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Originally Posted by roachboy
thanks for the explanation, mojo.
am pressed for time, so will only ask one question at this point:
how do you use the notion of strict construction as you understand it to sort out this distinction you seem to find to be important between interpretation and "legislation from the bench"? it seems to me that about the only logical and methodological point of strict construction is the setting-up of this kind of distinction, but i have to say that i do not understand how the distinction itself actually gets set up: which legal trends are understood as "legislation from the bench" and which are not? what grounds are used to justify this distinction?
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Let's see if I'm understanding this. I can really only answer this personally too, here goes. The distinction I make between interpretation and legislation tows the party lines. A prime example is Gay marriage. Democrats or the left have no political authority, they have power, but they can't do anything with it; as it stands they are the loser of two pres. elections, don't have control over either house of congress, and states are more red as far as governors go. It is not a stretch to say that homosexual marriage has become a party platform for the democrats these days, since they have no authority to legislate it properly through the congress, as well as by the will of the people (I'm talking marriage here, unions are different), they are only allowed one option to achieve their agenda, the courts. So we get the case in Mass., I'm not a scholar on the state constitution, but somehow the court found that the 1780 document drafted by John Adams allowed it. Now to me that sounds a little suspect, I honestly think that anyone who thinks original intent of the founding father included right to marriage of homosexuals is a few fries short of a happy meal.
Another legit argument in the favor of homosexual marriage is the 14th amendment and the equal protection clause. Again personally I'm not sold on it, this is due to the fact that the amendments states
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No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law".
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This part to me leaves it open to interpretation. What constitutes due process of law? I guess it would come to the matter if legislation of congress is considered party to the due process of law. Chances are it is talking about the courts and system of justice, who knows. I am done rambling.
Also Pan, the 18th amendment, prohibition, was repealed by the 21st amendment. So you are right, I misspoke when I said amendments had been struck down, my bad.