Kagan Konfirmation

Fri Aug 6 12:47:49 PDT 2010

As Judge Walker took pains to explain, if you'd care to peruse his 
opinion, the issue isn't whether to recognize a new right, which you 
describe as a right of 'homosexual marriage,' but a very old one, the 
fundamental right of marriage, the only question being, today, whether 
same-sex people have the right to exercise it.  Yesterday it was 
mixed-race people who were not.  The founders probably didn't envision 
'mixed-race marriage' either, yet it exists.  Why?  Because someone 
interpreted the constitution to include mixed race couples as being 
entitled to this fundamental right.  Perhaps you disagree with that, yet 
there it is, since 1967 in the U.S., since 1948 in California; don't ask 
me why the disparity, probably has something to do with politics.

I think we should thank the founders and their successors for the nice 
documents they gave us to interpret as we see fit, don't you?  I don't 
think they intended to limit us for all time to the rights they insisted 
we have, w/o opportunity to change, hence the amendment power and the 
use of general terms subject to interpretation, such as due process, 
equal, liberty, etc.  The conservative Federalist, Marshall, explained 
to us what a constitution was, what it was for and how to use it to 
effect.  That was very nice of him, wasn't it?  It's given us more 
rights than we enjoyed before he handed us the big axe, don't you agree?

rs

On 8/6/2010 12:26 PM, Dr. Royce Mitchell, J.D. wrote:
>
> 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 Societyhttp://constitution.org
> 2900 W Anderson Ln C-200-322              Austin, TX 78757
> 512/299-5001jon.roland at constitution.org  <mailto:jon.roland at constitution.org>
> ----------------------------------------------------------
>   
>   
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