Prop 8 Oral Arguments in CA Supreme Court [MERGED]

[Spensed]

Re: Prop 8 Oral Arguments in CA Supreme Court [MER

Inalienable, by definition, means that they exist despite the law. They simply are and while a document or a law must recognize them for them to be expressible, they exist whether the law, document, or any decision exists or not. While this is a salient point in regards to principal I would agree that in practice it may have dependencies in execution.

Perhaps therein lies why people choose to have marriages despite the law. Ultimately, it is the basis of continuing the fight. The inalienable right is ours and we must make the fight constitutional.

Clearly, there are at least two schools of thought on inalienable rights. One thinks in terms of such rights somehow being absolute and existing whether recognized or not. The other thinks in terms of such rights coming into being by their assertion and legal definition in a constitutional document, legislation or court decision.

To me, it's meaningless to talk about absolute rights outside such definition and you only have to read what the proponents of that line of thinking have to say to see how unobjective and fanciful it is. Before it is defined and acknowledged legally, what is an inalienable right to one person isn't to another. It's a simple as that.

As previously indicated, the California Constitution contains a Declaration of Rights that starts with the statement that, "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." Certain specific rights are then enumerated and expounded.

A Constitutional ban on gay marriage seems to fall foul of, amongst other things, the already recognized inalienable rights of liberty, happiness and privacy. Legally, that's a stronger argument than subjective assertions about what is or isn't an inalienable right to one group of people while being objectionable to another.

That's why, though I suspect Prop 8 will be unheld for political reasons, I also suspect the court won't simply permit contitutionally inalienable rights to be overriden by one time simple majority votes.

And therein lies one of a few glimmers of hope.

 

[Kulindahr]

Re: Prop 8 Oral Arguments in CA Supreme Court [MER

Spense, what your position really boils down to is that "rights" is a concept invented for convenience, a sort of legal fiction under which people are given to believe that there are things they can do and the government can't take away.

The question is where do "rights", or authority either, come from if not from the people? If they don't reside inherently in the people themselves, then it's nothing but a game by those in power to keep everyone content.

 

[Spensed]

Re: Prop 8 Oral Arguments in CA Supreme Court [MER

^ What I'm saying isn't inconsistent with acknowledging that rights do reside in the people. Ultimately it's the people who mandate the system of rights, in which they live. The analogy is with the shareholders in a corporation and, just as with a corporation, in which the shareholders want to implement minority protection, voters can implement a structure of protections, etc., that require more than just a single simple majority vote to remove.

For me the reality is that rights are one part of the social contract that you get the benefits and the burdens of as a member of the society involved and it's meaningless to think of rights as existing outside that social contract other than as concepts to change or be implemented into the social contract.

If one thinks of rights in metaphysical or God-given terms as somehow existing or having some reality outside of society, one just ends up in a subjective fantasy world of competing assertions. What is an inalienable right to one person in that world is an abomination to another and gay rights complete with plural marriages, etc., etc. That way of thinking seems much more the "game by those in power...keep everyone content" or at least try to.

 

[Kulindahr]

Re: Prop 8 Oral Arguments in CA Supreme Court [MER

^ What I'm saying isn't inconsistent with acknowledging that rights do reside in the people. Ultimately it's the people who mandate the system of rights, in which they live. The analogy is with the shareholders in a corporation and, just as with a corporation, in which the shareholders want to implement minority protection, voters can implement a structure of protections, etc., that require more than just a single simple majority vote to remove.

Interesting approach, but it still basically says that people have no rights. It effectively makes minorities the property of majorities, which is just another version of the old "might makes right".

For me the reality is that rights are one part of the social contract that you get the benefits and the burdens of as a member of the society involved and it's meaningless to think of rights as existing outside that social contract other than as concepts to change or be implemented into the social contract.
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The only real social contract is the one that arises from realizing that if I want my self-ownership to be honored, I have to honor the self-ownership of others. That social contract arises from the same place as rights do.

If one thinks of rights in metaphysical or God-given terms as somehow existing or having some reality outside of society, one just ends up in a subjective fantasy world of competing assertions. What is an inalienable right to one person in that world is an abomination to another and gay rights complete with plural marriages, etc., etc. That way of thinking seems much more the "game by those in power...keep everyone content" or at least try to.
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There's nothing subjective about it: rights can be derived directly from the reality of self-ownership -- and false "rights" can be revealed the same way; anything that gives one person a claim on another's self-ownership is not a right. That is, indeed, the only abomination: treating another as property.

 

[Kulindahr]

Re: Prop 8 Oral Arguments in CA Supreme Court [MER

Inalienable doesn't necessarily mean inherent, or inborn. It is something you can't even give away if you wanted to.

Locke talks of rights which exist in the State of Nature, thus outside of Government. These rights cannot be taken away by Government. Well Jefferson makes this point much stronger by terming the rights "inalienable". Not only can Government NOT take your rights away, but you can't surrender them yourself.

I think we're saying the same thing.

I just make one exception: you can lose your rights by violating the basic contract, which is honoring everyone's right of self-ownership, and doing so in such a way that makes you not worthy of having your self-ownership completely honored -- by using violence against another person.

 

[Spensed]

Re: Prop 8 Oral Arguments in CA Supreme Court [MER

Interesting approach, but it still basically says that people have no rights. It effectively makes minorities the property of majorities, which is just another version of the old "might makes right".

It doesn't say that "people have no rights". It recognizes that power to define and agree rights rest with the people and yes ultimately with the majority of the people. What you're leaving out is that that power includes minority protections, that the majority have pre-agreed or effectively endorsed and that have no standing in your self-ownership approach (because what is an inalienable aspect of self-ownership to one person may be irrelevant to another).

The only real social contract is the one that arises from realizing that if I want my self-ownership to be honored, I have to honor the self-ownership of others. That social contract arises from the same place as rights do.

In my view, that's the power of majority of the people working within a framework that they have agreed upon or accepted to prevent minority abuse. In your view, it's the concept of self-ownership, which, as I say, is pretty much a meaningless subjective notion. A Buddhist can fully own himself in a prison cell.

There's nothing subjective about it: rights can be derived directly from the reality of self-ownership -- and false "rights" can be revealed the same way; anything that gives one person a claim on another's self-ownership is not a right. That is, indeed, the only abomination: treating another as property.

The notion of self-ownership seems more subjective than objective to me. If the right to carry arms were not already enshrined in the written Constitution, but had to be established through your ideas of self-ownership, there would be no agreed consensus on whether it arose from self-ownership or not. If you need proof of that, just recollect that even the written wording in the Constitution has provoked decades of judicial debate.

If the federal Constitution were amended by the majority (as reflected by the required votes and procedures) to deprive gays of all rights, the harsh reality is that gays would be deprived of all rights. Whether you thought gays should, or shouldn't be entitled to any rights by virtue of self-ownership might be interesting in trying to get that notion embodied in future constitutional changes, but would otherwise be completely irrelevant to existence of such rights or not. IMHO.

 

[Kulindahr]

Re: Prop 8 Oral Arguments in CA Supreme Court [MER

It doesn't say that "people have no rights". It recognizes that power to define and agree rights rest with the people and yes ultimately with the majority of the people. What you're leaving out is that that power includes minority protections, that the majority have pre-agreed or effectively endorsed and that have no standing in your self-ownership approach (because what is an inalienable aspect of self-ownership to one person may be irrelevant to another).

How does it not? It reduces "rights" to a majority whim.

In my view, that's the power of majority of the people working within a framework that they have agreed upon or accepted to prevent minority abuse. In your view, it's the concept of self-ownership, which, as I say, is pretty much a meaningless subjective notion. A Buddhist can fully own himself in a prison cell.

But the majority will grant protection to minorities only because they feel like it. They could also decree that minorities aren't allowed to reproduce except if a majority member impregnates them, and all minority males must be sterilized -- and in your framework, that would be just as valid as protecting them.

Self-ownership is quite objective: it means no person is or can be treated as another's property, because no one has any business treading on another's self-ownership -- to do so is to renounce your own claim.

The notion of self-ownership seems more subjective than objective to me. If the right to carry arms were not already enshrined in the written Constitution, but had to be established through your ideas of self-ownership, there would be no agreed consensus on whether it arose from self-ownership or not. If you need proof of that, just recollect that even the written wording in the Constitution has provoked decades of judicial debate.

There would be consensus among those operating on reason and not subjective motives. If I own myself, I have the right to defend that ownership -- plain and simple. If I have the right to defend myself, I have also the right to decide how to do so.

If the federal Constitution were amended by the majority (as reflected by the required votes and procedures) to deprive gays of all rights, the harsh reality is that gays would be deprived of all rights. Whether you thought gays should, or shouldn't be entitled to any rights by virtue of self-ownership might be interesting in trying to get that notion embodied in future constitutional changes, but would otherwise be completely irrelevant to existence of such rights or not. [/COLOR][/SIZE][/FONT]IMHO.

No, gays would still have all the rights inherent in self-ownership; they would merely be penalized for exercising those rights.

 

[Spensed]

Re: Prop 8 Oral Arguments in CA Supreme Court [MER

How does it not? It reduces "rights" to a majority whim.

No more so than entrenched minority shareholder protections in a corporate constitution that has such rights. While in theory you may, or may not, be right, in reality the majority needs to follow the entrenched procedures to effect change or buy the minority out. So rights aren't always subject to majority whims.

But the majority will grant protection to minorities only because they feel like it. They could also decree that minorities aren't allowed to reproduce except if a majority member impregnates them, and all minority males must be sterilized -- and in your framework, that would be just as valid as protecting them.

It's not my framework. It's the framework of the existing Constitution. If the majority follows the specified procedures, which, as indicated, do provide some minority protections, rights can be added or subtracted.

Self-ownership is quite objective: it means no person is or can be treated as another's property, because no one has any business treading on another's self-ownership -- to do so is to renounce your own claim.

As I say, I just don't believe that the notion of self-ownership is as objective as you think, when you get down to actual specific rights. Is the right to carry arms a right that arises from self-ownership? Not everyone agrees that it is. What if my right of self-ownership adversely affects someone else's right of self-ownership. You think it's one-size-fits-all solution to the origin of rights. I don't see that it is.

There would be consensus among those operating on reason and not subjective motives. If I own myself, I have the right to defend that ownership -- plain and simple. If I have the right to defend myself, I have also the right to decide how to do so.

And who decides what operating-on-reason-and-not-subjective-motives means, if not, in effect, the consensus or the majority? If you have the right to defend yourself, it doesn't follow that you also have the right to decide how to do so any more than if you have freedom of movement it follows that you have the right to drive. It just isn't as simple as you're trying to make out.

No, gays would still have all the rights inherent in self-ownership; they would merely be penalized for exercising those rights.

Maybe in Kulindahr-land, but not in the US. As far as I know, there is no theory of "rights inherent in self-ownership" altering the effect of a procedurally correct and valid Constitutional rights change, that would be recognized in any US court. In the instance we're talking about, there simply would be no right to exercise any unconstitutional rights absent a further Constitutional change.

I understand what you're saying and there may, or may not, be a moral case to be made for some overriding rights or principle that gives rise to some overriding rights. But, as far as I'm aware, what you are asserting has no legal foundation, at least not in the US. If it has and if I'm wrong (it's been known to happen), maybe you can provide some legal, repeat legal, citations for it.

 

[Zeno Lorea]

Re: Prop 8 Oral Arguments in CA Supreme Court [MER

If that's so, then they shouldn't have allowed any openly hetero judges to try the case.

Exactly. What lifestyle they choose is a private matter, but we cannot have them in a position from which they can actively recruit or otherwise promote heterosexuality.

 

[Kulindahr]

Re: Prop 8 Oral Arguments in CA Supreme Court [MER

Spense, I don't care about any "legal citations", or what people have decided to do with the Constitution. Show me a "legal citation" in the Declaration of Independence, and I'll give your request some consideration.

The people who wrote the Constitution understood that the rights they were protecting existed. These weren't rights they were inventing, or bestowing, but protecting. Many of them didn't think the Bill of Rights was needed, because they thought, and as Jefferson wrote, that these things were self-evident. That is the framework of the Constitution, the understanding that guided its formation.

Those who would say that the right to keep and bear arms doesn't arise from self-ownership aren't thinking it through -- ownership means nothing if you can't defend it.

The question about your rights of self-ownership "adversely affecting" someone else's is an empty one -- you own yourself, and not anyone else.

 

[Spensed]

Re: Prop 8 Oral Arguments in CA Supreme Court [MER

^ You're just asserting (outside the Constitution itself) your own historical spin on the framers' intent and, as I keep pointing out, what may be self-evident to them or to you may, or may not, be relevant, to anyone else.

To you, the right to keep and bear arms is a self-evident right. In reality, even though that right is set out in writing in the Second Amendment, it has been a matter of Constitutional dispute in the courts for two centuries. What you're saying is just your own over-simplified wishful thinking.

As for legal citations, Article V of the Constitution sets out how it can be amended and, leaving aside the issue of equal state suffrage in the Senate, makes no reference to inalienable rights or rights of self-ownership.

Hence, it still seems to me that any rights that you regard as inalienable or necessary to self-ownership can be removed, added or amended. And, if any such rights are removed, constitutionally they cease to exist.

They simply doesn't, as you assert, somehow continue to exist as "rights inherent in self-ownership". While morally, I don't necessarily disagree with what you're saying, legally and factually, it misses the mark.

 

[Kulindahr]

Re: Prop 8 Oral Arguments in CA Supreme Court [MER

^ You're just asserting (outside the Constitution itself) your own historical spin on the framers' intent and, as I keep pointing out, what may be self-evident to them or to you may, or may not, be relevant, to anyone else.

It's not my spin -- it's what the framers, and every early legal scholar in the early part of the nation's history said: that rights exist outside of legal documents, and belong to humans apart from government.

To you, the right to keep and bear arms is a self-evident right. In reality, even though that right is set out in writing in the Second Amendment, it has been a matter of Constitutional dispute in the courts for two centuries. What you're saying is just your own over-simplified wishful thinking.

There hasn't been any dispute at all. The Second Amendment has been referred to numerous times by SCOTUS, and always as an individual right, often listed right alongside freedom of speech, of religion, etc. The only "dispute" is of recent origin when liberals who think they're better than others spun the notion that somehow the Framers weren't thinking clearly, so they meant something different by the term "the people" in this one spot in the Constitution.

As for legal citations, Article V of the Constitution sets out how it can be amended and, leaving aside the issue of equal state suffrage in the Senate, makes no reference to inalienable rights or rights of self-ownership.

Hence, it still seems to me that any rights that you regard as inalienable or necessary to self-ownership can be removed, added or amended. And, if any such rights are removed, constitutionally they cease to exist.

They simply doesn't, as you assert, somehow continue to exist as "rights inherent in self-ownership". While morally, I don't necessarily disagree with what you're saying, legally and factually, it misses the mark.

Constitutionally they may cease to exist, but they doesn't mean they're gone -- it would just mean that, as did the government of George III, the U.S. government had passed into an immoral level of operation, assuming to itself powers not truly available to government, but only obtained by the improper theft of the sovereignty of the people.

Rights cannot be "removed, added or amended" -- the only thing that can be done is to establish legal persecution for the exercise of natural rights. Most governments in the past have operated with such persecution, and, sadly, ours is returning to the norm.

 

[Kulindahr]

72 days and counting. Seems like they wanted to take their time after all. Perhaps they all didn't wanna dash in support of prop. 8 hmmm?

Perhaps they just want to be very, very thorough on this.

 

[scream4ever]

The bottom line is that they are taking their time on this. They are likely arguing it back and forth which leaves the door open for the 5 justices who seemed to side with Kenneth Starr back in March to change their minds. Who knows what will happen, but I think there is still a chance that they will overturn Prop. 8. Last year during the hearnings on overturning Prop. 22, many sources said that based on the oral arguments it looked like the courts wouldn't side with us and they did.

 

[Kulindahr]

^ And their interns, or aides, or whatever are probably running ragged digging up every situation that might bear on this, clear back to Edward Longshanks.

 

[scream4ever]

I read that it won't be announced tomorrow. The courts announce 24 hours in advance that they've reached a decision on something and they have not done that, according to what someone posted.

 

[scream4ever]

I think they are required to do that yes. Maybe they are just doing it far enough in advance.

 

[CaptainRush]

I can't see anything happening at all but I'm so confident that the next time around at the voting poll with California that Same sex marriage will pass.

 

[Kulindahr]

Anyway there are only two weeks left. Even by oral arguments it's said the justices have made up their minds. The decision probably is already written and just needs a little revising here and there perhaps.

On something like this there may well be multiple opinions, concurring and dissenting. In that case, it's standard for the justices to supply copies of their opinions to their colleagues, partly in hopes of consolidating.

I just hope there's an opinion that comes out for actual equality for all, but I seriously doubt it will happen.

 

[scream4ever]

It's possible too that they may need more time on this issue. Some of them maybe haven't made up their minds yet. I'm sure though that if this is the case they will announce that they need to push the date back, since people are eager to hear this ruling.