10th amendment discussion

[cwalner]

No way. Full faith and credit does NOT apply to marriage as there is gay marriage in only six states, and the federal government does not recognize any of them. In addition, try getting a divorce in New York State vs. Nevada...very different laws apply.

Actually it does (at least for straights). Generally, a marriage licence issued in one state is good in all 50, even if the other state would not have issued it (ie different ages of consent or proximate relationships allowed). However, DOMA makes a specific exception in regards to same-sex couples. I happen to believe that that exception is a violation of the Full faith and credit clause, but since it is fairly new that any states allowed same-sex marriages, there has not yet been a case where a couple married in one state attempted to get marriage rights in another that prohibited same-sex marriage and then brought the suit all the way to the Supreme Court.

In short, it still technically applies, but to be able to challenge the laws that appear to be in violation require a suit be brought in front of the Supreme Court. Maybe you and your partner would like to be the test case. I am sure the local Lambda legal defense fund would be glad to take your case if it applies.

 

[JoeTheJuggler]

Whew!!! Talk about Orwellian Double-think?
Art I., Sec. 10 specifically prohibits the states from coining money -- even if gold and silver. No where is there an allowance for the States to mint gold and silver or anything else.

"No State Shall ... Coin Money emit Bills of Credit, make any Thing but Gold and Silver Coin a tender..."

Moreover to allow that Art. I SEc. 8 allows the Congress to determine what legal tender shall be would mean the Founders contemplated two different kinds of tender -- one for the States and one for the Feds. Absurd on its face.

Again, the case law I cited shows that your reading is clearly incorrect and my reading is correct.

But to cite a lower court case that goes along with such a mis-reading does not trump the fact that the Fed. Const. is the Supreme Law, and no court can change that. The subject was thoroughly debated by the Founders at the Const. Convention and never interpreted any other way so long as any of them remained alive.

You're simply wrong. Article 3 gives the authority to interpret that law to the judiciary which is comprised of the Supreme Court and the lower courts. In the absence of a higher court reversal of these district court decisions, they are the interpretation of the Constitution that is the one that counts.

Your attempt to reject the well-established interpretation of this by claiming no one has ever interpreted the section otherwise is a logical contradiction. (Of course it's been interpreted otherwise; that's the interpretation you're arguing against.)

 

[JoeTheJuggler]

Actually it does (at least for straights). Generally, a marriage licence issued in one state is good in all 50, even if the other state would not have issued it (ie different ages of consent or proximate relationships allowed). However, DOMA makes a specific exception in regards to same-sex couples. I happen to believe that that exception is a violation of the Full faith and credit clause, but since it is fairly new that any states allowed same-sex marriages, there has not yet been a case where a couple married in one state attempted to get marriage rights in another that prohibited same-sex marriage and then brought the suit all the way to the Supreme Court.

In short, it still technically applies, but to be able to challenge the laws that appear to be in violation require a suit be brought in front of the Supreme Court. Maybe you and your partner would like to be the test case. I am sure the local Lambda legal defense fund would be glad to take your case if it applies.

That's a nice explanation of the issue of DOMA and the full faith and credit principle, but. . . .

I'm not even so sure that DOMA technically still applies, or at least whether or not it applies everywhere. It's in a sort of legal limbo right now.

The current status is that we have a series of cases challenging the constitutionality of DOMA with conflicting decisions. The most recent activity is a decision by AG Holder (presumably in agreement with the Obama administration) to stop pursuing appeals of the decisions of a couple of cases that found DOMA unconstitutional.

Boehner is attempting to get the legislative branch somehow to pursue the defense of DOMA (not a redundancy!) via the Bipartisan Legal Advisory Group (which voted to try to do so on a 3-2 vote that I'd be willing to bet fell along partisan lines giving the lie to the name of that committee).

 

[JoeTheJuggler]

I'm not even so sure that DOMA technically still applies,

Sorry--I misread your post. (Took the wrong thing as the antecedent to "it" in "it still technically applies.)

I agree that the full faith and credit principle still applies.

 

[cwalner]

That's a nice explanation of the issue of DOMA and the full faith and credit principle, but. . . ..

You are correct, what I was discussing and DOMA are slightly distinct issues, DOMA concerns federal recognition of state issued marriage licences and defines federal marriage as between a man and a woman regardless of what the state chooses to honor.

I think FFCC concerns states recognizing other states' official documents and records. The issue is that for FFCC to come into play, a couple has to be married in one state and then move to another and have their marriage rights denied.

The case I heard about a while ago was a Texas couple that went to Massachusetts to get married, but then split up and was told by the Texas government that they could not get divorced in TX because as far as TX was concerned they are not married. I don't know if this actually reached courts, but I have not heard anything on it for several years.

But yeah, it seems as though FFCC is applicable to the issue of gay marriage in general, it looks like it does not apply to DOMA since it appears to apply to states honoring each other's public records, not the federal government.

Full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings, of every other state; and the legislature shall, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect which judgments, obtained in one state, shall have in another.

Sorry, this whole issue is a slight derail (although interesting and related) as this thread is about the 10th amendment, not the FFCC.

 

[JoeTheJuggler]

Meh--I think we've already wrung all the interesting discussion out of the 10th Amendment there is to be had.

And in fairness, this thread did start with a bit of confusion of the 10th Amendment with other state/federal issues, so I'd take anything on the general division of authority between states and the federal government to be fair game.

 

[JoeTheJuggler]

You are correct, what I was discussing and DOMA are slightly distinct issues, DOMA concerns federal recognition of state issued marriage licences and defines federal marriage as between a man and a woman regardless of what the state chooses to honor.

Yes, but doesn't the federal government's redefining marriage such that it explicitly conflicts with some states' laws undermine full faith and credit?

For example, if a state said a person can get married at age 15, and the federal government attempted to redefine marriage as between two people who are at least 18 years, isn't that the federal government compelling some states NOT to give full faith and credit to the marriages done by other states?

I guess I'm not sure what the concept of "federal marriage" means; isn't marriage an authority reserved for the states?

Anyway, my understanding is that DOMA has primarily been challenged as going against the equal protection clause. (I notice that one of the decisions finding DOMA unconstitutional cited the equal protection clause AND the 10th amendment.)

 

[Robert Prey]

Orwellian Double-Think

Again, the case law I cited shows that your reading is clearly incorrect and my reading is correct.


You're simply wrong. Article 3 gives the authority to interpret that law to the judiciary which is comprised of the Supreme Court and the lower courts. In the absence of a higher court reversal of these district court decisions, they are the interpretation of the Constitution that is the one that counts.

Your attempt to reject the well-established interpretation of this by claiming no one has ever interpreted the section otherwise is a logical contradiction. (Of course it's been interpreted otherwise; that's the interpretation you're arguing against.)

So, in other words, when the Const. says No State shall coin money, that means States can indeed coin money, eh? And when the Const. Says no thing but gold and silver coin a tender, that means irredeemable scrip or anything else is just as good, eh? And if you worship the courts, why not bow before the Dredd Scott case as well which confirmed and upheld the Constitutionality of slavery as well? Do you know what it means have one's reasoning pre-empted by Orwellian Double-think?

 

[cwalner]

Yes, but doesn't the federal government's redefining marriage such that it explicitly conflicts with some states' laws undermine full faith and credit?

For example, if a state said a person can get married at age 15, and the federal government attempted to redefine marriage as between two people who are at least 18 years, isn't that the federal government compelling some states NOT to give full faith and credit to the marriages done by other states?

I guess I'm not sure what the concept of "federal marriage" means; isn't marriage an authority reserved for the states?

Anyway, my understanding is that DOMA has primarily been challenged as going against the equal protection clause. (I notice that one of the decisions finding DOMA unconstitutional cited the equal protection clause AND the 10th amendment.)

No 'federal marriage' is federal recognition of the marriage. In the example above, it is conceivable that the federal government can choose not to recognize the marriage of a 15 year olds, but FFCC would compel other states to recognize it.

So for me federal marriage would include things like spousal rights to immigrate, armed services and social security survivor benefits, the ability to file joint federal tax returns, etc.

For example, as things stand now (IIUC) somebody like Alt+F4 and his husband (assuming here - could be her wife) can file jointly in New York, but would still have to file separately on their federal tax returns. It is interesting that wording of the FFCC only compels other states to accept such things from each other, but has no such compulsion on the federal government to accept what each state does.

 

[JoeTheJuggler]

So, in other words, when the Const. says No State shall coin money, that means States can indeed coin money, eh? And when the Const. Says no thing but gold and silver coin a tender, that means irredeemable scrip or anything else is just as good, eh?

I've already answered these questions. That your reading of this section is wrong and mine correct is made explicit in the case law I've provided.

Your argument that the inferior courts do not have the judicial authority granted them in Article 3 is simply false. They have the authority to interpret the law. It's also logical--that the states do not have the authority to mess with the monetary authority that was granted to Congress.

And if you worship the courts, why not bow before the Dredd Scott case as well which confirmed and upheld the Constitutionality of slavery as well?

Because the Dred Scott case is not current jurisprudence. It hasn't been for some time. The Emancipation Proclamation and the 13th, 14th and 15th Amendments have nullified that decision.

IF you're trying to argue that the case law I've cited has been nullified, please tell me how and when that was done.

And for the record, that I am answering Constitutional questions by respecting the judicial authority as laid out in the Constitution is not properly the "worship" of anything.

Do you know what it means have one's reasoning pre-empted by Orwellian Double-think?

I'm a big fan of Orwell, thank you. Doublethink is basically maintaining the truth of contradictory ideas simultaneously. You can continue using this term as nothing more than name-calling, but it does not comprise any sort of rebuttal to the arguments I've been making.

 

[JoeTheJuggler]

It is interesting that wording of the FFCC only compels other states to accept such things from each other, but has no such compulsion on the federal government to accept what each state does.

I understand. And that explains why the cases challenging DOMA didn't use the FFCC.

I'll bet a case can be made that it ought apply to the fed, though. In many states, your filing status is determined by the federal status. (I wonder how states that recognize gay marriage now deal with that point?)

ETA: But hold on--the language of DOMA is not limited to "federal marriage". It seems to me to explicitly contradict the FFCC:

"`No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.'."

Am I missing something?

 

[JoeTheJuggler]

So, in other words, when the Const. says No State shall coin money, that means States can indeed coin money, eh? And when the Const. Says no thing but gold and silver coin a tender, that means irredeemable scrip or anything else is just as good, eh?

By the way, the above is a complete mischaracterization of my reading. [ETA: And a butchering of the syntax of the sentence from the Constitution.]

Why use "other words" when I've provided you with plenty? It's a pretty good sign you're arguing against a strawman when you need to restate my position like that.

 

[cwalner]

I understand. And that explains why the cases challenging DOMA didn't use the FFCC.

I'll bet a case can be made that it ought apply to the fed, though. In many states, your filing status is determined by the federal status. (I wonder how states that recognize gay marriage now deal with that point?)

ETA: But hold on--the language of DOMA is not limited to "federal marriage". It seems to me to explicitly contradict the FFCC:

"`No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.'."

Am I missing something?

Interesting. I did not realize that was part of DOMA. I would agree that it is explicitly contradictory to the FFCC. I am surprised it has not yet been challenged.

 

[Robert Prey]

By the way, the above is a complete mischaracterization of my reading. [ETA: And a butchering of the syntax of the sentence from the Constitution.]

Why use "other words" when I've provided you with plenty? It's a pretty good sign you're arguing against a strawman when you need to restate my position like that.

Nonsense. In your Orwellian mindset, words mean the opposite of what they say. Yet you believe it to be perfectly logical.

 

[Robert Prey]

I've already answered these questions. That your reading of this section is wrong and mine correct is made explicit in the case law I've provided.

Your argument that the inferior courts do not have the judicial authority granted them in Article 3 is simply false. They have the authority to interpret the law. It's also logical--that the states do not have the authority to mess with the monetary authority that was granted to Congress.


Because the Dred Scott case is not current jurisprudence. It hasn't been for some time. The Emancipation Proclamation and the 13th, 14th and 15th Amendments have nullified that decision.

IF you're trying to argue that the case law I've cited has been nullified, please tell me how and when that was done.

And for the record, that I am answering Constitutional questions by respecting the judicial authority as laid out in the Constitution is not properly the "worship" of anything.


I'm a big fan of Orwell, thank you. Doublethink is basically maintaining the truth of contradictory ideas simultaneously. You can continue using this term as nothing more than name-calling, but it does not comprise any sort of rebuttal to the arguments I've been making.

Here's some news they didn't teach you in that government school. Case law is not the supreme law of the land. The Constitution is the Supreme Law. And there is nothing in ARt. III that makes any exception. A court can make unconstitutional rulings till the cows come home, but that cannot change the words nor the meaning nor the supremacy of the Constitution itself. And as to Dredd Scott, the point is, according to your interpretation, that ruling was indeed Constitutional till overruled by subsequent amendments. But that ruling was overruled not by subsequent amendments, but by the ultimate sovereign -- the Jury.

 

[JoeTheJuggler]

Here's some news they didn't teach you in that government school. Case law is not the supreme law of the land. The Constitution is the Supreme Law. And there is nothing in ARt. III that makes any exception.

Article III establishes the judiciary and gives it the authority to resolve disputes involving the law (including the Constitution itself). The Constitution is supreme, but the judiciary is the body that interprets the Constitution (and other laws). Your reading of the Constitution is not the one that is current valid jurisprudence. The cases I cited are. This really is the valid interpretation of that section of the Constitution.

 

[JoeTheJuggler]

And as to Dredd Scott, the point is, according to your interpretation, that ruling was indeed Constitutional till overruled by subsequent amendments.

Yes, believe it or not slavery used to be legal in many parts of the United States. Were you unaware?

It's not anymore. Dred Scott is no longer valid law. Constitutional interpretation has changed throughout the history of our country, and the Constitution itself has been amended 27 times (counting the first ten that were ratified along with the Constitution itself). Did you think it's otherwise?

But that ruling was overruled not by subsequent amendments, but by the ultimate sovereign -- the Jury.

What? The Supreme Court case, Dred Scott v. Sandford, is no longer valid law because it was nullified by the Emancipation Proclamation and the 13th, 14th and 15th Amendment. A subsequent case make note of this fact with regard to one part of the decision. How do you figure it was "overruled" by a jury?

 

[cwalner]

And as to Dredd Scott, the point is, according to your interpretation, that ruling was indeed Constitutional till overruled by subsequent amendments. But that ruling was overruled not by subsequent amendments, but by the ultimate sovereign -- the Jury.

Huh? what are you getting at with this. and by the way from wikipedia

Although the Supreme Court has never explicitly overruled the Dred Scott case, the Court stated in the Slaughter-House Cases that at least one part of it had already been overruled by the Fourteenth Amendment in 1868, which created citizenship at the national as opposed to the state level:

seems like it was the 14th amendment, not some jury that overturned Dredd Scott V Sandford.

 

[JoeTheJuggler]

Huh? what are you getting at with this. and by the way from wikipedia

seems like it was the 14th amendment, not some jury that overturned Dredd Scott V Sandford.

And it didn't actually overturn the Dred Scott case. It nullified the legal principle of that decision [that is, for subsequent cases].

As for the disposition of the Scott case itself, the jury trial that I think Robert Prey is talking about was the 1850 trial (the jury awarded the Scotts their freedom) that went through a series of appeals until it reached the famous Supreme Court case. Scott lost his case, and he would have once again been the property of someone, but there was a death in the family that owned him, a remarriage to an abolitionist, a transfer of ownership and then a grant of emancipation (from the Blow family--a prominent name here in St. Louis). [ETA: I just read up on that--their freedom was granted by the Blows a little less than 3 months after the Supreme Court decision, so following that decision he was again returned to someone as property.]

Sadly, neither a jury nor the courts emancipated Dred Scott and his wife.

 

[SKEPTICALSHAM]

the Tenth Amendment Center's interpretation is weird
especially when it lists the issues