Gay Marriage Approved by New York Senate

[Ghostwriter]

Originally Posted by MysticCat

But I still don't get why you singled out the Bill of Rights as opposed to all amendments. The amendments that come after the Bill of Rights amend the entire Contitution, including (often) the Bill of Rights. The question shouldn't be "does it violate the Bill of Rights"; it should be "does it violate the Constitution." By what legal basis do the Bill of Rights take precedence over the rest of the Constitution?

I believe Amendment 10 says it all and should end the debates but your point is valid and I amend my statement to include the whole Constitution.

I simply disagree with the current law on abortion and its reading and would rather us allow the States to make their own laws. We as a country tend to over look the part where powers not enumerated in this Constitution are granted to the States (Amendment 10) and fall back on the life, liberty, etc clause to try to argue everything and allow everything on a National basis.

[Kevin]

Originally Posted by Ghostwriter

I believe Amendment 10 says it all and should end the debates but your point is valid and I amend my statement to include the whole Constitution.

I simply disagree with the current law on abortion and its reading and would rather us allow the States to make their own laws. We as a country tend to over look the part where powers not enumerated in this Constitution are granted to the States (Amendment 10) and fall back on the life, liberty, etc clause to try to argue everything and allow everything on a National basis.

But case law says that this isn't a powers issue, which is what the 10th deals with. This is a rights issue.

In Constitutional law, just about everything can be viewed as powers of the states versus rights of the people. Those are the two forces usually at play.

The 10th Amendment would allow the states to proscribe abortion, absolutely true, BUT, case law says there's a fundamental liberty interest in abortion. That means the power of the state to proscribe abortion versus the right of the woman to have one must be weighed according to constitutional standards of review.

The applicable standard of review is often referred to as "strict scrutiny." To come out on top, the state has to prove a compelling state interest. See the above discussion for further elaboration on the point.