Compelling interest, my ass.

[Publius1787]

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.

It is a term that cannot be used unless you believe in the ever evolving constitution advocated by liberals. In this Machiavellian world both sides used compelling interests in cases where a level of scrutiny (I.e. strict scrutiny / also made up out of whole cloth by liberals) would traditionally render the act in question unconstitutional. There is no standard or definition of "compelling interest." It's simply an "out" granted by liberals on the Supreme Court so their past errors where they ruled beyond the confines of the U.S. Constitution cannot be overturned by a single case that proves their previous rulings to be ridiculously erroneous. You can use that for your definition.

If your want your head to seriously hurt, look up the liberal idea of "Substantive due process" and how liberals have used it to make up nonexistent rights.

 

[Publius1787]

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.

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 think the Supreme Court has effectively rendered the 10th Amendment virtually useless unfortunately.

 

[Publius1787]

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.

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.

They're typically used as an release for when the made up rights out of the liberal substantive due process doctrine blows up in their faces.

 

[Skylar]

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.

It is a term that cannot be used unless you believe in the ever evolving constitution advocated by liberals. In this Machiavellian world both sides used compelling interests in cases where a level of scrutiny (I.e. strict scrutiny / also made up out of whole cloth by liberals) would traditionally render the act in question unconstitutional. There is no standard or definition of "compelling interest." It's simply an "out" granted by liberals on the Supreme Court so their past errors where they ruled beyond the confines of the U.S. Constitution cannot be overturned by a single case that proves their previous rulings to be ridiculously erroneous. You can use that for your definition.

If your want your head to seriously hurt, look up the liberal idea of "Substantive due process" and how liberals have used it to make up nonexistent rights.

Compelling government interest isn't explicitly defined, but it is more generally. The compelling government interest has to be necessary and crucial. Which raises the bar considerably. And most States arguing compelling government interest lose. Well over 70%. And its almost always the STATE or federal government arguing that such an interest exists.

Not the 'liberals on the supreme court'.

The strict scrutiny standard makes it harder for governments to impose rules that could limit rights. Not easier.

 

[Publius1787]

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.

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.

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.

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.

 

[Skylar]

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.

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 think the Supreme Court has effectively rendered the 10th Amendment virtually useless unfortunately.

To a large extent that was the 14th amendment. As it applied the Bill of Rights to the States (eventually).....and it was that application that dramatically reduced the authority of the 10th amendment. Prior to the 14th amendment (and for quite a while after), the Bill of Rights didn't limit State action. And the States could do pretty much whatever they wanted to their citizen.

Though there are some pretty egregious examples of what you describe. The mind boggling legal acrobatics that goes into interpreting interstate commerce as being intrastate commerce would be one.

 

[Skylar]

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.

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.

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.

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.

 

[Publius1787]

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.

It is a term that cannot be used unless you believe in the ever evolving constitution advocated by liberals. In this Machiavellian world both sides used compelling interests in cases where a level of scrutiny (I.e. strict scrutiny / also made up out of whole cloth by liberals) would traditionally render the act in question unconstitutional. There is no standard or definition of "compelling interest." It's simply an "out" granted by liberals on the Supreme Court so their past errors where they ruled beyond the confines of the U.S. Constitution cannot be overturned by a single case that proves their previous rulings to be ridiculously erroneous. You can use that for your definition.

If your want your head to seriously hurt, look up the liberal idea of "Substantive due process" and how liberals have used it to make up nonexistent rights.

Compelling government interest isn't explicitly defined, but it is more generally. The compelling government interest has to be necessary and crucial. Which raises the bar considerably. And most States arguing compelling government interest lose. Well over 70%. And its almost always the STATE or federal government arguing that such an interest exists.

Not the 'liberals on the supreme court'.

The strict scrutiny standard makes it harder for governments to impose rules that could limit rights. Not easier.

When I speak of liberals I mean how they have shaped the U.S. Constitution to bring us to this point and the use of stare decisis to cement today what was considered laughable years ago. When you argue before the Supreme Court it's like any other case, you're going to use the tools given to you whether you like them or not. Judges will often rule favorably on cases they would normally reject because the case is decided on a narrow question and stare decisis is in play. First came "substantive due process" and then came "compelling interest" to make up for the flaws of "substantive due process." Compelling interests has always existed but not to the extent is has under substantive due process. The liberalization, for lack of a better term, of the Supreme Court has exploded this epidemic.

If Hamilton can argue that "necessary and proper" really means "convienant and useful" with the Supreme Court agreeing after much agitation from FDR over 100 years later, good luck keeping compelling interest to the standard of "necessary and crucial."

 

[Publius1787]

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.

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.

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.

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.

 

[Publius1787]

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.

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 think the Supreme Court has effectively rendered the 10th Amendment virtually useless unfortunately.

To a large extent that was the 14th amendment. As it applied the Bill of Rights to the States (eventually).....and it was that application that dramatically reduced the authority of the 10th amendment. Prior to the 14th amendment (and for quite a while after), the Bill of Rights didn't limit State action. And the States could do pretty much whatever they wanted to their citizen.

Though there are some pretty egregious examples of what you describe. The mind boggling legal acrobatics that goes into interpreting interstate commerce as being intrastate commerce would be one.

At least they've finally limited the commerce clause. Obamacare did give us that.

 

[dblack]

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.

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.

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.

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 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.

 

[Skylar]

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.

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.

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.

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 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.

Can you give us a few examples of such. Remember, the 'compelling government interest' angle is a losing legal argument, created to limit government action. Not expand it. If a State is citing 'compelling government initerest'....it loses about 70% of the time.

 

[dblack]

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?

Can you give us a few examples of such.

Are you being coy? Having opinions on what the subject, I assumed you were aware of examples. But what the hell, I'll play along. It's use to accommodate laws that violate individual rights rather than protect them: Drug prohibition, the various mandates of the ACA, most restrictions on religion and free speech are a few examples.

 

[Skylar]

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. The 10th amendment grants the States ridiculously broad powers. Ones that until the turn of the 20th century were generally untouchable by the federal judiciary as they related to individual rights. So the baseline were talking about is state power. There's not 'standard' that the State has to meet to act. They simply can. Rights were whatever the State said they were.

After judicial interpretations of the 14th amendment came closer in line with what its writers intended it to be.....the broad powers of the States were held to standards that limited their application in relation to rights. One of these limits.....was the Strict Scrutiny standard. Of which 'compelling government interest' was a part that had to be met before the State was allowed to act.

'Compelling government interest' isn't a legal concept designed to *empower* states. The States were already empowered under the 10th amendment. It was a concept designed to empower individual rights.....as it limited state power far more narrowly than the 10th amendment ever did.

Can you give us a few examples of such.

Are you being coy? Having opinions on what the subject, I assumed you were aware of examples. But what the hell, I'll play along. It's use to accommodate laws that violate individual rights rather than protect them: Drug prohibition, the various mandates of the ACA, most restrictions on religion and free speech are a few examples.

[/quote]

Drug prohibition would be an issue of public safety. And public safety would definitely be a compelling government interest....as its both crucial and necessary. Whether the laws are plausibly connected to the end of public safety or if drug prohibition laws were the minimum the state could infringe on rights is thoroughly debatable.

But public safety being a compelling government interest really isn't.

 

[Publius1787]

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.

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.

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.

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 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"

 

[dblack]

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.

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.

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 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.

 

[dblack]

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?

 

[Publius1787]

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.

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.

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 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. Your statement is like those who say that the role of the court is to ensure that rights are progressing in an evolutionary but correct direction. Well if you believe that the Constitution is nothing more than an empty sheet of paper that can mean whatever you want it to say and make it grant whatever rights you want to make up (like Gay marriage). The amendment process is there for a reason. But the hard work and practicality of the amendment process leads people to simply appoint judges who dive no deference to text, history, traditions and weigh heavily on outcomes and consequences (a relatively new and dubious means of interpreting law). With that view the U.S. Constitution can either go backwards or forwards on the individual rights front. No, we must define and keep the rights protected by the Constitution whilst not making up new ones that the Constitution clearly doesn't grant. Only then can we ensure that the rights you speak of will be permanent. The role of the SCOTUS is simple: Interpret what the law means. They aren't there to protect individual rights and to appoint someone on that grounds puts activist ideologues on the bench. The law should be first and foremost in their mind. Nothing else.

 

[dblack]

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.

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 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.

 

[Publius1787]

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 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.