I can't answer all of those questions well, but for the most part Congress can not say that individuals can't engage in professions. Really their only hook into trying to exert that right would be their right to regulate interstate commerce.

That right of Congress has been expanded enormously by a long line of bad decisions by the Supreme Court. One of the most agregious was their ruling that a farmer who grew his own grain for his own consumption nevertheless could be regulated by Agriculture laws passed by Congress because his usage "affected" the interstate market. A fair reading of the Constitution though, would preclude that.

I can not make the same statement about whether states could pass some of those laws. I simply do not know the answer to that.

Obviously government can pass laws treating the sexes differently. Try using the women's locker room, if you want first hand experience in that matter.

If the old Equal Rights Amendment had passed, the answer to all of those questions would be a definite no. Presumably, you would be able to use the women's locker room too. I imagine gay marriage would have then become a constitutional right as well.

ok, so the states pass those laws(gender discrimination in teh work place not based on physical differences, but rather on a notion that women were inferior to men) rather than congress. could the court invalidate them or would they just have to defer? can the court enforce substantive rights in the constitution, such as equal protection even if the laws were in line with popular opinion?

what if the congress said that drug distribution was punishable by branding an "d" on people's cheeks? 51% of the country thought it was a good idea. could the court invalidate those punishments based on "cruel and unusual punishment"?

or even more generically, district court, court of appeals, and supreme court all see a substantive constitutional violation in a given case even though it conflicts with congressional enactments, should the court defer? what if the court is unanimous the whole at every level?

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f/k/a mclamb6

district court, court of appeals, and supreme court all see a substantive constitutional violation in a given case even though it conflicts with congressional enactments, should the court defer?

Either I'm misunderstanding that, or it's a stupid question. If there's a constitutional violation, nobody says the courts should defer. The question isn't what the courts should do when there's a constitutional violation, it's that the courts have been refusing to defer even when there is no constitutional violation.

what if the court is unanimous the whole at every level?

Irrelevant.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

Sorry, I simply don't know that answer when you ask the state questions. Obviously the Court can enforce equal protection, Amendment XIV, Article 1.

Since that punishment has never been imposed before and there is no reason to think that authors of the Constitution considered that acceptable at any time, that punishment would certainly be a candidate for cruel and unusual.

I don't understand your last question since there are no specifics.

I get a real laugh out of the Equal Protection arguments. Coming from an angle you might relate to, Equal Protection was one of the major reasons underlying the ending of the counting of ballots in Florida in 2000. Give me a break, my rights in Broward are violated if Palm Beach Country continues to count votes? Get real.

my impression of art's position is that there is little role for the supreme court. if there is a non-obvious constitutional issue, i.e. potential equal rights issue vs. denial of voting rights based on gender, it seems as if art believes that the court should defer to congress' views as shown through the legislation they see fit to pass. as if the default position should be deference to congress.

i disagree. the court's job is to interpret the constitution and give teeth to substantive rights contained in the constitution. it's not to defer to congress on close issues.

and the reason i threw in the unanimity factor is that art, in the past, has indicated that a wide consensus from the court(s) is indicative of a more credible decision that flies in the face of congressional acts.

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f/k/a mclamb6

the question in my hypothetical really boils down to whether women would have substantive rights contained in the constitution to preclude such gender discrimination in "professional" fields and whether you'd view a decision invalidating, again hypothetically, 29 state laws enacting such discrimination. or would the women have to bide their time by lobbying their state legislatures to change the law for a change in those policies to be considered legitimate?

or to go back to the standard issue on this board, you have a real problem with gays seeking redress in the courts for the gay marriage issue. but if something is unconstitutional, it's unconstitutional regardless of how popular it is or whether congress enacts laws stating otherwise. it is the court's duty to act in those cases if someone brings the case before them and they shouldn't defer to the whims of congress.

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f/k/a mclamb6

Usually the term substantive rights means rights that aren't in the Constitution, but which the person using the term really think ought to be in there so the Court should find them in there. (In a pinch, penumbras and emanations work well.) The first such case like that to my knowledge was the Dred Scott decision. That one didn't turn out so well when seven southern judges found a substantive right to slavery.

Again, I wish I could answer your state questions better. I simply can not.

Bans on gay marriage are simply not unconstitutional. The word gay and the word marriage don't even appear in the text. We can all sit here and make up substantive rights all day long. If you want it in the Constitution, you really have to pass an amendment.

I concede that legislatures can and do pass lousy laws, just as Courts make lousy decisions. Just because a law is lousy, doesn't mean it is unconstitutional.

I don't understand the shot about my not finding a need for the Supreme Court. It was their job to uphold the black letter of the law of the First Amendment and strike down Campaign Finance Reform. They didn't do it. Then again, it was Bush's job to veto it, and he didn't do that either.

The Court upholds laws in direct violation of the plain meaning of the text, and they strike down laws unaddressed by the text of the Constitution. Gee, I wonder why judges get criticized?

my impression of art's position is that there is little role for the supreme court.

My impression is that Art is closer to being right than you are.

The court's role is obviously to interpret the Constitution, and deferring to Congress on "close issues" has not much to do with anything, as far as I can see. But not every issue is addressed by the Constitution. Lots of issues, in fact. If an issue isn't addressed by the Constitution . . . there's no legitimate court role.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

ok, equal protection. what's that mean?

cruel and unusual punishment. what's that mean?

due process. what's that mean?

those are all issues addressed by the constitution.

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f/k/a mclamb6

"equal rights. what's that mean?"

Where is "equal rights" in the Constitution? Obviously when talking about something like "cruel and unusual punishments" the courts have to interpret what that means. As for due process, the Constitution says "without due process of law" so, I suppose, as long as the law is followed, due process has been met. No interpretation required.

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Slowguy

(insert pithy phrase here...)

and i think it's ridiculous to frame issues so narrowly. equal protection is broad. due process is broad. cruel/unusual is broad. just to name 3. to think that issues or phrases that aren't mentioned specifically within the constitution, leaving aside gay marriage for a second, couldn't be subsumed in perfectly logical, reasonable fashion within those terms explicitly mentioned within the constitution.

to state that every specific issue before the court must appear exactly in the constitution or that new issues can't arise that fit perfectly well within the substantive rights guaranteed by the constitution means that the constitution's restrictions are relegated to a specific meaning at a very specific point in history and thus their meaning/importance fades as time passes, leaving it all up to the good graces of the legislature.

to state that substantive rights are usually things that aren't found in the constitution is not a logical argument. equal rights = a substantive right. free speech, freedom of religion, right to bear arms, freedom from unreasonable searches and seizures, no cruel/unusual punishment, etc. are all substantive rights. it's the court's job to enforce those, regardless of unpopularity of the decision or current moral sensibilities.

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f/k/a mclamb6

sorry, equal protection.

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f/k/a mclamb6

"sorry, equal protection"

Well, again, the document says "equal protection of the laws." So long as any given law is applied equally to all people, that requirement is met. It doesn't say every citizen should have the same exact status or rights under the law. Just that the laws, once passed, must be applied equally.

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Slowguy

(insert pithy phrase here...)

As I said, you can make up any specific rights you want with that logic. Right to slavery in Dread Scott. You can make up a substantive right for me to marry my son if you want. Equal protection for sure. You can get a really euridite judge to come up with penumbras and emanations, and that judge will be lauded so long as his penumbras agree with the mainstream press.

Should his penumbras differ from their agenda, of course, he will be a right wing extremist.

By the same logic, you can come away with Congress shall make no law to mean Congress can make a law. You just need a sufficiently brilliant jurist to explain why.

You want to leave policy decisions to the good graces of unelected, unaccountable judges. Then, you no doubt blame the other side when you are shocked, shocked that the judicial confirmation process falls apart.

On the other hand, if you just insist on the model in which judges dispassionately apply the law, rather than make up new law according to their personal policy preferences, life gets pretty simple.

It must be nice to read the Constitution with your mindset. Every time you read it, you come away very pleased to find that it agrees with your opinions in every detail. When your opinions change, fortunately, so too does the Constitution.

right, but when is the law being applied equally? does it just have to have neutral language? what if there is neutral language but the law only affects a certain subset of people and was specifically intended to affect those people? do they have equal protection?

look, i am perfectly willing to accept that a judge might say denying same sex marriage is not an equal rights violation. i'd disagree, but i'd accept it, no problem.

and i am perfectly willing to accept that certain laws will affect/inhibit certain groups and be perfectly constitutional. but i find it ludicrous to argue that some of the items i have listed aren't susceptible to more than one interpretation nor that new issues couldn't arise which aren't specifically mentioned in the constitution yet fall squarely within other, broader clauses or sections of the constitution.

i fail to see how the constituion has any relevance outside of a historical document if the broader elements can't apply to contemporary issues...

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f/k/a mclamb6

nope, the constitution means the same thing every time i read it. for instance, equal protection means that you can't arbitrarily discriminate against specific subsets of people.

you bring up free speech. can i threaten people? why not? congress shall make no law right? can i yell fire in a theater? why not? there was no specific exception to threats or inciting a riot in the amendment...

having a different opinion doesn't make someone a right wing extremist. equating abortion with the holocaust, however, does.

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f/k/a mclamb6

I certainly agree that interpretation is part of the courts jobs. Federal courts get to interpret federal laws, and I suppose, state courts get to interpret State laws. And, if you are going to concede that interpretation is part of the deal, then you have to concede that any two judges might interpret something differently. What I think Art is opposed to is the idea of judges "interpreting" the Constitution to have specifically enumerated specific rights that it obviously doesn't or of judges looking at laws and "interpreting" them to be un-constitutional regardless of the issue at hand not being addressed by the Constitution.

your best argument is probably the 9th Amendment which I read as saying that just because certain rights are enumerated in the Constitution, that doesn't mean other rights not mentioned might not also exist. In those cases, if a certain right is not covered by the document, and the people want it to be guaranteed, they need an Amendment making it so. If all they can get support for is the passage of a law protecting that right, they have to live with the fact that another law could just as easily be passed taking that right away without any conflict with the Constitution. Likewise, although the 9th says that there may be other rights retained by the people, it doesn't say what they are, and it is up to the people through legislation to decide what those rights should be. Judges deciding what those rights should be is stretching the definition of "interpretation" way too far.

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Slowguy

(insert pithy phrase here...)

How can one have a law that is "applied equally to all people" but still "doesn't say every citizen should have the same exact status or rights under the law"

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_______________________________________________

"How can one have a law that is "applied equally to all people" but still "doesn't say every citizen should have the same exact status or rights under the law"

By saying that citizens under the age of 21 can not purchase alcohol. That law is equally applied to all persons, yet clearly gives a different status to people under 21 than it does to people over 21.

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Slowguy

(insert pithy phrase here...)

When you read the Constitution 10 years ago, did you find the right to gay marriage in there?

Was the effort to pass the Equal Rights Amendment misguided since that right was already in there? If so, when did it get in there?

Do I have a constitutional right to an incestuous marriage with my son now, or will that not morph into a constituional right for another 20 years or so?

When did the substantive right to abortion come into existence?

Why wasn't there a substantive right to slavery in the free states in the Constitution?

Obviously free speech rights, or any right, conflicts with other rights if you push the envelope far enough. We need courts and legislatures to make these trade offs.

but again, to return to same sex marriage as a stepping off point, if the court rules that gays are being discriminated against and being denied equal protection, how is that legislating? the court wouldn't be saying "there is a constitutional right to same sex marriage" it would say the states or congress is violating the equal protection clause in arbitrarily discriminating against gays.

what is most confusing to me is how people can argue that equal protection isn't implicated when talking about same sex marriage and bans thereon. it might be a permissible mode of discrimination, but it is discrimination. or when some would argue that "cruel and unusual" punishment is not a term whose meaning shifts with time. for instance, i think roper(juvenile death penalty) got it wrong, but not because of a wacky rule of law that was applied, but rather just an erroneous conclusion.

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f/k/a mclamb6

when there were specific laws banning same sex marriage, it ran afoul of the equal protection clause. (unless of course someone can provide a legit justification for such laws.) simply because no one challenged the laws doesn't mean it wasn't problemmatic.

no, the effort to pass the era was not misguided. there would be some differences between that and equal protection, which permits some gender discrimination based on real(i.e. physical, i.e. child birth) differences between men and women. under the era, those differences would not longer be a constitutionally sufficient justification to sustain laws that makes allowances between men and women.

no, i don't think there will ever be a right for an incestuous same sex marriage. incest is a choice, which, for me, operates as sufficient reason to deny certain behavior(gay isn't a choice in my mind and while marriage is a choice, it would still be a prohibition based on innate characteristics).

what other rights do free speech conflict with?

where in the constitution does the gov't have the right to regulate medical procedures?

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f/k/a mclamb6

Still, you can't really say that the law is equally applied to all people. The problem with your statement is that those two things are mututally exclusive. What you can say is that there's a good reason to treat under-21 year-olds differently than over-21 year-olds, and that reason trumps demands for equal treatment.

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"to return to same sex marriage as a stepping off point, if the court rules that gays are being discriminated against and being denied equal protection, how is that legislating? the court wouldn't be saying "there is a constitutional right to same sex marriage" it would say the states or congress is violating the equal protection clause in arbitrarily discriminating against gays"

Well, there's a couple of issues that I see. First, if the laws of the State in question specifically said that marriage pertains to a man and a woman, then the courts would have no cause to say there was a lack of equal protection under the law. If the state wanted to pass a law that said only a man and a woman could get married, again, if the Courts said they couldn't, they woul, in effect, be legislating instead of interpreting law. For the courts to be able to say that gays were being arbitrarily discriminated against, they have to interpret what the existing law means, and see if it's being applied equally. If the urrent law is vague enough that one could interpret "marriage" to mean any union of any 2 people, then I guess the courts might have a leg to stand on.

"it might be a permissible mode of discrimination, but it is discrimination"

Well, that's the problem when a word carries such a negative connotation. One can certainly be "discriminating" without being a bigot, but the term carries negative feelings with it, so people don't want their side to ever be described as a "discrimination" view.

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Slowguy

(insert pithy phrase here...)

"Still, you can't really say that the law is equally applied to all people"

Sure I can. In every case, the law is applied based on your age. Every person is equally allowed to purchase alcohol if they are older than 21. It isn't applied to some people if they are 21 and a little bit, and some of they are almost 21, and to some if they are 21 and white, but not if they are 21 and black. The law is applied the same way in every case.

"What you can say is that there's a good reason to treat under-21 year-olds differently than over-21 year-olds, and that reason trumps demands for equal treatment"

Now you must be kidding. Are you saying that you can write a law that is unconstitutional just so long as there is a really good reason?

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Slowguy

(insert pithy phrase here...)