That a passing majority on the Supreme Court pretends otherwise is merely a practical hindrance
You have completely lost your intellectual integrity now. You can't be intellectually honest and one minute say that a legislature shouldn't be passing an unconstitutional law (that's pro-same-sex marriage) and then the next minute say that it's okay for a legislature to pass an unconstitutional law that's anti-abortion because the Supreme Court may overturn it. Wasn't that the point in California? That the California Supreme Court would overturn what had been an unconstitutional law? In fact the California case is stronger because there is an actual lower court deicsion that is currently the law. whereas with abortion those laws are unconstitutional. By your line of reasoning the courts aren't the arbiter of what is constitutional, but you are.
It's improtant to point out that Supreme Court precedents are what they are. They are not what they might be with a new Justice on it. Or even what they might be with a new justice that has been confirmed. Certainly not what they might be with a justice that has not been nominated, much kess confirmed. The Supreme Court came to this exact conclusion in Agostini v. Felton regarding the establishment clause.
I happen to be somewhet of an expert on the Establishment Clause, having published several articles relating to the Establishment Clause and education. The Lemon Clause is hardly any of the things you mentioned. Although it is muh maligned and Justice Scalia once compared it to a ghoul in a late night horror film. It is, however, the law. The only adjustment to the Lemon test has been to fold the "excessive entanglement" prong into the "effect" prong. That does NOT mean that an excessive entanglement (between church and state) would be constitutional. It means that such an analysis is done under the effect prong.
There is absolutely no intellectual integrity in the position that a legislator who "disagrees" with Supreme Court precedent relating to the Establishment Clause are within their rights to pass a law that contradicts. Furthermore you say that you don't think the legislators believd it was constitutional. But it's right in the statute that it was their bleif that the prior referendum was unconstitutional and that having been found unconstitutional by the lower court and three other state supreme courts they anticipated the California Supreme Court to find the referendum unconstitutional. Such a position has much more intellectual honesty than saying that if some possible Supreme Court Justice is confirmed that the interpretation of the Establishment clause will change.
And how can you say that you think that the court did not believe that the initiative was unconstitutional. There is a provision in the California constitution that applies to rights that it applied. Just be honest and say you don't agree with the position. But the fact that you don't agree with a position does not make it wrong.
You have completely lost your intellectual integrity now.
Gee, thanks. And you've descended to personal insults. How exactly do you expect me to respond to this?
You can't be intellectually honest and one minute say that a legislature shouldn't be passing an unconstitutional law (that's pro-same-sex marriage) and then the next minute say that it's okay for a legislature to pass an unconstitutional law that's anti-abortion because the Supreme Court may overturn it.
I'm not saying it's OK for a legislature to pass an unconstitutional law, I'm explicitly saying that state laws against abortion are not unconstitutional. That a passing majority on the Supreme Court thinks otherwise is merely a practical hindrance to enforcement.
The constitution means what it means, and that doesn't change according to the whims of the Supreme Court. The court's job is to do its best to understand the constitution; sometimes it succeeds in this job, and sometimes it fails, but whether it succeeds or fails doesn't change what the actual constitution means. A law that contradicts the constitution is unconstitutional even if the Supreme Court mistakenly allows it to be enforced, and a law that does not fall afoul of the consitution is constitutional, even if the Court mistakenly refuses to enforce it.
Many constitutional provisions are sufficiently vague that honest people can hold different opinions about what they actually mean, when applied to a given case. Other questions are perfectly clear, and no honest person could come to a different conclusion. But there are judges sitting on the bench, both on state and federal courts, who don't care what a law actually means; they imagine that they have the power to make it mean whatever they want, and to ignore what a law says in favour of whatever they think it ought to say. Such judges, when they hand down decisions that they know are wrong, act ultra vires, and if there were a foolproof, objective way to single out such judges they ought to be removed from office and their decisions ignored. Unfortunately, I don't think such a way exists, and shortcuts to get around that would probably cause more harm than they would cure. But that's a prudential consideration, and doesn't change the underlying truth.
The constitution means what it means, and that doesn't change according to the whims of the Supreme Court.
So Marbury v. Madison and 200 years of jurisprudence are meaningless and you get to say what the constitution means. No. That's why, in part, we have a Supreme Court to-to tell us what the Constitution means.
The easy example is flogging and butchering ears. When the 8th Amendment of the Constitution was passed those were common punishments. So we need the supreme court to say what "cruel and unusual punishment means." Similarly we need the court to tell us what "estalishment of religion" and "equal protection" mean. Original intent or strict construction sound all well and good in theory. But in practice it's impossible. The constitution was not frozen in 1789, nor the Bill of Rights frozen in 1791.
Lastly to say that an argument that is flat out contradictory is not intellectually an insult. I was just calling you on your rhetorical device. There is a difference between insulting you and insulting your argument.
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no subject
You have completely lost your intellectual integrity now. You can't be intellectually honest and one minute say that a legislature shouldn't be passing an unconstitutional law (that's pro-same-sex marriage) and then the next minute say that it's okay for a legislature to pass an unconstitutional law that's anti-abortion because the Supreme Court may overturn it. Wasn't that the point in California? That the California Supreme Court would overturn what had been an unconstitutional law? In fact the California case is stronger because there is an actual lower court deicsion that is currently the law. whereas with abortion those laws are unconstitutional. By your line of reasoning the courts aren't the arbiter of what is constitutional, but you are.
It's improtant to point out that Supreme Court precedents are what they are. They are not what they might be with a new Justice on it. Or even what they might be with a new justice that has been confirmed. Certainly not what they might be with a justice that has not been nominated, much kess confirmed. The Supreme Court came to this exact conclusion in Agostini v. Felton regarding the establishment clause.
I happen to be somewhet of an expert on the Establishment Clause, having published several articles relating to the Establishment Clause and education. The Lemon Clause is hardly any of the things you mentioned. Although it is muh maligned and Justice Scalia once compared it to a ghoul in a late night horror film. It is, however, the law. The only adjustment to the Lemon test has been to fold the "excessive entanglement" prong into the "effect" prong. That does NOT mean that an excessive entanglement (between church and state) would be constitutional. It means that such an analysis is done under the effect prong.
There is absolutely no intellectual integrity in the position that a legislator who "disagrees" with Supreme Court precedent relating to the Establishment Clause are within their rights to pass a law that contradicts. Furthermore you say that you don't think the legislators believd it was constitutional. But it's right in the statute that it was their bleif that the prior referendum was unconstitutional and that having been found unconstitutional by the lower court and three other state supreme courts they anticipated the California Supreme Court to find the referendum unconstitutional. Such a position has much more intellectual honesty than saying that if some possible Supreme Court Justice is confirmed that the interpretation of the Establishment clause will change.
And how can you say that you think that the court did not believe that the initiative was unconstitutional. There is a provision in the California constitution that applies to rights that it applied. Just be honest and say you don't agree with the position. But the fact that you don't agree with a position does not make it wrong.
no subject
The constitution means what it means, and that doesn't change according to the whims of the Supreme Court. The court's job is to do its best to understand the constitution; sometimes it succeeds in this job, and sometimes it fails, but whether it succeeds or fails doesn't change what the actual constitution means. A law that contradicts the constitution is unconstitutional even if the Supreme Court mistakenly allows it to be enforced, and a law that does not fall afoul of the consitution is constitutional, even if the Court mistakenly refuses to enforce it.
Many constitutional provisions are sufficiently vague that honest people can hold different opinions about what they actually mean, when applied to a given case. Other questions are perfectly clear, and no honest person could come to a different conclusion. But there are judges sitting on the bench, both on state and federal courts, who don't care what a law actually means; they imagine that they have the power to make it mean whatever they want, and to ignore what a law says in favour of whatever they think it ought to say. Such judges, when they hand down decisions that they know are wrong, act ultra vires, and if there were a foolproof, objective way to single out such judges they ought to be removed from office and their decisions ignored. Unfortunately, I don't think such a way exists, and shortcuts to get around that would probably cause more harm than they would cure. But that's a prudential consideration, and doesn't change the underlying truth.
This has gone on way too long already.
no subject
So Marbury v. Madison and 200 years of jurisprudence are meaningless and you get to say what the constitution means. No. That's why, in part, we have a Supreme Court to-to tell us what the Constitution means.
The easy example is flogging and butchering ears. When the 8th Amendment of the Constitution was passed those were common punishments. So we need the supreme court to say what "cruel and unusual punishment means." Similarly we need the court to tell us what "estalishment of religion" and "equal protection" mean. Original intent or strict construction sound all well and good in theory. But in practice it's impossible. The constitution was not frozen in 1789, nor the Bill of Rights frozen in 1791.
Lastly to say that an argument that is flat out contradictory is not intellectually an insult. I was just calling you on your rhetorical device. There is a difference between insulting you and insulting your argument.