Ted Cruz: 'I Stand With Kim Davis'

[Bigun]

I tire of this game.  Whak-a-mole gets boring quickly.  I'll just repost what I already posted elsewhere because it addresses the same point:
The amendment itself doesn't provide even a hint about what "due process of law" is, nor how much is sufficient (i.e., constitutionally mandated).

The only way that abstract clause gets any meaning is when a  court has to decide whether, on the facts before it, "due process of law" was granted or denied.  That necessarily means that the judge will end up holding that a particular action is, or is not, sufficient due process.  If that set of facts has not been the subject of a court case before, or if the judge has been persuaded that the arguments for changing the result of the prior cases are strong enough, then the judge will be issuing an opinion that for the first time declares that "due process of law" requires X, or that it does not require X.

Whether one calls it how the law evolves, or "making law," that is the essential aspect of applying the law to the facts.  For example, the first time the Supreme Court decided whether wiretaps violated the Fourth Amendment, it held that they did not.  Olmstead v. United States (1928).  It was a 5-4 decision and this is what Chief Justice Taft had to say about it:
However, the Court ultimately decided that the better arguments favored protecting communications under the Fourth Amendment, although it took until 1967, in the case of Katz v. United States, 389 U.S. 347 (1967).

So, at what point did the Supreme Court "make law"?  The Fourth Amendment itself doesn't expressly cover wiretaps, or even eavesdropping, so was it making law when it said that the Fourth Amendment did not protect telephonic conversations?  Or was it making law when it reversed itself 39 years later and said that the Fourth Amendment did protect telephonic conversations?

So only lawyers, according to you, get to make the law, try the law and judge the law.

James Madison,  who had just a little bit to do with the writing of our Constitution, had a little to say about that!

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”   ― James Madison, Federalist Papers

[Bigun]

Very good point!

It's his OPINION!  The Majority had theirs and he has his! OPINIONS only! NOT law!

[ABX]

This somewhat brings us to a statement often misattributed to Jefferson and Goldwater but was actually by Gerald Ford.

A government big enough to give you everything you want, is big enough to take everything you have.

[Oceander]

So only lawyers, according to you, get to make the law, try the law and judge the law.

James Madison,  who had just a little bit to do with the writing of our Constitution, had a little to say about that!

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”   ― James Madison, Federalist Papers

What kind of an idiot are you pretending to be?

Every

Single

Statute

Ever

Written

Must

Be

Interpreted

And

Applied

By

Someone

And

In

The

US

That

Is

The

Courts.


Maybe we can try something from a slightly less contentious (and unanimous) case, Marbury v. Madison (1803):

    It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

    So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

    Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty].

    This doctrine would subvert the very foundation of all written constitutions.

That first sentence bears repeating:

It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.


Or was Chief Justice Marshall just a tyrant trying to foist his own illegal view of things on the rest of us?

[Scottftlc]

Jailing her is pretty ridiculous...but her case would be better made if she refused to take pay - Caesar's coin - for not doing Caesar's work.  The state has remedies available...recall is one of them I'm sure (though not familiar with Kentucky laws). She was likely targeted to create just this controversy with the newly established "right".  She does stick out.  It's pretty simple really, unless the state of Kentucky is going to refuse to abide by the court's decision, as a state, effectively refuse to accept the federal government's authority - a form of secession - then they will have to take action to remove this clerk from office or change the office responsible for issuing marriage licenses.  Everything else is theater...of the absurd really.  She gets to be a martyr and the gay movement and far left gets to flex its muscle and slam down a representative of a form of belief and a way of life it wishes to wipe off the face of the earth.

[aligncare]

It's his OPINION!  The Majority had theirs and he has his! OPINIONS only! NOT law!

Yeoman's job, Bigun.

I always felt the Law was given to assist individuals and society not redefine individuals and society.

[Bigun]

Show



Me


Where


It



SAYS




That



in




the




CONSTITUTION!!!

[Oceander]

It's his OPINION!  The Majority had theirs and he has his! OPINIONS only! NOT law!

You should seriously consider taking some sort of Law 101 course; I'm sure there are plenty available online that are decent and don't cost much.

A court's (or a judge's) opinion in a case is not the same thing as a private person's opinion on various and sundry matters.  A judicial opinion is a term of art; it is the expression of the reasoning behind the judge's decision in a particular state.  To those so inclined, a judicial opinion can be parsed into the binding portions, called the ratio decidendi, and the nonbinding portions, called the obiter dicta.  The ratio decidendi is that set of arguments necessary to justify the decision.  The obiter dicta is everything else and, while not binding, is usually a good indicator of how the judge (or court) might rule in a future case.

To put it simply, when a judge acts in a case, she (a) makes a decision, and (b) if she thinks it necessary, will issue a written document explaining why she made the decision the way she did.  That explanation is termed the judge's "opinion" but it is not the same thing as the "opinion" a private individual expresses when he says, for example, "I think same-sex marriage should be illegal."  The first - the judge's opinion - has binding legal effect and there are consequences for ignoring or flouting it.  The second has no binding legal effect and, at most, has only persuasive value depending on the strength of the arguments expressed.

[Bigun]

You should seriously consider taking some sort of Law 101 course; I'm sure there are plenty available online that are decent and don't cost much.

A court's (or a judge's) opinion in a case is not the same thing as a private person's opinion on various and sundry matters.  A judicial opinion is a term of art; it is the expression of the reasoning behind the judge's decision in a particular state.  To those so inclined, a judicial opinion can be parsed into the binding portions, called the ratio decidendi, and the nonbinding portions, called the obiter dicta.  The ratio decidendi is that set of arguments necessary to justify the decision.  The obiter dicta is everything else and, while not binding, is usually a good indicator of how the judge (or court) might rule in a future case.

To put it simply, when a judge acts in a case, she (a) makes a decision, and (b) if she thinks it necessary, will issue a written document explaining why she made the decision the way she did.  That explanation is termed the judge's "opinion" but it is not the same thing as the "opinion" a private individual expresses when he says, for example, "I think same-sex marriage should be illegal."  The first - the judge's opinion - has binding legal effect and there are consequences for ignoring or flouting it.  The second has no binding legal effect and, at most, has only persuasive value depending on the strength of the arguments expressed.

Perhaps you should have attend law school when they still taught the Constitution in those institutions rather than just case law as the do today!

BTW: Scalia is 100 % right in his dissent and the majority is 100% wrong in theirs!

[Bigun]

[Oceander]

Perhaps you should have attend law school when they still taught the Constitution in those institutions rather than just case law as the do today!

BTW: Scalia is 100 % right in his dissent and the majority is 100% wrong in theirs!

I learned under G. Robert Blakey at Notre Dame Law School, not some two-bit adjunct wannabe community organizer at a left-wing trade school.  I am quite well-versed in the Constitution.

And just how do you think one learns about the Constitution other than by reading case law?  Tell me - you're no wet-behind-the-ears fool - what does the phrase "due process of law" in the Fourteenth Amendment mean?  How is it to be applied to any given case?  What is "process of law"?  What is the minimum amount that is "due" under the Constitution?

[truth_seeker]

Perhaps you should have attend law school when they still taught the Constitution in those institutions rather than just case law as the do today!

BTW: Scalia is 100 % right in his dissent and the majority is 100% wrong in theirs!

Could you please cite the section of the U.S. Constitution which deals with marriages?

Since you weighed in on Oceander's legal education in such a derogatory manner, what is yours?

[Bigun]

I learned under G. Robert Blakey at Notre Dame Law School, not some two-bit adjunct wannabe community organizer at a left-wing trade school.  I am quite well-versed in the Constitution.

And just how do you think one learns about the Constitution other than by reading case law?  Tell me - you're no wet-behind-the-ears fool - what does the phrase "due process of law" in the Fourteenth Amendment mean?  How is it to be applied to any given case?  What is "process of law"?  What is the minimum amount that is "due" under the Constitution?

Good for you! 

I am not a member of the brotherhood of the bar but am a student of history!

Now tell me did Mr. Marbury ever get the commission he sought in Marbury vs Madison and if not why not?

[libertybele]

 SCOTUS ruled 5-4 that the Constitution requires that same-sex couples be allowed to marry no matter where they live and that states may no longer reserve the right only for heterosexual couples. However, in doing so they redefined what marriage is.

NOTHING in the Constitution justified that redefinition of marriage.  The court imposed it's judgement on "policy" ( policy which has existed since the beginning of our history) which should have remained up to the people and their elected officials in their respective states.

[Godzilla]

I am very mixed on this one.
First of all, she should NOT be jailed. However, she was elected to do a specific job and her job is to represent the office, not personal beliefs. She should have resigned as being unable to fulfill her job due to her beliefs when the job description changed. If she was unwilling to do that, like any employee or official, that would result in disciplinary action up to removal of office.  The legal punishment against her through contempt and jailing has a big Constitutional problem due to Ex Post Facto restrictions. She came into office and agreed to the position, swearing to it, when it aligned with her beliefs. The requirements of the position changed after she came into office and those requirements conflicted with her beliefs. She shouldn't be held in any legal jeopardy because the requirements changed.

A good analogy would be a nurse being hired to care for elderly patients, when the law is changed requiring euthanasia of the terminally ill. If that conflicts with her beliefs, she should quit or leave the position. However, there is no legal justification to force her to continue the job under threat of imprisonment.

Her superiors repeated informed her of the changes pursuant to the issuance of marriage licenses.  She had multiple chances to terminate her employment with the organization.

 

[Godzilla]

Could you please cite the section of the U.S. Constitution which deals with marriages?

Since you weighed in on Oceander's legal education in such a derogatory manner, what is yours?

This is about due process under law, not marriage.

We're not talking about whether the legality of whether a marriage license can be granted to homosexuals.

This is about one clerk who has stated they she will not serve all the public in the job as county clerk.  Some of the public she will provide services for... and others, she will not.  Since she cannot be fired from her position, the only recourse that will bring the office of the county clerk back into legality is to keep her away from her place of work.  That way, she is not present to violate the law.

[ABX]

Could you please cite the section of the U.S. Constitution which deals with marriages?

Article 1, Section 8, Clause 5 giving Congress the responsibility to define weights and measures. 'Measures' are commonly accepted as not only definitions like what is a yard, but also standardized definitions on federal legal matters (I believe this was referenced in Federalist 69 but I'll have to look that one up when I'm not on my phone). As long as there is a federal recognition of marriage in any laws (such as taxation and property which in reality, is what the government contract of marriage is), then congress is cased with setting that definition. Others argue it also falls under the foregoing powers clause for the exact same reasoning.

:appended:
Also the clause to establish uniform rules of naturalization as marriage has been one of the most common ways one acquires naturalization and inheritance of citizenship through family association (ie being born a citizen due to citizen parent(s)). If naturalization is given through marriage and if citizenship is recognized via family, then defining those falls back to congress.

[ABX]

Her superiors repeated informed her of the changes pursuant to the issuance of marriage licenses.  She had multiple chances to terminate her employment with the organization.

Then she should have been fired, impeached, or reassigned; not jailed.

[Godzilla]

Then she should have been fired, impeached, or reassigned; not jailed.

She cannot be fired as she holds elected office.  The only option is a recall, which the state of Kentucky is in no hurry to start.

[Paladin]

SCOTUS ruled 5-4 that the Constitution requires that same-sex couples be allowed to marry no matter where they live and that states may no longer reserve the right only for heterosexual couples. However, in doing so they redefined what marriage is.

NOTHING in the Constitution justified that redefinition of marriage.  The court imposed it's judgement on "policy" ( policy which has existed since the beginning of our history) which should have remained up to the people and their elected officials in their respective states.

Have to agree with that. Lost in all this, I think, is the real fount of all the disagreements: judicial imperiousness. This latest by the SC, and its broad acceptance, is just one more example of how we are ruled by an oligarchy. That is a far greater problem than the story of Kim Davis, even though her situation derives from it.

[Bigun]

Have to agree with that. Lost in all this, I think, is the real fount of all the disagreements: judicial imperiousness. This latest by the SC, and its broad acceptance, is just one more example of how we are ruled by an oligarchy. That is a far greater problem than the story of Kim Davis, even though her situation derives from it.

Thank you! Couldn't have said it better myself. 

[Bigun]

http://youtu.be/TadIXFpk3bw

[libertybele]

http://youtu.be/TadIXFpk3bw

Thank you for your post. Lawlessness breeds tyranny, indeed!

Perhaps the most important point that Delay makes regarding Article III of the Constitution is  "A ruling by the Supreme Court is only an opinion unless the Executive branch or the Legislative branch enforces that ruling".