For Constitutionalists Only!

[lawbuff]

Also for the 4th, all the Federal Government would need to do is ask a State to do the search or the seizure if that Amendment does not apply to the States.

Interesting thread. I just joined today.


The "total" incorporation theory has been rejected by SCOTUS. The 14th did not auotmatically make the Bill of Rights applicable to the states, that started in the early 1920's. I for one am in favor of such.

The 4th is my basic constitutional area of interest, as I took Criminal law in College. It was made applicable to the states in Wolf v. Colorado, 1949, the exclusionary rule came later in Mapp, 1961.


There MUST be uniformity, at least as far as S&S is concerned, I agree! One crucial area of such is a home invasion by police. Can you imagine if the 4th did not apply to the states police could just enter your home at any time without a warrant to effect an arrest, non exigency of course.

If the 4th did not apply to the states, a state would be free under it's own Constitution to permit a vehicle search without probable cause. Not good!

As a little trivia, not saying you don't know already, so forgive that. The Bill of Rights proposed to the states had 12 AM's or Articles, the 1st 2 not ratified, at that time. Article 2 later became the 27th AM, finally ratified.

If you have ever visited the National Archives in DC where it is housed, it includes all 12 Articles. So when proposed, the 4th was actually the 6th.

If we look at the Preamble to the Bill of Rights:


PREAMBLE
The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.



Now, facially, there is nothing that construes that the BOR is forever to remain a federal sovereign right?

 

[lawbuff]

1In other words, rights are granted, retained or affirmatively protected in these Amendments (and I'm sure I missed some others). How, in a legal sense, is that not the grant of a right to the people by th egovernment listing and protecting those rights? What do you consider a "right"? You have an interesting interpretation, but a very narrow one.

I have come across this argument before. The BOR does grant rights. Sure, the Preamble does not use that exact verbiage:

...that further declaratory and restrictive clauses should be added..

If it is not a grant of rights, then it should have been called the Bill of Prohibitions, as Hamilton suggested.

 

[lawbuff]

And I was 36 at the time


I hope I may inject a lay opinion here, as I am neither a lawyer nor do I play one on TV.

I believe that the Constitution should be read just as it is written.

It is not a 'living' document, meant to be changed by interpretation depending on the times or the reader, nor invested with hidden rights.

If the Founders did not intend it to mean what it says, then why did they include specific avenues that allowed for change, i.e. the amendment process?

The Constitution has to be interpreted. We see the word UNreasonable in the 4th AM! This must be defined by the Courts, no way around it.

The Full Faith and Credit Clause is not all inclusive, if it were, then same sex marriages would have to be recognized in ALL states, and the SC has already ruled that such bans do NOT violate the federal constitution.

 

[stonewall]

And I was 36 at the time


I hope I may inject a lay opinion here, as I am neither a lawyer nor do I play one on TV.

I believe that the Constitution should be read just as it is written.

It is not a 'living' document, meant to be changed by interpretation depending on the times or the reader, nor invested with hidden rights.

If the Founders did not intend it to mean what it says, then why did they include specific avenues that allowed for change, i.e. the amendment process?

The Constitution has to be interpreted. We see the word UNreasonable in the 4th AM! This must be defined by the Courts, no way around it.

The Full Faith and Credit Clause is not all inclusive, if it were, then same sex marriages would have to be recognized in ALL states, and the SC has already ruled that such bans do NOT violate the federal constitution.

Same sex marriage would have to be recognized by all the States unless they specify otherwise. Like a State Constitutional Amendment. That is why the States reacted the way they did after the Mass. Supreme Court ruling.

If a same sex marriage occurs in Mass. and a State has not dealt with this question, then they have to recognize the marriage.

 

[jillian]

Same sex marriage would have to be recognized by all the States unless they specify otherwise. Like a State Constitutional Amendment. That is why the States reacted the way they did after the Mass. Supreme Court ruling.

If a same sex marriage occurs in Mass. and a State has not dealt with this question, then they have to recognize the marriage.

same sex marriage *would* have to be recognized by other states. like any other determination of status it would receive full faith and credit under the law.

the "states" didn't react to anything... the religious right did.

 

[stonewall]

Same sex marriage would have to be recognized by all the States unless they specify otherwise. Like a State Constitutional Amendment. That is why the States reacted the way they did after the Mass. Supreme Court ruling.

If a same sex marriage occurs in Mass. and a State has not dealt with this question, then they have to recognize the marriage.

same sex marriage *would* have to be recognized by other states. like any other determination of status it would receive full faith and credit under the law.

the "states" didn't react to anything... the religious right did.

No doubt that the religious right is against Gay Marriage, but they don't control all the States.

It's a little bit of a stretch to just blame them when the country overwhelmingly rejected gay marriage when voted on within the States.

 

[Father Time]

Same sex marriage would have to be recognized by all the States unless they specify otherwise. Like a State Constitutional Amendment. That is why the States reacted the way they did after the Mass. Supreme Court ruling.

If a same sex marriage occurs in Mass. and a State has not dealt with this question, then they have to recognize the marriage.

same sex marriage *would* have to be recognized by other states. like any other determination of status it would receive full faith and credit under the law.

the "states" didn't react to anything... the religious right did.

No doubt that the religious right is against Gay Marriage, but they don't control all the States.

It's a little bit of a stretch to just blame them when the country overwhelmingly rejected gay marriage when voted on within the States.

I thought the only state to that was CA?

And even here you there was massive amounts of falsehoods coming from the prop 8 side.

 

[stonewall]

same sex marriage *would* have to be recognized by other states. like any other determination of status it would receive full faith and credit under the law.

the "states" didn't react to anything... the religious right did.

No doubt that the religious right is against Gay Marriage, but they don't control all the States.

It's a little bit of a stretch to just blame them when the country overwhelmingly rejected gay marriage when voted on within the States.

I thought the only state to that was CA?

And even here you there was massive amounts of falsehoods coming from the prop 8 side.

Many States voted on this.

What were the falsehoods?

You are either for Gay Marriage or you are not, seems very simple.

 

[Father Time]

No doubt that the religious right is against Gay Marriage, but they don't control all the States.

It's a little bit of a stretch to just blame them when the country overwhelmingly rejected gay marriage when voted on within the States.

I thought the only state to that was CA?

And even here you there was massive amounts of falsehoods coming from the prop 8 side.

Many States voted on this.

What were the falsehoods?

You are either for Gay Marriage or you are not, seems very simple.

This whole issue that homosexuality would be taught to kindergartners, parents couldn't opt out, the idea that it would force churches to marry gays (it wouldn't, the ruling overturning the law said so), that there was a partisan judge (debatable but it's worth pointing out he was Republican), general acting like a law the majority likes being declared unconstitutional is new and dangerous, and I kid you not I saw signs saying "prop 8 = free speech".

Oh and not that I don't believe you but besides CA and Florida (sorry I forgot about that one when I wrote my post) what other states put them to a citizen vote?

 

[goldcatt]

Same sex marriage would have to be recognized by all the States unless they specify otherwise. Like a State Constitutional Amendment. That is why the States reacted the way they did after the Mass. Supreme Court ruling.

If a same sex marriage occurs in Mass. and a State has not dealt with this question, then they have to recognize the marriage.

same sex marriage *would* have to be recognized by other states. like any other determination of status it would receive full faith and credit under the law.

the "states" didn't react to anything... the religious right did.

Marital status is recognized under comity rather than FF&C. So no, a marriage that is legal in one State does not have to be recognized where the union would be illegal. Look at the patchwork of consanguinity laws, age requirements, etc. etc.

 

[lawbuff]

Marital status is recognized under comity rather than FF&C. So no, a marriage that is legal in one State does not have to be recognized where the union would be illegal. Look at the patchwork of consanguinity laws, age requirements, etc. etc.

Your conclusion is correct, I just disagree with your analysis.

The Comity clause is not an issue, the FFC clause does NOT require a state to recognize another states law that violates it's own public policy:

Quoting from Nevada v. Hall:

c) The Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy. Pacific Ins. Co. v. Industrial Accident Comm'n, 306 U. S. 493.

Common law marriages may be an exception. Most states now do not recognize them, but I believe if any state would honor one of another state, yes, but are probably not required to.

Additionally, the US SC in Baker v. Nelson already ruled that same sex marriage bans do NOT violate the federal constitution. This is why the states are free to adopt thier own policies under thier own laws, sometimes described as the "New Federalism" as the late CJ Rehnquist was a supporter of it. This was a 1971 ruling, so the concept was not developed then, but now is a state's right push to break the strangle hold of big brother.

The case was an appeal from the Minnesota SC to the USSC. It was dismissed for "want of a substantial federal question".


I can't post URL'S yet, until 15 posts, but it can be found on any search engine.

 

[goldcatt]

Marital status is recognized under comity rather than FF&C. So no, a marriage that is legal in one State does not have to be recognized where the union would be illegal. Look at the patchwork of consanguinity laws, age requirements, etc. etc.

Your conclusion is correct, I just disagree with your analysis.

The Comity clause is not an issue, the FFC clause does NOT require a state to recognize another states law that violates it's own public policy:

Quoting from Nevada v. Hall:

c) The Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy. Pacific Ins. Co. v. Industrial Accident Comm'n, 306 U. S. 493.

Common law marriages may be an exception. Most states now do not recognize them, but I believe if any state would honor one of another state, yes, but are probably not required to.

Additionally, the US SC in Baker v. Nelson already ruled that same sex marriage bans do NOT violate the federal constitution. This is why the states are free to adopt thier own policies under thier own laws, sometimes described as the "New Federalism" as the late CJ Rehnquist was a supporter of it. This was a 1971 ruling, so the concept was not developed then, but now is a state's right push to break the strangle hold of big brother.

The case was an appeal from the Minnesota SC to the USSC. It was dismissed for "want of a substantial federal question".


I can't post URL'S yet, until 15 posts, but it can be found on any search engine.

First things first, my friend.

First, what you refer to as the "Comity Clause" is usually referred to as the Privileges and Immunities Clause (Article 4 Section 2 Clause 2, for those who want to look it up). Comity is not the same thing as Full Faith and Credit, which requires States to recognize each other's judicial proceedings when certain guidleines are followed - like registering the foreign judgment. Comity is a recognition of other State's laws generally not because they are forced under Full Faith and Credit, but because they choose to do so out of respect and tradition. Or because another, higher court has decided they "should" out of respect and tradition. Which, BTW, is where the "Federalism" term comes in.

For a simple definition of comity, including a brief mention of the marriage issue, see:

Comity - Definition of Comity | Encyclopedia.com: Oxford Companion to the Supreme Court

For a more in-depth explanation of how comity operates, see:

FindLaw: U.S. Constitution: Article IV: Annotations pg. 13 of 18

Nevada v. Hall does not apply here, since Full Faith and Credit (for many reasons) does not apply to marital status. Hall is a Full Faith and Credit case, it has nothing to do with comity.

Perhaps you were looking for Younger v. Harris, also decided in 1971?

Younger v. Harris

EDIT: My mistake, the Privileges and Immunities ("Comity") Clause is Article 4, Section 2, Clause 1 - not Clause 2. Oopsie!
For comparison, the Full Faith and Credit Clause is found at Article 4, Section 1.

 

[goldcatt]

And are you sure you want to cite Baker v. Nelson?

The Minnesota Supreme Court decision is found here:

http://moritzlaw.osu.edu/library/documents/BakervNelson.pdf

Yes, the US Supreme Court declined to hear the case due to lack of Federal jurisdiction. Does that really mean what you claim it means? Particularly when you are seemingly confusing Full Faith and Credit, undeniably a Federal question, with Comity, which is not, unless a Federal right or protected class is involved (see Loving v Virginia).

There is a serious question, some very recent State rulings notwithstanding, as to whether (since there was never an opinion in Baker outside the State law ruling of the MN Supreme Court), it should be considered any sort of Constitutional precedent.
After all, there has been no Constitutional ruling, except to state that the issue in Baker was an issue of State law outside the jurisdiction of the Federal courts (see my original post on the subject). It has no Constitutional value beyond an exercise of Article 3, Section 1 (of which there are thousands upon thousands of examples) and bears no precedential weight outside the State in which it was decided.

One word of advice: Remember Lawrence v Texas in all this. I wonder what will happen now that Bowers has been overturned?

 

[BasicGreatGuy]

Lawbuff, The cases you cited are not applicable to the actual subject matter at hand. While I agree with non-incorporation, I disagree with your retort to gold. I don't agree with gold a lot, but in her recent posting here, she is correct. As to the cases she cited, I will have to brief myself on them, before I can properly comment.

 

[goldcatt]

BGG, I'm touched!

Come into the Light, I know you want to.

We have cookies!

Mmmmm...yummy!

 

[BasicGreatGuy]

BGG, I'm touched!

Come into the Light, I know you want to.

We have cookies!

Mmmmm...yummy!

You have cookies and I have ice cream. Ice cream beats cookies. BGG is not easily swayed.

 

[goldcatt]

Ice cream and cookies go great together. They make an excellent sandwich.

 

[goldcatt]

While we're sort of recently on the subject, what do you think will be the result of the Lawrence decision?
Some to my left think (hope) it will clear the way for sexual orientation to become a protected class. I'm not so sure.
Or do you just think it's all hooey since it's from the SCOTUS and not the original document?

 

[BasicGreatGuy]

Ice cream and cookies go great together. They make an excellent sandwich.

That is true. I will share but I am not giving in or giving up my position(s), until and or unless I am shown to be wrong. Restrictions do apply. Void where prohibited. Not valid in Hawaii, California, or USMessagboard.

 

[goldcatt]

Ice cream and cookies go great together. They make an excellent sandwich.

That is true. I will share but I am not giving in or giving up my position(s), until and or unless I am shown to be wrong. Restrictions do apply. Void where prohibited. Not valid in Hawaii, California, or USMessagboard.

I thought you said you aren't a lawyer.