Obergefell v. Hodges is a classic case of judicial tyranny, its date will live in infamy

[Marener]

If you go to the next paragraph or so he puts what you quoted into more context.

That says the same thing but even whinier.

It says that liberty is defined by history and tradition. Not what we want it to mean.

Interracial marriage is not part of our history and tradition.

 

[martybegan]

That says the same thing but even whinier.

It says that liberty is defined by history and tradition. Not what we want it to mean.

Interracial marriage is not part of our history and tradition.

You are such a simpleton.

Miscegenation laws came after the concept of mixed marriages was already in place not only in the US but in countries before us.

And again, race isn't the same as sex.

 

[Marener]

You are such a simpleton.

Miscegenation laws came after the concept of mixed marriages was already in place not only in the US but in countries before us.

And again, race isn't the same as sex.

Race isn’t mentioned in the 14th amendment, so for the purposes of the equal protection clause, it’s no different.

Again, Alito is clear that it’s only our nations history that matters. Interracial marriage was not allowed in our country for centuries.

 

[martybegan]

Race isn’t mentioned in the 14th amendment, so for the purposes of the equal protection clause, it’s no different.

Again, Alito is clear that it’s only our nations history that matters. Interracial marriage was not allowed in our country for centuries.

The 14th was created when race was the biggest issue facing the nation.

Again, you misconstrue his opinion for your cheap attempts at a "gotcha"

 

[Marener]

You are such a simpleton.

Miscegenation laws came after the concept of mixed marriages was already in place not only in the US but in countries before us.

And again, race isn't the same as sex.

Race isn’t mentioned in the 14th amendment, so for the purposes of the equal protection clause, it’s no different.

Again, Alito is clear that it’s only our nations history that matters. Interracial marriage was not allowed in our country for centuries.

 

[Marener]

The 14th was created when race was the biggest issue facing the nation.

Again, you misconstrue his opinion for your cheap attempts at a "gotcha"

And what makes you think that they intended the 14th amendment to apply to interracial marriages?

I guess they just forgot to write it in there.

 

[martybegan]

And what makes you think that they intended the 14th amendment to apply to interracial marriages?

I guess they just forgot to write it in there.

Being an absolutist to make your pathetic gotcha attempt is just that, pathetic.

 

[Marener]

Being an absolutist to make your pathetic gotcha attempt is just that, pathetic

And now you’re attacking me for pointing out your own inconsistencies.

That’s pathetic.

Maybe if you guys had an ounce of intellectual honesty, this would be different.

Nothing you say means anything.

 

[martybegan]

And now you’re attacking me for pointing out your own inconsistencies.

That’s pathetic.

Maybe if you guys had an ounce of intellectual honesty, this would be different.

Nothing you say means anything.

You haven't pointed out anything.

 

[Marener]

You haven't pointed out anything.

You're too much of a hack to get it anyway but it’s all there in the text.

 

[johnwk]

You're too much of a hack to get it anyway but it’s all there in the text.

Your name calling does not advance your assertions.

How about defending the majority opinion in Obergfell and show us any written passage from the opinion confirming the 39th Congress intended to overturn the historical meaning of marriage and forbid the States to make distinctions based upon sex when issuing a marriage license?

 

[TheProgressivePatriot]

For those who are dedicated supporters and defenders of the miracle our forefathers created (the Constitution of the United States of America), the MAJORITY’S OPINION in Obergefell v. Hodges, handed down June 26, 2015, like a number of previous “precedent” setting opinions, will long be remember as another significant and major attack on the fundamental rules used to preserve and protect that Constitution.

Supreme Court Justice Clarence Thomas was absolutely correct when he emphatically stated a “. . . precedent should be of our legal tradition, and our country and our laws, and be based on something – not just something somebody dreamt up and others went along with.” SOURCE

With respect to fundamental rules used to determine the true and actual meaning of our Constitution, as it was understood by those who framed it and the States and people therein when ratifying it, the majority’s opinion in Obergefell v. Hodges casts such rules aside and substituted its own sexual oriented feels and predilections for the rule of law and reversed the Court of Appeals for the Sixth Circuit which appropriately upheld, on November 6, 2014, Kentucky’s ban on same-sex marriage

Nowhere in the majority opinion, Obergefell v. Hodges, is there a shred of evidence confirming that by the terms of the Fourteenth Amendment’s equal protection or due process clause, or the documented legislative intent under which the Fourteenth Amendment was agreed to by the States when ratifying the amendment, was Kentucky‘s decision to not issue same-sex marriage licenses in violation of the Fourteenth Amendment.

Justice Kennedy in authoring the opinion simply went on and on, page after page, with irrelevant platitudes and historical notations having nothing to do with the debates of the 39th Congress which actually framed and helped to ratify the Fourteenth Amendment in order to “. . . discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it." See, HOME BLDG. & LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934)

Unlike Israel’s “Basic Law” which states “There shall be no violation of rights under its Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required “, which in effect makes rights and limited powers granted meaningless, the Constitution of the United States contains no grant of such omnipotent authority to our federal government, and that includes an un-elected majority sitting on our Supreme Court.

In essence, a majority on our Supreme Court set itself up as members of an unelected, omnipotent, constitutional convention, and substituted their personal feelings and predilections as being within the terms and conditions under which the Fourteenth Amendment was agreed to, while Article V is the only lawful way to alter our Constitution, and it requires consent of the States and people therein as outlined therein.

Have three-fourths of the States and people therein agreed to cast aside the traditional meaning of marriage, which dates back 4,000 years, and forbid the States to issue marriage licenses based upon the applicant’s sex?

JWK


Those who reject abiding by the text of our Constitution, and the intentions and beliefs under which it was agree to, as documented from historical records _ its framing and ratification debates which give context to its text _ wish to remove the anchor and rudder of our constitutional system so they may then be free to apply the Humpty Dumpty theory of language to our Constitution and make it mean whatever they wish it to mean.

I must say. You really do seem to have a fat , hot bug up your ass on this gay marriage thing. This is at least your second OP on the topic in as many weeks when most people have put it well behind them. In addition, you seem to have deluded yourself into believing that you understand a whole lot more about the constitution that you actually do.

Here is your last post which was pretty much the same codswallop that you are posting now :

Kim Davis should sue Justices Sotomayor and Kagan under the Seventh Amendment

Then in your very last post of that thread (#94) , before you fled from the scene of you crime -apparently being unable to respond to my critique of it - you wrote in part:

Nor does the Fourteenth Amendment create a new right as was done under the Nineteenth Amendment _ decades after the Fourteenth Amendment was ratified _ which narrowly forbids the states to make distinctions based upon "sex" with regard to voting.

With regard to the limited meaning of the Fourteenth Amendment as stated by one of the amendments supporters when being debated, we find the following:

“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ SEE: Representative Shallabarger, a supporter of the amendment , Congressional Globe, 1866, page 1293

In Bradwell v. The State, 83 U.S. 130 (1872), the United States Supreme Court ruled that the State of Illinois did not violate the Fourteenth Amendment by denying a woman a license to practice law.

So, do tell us, when was the Constitution altered to forbid the States to make distinctions based upon "sex" other than the Ninetieth Amendment?

My response-in part- that apparently ran you out of town was’……and which applies equally to your current screed was:



Since the time of the adaption of the reconstruction amendments , the courts have developed much more stringent standards with regards to when and how the government may restrict anyone’s rights.

Strict scrutiny originated from the idea of heightened judicial review for certain laws, notably signaled in Footnote 4 of United States v. Carolene Products (1938), which suggested extra protection for minority rights and fundamental freedoms, evolving into the modern "compelling interest" and "narrowly tailored" test in the 1950s and 1960s, first in First Amendment cases (like speech) and later migrating to Equal Protection Clause issues, challenging the idea that such laws are always struck down.

Notice that there is no mention of race, but rather refers to “minorities” which of course would include gay and lesbian people.

When a government action infringes upon a right deemed "fundamental" by the Constitution (often explicitly mentioned in the Bill of Rights or found as an unenumerated right protected by the Due Process Clause of the Fourteenth Amendment), strict scrutiny is applied regardless of the group or classification of people affected.

Examples of laws burdening fundamental rights that trigger strict scrutiny include those interfering with:

• First Amendment Rights: Freedom of speech, press, assembly, and the free exercise of religion.
• The Right to Vote: Significant restrictions on voting access or the dilution of voting power.
• The Right to Interstate Travel: Laws that create a classification that infringes on the right of individuals to travel between states.

And the one that applies here :

• Certain Privacy and Bodily Autonomy Rights: Rights related to marriage, procreation, and the use of contraception.

So , we have learned that when strict scrutiny is applied to laws that limit rights -the government is required to articulate a compelling interest for imposing such restrictions in order for them to stand. We also know that during the years of protracted litigation at the state and Federal levels , the states, in most cases , failed miserably trying to establish a compelling government interest , or even a rational basis for those restrictions.

Kindly explain to the class what such compelling government interest you would cite to justify restricting marriage to a man and a woman?

Getting back to gender for a minute ……….

In contrast, classifications based on gender/sex or the legitimacy of birth are considered "quasi-suspect" and trigger the intermediate scrutiny standard, which is less rigorous than strict scrutiny.

We see that gender based discrimination is also subject to scrutiny , although a lower level. That my friend is when the Constitution came forbid the States from make distinctions based upon "sex" Make no mistake about it. Case law carries the same weight as any constitutional amendment. To be clear, the Bradwell case fails to support your position on same sex marriage on two levels. Discrimination against gays is not sex discrimination, and sex discrimination is also afforded a level of scrutiny by the courts

 

[TheProgressivePatriot]

For those who are dedicated supporters and defenders of the miracle our forefathers created (the Constitution of the United States of America), the MAJORITY’S OPINION in Obergefell v. Hodges, handed down June 26, 2015, like a number of previous “precedent” setting opinions, will long be remember as another significant and major attack on the fundamental rules used to preserve and protect that Constitution.

Supreme Court Justice Clarence Thomas was absolutely correct when he emphatically stated a “. . . precedent should be of our legal tradition, and our country and our laws, and be based on something – not just something somebody dreamt up and others went along with.” SOURCE

With respect to fundamental rules used to determine the true and actual meaning of our Constitution, as it was understood by those who framed it and the States and people therein when ratifying it, the majority’s opinion in Obergefell v. Hodges casts such rules aside and substituted its own sexual oriented feels and predilections for the rule of law and reversed the Court of Appeals for the Sixth Circuit which appropriately upheld, on November 6, 2014, Kentucky’s ban on same-sex marriage

Nowhere in the majority opinion, Obergefell v. Hodges, is there a shred of evidence confirming that by the terms of the Fourteenth Amendment’s equal protection or due process clause, or the documented legislative intent under which the Fourteenth Amendment was agreed to by the States when ratifying the amendment, was Kentucky‘s decision to not issue same-sex marriage licenses in violation of the Fourteenth Amendment.

Justice Kennedy in authoring the opinion simply went on and on, page after page, with irrelevant platitudes and historical notations having nothing to do with the debates of the 39th Congress which actually framed and helped to ratify the Fourteenth Amendment in order to “. . . discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it." See, HOME BLDG. & LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934)

Unlike Israel’s “Basic Law” which states “There shall be no violation of rights under its Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required “, which in effect makes rights and limited powers granted meaningless, the Constitution of the United States contains no grant of such omnipotent authority to our federal government, and that includes an un-elected majority sitting on our Supreme Court.

In essence, a majority on our Supreme Court set itself up as members of an unelected, omnipotent, constitutional convention, and substituted their personal feelings and predilections as being within the terms and conditions under which the Fourteenth Amendment was agreed to, while Article V is the only lawful way to alter our Constitution, and it requires consent of the States and people therein as outlined therein.

Have three-fourths of the States and people therein agreed to cast aside the traditional meaning of marriage, which dates back 4,000 years, and forbid the States to issue marriage licenses based upon the applicant’s sex?

JWK


Those who reject abiding by the text of our Constitution, and the intentions and beliefs under which it was agree to, as documented from historical records _ its framing and ratification debates which give context to its text _ wish to remove the anchor and rudder of our constitutional system so they may then be free to apply the Humpty Dumpty theory of language to our Constitution and make it mean whatever they wish it to mean.

Where did you go?? Get back here ! You cant deal with me , can you? See post 92.

 

[johnwk]

I must say. You really do seem to have a fat , hot bug up your ass on this gay marriage thing.

I have a thing for defending our system's rule of law and the legislative intent under which the Fourteenth Amendment was adopted, and is a far different subject than "gay marriage". Try to focus on what is being argued.

Let us look at the associated historical time line for the truth and facts.

On July 9th, 1868 the Fourteenth Amendment is adopted, the first Section reading as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Note that there is no language concerning any restriction based upon “sex”.

In 1870, two years later, the Fifteenth Amendment is passed prohibiting the right to vote to be denied based upon “race, color or previous condition of servitude”. Note once again there continues to be no restrictive referenced in our Constitution with respect to “sex”.

Fifty years later, on August 18th, 1920, the American People decide to provide restrictive language into our Constitution concerning “sex” by their adoption of the Nineteenth Amendment. But the amendment is narrowly worded and limits the protection against “sex” discriminations as follows:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

At this very time there is an active movement in the United States to adopt an “Equal Rights Amendment” and it persists for decades. The proposed amendment is intentionally designed to prohibit distinctions based upon “sex” as follows:

Section 1. Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.

In the 1970s, Congress sets a seven year deadline for the ratification of the ERA which was later extended by three years to 1982. But despite efforts to secure ratification of the amendment, a sufficient number of States wisely refuse to adopt the Equal Rights Amendment. Some of the reasons for its rejection were, it would lead to women being drafted into the military, unisex bathrooms, and even legalization of homosexual marriages.

So, having reviewed the historical evidence, it become obvious a majority on our Supreme Court falsely asserted the Fourteenth Amendment guarantees a right to same-sex marriages.

JWK

Those who reject abiding by the text of our Constitution, and the intentions and beliefs under which it was agree to, as documented from historical records _ its framing and ratification debates which give context to its text _ wish to remove the anchor and rudder of our constitutional system so they may then be free to apply the Humpty Dumpty theory of language to our Constitution and make it mean whatever they wish it to mean.

 

[TheProgressivePatriot]

I have a thing for defending our system's rule of law and the legislative intent under which the Fourteenth Amendment was adopted, and is a far different subject than "gay marriage". Try to focus on what is being argued.

Let us look at the associated historical time line for the truth and facts.

On July 9th, 1868 the Fourteenth Amendment is adopted, the first Section reading as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Note that there is no language concerning any restriction based upon “sex”.

In 1870, two years later, the Fifteenth Amendment is passed prohibiting the right to vote to be denied based upon “race, color or previous condition of servitude”. Note once again there continues to be no restrictive referenced in our Constitution with respect to “sex”.

Fifty years later, on August 18th, 1920, the American People decide to provide restrictive language into our Constitution concerning “sex” by their adoption of the Nineteenth Amendment. But the amendment is narrowly worded and limits the protection against “sex” discriminations as follows:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

At this very time there is an active movement in the United States to adopt an “Equal Rights Amendment” and it persists for decades. The proposed amendment is intentionally designed to prohibit distinctions based upon “sex” as follows:

Section 1. Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.

In the 1970s, Congress sets a seven year deadline for the ratification of the ERA which was later extended by three years to 1982. But despite efforts to secure ratification of the amendment, a sufficient number of States wisely refuse to adopt the Equal Rights Amendment. Some of the reasons for its rejection were, it would lead to women being drafted into the military, unisex bathrooms, and even legalization of homosexual marriages.

So, having reviewed the historical evidence, it become obvious a majority on our Supreme Court falsely asserted the Fourteenth Amendment guarantees a right to same-sex marriages.

JWK

Those who reject abiding by the text of our Constitution, and the intentions and beliefs under which it was agree to, as documented from historical records _ its framing and ratification debates which give context to its text _ wish to remove the anchor and rudder of our constitutional system so they may then be free to apply the Humpty Dumpty theory of language to our Constitution and make it mean whatever they wish it to mean.

Your problem is that you are living in the past and do not want to accept the reality that case law has evolved since the crafting of the 14th Amendment . Clearly you have not been able to grasp anything that I‘ve presented and the fact that I have met your constitutional argument head on. I am not the one making it about gay marriage. You have made it about gay marriage with two inane and faulty Ops

You can regurgitate the text of the 14th amendment until hell freezes over but it will not change the fact that the protections that it affords people has been extended to ALL MINORITES.

In addition, the courts are now required to apply the standard of strict scrutiny to any restrictions on rights that effect a suspect class, and/or any matter that is considered a fundamental right.

As I previously documented :

Since the time of the adaption of the reconstruction amendments , the courts have developed much more stringent standards with regards to when and how the government may restrict anyone’s rights.

Strict scrutiny originated from the idea of heightened judicial review for certain laws, notably signaled in Footnote 4 of United States v. Carolene Products (1938), which suggested extra protection for minority rights and fundamental freedoms, evolving into the modern "compelling interest" and "narrowly tailored" test in the 1950s and 1960s, first in First Amendment cases (like speech) and later migrating to Equal Protection Clause issues, challenging the idea that such laws are always struck down.

Notice that there is no mention of race, but rather refers to “minorities” which of course would include gay and lesbian people. Yet you repeatedly ignore any information that you don’t like and go back to blathering about outdated concepts and interpretations of the 14th.

When strict scrutiny is applied, the government must articulate a compelling government interest as a reason to restrict rights

Furthermore if you insist on making restrictions gay marriage simply a matter of sex discrimination, (which I disagree with) you should know that while sex discrimination may not be afforded strict scrutiny those case are given an intermediate level of scrutiny requiring the government to a the very least identify a rational basis for the restrictions.

The fact is that by and large, the states were unable to convince the courts that there was a compelling government interest or even a rational basis for banning same sex marriage .

I asked you what you think that a compelling government interest a rational basis for banning same sex marriage might be and you never responded. You fled in terror . Here is another chance to answer.

 

[johnwk]

Your problem is that you are living in the past and do not want to accept the reality that case law has evolved since the crafting of the 14th Amendment .

And your problem is, you do not accept the fact that under our Constitutionally limited system, Article V is the only lawful way to alter the terms and conditions under which the Fourteenth Amendment was agreed to by the States and people therein., In fact, your post confirms you embrace the Supreme Court applying the Humpty Dumpty theory of language to the Fourteenth Amendment.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean- neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master-that’s all.”

 

[TheProgressivePatriot]

And your problem is, you do not accept the fact that under our Constitutionally limited system, Article V is the only lawful way to alter the terms and conditions under which the Fourteenth Amendment was agreed to by the States and people therein., In fact, your post confirms you embrace the Supreme Court applying the Humpty Dumpty theory of language to the Fourteenth Amendment.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean- neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master-that’s all.”

Now I see what the problem is . I Should have realized it sooner. My bad . You’re one those strict constructionists/ textualists who don’t believe in unenumerated rights but rather that the constitution is stagnant and stuck in the time when it was written . You do realize that your views represent a fringe minority of constitutional interpretations? What I realize is that it is a philosophy adapted by conservatives as justification for thwarting progress and the advancement of minorities.

I also see why you have avoided my question regarding what compelling government reason or rational basis there is for banning same sex marriage, The fact seems to be that you do not think that the government needs a compelling reason or rational basis to limit rights, and that is disturbing and frightening. Yet you lack the intestinal fortitude to come right out and say it, Instead you evade it .

Consider the possibility that at some point , the government might decide to deny you a right tat you claim, for no good reason except tat they can and the constitution does not explicitly grant you that right. Think about your right- that you take for granted- to live and work where you choose, to buy what you want , and yes -as a straight person- who you can marry . Yes, according to your interpretation of the constitution all of that can be taken away from you . None of that is in the constitution.

The position that you’ve taken is a thinly veiled endorsement of discrimination. While you do not admit that you’re opposed to gay marriage, you insist that the only legal way forward is a constitutional amendment, knowing full well that will not happen given the current political environment. The fact is that when legislation fails to protect civil and human rights, the proper role of the courts is to step in and make it right. And the people do not have a right to vote away the civil rights of others .

I have nailed you for what your are. My work is done here

 

[johnwk]

Now I see what the problem is . I Should have realized it sooner. My bad . You’re one those strict constructionists/ textualists who don’t believe in unenumerated rights but rather that the constitution is stagnant and stuck in the time when it was written .

I am one of those who following the rules of constitutional construction.

Intent of constitution

16 Am Jur 2d Constitutional law
Par. 92. Intent of framers and adopters as controlling.


The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.


16 Am Jur, Constitutional Law, “Rules of Construction, Generally”

Par. 88--Proceedings of conventions and debates.

Under the principle that a judicial tribunal, in interpreting ambiguous provisions, may have recourse to contemporaneous interpretations so as to determine the intention of the framers of the constitution, the rule is well established that in the construction of a constitution, recourse may be had to proceedings in the convention which drafted the instrument. (numerous citations omitted )


Also see par. 89-- The Federalist and other contemporary writings“ Under the rule that contemporaneous construction may be referred to it is an accepted principle that in the interpretation of the Constitution of the United States recourse may be had to the Federalist since the papers included in that work were the handiwork of three eminent statesmen, two of whom had been members of the convention which framed the Constitution. Accordingly, frequent references have been made to these papers in opinions considering constitutional questions and they have sometimes been accorded considerable weight.” (numerous citations omitted )

Also note that under the rules of constitutional construction
16 Am Jur 2d Constitutional law
Meaning of Language
Ordinary meaning, generally

”Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption…”__ (my emphasis)

The Court is not free to make the words or phrases in our Constitution mean whatever they so desire, but are confined to their original understanding as understood by those who framed and helped to ratify our Constitution.


What makes a Supreme Court opinion legitimate and in harmony with our system of law is when its opinion is in harmony with the text of our Constitution and its documented legislative intent which gives context to its text.

 

[TheProgressivePatriot]

I am one of those who following the rules of constitutional construction.

Intent of constitution

16 Am Jur 2d Constitutional law
Par. 92. Intent of framers and adopters as controlling.


The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.


16 Am Jur, Constitutional Law, “Rules of Construction, Generally”

Par. 88--Proceedings of conventions and debates.

Under the principle that a judicial tribunal, in interpreting ambiguous provisions, may have recourse to contemporaneous interpretations so as to determine the intention of the framers of the constitution, the rule is well established that in the construction of a constitution, recourse may be had to proceedings in the convention which drafted the instrument. (numerous citations omitted )


Also see par. 89-- The Federalist and other contemporary writings“ Under the rule that contemporaneous construction may be referred to it is an accepted principle that in the interpretation of the Constitution of the United States recourse may be had to the Federalist since the papers included in that work were the handiwork of three eminent statesmen, two of whom had been members of the convention which framed the Constitution. Accordingly, frequent references have been made to these papers in opinions considering constitutional questions and they have sometimes been accorded considerable weight.” (numerous citations omitted )

Also note that under the rules of constitutional construction
16 Am Jur 2d Constitutional law
Meaning of Language
Ordinary meaning, generally

”Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption…”__ (my emphasis)

The Court is not free to make the words or phrases in our Constitution mean whatever they so desire, but are confined to their original understanding as understood by those who framed and helped to ratify our Constitution.


What makes a Supreme Court opinion legitimate and in harmony with our system of law is when its opinion is in harmony with the text of our Constitution and its documented legislative intent which gives context to its text.

Dude.....this is the part that you left out:

16 Am Jur 2d Constitutional Law
does not conflict with case law or unenumerated rights; rather, it is a legal encyclopedia that summarizes and organizes them.

As a secondary legal source, Am Jur 2d provides a restatement of the law based on existing judicial decisions (case law) and constitutional provisions. Its content is structured to explain how courts have historically resolved conflicts between different legal principles.

Relationship with Case Law
Am Jur 2d is a tool used by judges and attorneys to reference adjudicated cases. It does not compete with case law; it documents the "black letter law" established by it.

• Void Statutes: Am Jur 2d frequently cites the principle that a statute in conflict with the Constitution is void from its inception (void ab initio). This is a summary of the judicial power established by landmark case law such as Marbury v. Madison.
• Judicial Duty: It notes the "solemn duty" of courts to declare acts invalid if they exceed constitutional limits, reflecting the very essence of how case law is created through judicial review.

Relationship with Unenumerated Rights

Am Jur 2d acknowledges and categorizes rights that are not explicitly listed in the Constitution (unenumerated rights) by summarizing how courts have identified them.

I firmly stand by my analysis . The government is obligated to provide a compelling government interest or a minimum a rational basis for denying or limiting rights. Case law is valid and carries the force of law as much as any constitutional article , clause or amendment

 

[johnwk]

Dude.....this is the part that you left out:

16 Am Jur 2d Constitutional Law
does not conflict with case law or unenumerated rights;

I have left nothing out with respect to the most fundamental rule of constitutional construction . . . The" intention of the lawmaker is the law."

Let us review the very words of some of our Supreme Court members.

Supreme Court Justice Joseph Story (1812 – 1845) wrote: "The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties."

And Supreme Court Justice Henry Billings Brown, in Hawaii v. Mankichi, 190 U.S. 197 (1903) noted the following:

"Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the law making power will prevail, even against the letter of the statute, or, as tersely expressed by Justice Swayne in Smythe v. Fike, 23 Wall. 374, 380: "A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The" intention of the lawmaker is the law."

And Justice Hugo Black, in Foster v. United States, 303 U.S. 118, 120 (1938) states:

“Courts should construe laws in harmony with the legislative intent and seek to carry out legislative purpose.”

The bottom line is, the above quotations made by previous Supreme Court members is in total harmony with Justice Thomas who stated with reference to Obergefell v. Hodges: “But … the precedent should be respectful of our legal tradition, and our country and our laws, and be based on something – not just something somebody dreamt up and others went along with.”