US Supreme Court Legalizes Gay Marriage
#79
Quote: I'm not a lawyer here, I'm just very interested in the legal angle of how the 14th seemed to shape a lot of the contemporary world.

Well, hesitantly, I offer the following quick, shallow, overly simplistic and possibly dirty explanation. First, I am not at all sure it has much to do with “shaping” the “contemporary world” outside of the US. That said, the original constitution ratified in 1787 contained almost no individual rights guarantees. Delegate Charles Pickney proposed several such as freedom of the press and a ban on quartering soldiers in private homes but his proposals were rejected. The only protections included prohibitions against states enacting laws which “impaired the obligation of contracts” and “ex post facto” laws (those punishing someone for a act which was not criminal when committed) and bills of attainder (legislative determination of guilt). Madison (the primary framer) thought the separation of powers adequately protected liberty and would prevent oppressive majorities from garnering enough power to oppress minorities. The Anti-Federalists did not want the Constitution at all but argued that it should at least have provisions which protected specific individual rights. Even though Madison thought it was a useless “parchment barrier” he finally agreed to draft a declaration of rights to be added to the Constitution. This was mainly to deflect criticism from people like Thomas Jefferson and the Anti-Federalists in order to secure the document's ratification. He drafted a bunch of proposals which became the first 10 amendments to the Constitution. Amendments 1-8 are the Bill of Rights. None of these amendments were binding on the states. The courts began applying the privileges and immunities clause of the 14th amendment through what became known as the doctrine of incorporation. The first case which did this was in 1868 in The Slaughterhouse Cases. Incorporation cases following this were mostly focused on the Due Process clause. The incorporation of individual rights probably did not receive that much popular attention until the Warren Court and its Brown v. Board of Education case, followed by other decisions of that court which made the 1st , 4th , 5th (partially), 6th and 8th (partially) amendments binding upon the states through the due process clause of the 14th amendment. More recently, the 2nd has been held binding. Two of the leading justices on the Warren court were Hugo Black and Felix Frankfurter who held different views on whether or how incorporation should be applied. Black thought it should only apply to specific provisions of the Bill of Rights. Frankfurter thought the tests should be more subjective-eg “does this state’s action shock the conscience (one of those silly legal phrases)”. Black’s view has not prevailed, in that the court has recognized rights not specifically enumerated in the Bill of Rights, eg Griswold v. Connecticut (right to privacy) and the case being discussed in this thread.
Ok, that is about all I can think of offhand to say. I am certainly not an expert on constitutional law generally, although I certainly have opinions like most people. I am not a fan of the present Supreme Court generally mostly because it is as polarized as the rest of the country. I could say more about that, but that would likely be more than anyone would want to hear. I did like their decision in the gay marriage and affordable care cases, however.
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RE: US Supreme Court Legalizes Gay Marriage - by Thenryb - 07-15-2015, 04:26 AM

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