An "irreconcilable variance" standard for striking down laws in the U.S.

CaliGuy

Banned
It's not the SCOTUS' job to "reconcile" anything. They are supposed to be determining whether or not the case (or law) before them is valid or in violation of the constitution of the USA. Legislators 'reconcile' laws/bills, etc.
Whether my system here is a good one is a separate question.

However, I would like to point out that it is often a subjective question as to whether or not a particular law violates the U.S. Constitution.
 
The thing is, though, that one can reasonably read the 14th Amendment not to include a right to privacy. After all, the authors and ratifiers of the 14th Amendment didn't believe that the 14th Amendment included a right to privacy.

Yes, and that's why you need a SCOTUS. To determine whether a right is protected by the constitution or not.
 
@CaliGuy You should study some law. ;) I also had only a year of law studies until now, but you can get a good insight into some facts. It's really more complicated than what you can read on Wikipedia for example.
 
I don't think this makes any difference at all. Because this is basically OTL. Under the "canon of constitutional doubt," if there is a way of interpreting a statute that makes it not conflict with the Constitution, US courts are required to do so.
 
. . . Meanwhile, irreconcilable variance would legitimize rulings like Buck v Bell. We're safer if we restrict government.
Then we're more at risk of becoming serfs of corporations, as we are slowly drifting in that direction.

PS Thank you for bringing up Buck v Bell from the 1920s, which is on my personal list of bum Supreme Court decisions.
 
@CaliGuy You should study some law. ;) . . .
I think CaliGuy is asking a sophisticated question and setting up an interesting timeline. He may well have studied some law in a formal setting.

But even if he hasn't dipped a single toe in a legal classroom, I still think we have every right as regular citizens to question the law.

Neigh, we even have a duty! :) (except these kind of self-imposed duties are anti-motivational and turn into a trap, there has to be some better third way)
 
In contrast, right now, judges can declare a law/statute to be unconstitutional even if it is possible to reconcile this law/statute with the U.S. Constitution. For instance, abortion bans have been struck down by the courts even though abortion bans can certainly be reconciled with the U.S. Constitution; after all, the 14th Amendment can be reasonably interpreted as not creating a fundamental right to abortion.

I disagree with this. Courts try to interpret laws to avoid constitutional conflicts in OTL.
 

CaliGuy

Banned
@CaliGuy You should study some law. ;) I also had only a year of law studies until now, but you can get a good insight into some facts. It's really more complicated than what you can read on Wikipedia for example.
I've considered studying law but concluded that it simply isn't for me.

I did read some legal journal articles from time to time, though.
 
or wanted to find

In the US it's impossible to legalize abortion due to the constitution limiting federal powers, so a decision of the SCOTUS was the only chance to resolve the conflict in favor of the majority of the population.

Given the gridlock affecting American politics (Democrats vs. Republicans, Little states vs. Major ones, Union vs. States, Congress vs. President), caused by a constitution which is out of date, the SCOTUS is sometimes the only institution capable to act.

End of segregation, abortion, sodomy laws and gay marriage all proved that. I suppose that the US can be glad to have a politicized SCOTUS, because without it, the system would already have imploded - for the better or for the worse.
 

CaliGuy

Banned
In the US it's impossible to legalize abortion due to the constitution limiting federal powers, so a decision of the SCOTUS was the only chance to resolve the conflict in favor of the majority of the population.

Given the gridlock affecting American politics (Democrats vs. Republicans, Little states vs. Major ones, Union vs. States, Congress vs. President), caused by a constitution which is out of date, the SCOTUS is sometimes the only institution capable to act.

End of segregation, abortion, sodomy laws and gay marriage all proved that. I suppose that the US can be glad to have a politicized SCOTUS, because without it, the system would already have imploded - for the better or for the worse.
Please keep in mind, though, that Congress was able to act to abolish segregation; indeed, that's what the Civil Rights Act of 1964 was about.

Also, in regards to sodomy laws and same-sex marriage, those laws would have gotten repealed and same-sex marriage would have gotten legalized nationwide regardless of what the U.S. Supreme Court would have done; indeed, it would have only been a matter of time.
 
those laws would have gotten repealed

Penal law, competence of the individual states. Many states repealed it before Lawrence vs. Texas in 2003; some repealed it later, like Virginia in 2014; but some like Texas didn't (which is mostly symbolic, but still, it shows that if homosexuality would still be punishable in these states if it wasn't for Lawrence vs. Texas).

To legalize "sodomy" nationawide, the only choice would have been a constitutional amendment, and that's hard to pass through as you know.

and same-sex marriage would have gotten legalized nationwide regardless of what the U.S. Supreme Court would have done; indeed, it would have only been a matter of time.

No. Marriage falls into Civil Law, which is the competence of the states. It couldn't be legalized nationwide, and there are some states that would never had legalized it on their own (think of the Bible Belt). It would have taken decades given that some states not even repaled their sodomy laws.
Again, the other option would have been a controversial constitutional amendment.

You see, even if the majority of Americans favored the legalization of same-sex marriage, the majority the Republican Party holds in most states and in Congress made it impossible to decide the matter through "regular" means. That's due to the US constition which gives too much power to the individual states, but I already said that.

That's why it's good that the US have a SCOTUS which is politically active and decides if the other institutions are gridlocked and incompetent.
 

CaliGuy

Banned
Penal law, competence of the individual states. Many states repealed it before Lawrence vs. Texas in 2003; some repealed it later, like Virginia in 2014; but some like Texas didn't (which is mostly symbolic, but still, it shows that if homosexuality would still be punishable in these states if it wasn't for Lawrence vs. Texas).

To legalize "sodomy" nationawide, the only choice would have been a constitutional amendment, and that's hard to pass through as you know.

Texas still didn't repeal its sodomy law?

No. Marriage falls into Civil Law, which is the competence of the states. It couldn't be legalized nationwide, and there are some states that would never had legalized it on their own (think of the Bible Belt). It would have taken decades given that some states not even repaled their sodomy laws.
Again, the other option would have been a controversial constitutional amendment.

You see, even if the majority of Americans favored the legalization of same-sex marriage, the majority the Republican Party holds in most states and in Congress made it impossible to decide the matter through "regular" means. That's due to the US constition which gives too much power to the individual states, but I already said that.

That's why it's good that the US have a SCOTUS which is politically active and decides if the other institutions are gridlocked and incompetent.

One could argue that the 14th Amendment gave Congress the authority to pass a bill which requires the states to recognize same-sex marriages (and interracial marriages back in the old days, for that matter), though.
 
Okay, there's the HBO documentary "The Case Against 8" about two couples suing against California's Prop. 8. There are two middle-aged ladies Kris and Sandy, and there are two younger fellows Paul and Jeff. And all four are likable human beings.

-->documentary released before SCOTUS decided, but I like that it puts a very human face on the issue:

When the case finally wound its way to the Supreme Court, the Court did not rule that each of these persons have the same rights as anyone else, of course they do.


Instead SCOTUS made some complicated ruling that either the persons circulating the petition or signing the petition originally for Prop. 8 did not have standing to sue. Talk about a clums-a-saurus ruling, but apparently that was the Court's ruling. The decision may have talked about other things and had some great liberating quotes, but I think the "holding" of the decision was about standing.

I say, the Supreme Court is a very uncertain liberator!
 
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