From: ahk@chinet.com   
      
   Stephen Sprunk  wrote:   
   >On 22-May-14 01:39, Adam H. Kerman wrote:   
   >>Stephen Sprunk  wrote:   
   >>>On 21-May-14 13:04, Adam H. Kerman wrote:   
      
   >>>>Your statement here doesn't sound correct. If federal law isn't   
   >>>>applicable, a federal judge will rule lack of subject matter   
   >>>>jurisdication to have the matter heard in federal court. I don't   
   >>>>believe a federal court can rule, "Judgement for the plaintiff   
   >>>>under state law such and such" just "There is no remedy for the   
   >>>>party bringing suit under federal law." But an actual lawyer will   
   >>>>have to explain.   
      
   >>>Federal courts require a "federal controversy" to have   
   >>>jurisdiction; such frequently arise even in matters of state law   
   >>>due to incorporation.   
      
   >>>For instance, many states passed bans on same-sex marriage; there   
   >>>is no federal law preempting that, but federal courts are now   
   >>>overturning such laws due to incorporation of the federal equal   
   >>>protection clause, which introduces a federal controversy to those   
   >>>cases.   
      
   >>That's bizarre. Yesterday, changing the fundamental definition of   
   >>marriage wasn't a matter of equal protection, but today it is,   
      
   >It wasn't "yesterday"; they're using the same justification to do so   
   >that they used to overturn state bans on interracial marriage, going   
   >back to Loving v Virginia (1967).   
      
   No, they're not. If marriage means between a man and woman, then there's   
   an equal protection argument versus anti-miscegenation laws. On the other   
   hand, if marriage means only what we want it to mean, then how is it   
   that polygamy lacks equal protection? What about marriage between children?   
   What about marriage to animals or dead people or fictional characters?   
      
   >Also, gay rights have been a equal protection issue since at least as   
   >far back as Lawrence v Texas (2003), though I suppose you might consider   
   >that to be "yesterday".  Notably, that case overturned Bowers v Hardwick   
   >(1986), where SCOTUS found that having sex was _not_ a constitutionally   
   >protected activity.   
      
   Lawrence was about privacy and follows rather from Griswold; Bowers   
   was an abberhation. Nothing to do with changing the meaning of a word   
   whose meaning has been clear for centuries.   
      
   >>and federal courts are racing to throw out state laws, ever since DOMA   
   >>was found unconstitutional. But the US Supreme Court decision never   
   >>ruled that way, of course.   
      
   >No, that one was decided on federalism, which could have been read as   
   >strengthening state anti-gay laws.  Apparently that's not how it's being   
   >read by lower courts, though.   
      
   I just wrote that the DOMA decision didn't find a federal right to   
   gay marriage. Various federal trial court judges have moved well beyond   
   DOMA, and they don't have the power to do that, I thought.   
      
   >>The other blatantly unconstitutional part of DOMA, that states don't   
   >>have to give full faith and credit to marriage laws of other state they   
   >>don't like, wasn't addressed in that decision.   
      
   >Indeed; I would have preferred they resolve that case that way, but IIRC   
   >they haven't had a good "full faith and credit" case in a long time.   
      
   They damn well better not rule on a matter not being litigated. We don't   
   have a constitutional court in this country, and the Supremes wreak great   
   havoc when they rule well beyond the scope of the matter at controversy,   
   as in [spit] Citizens United.   
      
   >I suspect we'll see that come up first in a follow-on to McDonald/Heller   
   >regarding carry permits, given the leanings of the current court.   
      
   That's NOT what the "full faith and credit" clause means. A state license   
   NEVER gives one privileges in a foreign state; that's beyond the state's   
   jurisdiction. If licenses are valid in foreign states, it's due to a   
   voluntary compact between the two states, which is the only reason why   
   one's driver's license and vehicle registration is valid in a foreign state   
   and Canadian provinces.   
      
   >>>>>Says someone who is not in one of the minorities still   
   >>>>>oppressed today.   
      
   >>>>Sure I am. There's no remedy to obtain decent transportation in   
   >>>>law. I am a member of an oppressed class, just one without   
   >>>>protection.   
      
   >>>AFAIK, no court has established a right to "decent transportation",   
   >>>but even so, there is no law _against_ you having decent   
   >>>transportation of your own, so where is the "oppression"?   
      
   >>You didn't read what I wrote. I said I have no rights and remedies in   
   >>law. You got it wrong.   
      
   >You only get "remedies" as a result of your rights being violated; if   
   >you have no such right, then there are obviously no remedies to be had.   
      
   You're being a real jerk here, Stephen. You got it wrong about what I'd   
   written. Now, shut the fuck up.   
      
   >>>I'm not aware of any cases where the Bill of Rights has been found   
   >>>to preempt similar but stronger rights in state law.  Cite?   
      
   >>You need to do some basic reading on the effect of incorporation and   
   >>state constitutions, dude.   
      
   >So you can't cite a single case to support your claim?   
      
   No, it's not my job to do your homework. Do your reading, then we'll   
   discuss it further.   
      
   >>>There is no equivocation in the right to free speech either, yet   
   >>>courts have still managed to invent all sorts of exceptions on   
   >>>their own, e.g. the proverbial "yelling fire in a crowded   
   >>>theater".   
      
   >>Sure there is equivocation, given that the first amendment was a   
   >>limitation on federal law without making an explicit statement on   
   >>what the civil right being protected is exactly. But Schenck was a   
   >>lousy decision of Holmes.   
      
   >"Congress shall make no law" seems pretty explicit, with no room for   
   >equivocation.   
      
   You've missed it a second time: The plain language of the First Amendment   
   (which hasn't been followed by courts in many decades) imposed a   
   restriction on Congress; that bit is unequivocal. What it did NOT do   
   was create the civil right of freedom of speech (and publishing) itself,   
   just the civil right to be free from federal regulation of speech and   
   publishing. Madison expected that the states could regulate speech or   
   define a liberty in the broadest of terms, or a mix of the two.   
      
   Schenck, the decision you quoted from, got it terribly wrong because the   
   case itself wasn't about deliberately false speech intending to cause panic   
   and possible injury resulting from panic. The poor schnook was leafletting   
   with quotes from the 13th Amendment, informing men of their right to   
   object to the draft.   
      
   >>>Explain what you mean by "federalized" here.   
      
   >>I'm saying federal courts have asserted subject-matter jurisdiction.   
      
   >They have always had jurisdiction over any case involving a "federal   
   >controversy"; it's not a mere "assertion".   
      
   No, dude, it's a matter of assertion and the ever-expanding power of   
   the federal government. All judges are like Humpty Dumpty to one extent   
   or another, and some judges believe they are lesser bound by rule and   
   regulation, statute, constitution, and precedent than others.   
      
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