing to do with comity.

If we look at the legislative history and purpose of the enactment of DOMA, it was passed as a power under the FFC clause:

Article 4:

Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Therefore, Hall would apply, IMO, or provide a strong argument.

DOMA:

Title 28:

§ 1738C. Certain acts, records, and proceedings and the effect thereof:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

We also have Title 1, part of the "Dictionary Act":

§ 7. Definition of “marriage” and “spouse”

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

Perhaps you were looking for Younger v. Harris, also decided in 1971?

No. Believe it or not, I am familiar with Younger, as it deals with criminal law, I know more about that any any legal subject.

 

[lawbuff]

And are you sure you want to cite Baker v. Nelson?


Yes, the US Supreme Court declined to hear the case due to lack of Federal jurisdiction. Does that really mean what you claim it means? Particularly when you are seemingly confusing Full Faith and Credit, undeniably a Federal question, with Comity, which is not, unless a Federal right or protected class is involved (see Loving v Virginia).

There is a serious question, some very recent State rulings notwithstanding, as to whether (since there was never an opinion in Baker outside the State law ruling of the MN Supreme Court), it should be considered any sort of Constitutional precedent.
After all, there has been no Constitutional ruling, except to state that the issue in Baker was an issue of State law outside the jurisdiction of the Federal courts (see my original post on the subject). It has no Constitutional value beyond an exercise of Article 3, Section 1 (of which there are thousands upon thousands of examples) and bears no precedential weight outside the State in which it was decided.

Sorry, apologies, I should have made myself more clear on what a "dismissal for want of a substantial question" meant. It is facially confusing, and when I 1st read it, I never heard the term either.

The US SC DID hear Baker, it was a Summary decision "on it's merits", unlike a flat denial of Certiorari.

It is binding on inferior courts until such time the SC releases them of it. This is one reason why FFC challenges have never survived to date. DOMA + Baker, make a strong legal argument.

IOW, no state can rule that same sex marriages violate the federal Constitution under the 1st, 8th, 9th and 14th AM's, per Baker. So any cause of action would need to be outside those listed, OR FFC, but as outlined, no challenge has survived yet!

I can't post URL's yet, but find Baker v. Nelson on Wikipedia, it explains the Summary decision better.

In part:

Baker v. Nelson, 291 Minn. 310 (Minn. 1971), 409 U.S. 810 (1972), was a case in which the Minnesota Supreme Court ruled that Minnesota law limited marriage to opposite-sex couples, and that this limitation did not violate the United States Constitution. The plaintiffs appealed, and the United States Supreme Court, 409 U.S. 810 (1972), dismissed the appeal "for want of [a] substantial federal question". That dismissal by the Supreme Court of the United States constituted a decision on the merits, and established Baker v. Nelson as the controlling precedent as a matter of federal constitutional law on the issue of same-sex marriage.

 

[lawbuff]

While we're sort of recently on the subject, what do you think will be the result of the Lawrence decision?
Some to my left think (hope) it will clear the way for sexual orientation to become a protected class. I'm not so sure.
Or do you just think it's all hooey since it's from the SCOTUS and not the original document?

The SC has overturned themselves about 200 times since 1789 and Bowers was one of them.

L v. T, as the argument goes by some, along with Romer v. Evans, constitutes sufficient cause for the SC to entertain the subject again and release the states from Baker, as these are sufficient "doctrinal developments", since Baker.

Sexual orientation is a protected class in employment in some states, but as far as I know, not under Title 7 or any Act yet.

 

[goldcatt]

And are you sure you want to cite Baker v. Nelson?


Yes, the US Supreme Court declined to hear the case due to lack of Federal jurisdiction. Does that really mean what you claim it means? Particularly when you are seemingly confusing Full Faith and Credit, undeniably a Federal question, with Comity, which is not, unless a Federal right or protected class is involved (see Loving v Virginia).

There is a serious question, some very recent State rulings notwithstanding, as to whether (since there was never an opinion in Baker outside the State law ruling of the MN Supreme Court), it should be considered any sort of Constitutional precedent.
After all, there has been no Constitutional ruling, except to state that the issue in Baker was an issue of State law outside the jurisdiction of the Federal courts (see my original post on the subject). It has no Constitutional value beyond an exercise of Article 3, Section 1 (of which there are thousands upon thousands of examples) and bears no precedential weight outside the State in which it was decided.

Sorry, apologies, I should have made myself more clear on what a "dismissal for want of a substantial question" meant. It is facially confusing, and when I 1st read it, I never heard the term either.

The US SC DID hear Baker, it was a Summary decision "on it's merits", unlike a flat denial of Certiorari.

It is binding on inferior courts until such time the SC releases them of it. This is one reason why FFC challenges have never survived to date. DOMA + Baker, make a strong legal argument.

IOW, no state can rule that same sex marriages violate the federal Constitution under the 1st, 8th, 9th and 14th AM's, per Baker. So any cause of action would need to be outside those listed, OR FFC, but as outlined, no challenge has survived yet!

I can't post URL's yet, but find Baker v. Nelson on Wikipedia, it explains the Summary decision better.

In part:

Baker v. Nelson, 291 Minn. 310 (Minn. 1971), 409 U.S. 810 (1972), was a case in which the Minnesota Supreme Court ruled that Minnesota law limited marriage to opposite-sex couples, and that this limitation did not violate the United States Constitution. The plaintiffs appealed, and the United States Supreme Court, 409 U.S. 810 (1972), dismissed the appeal "for want of [a] substantial federal question". That dismissal by the Supreme Court of the United States constituted a decision on the merits, and established Baker v. Nelson as the controlling precedent as a matter of federal constitutional law on the issue of same-sex marriage.

If the case was dismissed on jurisdictional grounds, it was not heard and no opinion was rendered. The case was dismissed because it is a matter for State law, not Federal, and therefore not under the Federal jurisdiction.
Which is proper for any case involving marital status, absent protected class status or other Federal issue such as conflict of laws as in the Anna Nicole Smith case.
The court could rule on Loving, for example, because the controlling factor was race - a protected status. The question was a 14th Amendment equal protection question, not merely a question of forcing States to recognize marriages that would not be legal in their own jurisdictions.
Again, disimssing for lack of jurisdiction is not the same as putting forth an opinion with value as precedent. It is in fact declining to do so, and stating it is outside the power of the court to make a decision and set constitutional precedent.

 

[BasicGreatGuy]

While we're sort of recently on the subject, what do you think will be the result of the Lawrence decision?
Some to my left think (hope) it will clear the way for sexual orientation to become a protected class. I'm not so sure.
Or do you just think it's all hooey since it's from the SCOTUS and not the original document?

As to Lawrence v Texas, I agree with Scalia's opinion, even though I don't agree with all that he said. Like him, I do believe the assenting opinion to be not only flawed reasoning in regards to the law itself, but also dangerous. The assenting opinions proffer the believe that relativism should supersede the law. I believe the assenting opinions to be activism, as I find no substantive legal dictum for their position.

Given the assenting opinion of Lawrence v Texas, it would not surprise me if the Court ( over the next several years ) invented a protected class under the guise of law via the Constitution.

On a side note, I believe the SCOTUS has gotten too powerful. In my opinion, they are not the final arbiters of the law, as many have been led to believe.

 

[BasicGreatGuy]

And are you sure you want to cite Baker v. Nelson?


Yes, the US Supreme Court declined to hear the case due to lack of Federal jurisdiction. Does that really mean what you claim it means? Particularly when you are seemingly confusing Full Faith and Credit, undeniably a Federal question, with Comity, which is not, unless a Federal right or protected class is involved (see Loving v Virginia).

There is a serious question, some very recent State rulings notwithstanding, as to whether (since there was never an opinion in Baker outside the State law ruling of the MN Supreme Court), it should be considered any sort of Constitutional precedent.
After all, there has been no Constitutional ruling, except to state that the issue in Baker was an issue of State law outside the jurisdiction of the Federal courts (see my original post on the subject). It has no Constitutional value beyond an exercise of Article 3, Section 1 (of which there are thousands upon thousands of examples) and bears no precedential weight outside the State in which it was decided.

Sorry, apologies, I should have made myself more clear on what a "dismissal for want of a substantial question" meant. It is facially confusing, and when I 1st read it, I never heard the term either.

The US SC DID hear Baker, it was a Summary decision "on it's merits", unlike a flat denial of Certiorari.

It is binding on inferior courts until such time the SC releases them of it. This is one reason why FFC challenges have never survived to date. DOMA + Baker, make a strong legal argument.

IOW, no state can rule that same sex marriages violate the federal Constitution under the 1st, 8th, 9th and 14th AM's, per Baker. So any cause of action would need to be outside those listed, OR FFC, but as outlined, no challenge has survived yet!

I can't post URL's yet, but find Baker v. Nelson on Wikipedia, it explains the Summary decision better.

In part:

Baker v. Nelson, 291 Minn. 310 (Minn. 1971), 409 U.S. 810 (1972), was a case in which the Minnesota Supreme Court ruled that Minnesota law limited marriage to opposite-sex couples, and that this limitation did not violate the United States Constitution. The plaintiffs appealed, and the United States Supreme Court, 409 U.S. 810 (1972), dismissed the appeal "for want of [a] substantial federal question". That dismissal by the Supreme Court of the United States constituted a decision on the merits, and established Baker v. Nelson as the controlling precedent as a matter of federal constitutional law on the issue of same-sex marriage.

If the case was dismissed on jurisdictional grounds, it was not heard and no opinion was rendered. The case was dismissed because it is a matter for State law, not Federal, and therefore not under the Federal jurisdiction.
Which is proper for any case involving marital status, absent protected class status or other Federal issue such as conflict of laws as in the Anna Nicole Smith case.
The court could rule on Loving, for example, because the controlling factor was race - a protected status. The question was a 14th Amendment equal protection question, not merely a question of forcing States to recognize marriages that would not be legal in their own jurisdictions.
Again, disimssing for lack of jurisdiction is not the same as putting forth an opinion with value as precedent. It is in fact declining to do so, and stating it is outside the power of the court to make a decision and set constitutional precedent.

I found this interesting. "The appellants were plaintiffs in that state action which settled the issues adversely to their present claim. In addition, the Supreme Court's dismissal of the appeal for want of a substantial federal question constitutes an adjudication of the merits which is binding on the lower federal courts. See Hicks v. Miranda,422 U.S. 332, 343-345, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975)."

James Michael Mcconnell and Richard John Baker, Appellants, v. Morris Nooner, Jr., Individually and As a Federal Officer,and the Veterans Administration, Appellees - 547 F.2d 54 - Justia US Court of Appeals Cases and Opinions

 

[lawbuff]

Again, disimssing for lack of jurisdiction is not the same as putting forth an opinion with value as precedent. It is in fact declining to do so, and stating it is outside the power of the court to make a decision and set constitutional precedent.

It was not dismissed under Article 3 jurisdiction, as I said, the phrase is confusing. It was a "summary decision" on the merits.

IF this were not the case under Baker, why has no court ruled for a Plaintiff when they filed suit?

Many states have Constitutional Amendments to ban same sex marriages, surely these would have challenged under the federal constitution and then been successful? Every state that permits them has done so either by legislation OR a state constitutional AM, which SCOTUS can not strike down unless it violates the federal constitution.

 

[goldcatt]

DOMA is Federal legislation that primarily does two things: Denies all Federal benefits to unmarried couples and their children (Social Security survivor benefits from a deceased parent, for example), and reaffirms what was already widespread practice regarding the recognition of foreign marriage under comity.
To change what was already practice and, thanks to DOMA is now statutory, sexual orientation would have to gain suspect class or protected class status in equal protection law. Lawrence unlocks that door, but if you ask me I'll bet it won't be opened for a whole herd of reasons.
I strongly disagree that the States need to be released from Baker, since they are not and were never bound by it. Baker was not cited in any decision as precedent outside Minnesota until 2006 as the same sex marriage issue heated up, Lawrence became the actual controlling precedent - and warning shot, to some - and States were looking for support for their bans. They did not need it, and their use of a jurisdictional dismissal as Constitutional precedent is disingenuous at best.
Ironically, the only reason they would need to look for an excuse at all is ...DOMA. Marriage until then had ALWAYS been solely a State matter. By "Defending" marriage, all Congress did was infringe on State rights.

 

[goldcatt]

Again, disimssing for lack of jurisdiction is not the same as putting forth an opinion with value as precedent. It is in fact declining to do so, and stating it is outside the power of the court to make a decision and set constitutional precedent.

It was not dismissed under Article 3 jurisdiction, as I said, the phrase is confusing. It was a "summary decision" on the merits.

IF this were not the case under Baker, why has no court ruled for a Plaintiff when they filed suit?

Many states have Constitutional Amendments to ban same sex marriages, surely these would have challenged under the federal constitution and then been successful? Every state that permits them has done so either by legislation OR a state constitutional AM, which SCOTUS can not strike down unless it violates the federal constitution.

Let's go back to procedure here, because I think we're arguing cross currents.

First, what constitutes a summary decision? And in a summary decision, why would a Court which never reached the merits of the case state the order has the weight of a decision on the merits as far as its effect on the lower courts? If the decision were of precedential value on its face, why does it have to state that and what is it referring to?

 

[lawbuff]

Let's go back to procedure here, because I think we're arguing cross currents.

First, what constitutes a summary decision? And in a summary decision, why would a Court which never reached the merits of the case state the order has the weight of a decision on the merits as far as its effect on the lower courts? If the decision were of precedential value on its face, why does it have to state that and what is it referring to?

See post 191 above by BGG and see if it helps explain?

 

[goldcatt]

Sorry, apologies, I should have made myself more clear on what a "dismissal for want of a substantial question" meant. It is facially confusing, and when I 1st read it, I never heard the term either.

The US SC DID hear Baker, it was a Summary decision "on it's merits", unlike a flat denial of Certiorari.

It is binding on inferior courts until such time the SC releases them of it. This is one reason why FFC challenges have never survived to date. DOMA + Baker, make a strong legal argument.

IOW, no state can rule that same sex marriages violate the federal Constitution under the 1st, 8th, 9th and 14th AM's, per Baker. So any cause of action would need to be outside those listed, OR FFC, but as outlined, no challenge has survived yet!

I can't post URL's yet, but find Baker v. Nelson on Wikipedia, it explains the Summary decision better.

In part:

Baker v. Nelson, 291 Minn. 310 (Minn. 1971), 409 U.S. 810 (1972), was a case in which the Minnesota Supreme Court ruled that Minnesota law limited marriage to opposite-sex couples, and that this limitation did not violate the United States Constitution. The plaintiffs appealed, and the United States Supreme Court, 409 U.S. 810 (1972), dismissed the appeal "for want of [a] substantial federal question". That dismissal by the Supreme Court of the United States constituted a decision on the merits, and established Baker v. Nelson as the controlling precedent as a matter of federal constitutional law on the issue of same-sex marriage.

If the case was dismissed on jurisdictional grounds, it was not heard and no opinion was rendered. The case was dismissed because it is a matter for State law, not Federal, and therefore not under the Federal jurisdiction.
Which is proper for any case involving marital status, absent protected class status or other Federal issue such as conflict of laws as in the Anna Nicole Smith case.
The court could rule on Loving, for example, because the controlling factor was race - a protected status. The question was a 14th Amendment equal protection question, not merely a question of forcing States to recognize marriages that would not be legal in their own jurisdictions.
Again, disimssing for lack of jurisdiction is not the same as putting forth an opinion with value as precedent. It is in fact declining to do so, and stating it is outside the power of the court to make a decision and set constitutional precedent.

I found this interesting. "The appellants were plaintiffs in that state action which settled the issues adversely to their present claim. In addition, the Supreme Court's dismissal of the appeal for want of a substantial federal question constitutes an adjudication of the merits which is binding on the lower federal courts. See Hicks v. Miranda,422 U.S. 332, 343-345, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975)."

James Michael Mcconnell and Richard John Baker, Appellants, v. Morris Nooner, Jr., Individually and As a Federal Officer,and the Veterans Administration, Appellees - 547 F.2d 54 - Justia US Court of Appeals Cases and Opinions

Yes - the lack of Federal jurisdiction is determined, and the Court went out of its way to state the lower Federal courts were bound by that decision.
In other words, the lower courts were banned from hearing the same question because it had already been determined by the higher court to be outside their jurisdiction. In this regard, the decision carried the same weight as a final decision on the merits and it is so noted.
This was a correct and proper order under the law as it stands. Only a new Federal question, such as suspect class designation for sexual orientation, will inject a Federal question into what is and has always been a State issue.

 

[goldcatt]

Let's go back to procedure here, because I think we're arguing cross currents.

First, what constitutes a summary decision? And in a summary decision, why would a Court which never reached the merits of the case state the order has the weight of a decision on the merits as far as its effect on the lower courts? If the decision were of precedential value on its face, why does it have to state that and what is it referring to?

See post 191 above by BGG and see if it helps explain?

It explains why you and some others believe it to be a decision on the merits, but on the merits of what?

 

[goldcatt]

You guys have been researching this, I'm multitasking. Did anybody come across the docket number? If you have that, I can show you what I'm talking about better than I can explain it.

 

[lawbuff]

You guys have been researching this, I'm multitasking. Did anybody come across the docket number? If you have that, I can show you what I'm talking about better than I can explain it.

I have to run for now. I may be back later tonight? Tomorrow anyway!!

 

[goldcatt]

You guys have been researching this, I'm multitasking. Did anybody come across the docket number? If you have that, I can show you what I'm talking about better than I can explain it.

I have to run for now. I may be back later tonight? Tomorrow anyway!!

Looking forward to it.