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» The Ornery American Forum » General Comments » California Proposition 8 Ruling Tuesday May 26th (Page 2)

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Author Topic: California Proposition 8 Ruling Tuesday May 26th
flydye45
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Then again, say they (whomever actually rules) decides it was a revision and was improperly decided. How then to fix the issue?

Do they get to vote for it all again?

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Finvarra
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Fly -

To me the argument is whether or not the amendment that sought to clarify to "right to marry" supersedes the SC's interpretation. To be honest I'm not sure. I agree with you that the SC was completely wrong in saying that gay marriage was a constitutional right. But taking that decision, if you accept that decision, gay marriage becomes a part of the "right to marriage" that is a fundamental right and thus a revision is necessary.

I read the law that you copied and pasted as well and I don't honestly see anything that says something specific to clarify the debate.

Can anyone link to the past precedents where an amendment was tossed because the court found that it should have been a revision? I just did a quick search but didn't find anything.

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PSRT
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quote:
I agree with you that the SC was completely wrong in saying that gay marriage was a constitutional right.
The CSC (HT to Hobsen)didn't say that gay marriage was a constitutional right. Rather the CSC said that marriage is a constitutional right (not a new claim, as California's anti miscegenation case was in 1948, and marriage was ruled a right at that time) and as a constitutional right, and further as sexuality is a suspect class (which, under CA's Constitution has a pretty damn good legal grounding) restrictions on same sex couples must survive strict scrutiny. Honestly, I think you have to be blind to CA's constitution to think that the In re Marriages decision should have been decided otherwise.
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TommySama
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http://www.cnn.com/video/#/video/us/2009/05/24/friedman.prop8.intv.cnn

Civil rights attorney basically backs up hobsen's earlier argument. There was a case to be made about whether or not this was a revision or an amendment, but the court will probably decide in favor of Prop 8.

That being said, it is not such a big deal for the pro same sex marriage side, who will probably be able to push through either a revision or amendment (whichever is required) in the near future. This of course being the correct method (or should I say Right?) In the meantime, California has domestic partnerships, so their gays are still doing better than in most other states.

[ May 24, 2009, 07:14 PM: Message edited by: TommySama ]

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hobsen
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The most cited case in which the CSC ruled that a putative amendment actually revised the California Constitution was Raven v. Deukmejian, 52 Cal. 3d 336 (1990). That overturned amendment as I recall attempted to strip away rights from the California courts themselves, requiring them to follow precedents set by federal courts even if California precedents differed.

What the CSC has said about the difference between amendment and revision is well summarized in the following link, but it is very unclear how what has been said applies to the various arguments advanced for and against Proposition 8. A revision may be so because it is lengthy - which Proposition 8 certainly is not - or because it is of fundamental importance, on which people are going to disagree.

http://ballotpedia.org/wiki/index.php/Amador_Valley_Joint_Union_High_School_District_v._State_Board_of_Equalization

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flydye45
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quote:
Originally posted by TommySama:
http://www.cnn.com/video/#/video/us/2009/05/24/friedman.prop8.intv.cnn

Civil rights attorney basically backs up hobsen's earlier argument. There was a case to be made about whether or not this was a revision or an amendment, but the court will probably decide in favor of Prop 8.

That being said, it is not such a big deal for the pro same sex marriage side, who will probably be able to push through either a revision or amendment (whichever is required) in the near future. This of course being the correct method (or should I say Right?) In the meantime, California has domestic partnerships, so their gays are still doing better than in most other states.

And your snark aside, exactly. California actually has the least standing as far as damage done, if any. In the case of California, it is about sticking a new label on existing reality. Getting Mom to get the nerdy kid invited to the party. Doesn't work too well then either.

What Conservatives wish is a popular consensus, not judical fiat to avoid the ugliness such as we had on abortion. Give the people what they want and give it to them good and hard...

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TommySama
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[Roll Eyes] During other civil rights movements, courts were often pivotal in expanding existing human rights to new parties. I don't agree that peoples rights should be at the mercy of the majority, even if certain religious groups may bitch about it forever. Either way I doubt many will after a few decades moves them into a bit more stable point of reality.
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Kuato
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Folks,

We can quibble forever, but I really truly believe this is all going to turn out alright.

There is just too much momentum behind the equal access to civil instruments juggernaut.

This isn't going backwards it is just a matter of how long it takes to move forward.

[ May 24, 2009, 11:07 PM: Message edited by: Kuato ]

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Jordan
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quote:
Fly:
What Conservatives wish is a popular consensus, not judical fiat to avoid the ugliness such as we had on abortion

You make a lot of statements about the Left. Well, I just think it's interesting that when the judiciary discharges its constitutional responsibility by interpreting the constitution, overturning unconstitutional laws, deciding upon controversial issues etc. and comes to a conclusion which right-wing commentators do not agree with, those commentators accuse the courts of judicial activism and express a desire for the courts to effectively deny their own constitutional responsibility, and instead throw up their hands and say, "I don't think we can decide this one, let's hold a popularity contest."

The CSC may well determine that this is a normal amendment and not a revision. There is no reason for them to put it to the public vote, because it is their job alone to decide this, just as it was their job to determine the constitutional status of same-sex marriage (and of laws against it) in California. It seems to me that there is a growing philosophy to the effect that another separation of powers is required which installs The People as a separate, recognised branch of government that takes on the powers and responsibilities of the judiciary insofar as they may lead to "judicial activism" (which, so far as I can tell, is a term effectively synonymous with "unpopular legal determinations")—or, at the very least, that on any issue of significant controversy, the authority of the courts should be subdued in favour of public opinion.

The court decides what the Constitution says. If this reading is sufficiently unpopular (in CA, apparently this means "unpalatable to at least 50% of the people who are willing to vote on the matter, unless the modification required is sufficiently sweeping") the Constitution can be amended by ballot initiative. This is how your nation is meant to function. If you are not happy about this set-up, I would suggest that your extant constitutional provisions are the root of your unhappiness—not the judiciary for abiding by them.

[ May 25, 2009, 05:41 AM: Message edited by: Jordan ]

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Paladine
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Jordan-

The problem arises when the Court decides that the Constitution (or any other legal text) says something which no one alive at the time of its ratification would have thought it said. When they engage in what I'd charitably call "creative interpretation", they deprive the people and the elected branches of one of the fundamental bedrocks of democratic and republican government: the right to know what one is voting for.

Even if you believe in a "right to marry" for gay couples, surely you'd concede that someone who voted to raify the California Constitution could not have possibly had the foggiest idea the document he was voting for would have this effect. And we're not talking about a technological advance which they couldn't have contemplated; gays and marriage were both around at the time of ratification.

So now we have a court saying that the law does something which the majority of people currently oppose, and which no evidence that any one who wrote or voted to ratify the CA Constitution understood it to do. It kind of begs the question: who authorized this? Do you really think a court should have the power to take a law and make it do something which no one alive at the time of its promulgation would have understood it to do?

If so, if the way the people understand the meaning of the text of their laws is subject to revision and outright abrogation by the Court, why bother putting a fig-leaf of "interpretation" over things at all? Then it really just amounts to re-writing, doesn't it?

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Jordan
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If concepts such as equal protection do not apply to those groups of people whom the original ratifiers considered it acceptable to mistreat, they may as well not exist at all. The very idea of strict and intermediate scrutiny were not conceived of by those who originally ratified the Equal Protection Clause, yet both standards have been successfully applied since (e.g. in Loving v. Virginia) to cases which might well have been beyond the scope of their conceptions or aims.

By its very definition, the umbrella of "suspect class" may, at some time, cover a class of people whom it was previously considered to be acceptable to discriminate against. Indeed, it must cover this class of people if they meet the requisite criteria—that is the whole point.

On Jim's recommendation, I read the Iowa decision concerning gay marriage. A few passages immediately spring to mind:

quote:
Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality. See Lawrence v. Texas […] (acknowledging intent of framers of Federal Constitution that Constitution endure and be interpreted by future generations); Callender v. Skiles […] (“Our constitution is not merely tied to tradition, but recognizes the changing nature of society.”).
quote:
The primary constitutional principle at the heart of this case is the doctrine of equal protection. The concept of equal protection is deeply rooted in our national and state history, but that history reveals this concept is often expressed far more easily than it is practiced. For sure, our nation has struggled to achieve a broad national consensus on equal protection of the laws when it has been forced to apply that principle to some of the institutions, traditions, and norms woven into the fabric of our society. This observation is important today because it reveals equal protection can only be defined by the standards of each generation. See Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection […] (“[T]he Equal Protection Clause looks forward, serving to invalidate practices that were widespread at the time of its ratification and that were expected to endure.”)

[…] A classification persists until a new understanding of equal protection is achieved. The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change. As Justice Oliver Wendell Holmes poignantly said, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”



[ May 25, 2009, 06:29 AM: Message edited by: Jordan ]

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PSRT
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quote:
The problem arises when the Court decides that the Constitution (or any other legal text) says something which no one alive at the time of its ratification would have thought it said.
The Constitution largely provides us with principles to govern by, not specifics. When those principles are in violation with specifics, even if those specifics are laws that the authors of the principles lived by, the principles, generally speaking, trump the specifics.

The ninth amendment is there, in large part, to remind us that your statement is not how we should interpret the constitution. Added by the same authors who couldn't conceive of gay couples existing out in the open without persecution, much less marrying each other.

[ May 25, 2009, 07:30 AM: Message edited by: PSRT ]

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hobsen
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This struggle seems to me to revolve around the minimal standard of conduct which can be expected of our fellow citizens. If someone lives in Massachusetts, spitting on the sidewalk is illegal; and people may criticize him for doing so. But marrying his same sex partner is entirely legal, and anyone who criticizes him for doing that is substituting his own whims for the rule of law. That makes such a person a bad citizen, who is engaging in conduct likely to cause a breach of the peace, as people get very angry when others try to force them to do things without having any authority to do so.

Anyway such attempted coercion is different from arguing that the law should be changed, or advocating a higher standard than the law requires. Obviously bad laws exist, and people may try to change them or engage in civil disobedience to draw attention to the issue. And people do all sorts of laudable things which are not required. But there is a difference between choosing to do such things oneself, and insisting that others do so with no authority. People who do the latter are not needed or wanted in this country, which recognizes the right of every adult citizen to choose his own conduct in any matter not prescribed by law, and to be free from harassment for doing so.

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Gaoics79
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quote:
The Constitution largely provides us with principles to govern by, not specifics. When those principles are in violation with specifics, even if those specifics are laws that the authors of the principles lived by, the principles, generally speaking, trump the specifics.
Is a "principle" like a Platonic form, floating around in the ether, or does it not come from a human brain? If so, which brains conceived these principles? If not the people who wrote the document, then who?

I find myself baffled by arguments that seek to divorce the meaning of a written document, be it a constitution or a Sunday grocery list, from the individual brain that guided the pencil that wrote it. I take it we're acknowledging that ssm could never have been intended by the people who penned the California equal protection clause, so which brain was the culprit here? Was it God? Ghosts?

And for the record, I am not a "right-wing commentator". I just find constitutional arguments like the above to be... well... insane.

Same sex marriage is lovely and all, and I wish gay people all the luck in the world in achieving that right. But I refuse to surrender my logic and common sense for their sake, no matter how sympathetic the cause. Sorry.

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PSRT
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quote:
Is a "principle" like a Platonic form, floating around in the ether, or does it not come from a human brain? If so, which brains conceived these principles? If not the people who wrote the document, then who?
It doesn't matter who conceived the principles, it matters what those people wrote down. The fourteenth amendment, for example, does not say "No State shall...deny to any person within its jurisdiction the equal protection of the laws, unless that person be gay." It says "No State shall... deny to any person within its jurisdiction the equal protection of the laws."

That is a statement of principle, not of policy.

quote:
Same sex marriage is lovely and all, and I wish gay people all the luck in the world in achieving that right. But I refuse to surrender my logic and common sense for their sake, no matter how sympathetic the cause
The method of Constitutional interpretation you seem to be advocating is founded on a logical fallacy, meshed with an impossibility, so I think you've already abandoned your logic and common sense, along with every other Originalist.

[ May 25, 2009, 09:57 AM: Message edited by: PSRT ]

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Gaoics79
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quote:
The method of Constitutional interpretation you seem to be advocating is founded on a logical fallacy, meshed with an impossibility, so I think you've already abandoned your logic and common sense, along with every other Originalist.
There is no logical fallacy in assuming that documents mean what the authors intended. What is fallacious is to import meaning into a document when you know said meaning was not intended by the author. Except in rare cases where there is a clear typographical error that prevents the interpretation desired by the author, it is little more than common sense to assume that documents mean essentially what the author intended. To assume otherwise is to defeat the entire purpose of written language.

As for the "impossibility" which I assume refers to the problem of divining the intentions of long-dead individuals, it is common and accepted practice to interpret (to the extent possible) the intentions of those who drafted documents. Courts engage in this activity all the time with respect to contracts, statutes, and even constitutions. There is nothing "impossible" about it, unless you assume that intention can only be divined through direct verbal testimony or mind reading. But this latter view is not supported in law.

With respect, I stand by my original statement that what you advocate for, however noble, is insane.

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Jordan
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quote:
Jason:
I find myself baffled by arguments that seek to divorce the meaning of a written document, be it a constitution or a Sunday grocery list, from the individual brain that guided the pencil that wrote it. I take it we're acknowledging that ssm could never have been intended by the people who penned the California equal protection clause, so which brain was the culprit here? Was it God? Ghosts?

If your concern is with faithfulness to original intent, then we should not ask just, "Would the ratifiers of the Equal Protection Clause consider it acceptable to discriminate against group X?"—and, if they did, state that group X does not merit equal protection under law—but rather to ask, "How did the ratifiers want this principle to be applied in cases that they might have considered to be legitimate discrimination, but in a context in which this is no longer considered to be so?"

Do you honestly believe that when the EPC was ratified, those who ratified wanted it to be forever restricted to their own historical context? Remember that the entire point of the EPC was that, despite the historical acceptability of discrimination against coloured people, it was gradually becoming more recognised that such discrimination was inimical to the principles of freedom upon which your nation is built. If they didn't intend for it to be applied in a similar manner to similar situations in the future, they would need to be astonishingly short-sighted; a proposition which is belied by the very language used.

Without any disrespect intended, the more that I hear people say that we should be held hostage to the prejudices of men who lived a century or more ago, especially when those men specifically did not want us to be bound by those prejudices, the more astonishingly, frustratingly outrageous a proposition I find it, especially when we are talking about issues arising from a social, economic and technological context that is decades removed from anything those men might have had a chance of conceiving. The Equal Protection Clause—indeed, the US Constitution itself—was intended to shape the destiny of a nation for centuries to come, into an indefinite future. It strikes me as literally beyond credibility, therefore, that the "original intent" was that we should forever be bound to make determinations based on what they, personally, might have thought.

I think it's a great idea to examine the historical context in which a constitution was written to expound upon the principles it enshrines; but to examine situations completely divorced from that context by exhuming dead men and guessing what they would have made of it all leaves us with a document containing principles that are every bit as dead as their ratifiers.

And while we're on the subject: I'm not actually sure that, after the decade or so it would take for them to absorb our current circumstances and culture, they definitely would disapprove of gay marriage being a consequence of the document they wrote. To say otherwise shows a good deal of presumption; these men were firmly devoted to correcting injustices that were considered, by the culture they lived in, to be correct and defensible, so it is entirely possible that they would not only overcome their prejudices, but rejoice in having overcome them.

[ May 25, 2009, 04:11 PM: Message edited by: Jordan ]

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Paladine
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Jordan-

Respectfully, the points I made above persist. If courts get to make laws do things which no one who voted for those laws understood them to do, why bother having a legislative process? It's not like the legislators can have any idea whatsoever what it is they're voting for. Laws aren't supposed to be a set of airy principles which guide our robed philosopher-kings of the judiciary; they're supposed to contain a meaning fixed by the people who promulgated them which is applied dispassionately to the facts of a situation.

quote:
If concepts such as equal protection do not apply to those groups of people whom the original ratifiers considered it acceptable to mistreat, they may as well not exist at all. The very idea of strict and intermediate scrutiny were not conceived of by those who originally ratified the Equal Protection Clause, yet both standards have been successfully applied since (e.g. in Loving v. Virginia) to cases which might well have been beyond the scope of their conceptions or aims.
The 14th Amendment was passed, in large measure, to end invidious racial discrimination on behalf of the government. Virginia's law had the intent and effect of depriving people of an *existing* fundamental right to marriage on no basis other than invidious racial discrimination. You don't see a cavernous difference between this and interpreting a "right to marry" to mean something it's never meant before?

quote:
By its very definition, the umbrella of "suspect class" may, at some time, cover a class of people whom it was previously considered to be acceptable to discriminate against. Indeed, it must cover this class of people if they meet the requisite criteria—that is the whole point
When we want to change our laws to make them apply to new classes of people, we do that through the legislative process or through the amendment process. We don't have a panel of unelected lawyers decide, guided by little save their own sense of moral rectitude and the general principles of a legal text, that our law has moved on to bigger and better things. Or maybe we do these days, but it's a very dangerous thing, fatally injurious to the democratic process and the rule of law, and we should stay a mile away from it.

quote:
Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality.
I'm sorry, but again, this is the law we're talking about, not some sort of mystical religious document. As such, it ought to be interpreted as a legal text. Those don't magically change meaning of their own accord with each new generation; they remain as they are until they're changed by amendment or legislation. This airy talk of "freedom and equality" does little but expose the legal and intellectual poverty of the court's holding
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Paladine
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quote:

Without any disrespect intended, the more that I hear people say that we should be held hostage to the prejudices of men who lived a century or more ago, especially when those men specifically did not want us to be bound by those prejudices, the more astonishingly, frustratingly outrageous a proposition I find it, especially when we are talking about issues arising from a social, economic and technological context that is decades removed from anything those men might have had a chance of conceiving. The Equal Protection Clause—indeed, the US Constitution itself—was intended to shape the destiny of a nation for centuries to come, into an indefinite future. It strikes me as literally beyond credibility, therefore, that the "original intent" was that we should forever be bound to make determinations based on what they, personally, might have thought.

We're not bound to anything, Jordan. We have the right to pass legislation or to make Constitutional Amendment. The Framers did indeed know that they weren't infallable, and they did want the Constitution and the body of our law to be able to change with the times. That's why they gave us the ability to pass new laws and to amend the Constitution they passed down to us. But the tasks of changing our laws and our Constitution falls to We The People, not a panel of unelected lawyers in robes.
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0Megabyte
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Dang, you've said the line about "a panel of unelected lawyers" twice now, in a short period of time.

What gives? Is the democratic spirit so strong within you that you impinge the validity of the Consitution? After all, that's what gives the instruction on how this "panel of unelected lawyers" gets chosen.

I mean, seriously, do you think it'd be better if the people, with all their prejudices, got to elect them the way they get to elect Senators, Congressmen and the President?

I mean, forgive me if that's false speculation, but what's with the sign of bias?

After all, while technically true, the way you phrase it suggests a great deal of it.

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Paladine
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quote:
What gives? Is the democratic spirit so strong within you that you impinge the validity of the Consitution? After all, that's what gives the instruction on how this "panel of unelected lawyers" gets chosen.

I mean, seriously, do you think it'd be better if the people, with all their prejudices, got to elect them the way they get to elect Senators, Congressmen and the President?

I don't want them to be elected; I want them to do their job. That job consists of applying and adhering to the law as its written, not changing it based upon their sense of the country's moral evolution. That job, in a republic worthy of the name, is reserved exclusively to the political branches. To be honest, I'm not sure what your post was addressing. I'm fine with the fact that they're not elected; I just don't want them doing the work of elected officials.
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Gaoics79
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quote:
If your concern is with faithfulness to original intent, then we should not ask just, "Would the ratifiers of the Equal Protection Clause consider it acceptable to discriminate against group X?"—and, if they did, state that group X does not merit equal protection under law—but rather to ask, "How did the ratifiers want this principle to be applied in cases that they might have considered to be legitimate discrimination, but in a context in which this is no longer considered to be so?"

Do you honestly believe that when the EPC was ratified, those who ratified wanted it to be forever restricted to their own historical context? Remember that the entire point of the EPC was that, despite the historical acceptability of discrimination against coloured people, it was gradually becoming more recognised that such discrimination was inimical to the principles of freedom upon which your nation is built. If they didn't intend for it to be applied in a similar manner to similar situations in the future, they would need to be astonishingly short-sighted; a proposition which is belied by the very language used.

Without any disrespect intended, the more that I hear people say that we should be held hostage to the prejudices of men who lived a century or more ago, especially when those men specifically did not want us to be bound by those prejudices, the more astonishingly, frustratingly outrageous a proposition I find it, especially when we are talking about issues arising from a social, economic and technological context that is decades removed from anything those men might have had a chance of conceiving. The Equal Protection Clause—indeed, the US Constitution itself—was intended to shape the destiny of a nation for centuries to come, into an indefinite future. It strikes me as literally beyond credibility, therefore, that the "original intent" was that we should forever be bound to make determinations based on what they, personally, might have thought.

I think it's a great idea to examine the historical context in which a constitution was written to expound upon the principles it enshrines; but to examine situations completely divorced from that context by exhuming dead men and guessing what they would have made of it all leaves us with a document containing principles that are every bit as dead as their ratifiers.

And while we're on the subject: I'm not actually sure that, after the decade or so it would take for them to absorb our current circumstances and culture, they definitely would disapprove of gay marriage being a consequence of the document they wrote. To say otherwise shows a good deal of presumption; these men were firmly devoted to correcting injustices that were considered, by the culture they lived in, to be correct and defensible, so it is entirely possible that they would not only overcome their prejudices, but rejoice in having overcome them.

I see what you're saying Jordan, and believe me I'm sympathetic to the intent behind it. But I echo Paladine's point, which is that there are mechanisms built into the law to change it. You'll note that I have never criticized an elected legislature for legalizing same sex marriage. My criticism has been limited to cases of judge-made law.

You're essentially posing a false dilemma: between the straight-jacket of ancient values and prejudice, versus law by judicial fiat. Why no mention of the elephant in the room? You don't actually need even an amendment in most cases; a simple garden-variety statute would suffice. All it takes is enough political will and support in the legislature.

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Jordan
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You know, I always enjoy discussing these things with you, Paladine—even when we both get frustrated at each other's inability to grasp the significance of what we consider to be simple and fundamental points! [Smile]

quote:
Paladine:
If courts get to make laws do things which no one who voted for those laws understood them to do, why bother having a legislative process?

  1. It would be surpassingly arrogant for the ratifiers of the Equal Protection Clause to imagine that they could anticipate every single consequence that the sweeping principles they codified might have over a century later. Their own opinions on gay marriage are elliptical.
  2. The Equal Protection Clause is being invoked to do exactly, to the letter, what it was designed to do: invoke equal protection under law for a minority that has traditionally been discriminated against.



quote:
Laws aren't supposed to be a set of airy principles which guide our robed philosopher-kings of the judiciary; they're supposed to contain a meaning fixed by the people who promulgated them which is applied dispassionately to the facts of a situation.
Principles are the bread-and-butter of the Bill of Rights, and applying the principles set out in a legal document to laws of a lesser kind to determine if they are in violation is hardly an impractical or unauthorised duty of the judiciary.

quote:
The 14th Amendment was passed, in large measure, to end invidious racial discrimination on behalf of the government. Virginia's law had the intent and effect of depriving people of an *existing* fundamental right to marriage on no basis other than invidious racial discrimination. You don't see a cavernous difference between this and interpreting a "right to marry" to mean something it's never meant before?
I see a difference, but I do not consider it to be so enormous as you do. If the supposed meaning of the "right to marry" is constructed within a context of routine and invidious discrimination against a certain class, and as such clearly discriminates against this class, it seems that we have an excellent case for applying a clause designed to redress such injustices, even if such injustices were not considered to be unjust at the time that the clause was inserted. It becomes especially urgent if, in order to forestall the growing recognition that this right is executed in a manner that perpetuates discrimination, a law is put into place to try to reinforce said discrimination, and citizens call the constitutionality of this law into question. The court is now duty bound to determine how the Equal Protection Clause relates to this law, and to the circumstances it attempts to prohibit.

quote:
When we want to change our laws to make them apply to new classes of people, we do that through the legislative process or through the amendment process. We don't have a panel of unelected lawyers decide, guided by little save their own sense of moral rectitude and the general principles of a legal text, that our law has moved on to bigger and better things. Or maybe we do these days, but it's a very dangerous thing, fatally injurious to the democratic process and the rule of law, and we should stay a mile away from it.
The court declared unconstitutional an initiative made eight years previously that was designed to preclude the recognition of same-sex marriages in the state of California. In doing so, they also deemed unconstitutional a long understood restriction on the right to marry; but I do not think there is a time limit on how soon a discriminatory law or restriction must be challenged under either the California Constitution or the US Constitution?

quote:
[T]his is the law we're talking about, not some sort of mystical religious document. As such, it ought to be interpreted as a legal text. Those don't magically change meaning of their own accord with each new generation; they remain as they are until they're changed by amendment or legislation. This airy talk of "freedom and equality" does little but expose the legal and intellectual poverty of the court's holding[.]
And I repeat my earlier assertion: if the Equal Protection Clause stops applying the moment that the original ratifiers would have drawn the line, then it absolutely fails to fulfil its explicit purpose: to correct discrimination against a group even if it was traditionally considered to be acceptable. Any interpretation that fixes this law in a social context over a century divorced from our own effectively neutralises the original intent.

[ May 25, 2009, 05:51 PM: Message edited by: Jordan ]

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Jordan
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quote:
Pal:
We're not bound to anything, Jordan. We have the right to pass legislation or to make Constitutional Amendment. The Framers did indeed know that they weren't infallable, and they did want the Constitution and the body of our law to be able to change with the times. That's why they gave us the ability to pass new laws and to amend the Constitution they passed down to us. But the tasks of changing our laws and our Constitution falls to We The People, not a panel of unelected lawyers in robes.

quote:
Jason:
You're essentially posing a false dilemma: between the straight-jacket of ancient values and prejudice, versus law by judicial fiat. Why no mention of the elephant in the room? You don't actually need even an amendment in most cases; a simple garden-variety statute would suffice. All it takes is enough political will and support in the legislature.

We are all agreed that:

  1. The judiciary's role is, first and foremost, to interpret constitutional provisions in the light of prior precedent.
  2. The judiciary cannot create new laws, although they can determine the constitutionality of existing laws.
  3. If the existing constitutional provisions are deemed insufficient to protect an individual's right to pursue life, liberty and happiness, the constitution can (and should) be amended so that it does.

Indeed, it would be surprising if we disagreed significantly on any of the above! Where we do disagree seems to be:

  1. I consider that when principles are espoused by a constitution, those principles should be applied in the same spirit today as that which guided their ratification; you seem to consider that we do not have much latitude (or at the very least, should be hesitant) in interpreting them much differently from how the original author might conceive of them being interpreted.
  2. I do not think that revoking a limitation, even a very old limitation, on a fundamental right is beyond the scope of the judiciary if it deems that this limitation is inimical to constitutional principles; your understanding is that such revocation is significant enough that it constitutes new law.

Does that seem accurate? And if not, please explain where I misunderstand your position. (Ironically, I'm very concerned about accurately divining the "original intent" of your words. [Wink] )

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Gaoics79
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quote:
Does that seem accurate? And if not, please explain where I misunderstand your position. (Ironically, I'm very concerned about accurately divining the "original intent" of your words. [Wink] )
Lol, that's right. The original intent is not merely some incidental historical artifact. It's the anchor that keeps the law grounded. If you ignore it, then the law becomes unanchored and means whatever a judge at any given time wants it to mean. You defeat the whole purpose of having laws.

This is an unpopular view, especially in the legal community in Canada. Here we love the idea of the constitution as a "living tree". I don't share this opinion.

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PSRT
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quote:
The original intent is not merely some incidental historical artifact. It's the anchor that keeps the law grounded. If you ignore it, then the law becomes unanchored and means whatever a judge at any given time wants it to mean.
There's a not very fine line between recognizing the intent of a constitutional amendment or clause that is tremendously broad in scope, trying to apply that intent to specific new situations, and trying to apply a clause or amendment as the authors of that clause would have applied it in their own time without taking new context into account.

In the 1860's and 70's, no one would have imagined the fight for same sex marriage. It wasn't even possible for people to openly be romantically involved with a person of the same sex, much less contemplate sharing their life with a person. But, those same people who couldn't contemplate a same sex couple (much less a same sex couple seeking marriage rights) wrote an amendment which denies power to the government to treat one group of people differently under the law than other groups of people.

However those people, moved forward 140 years, would have understood the fight for same sex marriage, is largely irrelevant. Irrelevant because the text of what they left us tells us that states may not deny equal treatment under the law to any of its citizens. There are no caveats on that claim, no statements about "Unless we would have done so," no statements about a compelling state interest. There is only an absolute prohibition against government denying equal protection of the laws.

While intent, as understood through the writings of people who created our governing documents may be useful for helping us try to understand the reasoning behind those documents, the text of the constitution trumps intent. The text is what was left us to govern by. Everything left out of the document was either intentionally left out, or left out because not enough agreement could be reached, or not deemed important enough to include, or not thought of at all. But no matter why a specific policy, statement, thought, or principle is not in the constitution... it isn't in there.

As Jordan has very eloquently been stating, authorial intent in regards to specific law and policy was left out for very good reasons. The authors, as we can understand through the supplementary texts we have been left, were trying to write a guiding document, not a policy outline. Trying to put the policies of the authors into the constitution actually goes against original intent.

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Gaoics79
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quote:
There's a not very fine line between recognizing the intent of a constitutional amendment or clause that is tremendously broad in scope, trying to apply that intent to specific new situations, and trying to apply a clause or amendment as the authors of that clause would have applied it in their own time without taking new context into account.
There is nothing new about the "situation". Same sex marriage is not like nuclear weapons or internet. It was certainly possible to imagine it back in the 1800's. There is a distinction between something being "unimaginable" in the colloquial sense, versus "unimaginable" in the literal sense.

There is no "new context", unless you consider the fight for same sex marriage itself to be the new context that justifies having ssm. But this is blatantly circular reasoning.

quote:
But, those same people who couldn't contemplate a same sex couple (much less a same sex couple seeking marriage rights) wrote an amendment which denies power to the government to treat one group of people differently under the law than other groups of people.
Clearly the law does treat one group of people differently than another. It does so all the time in 100's of different circumstances. It did so back in the 1860s and it does so now. Nothing has changed in that regard, except that you are seeking to say that one specific differentiation is unjustified.

If tomorrow morning a movement started to eliminate the discrimination against children in terms of the right to work in a factory, and you found a judge to declare that it is unconstitutional to tell a 7 year old that he cannot work in a factory, on what basis would you argue with them? How would you say to them: "no, that isn't what the constitution says" if everything shifts around with "circumstances". Other than your own moral disapproval of having 7 year olds on assembly lines, what argument could you possible muster without being a total hypocrite?

quote:
However those people, moved forward 140 years, would have understood the fight for same sex marriage, is largely irrelevant. Irrelevant because the text of what they left us tells us that states may not deny equal treatment under the law to any of its citizens. There are no caveats on that claim, no statements about "Unless we would have done so," no statements about a compelling state interest. There is only an absolute prohibition against government denying equal protection of the laws.
Well then, I trust you won't object to 5 year olds working on assembly lines, sisters marrying brothers, released pedophiles living next to playgrounds, and felons being entitled to own and operate machine guns. And if you object to any of those things, their supporters will simply say that the "circumstances" have changed, and that the framers of the constitution would of course have agreed with them if only they had been around all those years.

quote:
While intent, as understood through the writings of people who created our governing documents may be useful for helping us try to understand the reasoning behind those documents, the text of the constitution trumps intent. The text is what was left us to govern by. Everything left out of the document was either intentionally left out, or left out because not enough agreement could be reached, or not deemed important enough to include, or not thought of at all. But no matter why a specific policy, statement, thought, or principle is not in the constitution... it isn't in there.
This is a rather disingenuous argument. On one hand, you're saying that you don't care what the framers would have thought about ssm, but then in the same breath you imply that we just can't know what they would have thought, and that if they thought it, they would have course been more specific.

Of course we know what the framers would have thought about ssm. Only a complete moron would suggest that we don't know.

There is a difference between genuinely not knowing intent and therefore acting in a good faith attempt to interpret the document absent that knowledge, versus deliberately violating that intent because you don't agree with it.

And yet, if the text really did imply what you want it to imply, I would be all for doing what you want it to do. But nothing in the text requires me to assume that same sex marriage is protected by "equal protection". This is a legal fiction invented for purely political purposes. It's just ludicrous, and insulting to our intelligence to pretend that it does.

quote:
As Jordan has very eloquently been stating, authorial intent in regards to specific law and policy was left out for very good reasons. The authors, as we can understand through the supplementary texts we have been left, were trying to write a guiding document, not a policy outline. Trying to put the policies of the authors into the constitution actually goes against original intent.
Again, this is all very nice, but it's a recipe for chaos. The approach you are taking is simply law without limit. It's a carte blanche for judges to do absolutely anything they want. And when a conservative judge "interprets" the law to mean something you hate, there won't be a damned thing you can say about it without being an absolute hypocrite in the process. How you can fail to grasp the peril of this approach is just shocking to me.

Edited to add: by the way, if you find my example of 5 year olds working in factories silly, do yourself a favour and look up "substantive due process". What's happening now? It's been tried before, exactly the same way as it is being done now. The courts back then were wise enough to see how bad an idea it was back then, and pulled back from the brink. Too bad their short-sighted and arrogant successors have foolishly chosen to walk the same road again. They ripped the country apart in the process and brought the law and the courts into disrepute. Just wait until the wheel turns in the courts and judges start making rulings you don't like. You'll be howling for "strict construction" so fast you won't know what hit you.

[ May 25, 2009, 09:46 PM: Message edited by: jasonr ]

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Pyrtolin
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quote:
Originally posted by jasonr:
If tomorrow morning a movement started to eliminate the discrimination against children in terms of the right to work in a factory, and you found a judge to declare that it is unconstitutional to tell a 7 year old that he cannot work in a factory, on what basis would you argue with them? How would you say to them: "no, that isn't what the constitution says" if everything shifts around with "circumstances". Other than your own moral disapproval of having 7 year olds on assembly lines, what argument could you possible muster without being a total hypocrite?

Documented historical evidence that allowing minors the "freedom" to work in factories leads, in fact, to a greater restriction on their freedom than what they gain by being protected from coerced slavery, both in the short and the long term.

There is no constitutional basis for striking down child labor laws because doing so restricts freedoms to a greater degree than it increases them. In fact, said laws, a product of the 1930s and 40s, stand as an excellent example of something that wasn't even considered in the time of the founding fathers, but were found to be perfectly within the spirit of their intent when the matter became a notable issue.

I think the overall argument is being miscast- yes the original intent of the framers should be respected, but it must be understood that said intent was explicitly not a wide net of imposed contemporary moralism. The intent, as represented by the 9th and 10th amendments, was to protect personal freedom where ever possible.

It does not matter what they knew or thought of the issue of same sex marriage; their view on individual issues are irrelevant and even possibly outright wrong. And, realizing that such understandings might shift with time, even if they didn't know what might shift, they left us with an easy legal framework to ensure that freedom would be protected in any regard rather than their personal moral stances or understandings.

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Jordan
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quote:
If tomorrow morning a movement started to eliminate the discrimination against children in terms of the right to work in a factory, and you found a judge to declare that it is unconstitutional to tell a 7 year old that he cannot work in a factory, on what basis would you argue with them?
Labour laws would almost certainly pass strict scrutiny, never mind intermediate scrutiny or rational basis (which are more likely standards). And for strict scrutiny to even be applied, infancy would need to be determined to be a suspect class.

quote:
Well then, I trust you won't object to 5 year olds working on assembly lines, sisters marrying brothers, released pedophiles living next to playgrounds, and felons being entitled to own and operate machine guns.
Again, these would easily pass rational or intermediate scrutiny, almost certainly pass strict scrutiny, and it is highly unlikely that the standards for strict scrutiny (i.e. a determination that any of the groups in question constitute a suspect class) would even be met in any of the above examples.
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Gaoics79
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quote:
Labour laws would almost certainly pass strict scrutiny, never mind intermediate scrutiny or rational basis (which are more likely standards). And for strict scrutiny to even be applied, infancy would need to be determined to be a suspect class.
Ahem, tell that to the Lochner Era Supreme Court.

Strict scrutiny is, after all, merely a legal test created by judges. There is no mention of "strict scrutiny" in the constitution, that I am aware of.

What can be made today in a court can be unmade tommorrow.

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hobsen
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Jasonr wrote,
quote:
Again, this is all very nice, but it's a recipe for chaos. The approach you are taking is simply law without limit. It's a carte blanche for judges to do absolutely anything they want.
Arguing over how to interpret the U.S. Constitution makes sense because that document retains all its original wording and is very hard to change, so the way judges interpret it makes a lot of difference. But the California Constitution has been amended hundreds of times, and voters can easily amend it again if they do not like an interpretation, which is what was done by Proposition 8. Moreover voters can get rid of the judges, who even on the California Supreme Court are elected officials serving twelve year terms. In fact there has been speculation that the decision on Proposition 8 may be different because some of the judges are worried about having to run for election in a couple of years. This may not be true, but California judges are a long way from being able to do anything they want and still remain in office.
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Gaoics79
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quote:
Moreover voters can get rid of the judges, who even on the California Supreme Court are elected officials serving twelve year terms. In fact there has been speculation that the decision on Proposition 8 may be different because some of the judges are worried about having to run for election in a couple of years. This may not be true, but California judges are a long way from being able to do anything they want and still remain in office.
Very interesting. I had not realized that judges were elected in California.

Personally, I think having elected judges is a bad idea. I don't want some judge deciding a case based on popular whims, rather than the law.

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Jordan
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quote:
Jason:
Personally, I think having elected judges is a bad idea. I don't want some judge deciding a case based on popular whims, rather than the law.

You've no idea how glad I am to hear you say that. [Smile]
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Gaoics79
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quote:
You've no idea how glad I am to hear you say that.
The trick is, they have to follow the law as it's actually written, not as they wish it had been written had the authors only been born in more enlightened times.
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Pyrtolin
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quote:
Originally posted by jasonr:
quote:
You've no idea how glad I am to hear you say that.
The trick is, they have to follow the law as it's actually written, not as they wish it had been written had the authors only been born in more enlightened times.
That plays both ways- you have to go by what's actually there, not their documented of assumed personal opinions on matters that were deliberately left out.
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Gaoics79
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quote:
That plays both ways- you have to go by what's actually there, not their documented of assumed personal opinions on matters that were deliberately left out.
Agreed. But if something is not actually there, it would do violence to commonly accepted principles of statutory interpretation (not to mention common sense) to assume that it is there, notwithstanding the knowledge that the authors almost certainly would have never intended it to be there.
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jimskater
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It's done.

I'm still married, as are 18,000 other couples.

As for anyone else wanting to get married. Not gonna happen any time soon.

****

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jimskater
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CA court website is temporarily broken. Will probably have something more to say after I get a look at the decision.

Preliminary reaction: "At least I got mine" is cold comfort.

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Pyrtolin
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quote:
Originally posted by jasonr:
quote:
That plays both ways- you have to go by what's actually there, not their documented of assumed personal opinions on matters that were deliberately left out.
Agreed. But if something is not actually there, it would do violence to commonly accepted principles of statutory interpretation (not to mention common sense) to assume that it is there, notwithstanding the knowledge that the authors almost certainly would have never intended it to be there.
Except where they explicitly said that you should make such assumptions (per the 9th and 10th amendments, specifically)
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Jordan
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quote:
Jason:
[N]otwithstanding the knowledge that the authors almost certainly would have never intended it to be there.

And this is the crux of our disagreement. Whether or not the ratifiers of the Equal Protection Clause intended for same-sex marriages to be a consequence, we can be absolutely certain that they did intend for that clause to be used to enforce equal protection under law to minorities suffering discrimination, no matter how long before or after its ratification such discrimination was considered to be acceptable.

The only people who can judge if the laws and traditions of previous generations were unfairly discriminatory are those of the current generation. We can be quite certain that the ratifiers knew this, because it is an axiom at the very heart of the EPC. Trying to say that it can only be applied to traditions which might have been considered discriminatory from the perspective of people who lived a century before us kills the principle entirely to gut, stuff and mount it on a wooden board. There is no question that it was ratified into the Constitution with a view to protecting the rights of into the indefinite future, and as such it relies on constant vigilance; I cannot see how you think it can do that (or was ever intended to do that!) with eyes of dead glass.

[ May 26, 2009, 12:19 PM: Message edited by: Jordan ]

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