welsh
Junkmaster
Per said:
Per, you are raising a very good issue on this, and somethign I have been thinking about for the past couple of days. I will get back to this with more detail soon (when I have a bit more time).
Suffice it to say - the decision of the Surpreme Court followed very partisan lines- conservatives voted for Bush, liberals voted Gore, and since conservatives outnumbered liberals, the vote was skewed.
SO there were substantial questions raised about the Court as a political body and not as a court of law. These issues were raised by one of the members of the court itself.
That said, I have always thought the Court was in a jam. This was one of those constitutional problems that the court had not been prepared for, and one that needed an answer quickly as the office of the president needed to be occupied within three months of the election.
Therefore, the Court had to make a decision and quickly, and I think it did the right thing in making a decision. The decision was necessary to sustain the political order during constitutional crisis, without which the entire system begins to crumble. That said, whether the decision reached was the right one, the legal one, or the just one, is something else. Sometimes its more important to have stability than have justice or even correct application of the rule of law.
But as stated above, I will get back to that later.
Bradylama said:
This is an issue of clashing constitutional rights. You have two sets of rights at stake.
The first argument goes to the notion of substantive and fundamental due process rights under the Due Process Clause. These rights are considered to be fundamental- and usually relate to rights of personhood. The right to an abortion was found under this body, but also to have a family, to procreate, to raise your children.
These are the rights of fundamental personhood. Arguably the right to gay marriage can be seen as either expanding that right to include the right of gay people to marry who they want, and therefore partake in a constitutional right. It could also be seen as a definitional issue- what does it mean to be married?
THe irony- the issue of the definition of marriage could lead to the denial of some persons of a right not denied others.
The second issue is equal protection- that all people will be entitled to equality under law. Normally a person has to fit within a special class of people that have had their rights taken away- normally the classifications are based on race, gender, age, nationality, religion, etc.
Gays have generally not been seen as a suspect class under law, and therefore go under the "rational basis test". However this is highly suspect by court rulings. That said, for someone to deny a right to one person that is permitted another, still needs to show some kind of showing of a "rational reason". Denials of rights to gays has recently been defeated based on this test.
So the question comes back- do you want to deny one class of people a right that is enjoyed by others.
We are not preventing freedoms- as that freedom is currently allowed many people. What is being prevented is the denial of that freedom to a class of people based on "who" they chose to marry.
That's what they're CAMPAIGNING for, sure.[/quote]
Indeed. As apart from the George Bush "Be Afraid, Be Very Afraid" tour that is using fear to win votes.
But wait, the use of fear against a population to obtain political gain is the definition of terrorism, isn't it?
One might go so far as asking a more distressing question-
If democracy is about the equal right of individuals to freely choose a candidate to represent them, than the right to vote is fundamental. An attack on that right to vote is itself an attack on the basic political order of a democratic system.
If the Republican (or the Democratic) party is systematically trying to prevent people from the other side from voting by denying them the right to vote, or frustrating their ability to participate in democracy. In otherwords, this practice is a threat to our basic political structure of "rule by the people".
If the republican party is attacking the political system by preventing people from exercising their right to vote, what is the crime called?
Corruption? Perhaps. Indeed the US has suffered corruption in the past. But this is not like some politician getting a bribe from a special interest to see that a certain bill or proposal goes a specific way.
No this is an atttack against the basic fundamental ideal of our democracy. What is this crime called?
