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SCOTUS & gay wedding cakes

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  • Originally posted by Cow Poke View Post
    We're making some progress!
    No, we're not, but we also understand that the most difficult thing for a conservative to do is to change his mind. Hence, he's a conservative!

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    • Originally posted by JimL View Post
      No, we're not, but we also understand that the most difficult thing for a conservative to do is to change his mind. Hence, he's a conservative!


      You a funny funny boy, Jim.
      The first to state his case seems right until another comes and cross-examines him.

      Comment


      • Originally posted by JimL View Post
        No, we're not, but we also understand that the most difficult thing for a conservative to do is to change his mind. Hence, he's a conservative!
        Huh. I must not be a very good conservative, then, since I've changed my mind on plenty of things. Of course, that tends to require things like evidence and rational argument.
        Enter the Church and wash away your sins. For here there is a hospital and not a court of law. Do not be ashamed to enter the Church; be ashamed when you sin, but not when you repent. – St. John Chrysostom

        Veritas vos Liberabit<>< Learn Greek <>< Look here for an Orthodox Church in America<><Ancient Faith Radio
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        I recommend you do not try too hard and ...research as little as possible. Such weighty things give me a headache. - Shunyadragon, Baha'i apologist

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        • Originally posted by JimL View Post
          No, we're not, but we also understand that the most difficult thing for a conservative to do is to change his mind. Hence, he's a conservative!
          Really Jim? Can you show me where you changed your mind recently on these boards?
          Atheism is the cult of death, the death of hope. The universe is doomed, you are doomed, the only thing that remains is to await your execution...

          https://www.youtube.com/watch?v=Jbnueb2OI4o&t=3s

          Comment


          • Originally posted by Terraceth View Post
            This would appear obviate the "problem," yes. Whether or not it's actually a good idea, or even has any chance of passing, is another issue entirely (I would answer "no").
            Ignoring the question of its chance of passing, are you answering "no" to whether it's actually a good idea? If so why?

            But in regards to your claim of original intent, that doesn't hold up at all. If the commerce clause were just a restriction on the power of states rather than a power given to the federal government,...
            ...
            Additionally, if the goal was simply to restrict the powers of the states, then it would make more sense to place that in Section 10, in the list of things states are not allowed to do.
            But the way I worded it, it itself doesn't restrict the powers of the states. Instead it is the power of Congress to restrain the states (or not) as it wishes. E.g. Congress could choose to prevent states from blocking trade from internal states to the ocean, but still choose to allow states to prohibit the importation of specific things like marijuana into their state. And Congress could later change that without requiring an Amendment.

            It would be a different matter indeed for the Constitution to simply declare, say, that states may not restrict interstate commerce. That would not be a power of Congress, and would be in a different location, as you say. That might be better or worse than what I suggested.

            ...we must note that only a few years after the ratification of the constitution, congress passed a law regulating regulating ship licenses (conflict between this and a later New York law led to Gibbons v Ogden, one of the first court cases about the Commerce Clause).
            Only a few years after ratification, Congress passed the Alien and Sedition Acts, which blatantly violated the Constitution. I don't take it as evidence to the contrary. I think Congress violated the Constitution several times early on.

            Even if the argument is that congress didn't properly understand it, a simple reading of the text of the Constitution seems to clearly indicate it was clearly an ability to regulate interstate commerce proactively rather than simply a limitation on that of individual states. Let us review the applicable section: "Congress shall have Power To... regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The power to regulate commerce with foreign nations and among states are mentioned in the same breath, so to try to argue the power to regulate among the several states is really just a prohibition on what states can do would mean, logically, that congress has no real authority to regulate commerce with foreign nations. This does not make sense.
            I can see your argument. Though it relies on an assumption about what regulating commerce with foreign nations entails. We could instead argue in the other direction: If we suppose I were right about the meaning of regulating interstate commerce, then regulating commerce with foreign Nations would similarly mean the power to stop states from restricting foreign trade.

            We could get into a deeper discussion of what the power to "regulate" means.

            For example, Lysander Spooner argued:

            But what is to be particularly noticed, is the fact that Marshall gives to congress all this practically unlimited power over all "commerce with foreign nations, and among the several States," solely on the strength of a false definition of the verb "to regulate." He says that "the power to regulate commerce" is the power "to prescribe the rule by which commerce is to be governed."

            This definition is an utterly false, absurd, and atrocious one. It would give congress power arbitrarily to control, obstruct, impede, derange, prohibit, and destroy commerce.

            The verb "to regulate" does not, as Marshall asserts, imply the exercise of any arbitrary control whatever over the thing regulated; nor any power "to prescribe [arbitrarily] the rule, by which" the thing regulated "is to be governed." On the contrary, it comes from the Latin word, regula, a rule; and implies the preexistence of a rule, to which the thing regulated is made to conform.
            ...
            A clock is not "regulated," when it is made to go, to stop, to go forwards, to go backwards, to go fast, to go slow, at the mere will or caprice of the person who may have it in hand. It is "regulated" only when it is made to conform to, "to mark truly, the diurnal revolutions of the earth. These revolutions of the earth constitute the pre-existing rule, by which alone a clock can be regulated.
            ...
            The pre-existing rule, by which alone commerce can be "regulated," is a matter of science; and is already known, so far as the natural principle of justice, in relation to contracts, is known. The natural right of all men to make all contracts whatsoever, that are naturally and intrinsically just and lawful, furnishes the preexisting rule, by which alone commerce can be regulated. And it is the only rule, to which congress have any constitutional power to make commerce conform.

            When all commerce, that is intrinsically just and lawful, is secured and protected, and all commerce that is intrinsically unjust and unlawful, is prohibited, then commerce is regulated, and not before.

            -Spooner, "A Letter To Grover Cleveland"
            https://static1.squarespace.com/stat...+CLEVELAND.pdf

            In that interpretation, the power to regulate commerce very narrow.

            Comment


            • I have seen a *lot* of weddings through my job, and in recent years more and more gay weddings & wedding receptions.

              I wouldn't use the word 'art' to describe the cakes, but there's clearly a lot of time and effort put into each one, and they are rarely standard (though they do tend to follow the trends in the most recent wedding magazines).

              What I haven't noticed however, is a clear difference between the gay and straight cakes. More often than not you could put a 'gay' and 'straight' cake next to each other, and though they'll almost certainly be different, you wouldn't be able to tell them apart.

              Comment


              • Originally posted by EvoUK View Post
                I have seen a *lot* of weddings through my job, and in recent years more and more gay weddings & wedding receptions.

                I wouldn't use the word 'art' to describe the cakes, but there's clearly a lot of time and effort put into each one, and they are rarely standard (though they do tend to follow the trends in the most recent wedding magazines).

                What I haven't noticed however, is a clear difference between the gay and straight cakes. More often than not you could put a 'gay' and 'straight' cake next to each other, and though they'll almost certainly be different, you wouldn't be able to tell them apart.
                Exactly the point I've been trying to make.

                Originally posted by Cow Poke View Post
                We're making some progress!
                Oh really! You think?
                “He felt that his whole life was a kind of dream and he sometimes wondered whose it was and whether they were enjoying it.” - Douglas Adams.

                Comment


                • Originally posted by Joel View Post
                  Ignoring the question of its chance of passing, are you answering "no" to whether it's actually a good idea? If so why?
                  I think it's a bad idea, as I don't see any purpose in it; perhaps it makes it harder for congress to make "bad laws" in this area, but it makes it harder to make "good laws" as well, and if anything I feel there are a few places where more power to the federal government would be a good thing.

                  Only a few years after ratification, Congress passed the Alien and Sedition Acts, which blatantly violated the Constitution. I don't take it as evidence to the contrary. I think Congress violated the Constitution several times early on.
                  The Alien and Sedition Acts were also passed by a later congress (the law I pointed to was the very first congress elected, the Alien/Sedition Acts were multiple terms later), were repealed fairly quickly, and were also extremely controversial among the framers of the constitution. I don't think the two cases are analogous.

                  For example, Lysander Spooner argued:
                  His argument isn't very good.

                  He claims the issue with John Marshall's argument is that it rests on the wrong definition of "regulate." But he fails to explain why his own definition is more correct; he simply asserts it and acts like that's the end of it.

                  (his claim of the word "regulate" coming from the Latin word "regula" isn't quite correct, by the way. It actually comes from the Latin verb regulare, which itself does come from the noun "regula" which means rule, but "regula" is not what transferred to English; that was regulare, a verb. Or more accurately, its past participle stem of "regulat-". And what does "regulare" mean? It means to control, govern, or direct, which is exactly the definition that Spooner claims was false in his appeal to Latin. Whoops)

                  Since he won't back up his definition, let's do some research. So what do the contemporary dictionaries say? Let's see Samuel Johnson's dictionary in 1755 and Noah Webster's 1828 dictionary. The second definition from Samuel Johnson's and the third from Noah Webster's very plainly accord with what John Marshall said, making Spooner's claim of it being a "false definition" ring extremely hollow. Now these each come from either decades before or decades after ratification, but the definitions have stayed similar in substance, so we can safely assume that during ratification these definitions were in play.

                  One could claim that the first definition listed in those two sources, "to adjust by rule, method or established mode", fits Spooner's proposed definition. But if so, that doesn't make Marshall's definition "false" as it clearly is an actual definition, and would leave us with two competing definitions for it in the constitution, so we must examine which one fits better. To me, the answer unequivocally seems to be the govern/direct definition, not the "adjust by rule" definition. This seems plain to me on the face of it, but I should probably explain.

                  First, context. If I were to write "regulate trade" or "regulate commerce" the definition normally assumed is that of the directing or governing. That construction is, I believe, very rare for the alternative definition; indeed, it's regarded as so assumptive that Webster uses "regulate trade" as an example of the term being used. While the phrase "I put the saddle on the bay" could mean that you actually threw the saddle into water, the natural reading of it is that you put it on a horse. Similarly, "regulate commerce" so plainly carries the assumption that it refers to making laws and governing/directing that it's really the onus of the person claiming an alternative reading to prove their case.

                  Second, interpretation. When something is regulated in the form of being brought to some rule or standard, knowing what that standard or rule is is important, particularly if it's in law form. Spooner of course provides his own idea, but that's him making suppositions without support from the text. If we want to go with the idea that commerce is to be brought to some standard, it's a useless statement if that standard isn't specified, meaning the sentence in the constitution is essentially meaningless.

                  Third, the one doing the interpreting. John Marshall was involved in the ratifying convention in Virginia (which brought him into direct contact with James Madison) and therefore was in an especially good place to know what the word was supposed to mean. Spooner wasn't even alive at the time of ratification. The former would seem to be in a much better position to know which of the two primary definitions was meant in the document.

                  Simply put, there's considerable support for John Marshall's definition in this context, and virtually none for Spooner's.

                  Comment


                  • Originally posted by Tassman View Post
                    Oh really! You think?
                    Your head is rolling around loose again.
                    The first to state his case seems right until another comes and cross-examines him.

                    Comment


                    • Originally posted by Terraceth View Post
                      I think it's a bad idea, as I don't see any purpose in it; perhaps it makes it harder for congress to make "bad laws" in this area, but it makes it harder to make "good laws" as well, and if anything I feel there are a few places where more power to the federal government would be a good thing.
                      All right. I happen to disagree: I favor decentralization, with the risk of decentralizing being that the smaller unit might act unjustly, so the role of a higher-level in the hierarchy would be to prevent the smaller units from injustice. But we can set this disagreement aside.

                      The Alien and Sedition Acts were also passed by a later congress (the law I pointed to was the very first congress elected, the Alien/Sedition Acts were multiple terms later), were repealed fairly quickly, and were also extremely controversial among the framers of the constitution. I don't think the two cases are analogous.
                      The First Bank of the United States was chartered by the first congress. But I suppose that's not an example either because its constitutionality was controversial.

                      His argument isn't very good.

                      He claims the issue with John Marshall's argument is that it rests on the wrong definition of "regulate." But he fails to explain why his own definition is more correct; he simply asserts it and acts like that's the end of it.

                      (his claim of the word "regulate" coming from the Latin word "regula" isn't quite correct, by the way. It actually comes from the Latin verb regulare, which itself does come from the noun "regula" which means rule, but "regula" is not what transferred to English; that was regulare, a verb. Or more accurately, its past participle stem of "regulat-". And what does "regulare" mean? It means to control, govern, or direct, which is exactly the definition that Spooner claims was false in his appeal to Latin. Whoops)

                      Since he won't back up his definition, let's do some research. So what do the contemporary dictionaries say? Let's see Samuel Johnson's dictionary in 1755 and Noah Webster's 1828 dictionary. The second definition from Samuel Johnson's and the third from Noah Webster's very plainly accord with what John Marshall said, making Spooner's claim of it being a "false definition" ring extremely hollow. Now these each come from either decades before or decades after ratification, but the definitions have stayed similar in substance, so we can safely assume that during ratification these definitions were in play.

                      One could claim that the first definition listed in those two sources, "to adjust by rule, method or established mode", fits Spooner's proposed definition. But if so, that doesn't make Marshall's definition "false" as it clearly is an actual definition, and would leave us with two competing definitions for it in the constitution, so we must examine which one fits better. To me, the answer unequivocally seems to be the govern/direct definition, not the "adjust by rule" definition. This seems plain to me on the face of it, but I should probably explain.

                      First, context. If I were to write "regulate trade" or "regulate commerce" the definition normally assumed is that of the directing or governing. That construction is, I believe, very rare for the alternative definition; indeed, it's regarded as so assumptive that Webster uses "regulate trade" as an example of the term being used. While the phrase "I put the saddle on the bay" could mean that you actually threw the saddle into water, the natural reading of it is that you put it on a horse. Similarly, "regulate commerce" so plainly carries the assumption that it refers to making laws and governing/directing that it's really the onus of the person claiming an alternative reading to prove their case.

                      Second, interpretation. When something is regulated in the form of being brought to some rule or standard, knowing what that standard or rule is is important, particularly if it's in law form. Spooner of course provides his own idea, but that's him making suppositions without support from the text. If we want to go with the idea that commerce is to be brought to some standard, it's a useless statement if that standard isn't specified, meaning the sentence in the constitution is essentially meaningless.

                      Third, the one doing the interpreting. John Marshall was involved in the ratifying convention in Virginia (which brought him into direct contact with James Madison) and therefore was in an especially good place to know what the word was supposed to mean. Spooner wasn't even alive at the time of ratification. The former would seem to be in a much better position to know which of the two primary definitions was meant in the document.

                      Simply put, there's considerable support for John Marshall's definition in this context, and virtually none for Spooner's.
                      I think the word may have had both meanings, in which case Spooner would be wrong to say the other meaning is "utterly false".
                      I also acknowledge that there is weight in Marshall being in a better place to know. So that if there are two meanings, then without any other evidence/argument it's probably better to go with Marshall's.

                      I'm not sure where you got the "control, govern, or direct" definition of regulare.
                      Lewis and Short just has "to direct [dirigere], regulate". (which is an unusually short entry for Lewis and Short. http://www.perseus.tufts.edu/hopper/...entry%3Dregulo)
                      'Dirigere' has a similar base meaning: to arrange in a straight line (like a ruler (regula)), leading to "to arrange a thing either to something (as its aim, scope) or according to something (as its rule or pattern)." It also has the meaning of directing/steering something (like a ship or horse) toward somewhere, or to arrange or make orderly. So again with dirigere I can see how one could get either meaning from it.
                      Govern (gubernare) has the similar meaning of steering a ship toward something.

                      Likewise the later definitions of Johnson and Webster can also be interpreted in Spooner's sense. Johnson: "To direct. 'Regulate the patient in his manner of living.'" Presumably not arbitrarily but according to healthy living. And Webster's 3rd "To subject to rules or restrictions" doesn't answer the question at hand: whether it means subjecting to pre-existing rules or whether it entails prescribing the rule itself. The other example under that 3rd definition is "to regulate diet"--presumably not arbitrarily but according to knowledge of what produces health.

                      In my quote of Spooner, I included only the example of the clock. He includes 4 examples: regulating diet, clock, mariner's compass, and locomotive. Diet relates to Webster's 3rd definition, and locomotive relates to the piloting of a ship of dirigere. He admits that in the case of the locomotive, the pre-existing rule is less well defined, but that contrasts with commerce: "The pre-existing rule, by which alone commerce can be "regulated," is a matter of science; and is already known..." Spooner discusses that rule extensively elsewhere in his writings. In the 18th century they were steeped in natural rights theory, including property rights and the obligation of contracts. It seems Spooner here is saying that this rule was well understood at the time. Spooner doesn't mention there, but Article I Section 10 refers to the "Obligation of Contracts", presupposing that that rule was already well understood and did not need to be specified/defined in the Constitution.


                      Besides Spooner, there is also the argument (as in this article https://tenthamendmentcenter.com/201...-not-prohibit/ discussing a law review article by Barry Friedman) that the interstate commerce power was understood to be much more limited than the foreign commerce power, despite them being in the same sentence.

                      No one, federalists or anti-federalists suggested the interstate commerce power included the power to ban goods crossing state lines. Even those anti-federalists who feared the new federal congress would try to restrict the movement of slaves between states did not raise the objection that the interstate commerce power might include such a power.

                      ""In short, both positive and negative evidence suggests that the Framers did not intend, and probably did not even imagine, that the Interstate Commerce Clause would be read in such a way as to give Congress the power to restrain interstate intercourse, as well as promote it.”"

                      A quote is also given by Madison who said he always feared that the two powers, being placed in the same sentence like that, might be misinterpreted literally as having the same extent. And that the interstate power "was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government."

                      Further evidence is that in the first hundred years, Congress did not try to use the power to restrict interstate trade. At least one case is mentioned of the Supreme Court during that time ruling it unconstitutional to use the commerce clause to restrict interstate trade.

                      Comment


                      • Originally posted by Tassman View Post
                        Nevertheless, the professional skills of a cake-maker are the same professional skills whether it is a cake for a heterosexual wedding or a homosexual wedding, which is the point. For a cake-maker to refuse the latter is contrary to the Civil Rights Act of 1964.
                        No that isn't the point. An artist's skills are the same on any project he does. That's just stating an obvious point that doesn't have anything to do with it. It is whether it is right to force an artist to create a piece of art that goes against his wishes or values. You can't. You can't say to some artist, "Sculpt me a statue of two gay nazis having sex with a goat. You have to because the skills to make my statue are the same as you use to make other statues" - that is just ignorant.

                        Comment


                        • Originally posted by Joel View Post
                          I think the word may have had both meanings, in which case Spooner would be wrong to say the other meaning is "utterly false".
                          I also acknowledge that there is weight in Marshall being in a better place to know. So that if there are two meanings, then without any other evidence/argument it's probably better to go with Marshall's.

                          I'm not sure where you got the "control, govern, or direct" definition of regulare.
                          Lewis and Short just has "to direct [dirigere], regulate". (which is an unusually short entry for Lewis and Short. http://www.perseus.tufts.edu/hopper/...entry%3Dregulo)
                          'Dirigere' has a similar base meaning: to arrange in a straight line (like a ruler (regula)), leading to "to arrange a thing either to something (as its aim, scope) or according to something (as its rule or pattern)." It also has the meaning of directing/steering something (like a ship or horse) toward somewhere, or to arrange or make orderly. So again with dirigere I can see how one could get either meaning from it.
                          Govern (gubernare) has the similar meaning of steering a ship toward something.
                          It came from the Oxford English dictionary's mention of the etymology of regulate. It defines the Latin word (at the time of transfer to English, at least) to mean that. It is possible that more modern Latin dictionaries do not use that because Latin usage shifted a little.

                          As for the argument you link to, I find it a little interesting that a page on the site you point to actually makes the opposite argument:
                          https://tenthamendmentcenter.com/201...ke-it-regular/

                          I'm not too terribly interested in getting into a big argument about the general subject of the Commerce Clause (the debate I engaged in before was more limited in scope, about one particular law), so I'll defer on the rest of it, but did want to respond to one thing in particular:
                          Further evidence is that in the first hundred years, Congress did not try to use the power to restrict interstate trade. At least one case is mentioned of the Supreme Court during that time ruling it unconstitutional to use the commerce clause to restrict interstate trade.
                          Not having read every single law by congress, I'll assume the case of it not using power to restrict interstate trade is true. Still, even if true, I have always found this kind of "negative evidence", i.e. that congress didn't do something, to not be particular evidence that it deemed it unconstitutional. It can just as easily mean there simply wasn't sufficient reason to do it, such as perhaps it lacking popular support.

                          However, your characterization of the case in question, United States v DeWitt, is not quite accurate. The court didn't rule it unconstitutional to use the commerce clause to restrict interstate trade; that was never stated in the opinion. It ruled it unconstitutional because it was using the commerce clause to restrict intrastate trade. The law in question was a banning of the selling of a particular kind of oil to anyone, with no attempt of any kind to restrict the ban to interstate commerce. Whether the Supreme Court in that case would have struck it down had it limited itself to a ban on selling across state lines is a question we can only speculate about.

                          At any rate, if one wishes to try to argue for narrowing the scope of the Commerce Clause, I feel a much better word to focus on than "regulate" would be "commerce"; see Clarence Thomas's concurring opinion in United States v Lopez for an argument based primarily on this.
                          Last edited by Terraceth; 07-20-2018, 06:24 PM.

                          Comment


                          • Originally posted by Sparko View Post
                            No that isn't the point. An artist's skills are the same on any project he does. That's just stating an obvious point that doesn't have anything to do with it. It is whether it is right to force an artist to create a piece of art that goes against his wishes or values. You can't. You can't say to some artist, "Sculpt me a statue of two gay nazis having sex with a goat. You have to because the skills to make my statue are the same as you use to make other statues" - that is just ignorant.
                            A cake-maker makes and decorates cakes. That what baker's do. And, as in all professions, certain skills are involved in producing the finished product...but, in this instance, they do not differ in kind between wedding cakes made for straight couples or gay couples. So, for some precious snowflake baker to swoon at the prospect of having to create a "work of art" for a gay wedding is just a rationalisation of discrimination. Same would apply for those whose religious values are mortally offended by creating a wedding cake for a mixed marriage couple or "Christ-murdering" Jews. In all instances to refuse service to ANY couples legally entitled to marry is an offence against the Civil Rights Act of 1964.
                            “He felt that his whole life was a kind of dream and he sometimes wondered whose it was and whether they were enjoying it.” - Douglas Adams.

                            Comment


                            • Originally posted by Tassman View Post
                              A cake-maker makes and decorates cakes. That what baker's do. And, as in all professions, certain skills are involved in producing the finished product...but, in this instance, they do not differ in kind between wedding cakes made for straight couples or gay couples. So, for some precious snowflake baker to swoon at the prospect of having to create a "work of art" for a gay wedding is just a rationalisation of discrimination. Same would apply for those whose religious values are mortally offended by creating a wedding cake for a mixed marriage couple or "Christ-murdering" Jews. In all instances to refuse service to ANY couples legally entitled to marry is an offence against the Civil Rights Act of 1964.
                              Let's see....
                              • purposely marginalizes the baker to simply a "cake-maker"
                              • Claims that's all a baker does
                              • refers to him as a "snowflake baker"
                              • dramaqueen language - "he swoons"
                              • dramaqueen language - "mortally offended"


                              ...you simply can't make a "straight" case without getting into twisting the truth and spewing forth nonsense.
                              The first to state his case seems right until another comes and cross-examines him.

                              Comment


                              • Originally posted by Cow Poke View Post
                                Let's see....
                                • purposely marginalizes the baker to simply a "cake-maker"
                                • Claims that's all a baker does
                                • refers to him as a "snowflake baker"
                                • dramaqueen language - "he swoons"
                                • dramaqueen language - "mortally offended"


                                ...you simply can't make a "straight" case without getting into twisting the truth and spewing forth nonsense.
                                Sounds like a... bakerophobe

                                I'm always still in trouble again

                                "You're by far the worst poster on TWeb" and "TWeb's biggest liar" --starlight (the guy who says Stalin was a right-winger)
                                "Overall I would rate the withdrawal from Afghanistan as by far the best thing Biden's done" --Starlight
                                "Of course, human life begins at fertilization that’s not the argument." --Tassman

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