madison and cavies?

[Cop]

Your point?

Also, I kinda doubt that a guy who has been dead for 67 years has a whole lot of bearing on the policies of BSA today

This seems to happen a lot in history

[Legalhack]

i'm not going to flame you, because your history is basically right.

there are no "individual rights" in the constitution; only limitations on the government's power to regulate certain things. BUT, the constitution does contain mechanisms for Congress to create statutory law -- like the Civil Rights Act of 1875 and the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, etc -- from an enumerated list of powers the drafters gave them. there's no way the drafters could have envisioned all of the issues we face today. they knew that, so they gave congress great power to fix things.

the 13th amendment made slavery unconstitutional. the 14th amendment provides (among other things) for equal protection under the law. the answer to your question about where mandating of desegregation comes from is: the federal courts. the 14th is hopelessly vague, and "it is the provence of the judicial department to say what the law is" (Marbury v. Madison).

so, in 1954, the court started mandating desegration in brown v. board of ed. it said that the schools must be desegregated with "all deliberate speed." it took them a few years to tell us what that meant, but we got there.

(the point is coming -- hang in there)

now, in order to trigger an equal protection challenge, a plaintiff must have been injured actually, there must be a state actor, and the plaintiff must also be a member of a "suspect class." that means they have to have an immutable trait and have been discriminated against by the state because of that trait. sex is a suspect class, and so is race. sexual orientation is not.

so, the answer to all this is that even if a 19 year old woman could prove that she is "injured" by being kept out of the corps, there's no "state action" here, and the constitution is not implicated.

sorry for the hijack.

I agree. A suit would arise from statutes.

I do not agree with the notion that the framers "gave congress great power to fix things." Since I'm not at home, you won't be subjected to cites from the Federalist Papers but here's my disagreement in a nutshell. The framers left the states with general police powers (i.e., general lawmaking authority) and enumerated Congress' powers thereby limiting them. Congress' current reach with respect to social matters generally depends on an "expansive" interpretation of the commerce clause (i.e., the power to regulate interstate commerce). Had the framers intended Congress to have broad police powers to address whatever came up, they could have easily included that language in Art. I.

I agree that the framers created a mechanism to address whatever might arise. It is the amendment process (think prohibition and its repeal). Of course, at several points in history, the Supremes have become so impatient with politicians that they reinterpreted vague text to change the authoritative "meaning" of the document (Plessy, Lochner, Brown v. Board, Roe).

Edited April 8, 2008 by Legalhack

[mn trumpter guy]

Sorry to go off the topic (which, ironically enough, will actually be a jump back "on" topic )

I head that the Mandarins used to only allow members who were of Mandarin Descent untill someone sued them and won- is this true? If so, what would prevent this from happening to these two green teams? Sorry again- I know this has to have been hashed over, but I don't know if anyone has brought up the mandarins.

[84BDsop]

Sorry to go off the topic (which, ironically enough, will actually be a jump back "on" topic )

I head that the Mandarins used to only allow members who were of Mandarin Descent untill someone sued them and won- is this true? If so, what would prevent this from happening to these two green teams? Sorry again- I know this has to have been hashed over, but I don't know if anyone has brought up the mandarins.

That's similar to what i heard years ago....it wasn't until sometime around teh mid 90s, I think, that I started seeing non-Asians in the corps...and tat's when they increased and stabilized in size (probably benefitted from Freelancers' demise as well.)

[silvertrombone]

Might just be the most asinine post I've ever read here.

Put a list in Excel, and hit the ∑ key. That should give you all the reconciliation you need.

Thanks, though I'm an accountant, I'm not an advanced Excel user...lots of Hyperion EssBase, though. I'll remember your suggestion...I'll forget your analysis.

He is referring to the fact that the Boy Scouts do not allow homosexuals or atheists to join. However, I believe this is also only for the actual boy scout troops and not venturing troops such as the Scouts.

Thank you.

i'm not going to flame you, because your history is basically right.

Didn't want to quote everything...just wanted to say thanks for your legal analysis. Good stuff.

This has come up several times on the Cavaliers message board, or at least it did a few years ago (I haven't read those boards since late 05). As was told to me by someone "pretty darn high up" on the Cavalier food chain, the Cavaliers do not receive money from the government, and as a result are not governed by the same discriminatory laws. I don't want to use any names because I don't want to misquote someone, but that's how it was expressed to me and I'm pretty sure with some digging someone could find that answer on the Cavalier website. Probably Scouts too somewhere.

That's not entirely accurate...as a not-for-profit entity, each DC receives tax exemption status, which precludes their paying taxes on revenues. Of course, since they're all unprofitable anyways, that wouldn't be much of an issue.

http://www.bsalegal.org/faqs-195.asp

Great info...I actually went and read it all.

As an FMM of an all-male corps, it's very difficult to imagine what drum corps would have been like with females as marching members.

Hard as it may be to picture, there are actually some of us who marched in mixed-sex corps (interesting term) who respect the idea of all-male corps. I have never lacked for solid male friends and good relationships with male relatives. But in the last few years, I have had the benefit of being involved in a great church environment and singles group. Just my personal story--not making any statements about anyone else's. But that environment has provided me two things especially: 1.) The ability to REALLY build into the lives of other men, and 2.) Enjoying strengthened relationships with these and other men.

Point? OK, I hated Cavies when I marched in Rockford...product of the atmosphere. But I never disrespected the fact that friends were marching there for a reason...also atmosphere. And now I understand that you guys who march in that environment enjoy an experience that is completely different than what I enjoyed, and there are some VERY good aspects of that type of solid male-male relationship building. And that stuff happens in corps whether at PR or Cavies.

All-male corps is a great aspect of the activity, and I hope these two corps can survive our petty arguments in our society over sexuality, etc. I don't know about the stats that were quoted, but I am sure that a majority of women wish the same for Cavies/Scouts.

Great comments, Jay.

I agree. A suit would arise from statutes.

I do not agree with the notion that the framers "gave congress great power to fix things." Since I'm not at home, you won't be subjected to cites from the Federalist Papers but here's my disagreement in a nutshell. The framers left the states with general police powers (i.e., general lawmaking authority) and enumerated Congress' powers thereby limiting them. Congress' current reach with respect to social matters generally depends on an "expansive" interpretation of the commerce clause (i.e., the power to regulate interstate commerce). Had the framers intended Congress to have broad police powers to address whatever came up, they could have easily included that language in Art. I.

I agree that the framers created a mechanism to address whatever might arise. It is the amendment process (think prohibition and its repeal). Of course, at several points in history, the Supremes have become so impatient with politicians that they reinterpreted vague text to change the authoritative "meaning" of the document (Plessy, Lochner, Brown v. Board, Roe).

Aha...a common fan of the Constitution? Thanks for your analysis, also. Interesting to note that, despite the controversial nature of my earlier post, it has not yet elicited one single negative reply. Thanks to all for that. Perhaps I am on to something? And yes, Whitedawn, you are correct about my history...I did my homework! ;)

Attorney, hack? Where schooled?? Not me...self-read. Madison Notes, Federalist Papers, etc. Even read the Articles of Confederation...everyone should add these to their "Bucket List," IMHO.

[whitedawn]

Aha...a common fan of the Constitution? Thanks for your analysis, also. Interesting to note that, despite the controversial nature of my earlier post, it has not yet elicited one single negative reply. Thanks to all for that. Perhaps I am on to something? And yes, Whitedawn, you are correct about my history...I did my homework! ;)

anyone whose ever read it knows that the constitution implicitly endorses slavery in many places. that's pretty hard to argue with. its a cool document, but the really interesting pieces are the ones that aren't there. even more interesting is how the courts decide to fill the cracks.

otherwise how would we know obscure things like the fact that handguns are not "interstate commerce", but medical marijuana is?

[DAvery]

I've always thought of this issue a little different, I guess. If I where a movie, or Broadway, director and I have a role that was written for a woman, would I get sued for not giving any man a chance for that role? In the visual arts your ability to communicate ideas sometimes hinges upon the performer. Broadway plays/musicals, motion pictures, ballet, photography, etc. have specific gender based roles. Or think about it this way- there is a reason why there are no males in a tampon commercial.

Edited April 9, 2008 by DAvery

[whitedawn]

I've always thought of this issue a little different, I guess. If I where a movie, or Broadway, director and I have a role that was written for a woman, would I get sued for not giving any man a chance for that role? In the visual arts your ability to communicate ideas sometimes hinges upon the performer. Broadway plays/musicals, motion pictures, ballet, photography, etc. have specific gender based roles. Or think about it this way- there is a reason why there are no males in a tampon commercial.

no you wouldn't get sued (or rather, the suit would be tossed, and the lawyer may be subject to discipline on a rule 11 theory for filing frivolous claims).

all of the workplace discrimination statutes have an exception for "bona fide occupational qualifications." that is, so long as employer can show that there is some reason why a certain group of people should have the jobs, the courts won't get in the way.

for example -- the FAA says that commercial airline pilots must retire at age 65, because there is an appreciable public safety reason for requiring younger, supposedly healthier pilots to have those jobs.

likewise, there is a good reason for show girls to be.. well, girls.

[Legalhack]

anyone whose ever read it knows that the constitution implicitly endorses slavery in many places. that's pretty hard to argue with. its a cool document, but the really interesting pieces are the ones that aren't there. even more interesting is how the courts decide to fill the cracks.

otherwise how would we know obscure things like the fact that handguns are not "interstate commerce", but medical marijuana is?

I'll bite on your oblique reference to United States v. Lopez. In it, the court was considering a law that made it a crime for "any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone." Unlike most commerce clause statutes, it did not include limiting language such as "in interstate commerce" or "through instrumentalities of interstate commerce" (magic words that bring tie legislation to the Commerce clause and why the generic federal anti-fraud statutes do not prohibit me from walking accross the hall of my building and fraudulently selling my horn to my neighbor -- a transaction in intrastate commerce that does not involve the means of interstate commerce such as the mail, telephone or highways).

Because the law was limited to what is ordinarily intrastate activity and not commerce (possession rather than sales), the court considered whether the prohibited activity had a substantial effect on interstate commerce and, in particular whether the reasoning that could result in an affirmative answer converted the commerce clause into general police (i.e., lawmaking) power. It concluded,

"To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do."

As for the references to slavery, it is unfair to divorce the document from the times (when the most powerful state, home of 4 of the first 5 presidents, was slave holding) and the need for state-by-state ratification. Despite the morality of abolitionists, if they had held out for documents that reputed slavery, there would have been no declaration of independence in the 18th or 19th centuries (unless Great Britian had already abolished the activity in the American colonies) let alone a constitution.

Edited April 9, 2008 by Legalhack

[silvertrombone]

no you wouldn't get sued (or rather, the suit would be tossed, and the lawyer may be subject to discipline on a rule 11 theory for filing frivolous claims).

Ahh...I know that one! Actually, I was sued once and our defense was questioned and Plaintiff's counsel tried to threaten my attorney with 'filing frivolous claim.' I may have taken that more seriously had Plaintiff's counsel showed up the day of trial. Oops. Tossed.

As for the references to slavery, it is unfair to divorce the document from the times (when the most powerful state, home of 4 of the first 5 presidents, was slave holding) and the need for state-by-state ratification. Despite the morality of abolitionists, if they had held out for documents that reputed slavery, there would have been no declaration of independence in the 18th or 19th centuries (unless Great Britian had already abolished the activity in the American colonies) let alone a constitution.

I think we're saying the same thing. I realize that the Constitution recognized slavery and I know the times were different. Its an interesting conversation, but I don't think anyone wants us to go into it here. But I would like to chat with you and whitedawn sometime...book topic to discuss that I'm working on slowly...have most of my research and am writing chapters...just need to bounce theses off legal experts. Busy for now with other stuff, but I really enjoyed reading your analysis.