Kagan Konfirmation

[Dr. Royce Mitchell, J.D.]

I confess to not understanding your point since there does not appear to
have been an intent to create or recognize a right of homosexual marriage in
any of the founding fathers' writing. If no such rights exist, then how is
it possible that "fundamental rights" were submitted to a vote to begin
with?

 

And, if we now hold that homosexual marriage is a "fundamental right" beyond
the power of votes and elections, then why cannot polygamists, man-boy
lovers and those who hold their sheep especially dear, also proclaim their
own bit of perversity a right beyond the authority of laws, votes and
elections?

 

Royce Mitchell, J.D.

NWCU law

 

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Robert Sheridan
Sent: Friday, August 06, 2010 12:28 PM
To: conlawprof at lists.ucla.edu
Subject: Re: Kagan Konfirmation

 

It's very simple.  As stated by the Hon. Vaughn Walker, USDJ, Northern
District of California, in the recent gay marriage decision, quoting Justice
Robert H. Jackson:

"That the majority of California voters supported Proposition 8 is
irrelevant, as "fundamental rights may not be submitted to [a] vote; they
depend on the outcome of no elections." 

West Virginia State Board of Education v Barnette, 319, 117 US 624, 638
(1943)."

Since the people are capable, if not prone, to voting rights away from other
people they happen to disfavor, we need judges, applying the Constitution,
meaning the Bill of Rights and the judicial decisions interpreting them, to
haul them up short when they do so.

So much for the unbridled people.  You wouldn't like them a bit, I suspect,
were you on the receiving end of one of their rampages...

Yes, we like democracy, but a controlled democracy, controlled by a
Constitution that we keep running, like a good engine, by constantly
fiddling with it, using expert mechanics and just enough oil...


rs

On 8/6/2010 10:12 AM, Jon Roland wrote: 

Why should anyone but the people themselves "be in charge of the soul of the
nation"?

I have also proposed <http://constitution.org/reform/us/con_amend.htm>  that
a multi-stage sortition <http://constitution.org/elec/sortition.htm>
process be used to select the president and members of legislatures. That
would go a long way to removing the undue influence of special interests,
and encourage the people to assume larger roles in the supervision of public
officials and the direction of public policy.

On 08/06/2010 11:23 AM, Robert Sheridan wrote: 

Paragraph-2 is the U.S. Circuit courts of appeal system.  Applied to the
top, it would mean that no one, except perhaps the president, or a man on a
horse, would be in charge of the soul of the nation; I don't think we'd like
that very much.

-- Jon
 
----------------------------------------------------------
Constitution Society               http://constitution.org
2900 W Anderson Ln C-200-322              Austin, TX 78757
512/299-5001                   jon.roland at constitution.org
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