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Constitutional limits?

Rich2018 said:
That's true, the 14th amendment was passed as a protection for freed slaves but has come to be used to protect same sex marriage

It actually needs to be repealed and fully re-written to prohibit all discrimination.
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Forbidding states from denying equal protection under the law has been increasingly broadened essentially prohibiting most discrimination.

Prohibiting all discrimination may create problems when it comes to groups like pedophiles. I think if the provision prohibits discrimination against same sex marriage that same "right" should apply to polygamists. I favor allowing religious organizations to be exempt from most of those provisions.
 
danielpalos said:
It may be; it depends on the circumstances that caused the police to look for a perpetrator. What if it had been, John Wilkes Booth?
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Booth doesn't get any less rights than anybody else. Searching for a person is different than seizing evidence. Were they in "hot pursuit" of Booth and saw him enter the house?
 
jimbo said:
IT might not say what you want it to say, but it's far from vague.
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Do you think 1st amendment rights are absolute? That there can be no restrictions on our free speech, free press, free religion?

If you do think they are absolute, you are adhering to the clear meaning of the phrase "no law" abridging those freedoms.
But, if you don't think they are absolute and can be restricted, then the meaning becomes very vague because it becomes very subjective and very political about what restrictions are allowed (although original intent guided the court in their rulings).

The words of the Constitution provide no help in determining what restrictions are permissible if we don't think those rights are absolute.
 
Gator said:
Prohibiting all discrimination may create problems when it comes to groups like pedophiles.
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How so, there is nothing wrong with being a pedophile any more than there's anything wrong in being a homosexual

Being a pedophile just means you're (sexually) attracted to children. If you do nothing to act on your attraction, you have done nothing wrong


I think if the provision prohibits discrimination against same sex marriage that same "right" should apply to polygamists.
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No, you could argue that is different, and we outlaw polygamy whether it's based on male or female, young or old or whatever race you might be


I favor allowing religious organizations to be exempt from most of those provisions.
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You could allow a "religious" union, without allowing a legal union.
 
Rich2018 said:
How so, there is nothing wrong with being a pedophile any more than there's anything wrong in being a homosexual

Being a pedophile just means you're (sexually) attracted to children. If you do nothing to act on your attraction, you have done nothing wrong
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But many pedophiles do act on it (maybe I should say convicted pedophiles) and it would be irresponsible to hire a pedophile to teach young children or work at a daycare center. If the employer did not want to hire pedophiles to work around young children that should not be a violation of discrimination laws.

Rich2018 said:
No, you could argue that is different, and we outlaw polygamy whether it's based on male or female, young or old or whatever race you might be
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The court ruled there was no compelling state interest to prevent same sex couples from marrying. What is the state interest in prohibiting polygamists from marrying? They are being discriminated against simply because they are polygamists which is very common in history and the world.

Rich2018 said:
You could allow a "religious" union, without allowing a legal union.
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I was not talking about marriage but Congress usually excludes religious organizations from anti-discrimination laws. If a church school seeks to teach religious education they can choose to hire only members of that religion. Or, if a religion believes homosexuality is against their religious beliefs, they don't have to hire homosexuals. They are usually excluded from those laws.
 
Gator said:
As long as it is in a room used by both parties and not exclusively by the spouse.

You familiarity with the 4th should be evidence that the term "unreasonable" is somewhat vague and has changed over the years which is the only claim I made. I was not suggesting my view was correct since it is a rather widespread and accepted view that the Constitution is intentionally broad and vague.
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“Rather widespread and accepted view” according to whom? Do you have a scientific study supporting this remark? I doubt it. It is these silly, nonsensical remarks you make to bolster what you’re saying. These appeals to unsubstantiated popularity views mean nothing.

A widely held point of view can be wrong. Whether some view is strong or correct isn’t demonstrated by counting heads.

Simply, I’m not convinced what you allege is “widespread” is indeed “widespread,” and I’m equally incredulous you have a sufficient factual foundation to support such a notion.

In addition, I have no evidence for your claim “unreasonable is somewhat vague” and has “changed over the years.” None. My “familiarity” with 4th Amendment jurisprudence isn’t evidence for your claims. You are desperate if you have to invoke my knowledge in this area as evidence for your claims. This tells me you’ve done very little research on this topic and have arrived at a conclusion you conspicuously cannot support with any facts.

Now, as for the issue of consent. The issue of “exclusivity” is fact sensitive. The analysis can be viewed through the lens of actual authority or apparent authority to consent. By way of example, a male driver who consents to a search the car may not include the female passenger’s purse in the front passenger seat. After all, the male driver cannot consent to a search of another’s property in the car, in which the nature of the property demonstrates the property doesn’t belong to the male driver who gave consent. Unless, of course, there are facts demonstrating actual/apparent authority. One such fact would be having access to the purse. This access can be the fact he goes into the purse to retrieve items out of the purse for the female passenger. He doesn’t “use” the purse, but has access.

Now, this can also apply to the spouse consent to a search, including a room she doesn’t “use” but has access to and has had access. If a room, room X, is exclusively used by the husband but nonetheless, the wife has access to the room, and accesses the room to routinely clean it, maybe put her husbands laundry away in the room, but she doesn’t “use” the room, she can consent to a search of the room. Her access may create actual/apparent authority to consent. After all, she is not locked out of the room, she accesses the room routinely to clean it, and put laundry away.

Contrast that with a locked box, in which her husband has the only key, she cannot access or use the box, and police search the box based on her consent.


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Gator said:
Do you think 1st amendment rights are absolute? That there can be no restrictions on our free speech, free press, free religion?

If you do think they are absolute, you are adhering to the clear meaning of the phrase "no law" abridging those freedoms.
But, if you don't think they are absolute and can be restricted, then the meaning becomes very vague because it becomes very subjective and very political about what restrictions are allowed (although original intent guided the court in their rulings).

The words of the Constitution provide no help in determining what restrictions are permissible if we don't think those rights are absolute.
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Does the meaning “become very vague because it becomes very subjective and very political about what restrictions are allowed”?

Or is it plausible you’ve just described a scenario where the meaning isn’t vague but instead isn’t followed? You’ve just described a situation where, by all appearances, the meaning is known, hence not vague, but not followed.


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NotreDame said:
“Rather widespread and accepted view” according to whom? Do you have a scientific study supporting this remark? I doubt it. It is these silly, nonsensical remarks you make to bolster what you’re saying. These appeals to unsubstantiated popularity views mean nothing.

A widely held point of view can be wrong. Whether some view is strong or correct isn’t demonstrated by counting heads.

Simply, I’m not convinced what you allege is “widespread” is indeed “widespread,” and I’m equally incredulous you have a sufficient factual foundation to support such a notion.

In addition, I have no evidence for your claim “unreasonable is somewhat vague” and has “changed over the years.” None. My “familiarity” with 4th Amendment jurisprudence isn’t evidence for your claims. You are desperate if you have to invoke my knowledge in this area as evidence for your claims. This tells me you’ve done very little research on this topic and have arrived at a conclusion you conspicuously cannot support with any facts.

Now, as for the issue of consent. The issue of “exclusivity” is fact sensitive. The analysis can be viewed through the lens of actual authority or apparent authority to consent. By way of example, a male driver who consents to a search the car may not include the female passenger’s purse in the front passenger seat. After all, the male driver cannot consent to a search of another’s property in the car, in which the nature of the property demonstrates the property doesn’t belong to the male driver who gave consent. Unless, of course, there are facts demonstrating actual/apparent authority. One such fact would be having access to the purse. This access can be the fact he goes into the purse to retrieve items out of the purse for the female passenger. He doesn’t “use” the purse, but has access.

Now, this can also apply to the spouse consent to a search, including a room she doesn’t “use” but has access to and has had access. If a room, room X, is exclusively used by the husband but nonetheless, the wife has access to the room, and accesses the room to routinely clean it, maybe put her husbands laundry away in the room, but she doesn’t “use” the room, she can consent to a search of the room. Her access may create actual/apparent authority to consent. After all, she is not locked out of the room, she accesses the room routinely to clean it, and put laundry away.

Contrast that with a locked box, in which her husband has the only key, she cannot access or use the box, and police search the box based on her consent.
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Reading the Constitution is clear evidence many of the terms are vague. A simple search shows many sources discussing the vagueness of many terms in the Constitution. Very seldom (or never) do you find respected scholars/experts who claim the meaning of the Constitution is always clear and not vague.

Your discussion of consent proves the point. There is clearly nothing in the 4th saying consent is an exception to the warrant requirement although it is certainly a reasonable assumption. However, after that your explanation considers many different variations and complexities, none of which are found in the Constitution but in many different court decisions. If the term "unreasonable" was so clear it would contain the answer to questions about consent or other legal issues surrounding a search.

Police officers, prosecutors, and defense attorneys' knowledge comes from the many court decisions on this issue, not from reading a clear, concise explanation in the 4th Amendment.
 
Gator said:
Yes. I know many say the words of the Constitution do not change and I also think the court has stretched the powers of the government too far, but changing times makes it necessary to change what was once acceptable or unacceptable. The vagueness and flexibility of the Constitution serves a useful purpose.
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Except there isn’t any evidence of the “vagueness,” and textualist/originality, if they are right, have been identifying a meaning for many years now.


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NotreDame said:
Does the meaning “become very vague because it becomes very subjective and very political about what restrictions are allowed”?

Or is it plausible you’ve just described a scenario where the meaning isn’t vague but instead isn’t followed? You’ve just described a situation where, by all appearances, the meaning is known, hence not vague, but not followed.
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It isn't followed because it was not the original intent of the 1st for those rights to be absolute. With the exception of Justice Black we find very few justices who believe there can be no restrictions on these rights.

Original intent with historical and legal precedent trumps those few who believe the court was "wrong" and would allow threats, libel, slander, pornography, etc. as free expression; but, that is based on court decisions and not because it is clearly contained in the document.
 
NotreDame said:
Except there isn’t any evidence of the “vagueness,” and textualist/originality, if they are right, have been identifying a meaning for many years now.
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The evidence comes from reading the language of the document and the majority and dissenting opinions of the federal courts. Thousands of pages argue about the meaning of constitutional language including the word "shall."
 
Gator said:
.
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Reading the Constitution is clear evidence many of the terms are vague.
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The clarity is demonstrated by the evidence, and your invocation of the clarity begs the question. That’s a circular argument. The above IS the issue to be resolved. Quote obviously, I do not agree it is “clear.” Yet, you take the very issue being debated and treat it as evidence for your argument. This isn’t the first tautology you’ve made.

A simple search shows many sources discussing the vagueness of many terms in the Constitution. Very seldom (or never) do you find respected scholars/experts who claim the meaning of the Constitution is always clear and not vague.
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First, the “many sources are discussing” isn’t evidence. “Many sources” also discuss evolution, gravity, the Big Bang, etcetera. The discussions aren’t evidence. Facts matter. Facts are evidence. Whether those “many discussion” are right is based on the facts, the evidence, not the “discussions” occurring or have occurred.

Second, to play your game of counting discussions of something, many textualist and originalists have spilled a lot of scholarly ink showing how and why the “vagueness” you allege doesn’t exist. But this doesn’t matter, this facile act of counting discussions.

Third, this notion of “respected” just compounds your problem of making inadequate arguments. How the hell do we objectively measure “respected”? It is another useless rhetorical ploy, and similar to the “True Scotsman” fallacy.

Whether they are “respected” or not is a form of ad hominem. According to you, the claims can be rejected, or not believed, or disregarded, or skepticism, but not because of the sensible and rational basis of the substance of what is said, but rather on the basis of some quality or characteristic they have or lack, in this instance lacking a quality/characteristic of respected.

Yet, whether the person is or isn’t respected has absolutely nothing to do with whether what they said is strong, correct or right. Someone “respected” can be wrong and whether they are wrong, or right, isn’t contingent upon being “respected” but instead is based on the substance of what they said and the evidence. Same is true for someone who isn’t respected, as they can be right.

But that’s a wonderful line of reasoning, as many centuries ago, initially those few alleging the earth was round, or moved around the sun, rightfully had their views rejected because they weren’t subjectively “respected” at the time.

One FINAL comment, I never took the view “always clear.”

Your discussion of consent proves the point. There is clearly nothing in the 4th saying consent is an exception to the warrant requirement although it is certainly a reasonable assumption.
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Yet, the historical evidence shows consent to a search was a part of the original meaning of the 4th Amendment. The idea of protection from “unreasonable” searches and seizures, and use of warrants, and consent, was already developed in English common law when the 4th Amendment was written and ratified.

So yes, my consent argument “proves the point” there is historical evidence consent to search formed part of the original meaning of the 4th Amendment. Hence, such a meaning existing, weakens this notion of “vagueness.”

However, after that your explanation considers many different variations and complexities, none of which are found in the Constitution but in many different court decisions. If the term "unreasonable" was so clear it would contain the answer to questions about consent or other legal issues surrounding a search.
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As was explained to you before, you have confused vague meaning with applicability of a meaning to the facts. They aren’t the same. Yes, my explanation reflects A.) the original meaning of consent is in the 4th Amendment and B.) application of that meaning to a set of facts can be difficult, in which the Court engages in an analysis of the meaning to a set of facts.

What you continue to ignore is that the meaning can be clear but applying that meaning to a set of facts is perhaps not easy. But that task of applying the meaning to a set of facts doesn’t render the text vague, as the meaning is known.

Police officers, prosecutors, and defense attorneys' knowledge comes from the many court decisions on this issue, not from reading a clear, concise explanation in the 4th Amendment
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You know this how? Another non-existent scientific study? Regardless, it is irrelevant. HOW they acquire the knowledge isn’t the issue.


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Gator said:
It isn't followed because it was not the original intent of the 1st for those rights to be absolute. With the exception of Justice Black we find very few justices who believe there can be no restrictions on these rights.

Original intent with historical and legal precedent trumps those few who believe the court was "wrong" and would allow threats, libel, slander, pornography, etc. as free expression; but, that is based on court decisions and not because it is clearly contained in the document.
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Well, I couldn’t care less about original intent.

Second, again, you’ve invoked the popularity fallacy. The number of “justices” who “believe” a certain way isn’t evidence their “belief” is right and it isn’t evidence for or against a belief. Facts, evidence, determine whether something is true, strong, or accurate, not head counting.

Third, the original meaning of the word “speech” didn’t include libel, slander, and that original meaning IS the meaning “contained in the document” of the speech clause of the 1st Amendment.


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Gator said:
The evidence comes from reading the language of the document and the majority and dissenting opinions of the federal courts. Thousands of pages argue about the meaning of constitutional language including the word "shall."
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Reading “the language of the document” will require, at times, understanding what those words meant at the time they were used to know its meaning. The Constitution had a meaning in 1787. How do we know? The constitution was written with words and words have a limited range of meaning at the time they are used. It is unfathomable the people, distrustful of centralized power in a national government and worried about their rights, did not understand the meaning of the document they were ratifying.

The “majority and dissenting opinions” isn’t evidence their meaning is correct. Again, that begs the question. Whether those judicial opinions are right is to be judged by the evidence.

Facts. Evidence. That matters.


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Gator said:
Reading the Constitution is clear evidence many of the terms are vague. A simple search shows many sources discussing the vagueness of many terms in the Constitution. Very seldom (or never) do you find respected scholars/experts who claim the meaning of the Constitution is always clear and not vague.

Your discussion of consent proves the point. There is clearly nothing in the 4th saying consent is an exception to the warrant requirement although it is certainly a reasonable assumption. However, after that your explanation considers many different variations and complexities, none of which are found in the Constitution but in many different court decisions. If the term "unreasonable" was so clear it would contain the answer to questions about consent or other legal issues surrounding a search.

Police officers, prosecutors, and defense attorneys' knowledge comes from the many court decisions on this issue, not from reading a clear, concise explanation in the 4th Amendment.
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Same thing with community standards. Unreasonable is not vague.

beyond the limits of acceptability or fairness.
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Object orientation or "management by objective" is not vague; our over two hundred year old Constitution is proof.
 
NotreDame said:
Well, I couldn’t care less about original intent.

Second, again, you’ve invoked the popularity fallacy. The number of “justices” who “believe” a certain way isn’t evidence their “belief” is right and it isn’t evidence for or against a belief. Facts, evidence, determine whether something is true, strong, or accurate, not head counting.

Third, the original meaning of the word “speech” didn’t include libel, slander, and that original meaning IS the meaning “contained in the document” of the speech clause of the 1st Amendment.
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What is your evidence about the "original meaning" of the word speech? That is the original intent you said you didn't care about.

You said it doesn't include libel and slander (libel is written, not speech), but didn't mention threats, obscenity, fighting words, or other limits on free speech.

Because the overwhelming consensus is that speech can be restricted does not mean they are right; but, it also does not mean they are wrong and you are right.

Because most people don't think the world is flat doesn't mean they are right, but, like justices, they are more likely to be right than those who disagree.
 
Gator said:
It isn't followed because it was not the original intent of the 1st for those rights to be absolute. With the exception of Justice Black we find very few justices who believe there can be no restrictions on these rights.

Original intent with historical and legal precedent trumps those few who believe the court was "wrong" and would allow threats, libel, slander, pornography, etc. as free expression; but, that is based on court decisions and not because it is clearly contained in the document.
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Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual.

Thomas Jefferson
 
danielpalos said:
Same thing with community standards. Unreasonable is not vague.
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Community standards simply refers to the power of local governments to determine whether to have laws prohibiting or enforcing pornography; but, if they choose to make laws restricting some of these activities, it must conform to the constitutional definition. They cannot, for example, prohibit "R" rated movies because it might offend local community standards.

There is nothing really vague about that term. Or, are you referring to something else. What is unclear is that free press allows pornography to be prohibited. That all comes from court interpretation because there is no clear guidance in the free press provision.

Unreasonable might not be vague to you, but we could list numerous SC cases involving search and seizure and people would have very different opinions about whether that search should be legal; thus, unreasonable does not give clear meaning to when police can search without a warrant.
 
Gator said:
What is your evidence about the "original meaning" of the word speech? That is the original intent you said you didn't care about.

You said it doesn't include libel and slander (libel is written, not speech), but didn't mention threats, obscenity, fighting words, or other limits on free speech.

Because the overwhelming consensus is that speech can be restricted does not mean they are right; but, it also does not mean they are wrong and you are right.

Because most people don't think the world is flat doesn't mean they are right, but, like justices, they are more likely to be right than those who disagree.
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There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.--The Federalist Number Forty.
 
Gator said:
Community standards simply refers to the power of local governments to determine whether to have laws prohibiting or enforcing pornography; but, if they choose to make laws restricting some of these activities, it must conform to the constitutional definition. They cannot, for example, prohibit "R" rated movies because it might offend local community standards.

There is nothing really vague about that term. Or, are you referring to something else. What is unclear is that free press allows pornography to be prohibited. That all comes from court interpretation because there is no clear guidance in the free press provision.

Unreasonable might not be vague to you, but we could list numerous SC cases involving search and seizure and people would have very different opinions about whether that search should be legal; thus, unreasonable does not give clear meaning to when police can search without a warrant.
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Was it reasonable or unreasonable?
 
NotreDame said:
Yet, the historical evidence shows consent to a search was a part of the original meaning of the 4th Amendment. The idea of protection from “unreasonable” searches and seizures, and use of warrants, and consent, was already developed in English common law when the 4th Amendment was written and ratified.

So yes, my consent argument “proves the point” there is historical evidence consent to search formed part of the original meaning of the 4th Amendment. Hence, such a meaning existing, weakens this notion of “vagueness.”

As was explained to you before, you have confused vague meaning with applicability of a meaning to the facts. They aren’t the same. Yes, my explanation reflects A.) the original meaning of consent is in the 4th Amendment and B.) application of that meaning to a set of facts can be difficult, in which the Court engages in an analysis of the meaning to a set of facts.
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This is what I have been arguing. You say we know the meaning of the Constitution by referring to history, common law, and original intent. Those are usually derived by constitutional scholars, historians, and SC justices.

None of that is known by reading the words in the Constitution, you must look at history and common law and the meaning of terms used by the framers. If you are arguing the meaning is not vague AFTER studying all these sources, then I agree. But that is much more involved and complex than the words contained in the Constitution.

Nobody can read the words "unreasonable" in the 4th and know the historical background and common law without further study. And, even then, there is obviously room for debate about its meaning. And then, the application of those concepts to current situations becomes a different debate.
 
Gator said:
But many pedophiles do act on it (maybe I should say convicted pedophiles) and it would be irresponsible to hire a pedophile to teach young children or work at a daycare center.
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Then those pedophiles are guilty of rape and/or sexual assault and yes it is irresponsible to hire anyone, in a daycare center, who's been convicted of a sex crimes felony


If the employer did not want to hire pedophiles to work around young children that should not be a violation of discrimination laws.
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Not sure how you'd identify a pedophile who has no criminal record


The court ruled there was no compelling state interest to prevent same sex couples from marrying. What is the state interest in prohibiting polygamists from marrying?
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It would cause an administrative train wreck to marriage and divorce laws for one thing

Inheritance laws too would have to be rewritten

Also power of attorney laws

Ownership laws

If a man a could have multiple wives, all of them with equal powers / ownership rights that wives today have, it would be a bureaucratic nightmare


They are being discriminated against simply because they are polygamists which is very common in history and the world.
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But their legal systems have grown up around that, ours has grown up around a marriage of one couple


I was not talking about marriage but Congress usually excludes religious organizations from anti-discrimination laws. If a church school seeks to teach religious education they can choose to hire only members of that religion. Or, if a religion believes homosexuality is against their religious beliefs, they don't have to hire homosexuals. They are usually excluded from those laws.
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So a church could have a "religious" wedding with no legal string attached.
 
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