my assumption that the first thing such a convention would do is to agree to take the hot button social issues off the table, knowing full well that their consideration would be guaranteed to disrupt the convention itself and/or make subsequent ratification, whatever the process, impossible.

You might be aiming a little too high here. Let's see if you can keep Baghdad Bart from disrupting this website for the next week, and then go from there.
 

what I am trying to do--with limited success so far--is to get Americans to stop obsessing so much about hot button "social issues" and reflect about the unfortunate consequences, for both liberals and conservatives alike, of our basic structures.

Critical as I am about some aspects of the Constitution, I just don't see your position as very plausible. What you're essentially asking is that some people put aside the issues they think are important in order to discuss the issues you think are important. Why should they do that at all? Or shouldn't they at least demand changes to suit them as the price of agreement for your changes?

This, btw, assumes that issues can be neatly sorted into structural and social. I'm not at all sure that's true; indeed, Huckabee's somewhat vague proposal could easily be seen as structural in ways which you would certainly disapprove (e.g., establishing Christianity [sic] as a national religion, with, say, a religious test for public office and the franchise limited to church members).
 

Mark's question is completely fair. My premise is that I can persuade people that the structural issues are important enough to deserve an "independent" consideration and rectification that, as a practical matter, will be impossible if one insists on considering the hot button issues as well.

I also agree with Mark that any distinction between "structural" and "substantive value" issues has to be pragmatic, since it is obvious that almost all structures embed certain value assumptions.
 

This is total mystification (and I have a hard time believing it is done in good faith): the claim that there is an "accurate" interpretation of the equal protection clause that requires state recognition of gay marriage. Obviously recognition of gay marriage is a political decision; there isn't some scientifically or objectively observable law "out there" that only people from very fancy law schools can see. The pretense that left/liberal political decisions are just "accurate" interpretations of some objective law may fool the rubes (though it actually doesn't seem to), but no one who studied with Prof. Tushnet (or Karl Llewelyn, for that matter) is going to fall for it.
 

what Sean said.
 

While Governor here in Massachusetts, Mitt Romney made the traditional political appearance at the St. Patrick's Day festivities in Boston and read what one of his writers had written at a time when gay marriage in MA was in the headlines. Mitt said, in effect, "marriage is a covenant between a man and a woman ... [pause] and a woman ... and a woman ...." So what kind of an amendment to the Constitution might he propose?
 

"I have been sharply critical of presidential candidate John Edwards for his failing to connect the dots between his dramatic statement that "Our system is broken" and the fact that our system is quite literally constituted by the Constitution."

The problem is that our system is NOT quite literally constituted by the Constitution. You ignore, to a substantial degree, the extent to which the problem is actually due to either extra-constitutional political culture, or violations of the Constitution.

I suppose the latter is due to viewing violations as a kind of informal constitutional amendment, since you like some of the violations, and hence don't want to admit their illegitimacy.

Question: What point in amending the Constitution, if bad faith constitutional interpretation remains accepted as a way of circumventing inconvenient text? Doesn't the very enterprise require the presumption that the new text will be honestly interpreted, rather than willfully misinterpreted, or rendered moot by a declaration of "non-judiciablity"?
 

Brett is right that some of the ills are not "constituted" by the "hard-wired" Constitution (such as the abuse of the filibuster, which is certainly not required by the Constitution). But some of our political system (e.g., the difficulty of getting legislation through)is directly linked to the Constitution.

Sean also has a good point with regard dto "accuracy" in interpreting the 14th Amendment. I do believe that the Amendment is indeterminate and that, consequently, one's interpretation will inevitable be a function of what Jack Balkin and I have called "high constitutional politics."

The real question for all of us who accept the reality of indeterminacy of large parts of the (litigated) Constitution is what follows from that recognition. Should courts simply declare that 14th Amendment issues are non-justiciable because all interpretations are necessarily "political" in some genuine sense of that word? Would Sean (like Mark Tushnet) support the demise of judicial review? I ask this as a serious and not a polemical question.
 

One step in the right direction would be for Congress to recognize its own responsibility for determining constitutionality. For example, the legislation that would provide DC with representation in the House of Representatives is manifestly unconstitutional, as Members of Congress surely understand. Supporters of the legislation, however, argue that this is a question for the courts, as if the Constitution allows Congress to pass any law it can get away with.
 

I agree with Mark Field. Structural issues are just not "sexy" enough to interest most people. The issues that generate passion are the ones with direct, observable effects in the "real" world as most people see it. Structural issues are important. They are the very essence of the constitution. But they don't much interest anyone except the wonks.
 

The difficulty of passing legislation isn't a bug, it's a feature. Many of our current problems with the federal government would be eased if the procedural elements of the Constitution meant to slow the pace of legislating were actually being enforced.

And the courts should declare no part of the Constitution non-justiciable. Judging is their job, they should roll up their sleeves, and get on with it, or find employment in a field where they can bring themselves to do the work they're being paid to do.

A constitution that can't be enforced in court is no constitution at all, it's an empty piece of paper. The Constitution is LAW, or it is nothing. Where does it say that the courts are entitled to take large parts of the Constitution, and declare them void?

Again I ask: Do you expect, should you get your convention, and it's output is to your liking, that this new Constitution should be treated like our current one? Large parts simply ignored, every inconvenient bit circumvented by sophistry and convenient lies?

I don't see the point to the convention, if this is your view of how constitutions should be treated. But it apparently is, since you have no objection to our current constitution being so disposed of.
 

Huckabye? He's toast I think. I don't think he really wants a theocracy though, I think he just wants the votes from those who he thinks want one. Huckabee wants to have adulterers, homosexuals and rape victims stoned to death. He also wants to make alcohol and music videos illegal, and make women 2nd class citizens and to take all girls out of school.

Oops, my bad, that’s another ‘religion’.

Hey, anybody but the PIAPS!
.
if you’re MAD
punish your country
VOTE for Hillary
.
http://haltterrorism.com/

http://absurdthoughtsaboutgod.blogspot.com/
.
 

Since Prof. Levinson asks, no, I would not get rid of judicial review, despite Prof. Tushnet's imprimatur. My practice doesn't permit me to write essays, so I will summarize in one sentence by saying, with Aristotle, that the best government combines monarchical, aristocratic, and democratic elements, and that, as our system has evolved, the federal courts are the vehicle whereby the elite (to which Prof. Levinson, I, and almost every reader here belong) express and implement our views. But it veers into unbearable hypocrisy when we pretend that our political views are not political views, but objective interpretations of some complicated document beyond the understanding of people with SAT scores below 1400.
 

Sandy:

Social liberals who support having judges create a right to homosexual "marriage" from the EPC or a right to abortion from privacy penumbras have no real interest going through the hard work of convincing a super majority of the citizenry to amend the Constitution or even a majority of the citizenry to enact statutes redefining marriage. Thus, it is no real surprise that liberal political candidates do not speak of amending the Constitution.

Conversely, social conservatives' interest in amending the Constitution is a purely defensive movement in reaction to Court decisions finding "rights" to abortion and homosexual marriage or finding "prohibitions" to prayer and other religious displays in government facilities. This interest is compounded by the fact that these decisions are removed from the People and their elected representatives. Thus, it is unsurprising that conservative political candidates campaign on amending the Constitution.

However, I do not see any real movement towards amending the Constitution to substantially change our constitutional republic.

Given that amending the Constitution is a democratic process, I do not see how the merry band of legal academics who advocate such structural change could bar the exponentially more numerous social conservatives from offering their preferred amendments.
 

But, Bart, that part is easy: The Constitution is silent on how the delegates to the constitutional convention are chosen. And where the Constitution is silent, or vague, (For arbitrarily small levels of "vague".) the elite are free to insert their own chosen meaning.

Who says social conservatives will be permitted any delegates?

Anyway, nobody got me a copy of Sandy's book for my birthday, but I did get a Border's gift card, so I'll soon be able to comment in detail on his proposals.
 

Are we really part of the "elite"? It's too bad C. Wright Mills isn't around to add to his "The Power Elite" of 1956 to address where we stand in the pecking order of the elite currently in America. This brings to mind my radio listening days in the late 1930s early '40s to "Duffy's Tavern" where "The elite meet to eat." Neither Duffy nor Archie the manager was a Mr. Dooley, who recognized the elitism of the Supreme Court.
 

brett said...

But, Bart, that part is easy: The Constitution is silent on how the delegates to the constitutional convention are chosen. And where the Constitution is silent, or vague, (For arbitrarily small levels of "vague".) the elite are free to insert their own chosen meaning.

Who says social conservatives will be permitted any delegates?

2/3 of the state legislatures are required to call a Constitutional Convention. That means Sandy would need heartland states filled with social conservatives to call such a convention.
 

Conversely, social conservatives' interest in amending the Constitution is a purely defensive movement in reaction to Court decisions finding "rights" to abortion and homosexual marriage or finding "prohibitions" to prayer and other religious displays in government facilities. This interest is compounded by the fact that these decisions are removed from the People and their elected representatives. Thus, it is unsurprising that conservative political candidates campaign on amending the Constitution.

Thanks for proving my point, Baghdad.
 

The fact that long shot candidates like Huckabee and plausible (but still longshot for Nov.) candidates for President want to take potshots at liberals like this is not really a reason for or against SL's arguments. Any number of good things can be spun badly and the failure of many attempts to do bad things underline the fact fire can burn doesn't make it a bad thing overall.

The candidacy of Ron Paul suggests how cheap shots at "liberals" are pretty blatant in various cases. Likewise, those liberal bastions like Kentucky in which judges found sodomy laws unconstitutional under state constitutions.

Still, SL makes his own cheap shots.

why don't I admit that Madison was right and that it's just too dangerous to suggest that the Constitution we have is less than perfect and in need of revision?

You mean the person who thought it worth the risk, vs. strong opposition, to take the risk in replacing the Articles of Confederation? I was unaware Madison thought Art. V was dangerous. Or, that he thought the Constitution was set in stone for all time. I find this a dubious proposition.

The fact the Constitution he promoted made it hard to amend the Constitution is not the same thing. It is a strawman to imply so. The word "suggest" is esp. blatant.
 

Social liberals who support having judges create a right to homosexual "marriage"

Bart, nobody is calling for a right to "homosexual 'marriage'". Social liberals are calling for a right to gay marriage.

In polite, nonmedical, nonclinical company, gays and lesbians are called gays and lesbians, and they get married (as they already can in Massachussetts), and those are marriages, not "marriages".

Only hateful, homophobic bigots put the term marriage in scare quotes when discussing gay marriage. Stop being one. You don't have to support gay marriage if you don't want to, but do it without insulting all the law-abiding, good hearted gays and lesbians who have gotten married and whose marriages are very important to them.
 

dilan said...

Social liberals who support having judges create a right to homosexual "marriage"

Bart, nobody is calling for a right to "homosexual 'marriage'". Social liberals are calling for a right to gay marriage.

In polite, nonmedical, nonclinical company, gays and lesbians are called gays and lesbians, and they get married (as they already can in Massachussetts), and those are marriages, not "marriages".

Gay marriage is inaccurate because it only uses the popular term for homosexual men. Homosexual is the proper term for both gays and lesbians. When did homosexual become a dirty word?

Only hateful, homophobic bigots put the term marriage in scare quotes when discussing gay marriage.

Scare quotes?

The quotations were used to indicate that the term "marriage," which is and always has been the union of a man and woman, is a misnomer when applied to a homosexual union. I doubt anyone was scared by the quotes.

Stop being one. You don't have to support gay marriage if you don't want to, but do it without insulting all the law-abiding, good hearted gays and lesbians who have gotten married and whose marriages are very important to them.

I do not intend to insult anyone apart from the four outlaw justices on the Bay State Supreme Court.
 

I do not intend to insult anyone apart from the four outlaw justices on the Bay State Supreme Court.

# posted by Bart DePalma : 2:34 PM

Oddly, those "outlaws" have not yet been impeached.
 

I am delighted that Brett received a gift card for Christmas. It would probably be best to wait several weeks to use it, as Oxford is about to publish the paperback edition of my book, with a new afterword that tries to take account of some of the criticisms (including some set out on this venue).

I begin my afterword by noting that there are really two Madison's. One of them indeed had no hesitation at all about junking the existing Constitution (I.e., the Articles of Confederation). This is the Madison found in the 14th Federalist. The other, more "reverential" Madison, is found in the 49th Federalist, where he expresses he complete dismay at Jefferson's call for frequent conventions.

Even though it is a sufficient condition to have a new convention if 2/3 of the states (34) call for one, I don't think that's a necessary condition. I think that Congress on its own can call a convention. Moreover, in my afterword, I come out foursquare for a process of "lottery" selection, though I'd make sure that there was some geographical diversity in the chosen sample. I indicate why I prefer that reversion to ancient Athens than either elections (role of money and single-issue groups) or appointment by sitting pols (no inclination to appoint boat-rockers who might challenge their own prerogatives).

Lottery election would assure, incidentally, that there would indeed be some "social conservatives" as well as some people having many other attributes. So no view would go unrepresented, though my hope continues to be that social conservatives and liberals would reach some kind of truce and agree instead to focus on the hard-wired structural issues that are my own focus (and, by stipulation, the heart of any successful movement that would in fact result in Congress, on a bipartisan basis, calling for a new convention).
 

LD – Professor Levinson:
Please forgive the length of this comment – owing to which I would understand your foregoing it.
I should like to start with stating my read on Mark’s earlier comment which you found “completely fair”.
“what I am trying to do [ ] is to get Americans to stop obsessing [ ] about hot button "social issues" and reflect about the unfortunate consequences [ ]of our basic structures.”
Critical as I am about some aspects of the Constitution I don't see your position as plausible. Essentially you are asking some to put aside issues THEY think important to discuss those YOU think important. Strategically shouldn't they at least demand changes to suit them as the price of agreeing to your changes? This also assumes important issues can be sorted into distinct piles – EG structural vs social - which I don’t see EG Huckabee's proposal [assuming his hot button vague posturing is reducible to a concept which is amenable to articulation in written English stripped of nuances requiring an overwhelming consensus to starting from a single set of faith-based assumptions (which the trends towards increased numbers of typically Catholic & Muslim & non-faith-based voters suggests is a bridge long past)] could easily be construed as structural in ways which I expect you would argue negate the point of the exercise EG in the case of Huckabee establishing a particular brand of preference for selected passages from the King James translation of the various Old & New & dubiously originating books from the Judeo-Christian heritage as the basis for a codified national set of articles of faith IOW a “national religion” – something which in the case of 17th century England it appears was only “accomplished” in a context of a practical exclusivity of Catholic-based barely enfranchised mostly illiterate citizens with nothing even approaching the sort of 21st century US sense of entitlements to citizenry over a period of decades through a process marked by arbitrarily imposed & politicized textual choices & a level of violence which I would think would be roughly equivalent to that seen in Baghdad over the past 5 years – plus precisely those pulls to emigration which contributed so critically to the establishment of the American colonies which facilitated the narrowly defined circumstances under which the subject of your post came to be so broadly accepted by a remarkably homogenous group of like-minded ethno-centric actors as the least worst poltitical expedient in the first place – especially given what I would forsee as a reliably predictable starting point of a religious test for suitability for any service above strictly janitorial in all 3 [4?] branches of public office – IOW a franchise limited to church members. : Mark Field as ghost re-written by Diderot’s Dog
Now to my own growl:
In my view the component which is critical to the enabling the process you argue for is a single baseline: practically unanimous acceptance that workable solutions to the variety of structural conundrums which are impairing human progress in the context of this Union clearly – plainly – obviously – carry significantly greater value than the shared baseline values of any minority group of individuals within the committee of the whole IE all citizens.
It strikes me that the only circumstance which history suggests carries the degree of compulsion necessary to achieving such a baseline is national security – which if I may be forgiven a second time for now extrapolating beyond what I suggest is the relatively indisputable proposition in the paragraph immediately preceding this one - is precisely the base on which the structures of the dilemma were erected.
In the case of the current administration I suggest it may be more accurate to describe the effect as ‘precisely the rationale for removing or enfeebling the weight-bearing walls on which the premise was erected. Although the [in my view entirely correct] deeply accepted perception the record of the Bush-Cheney administration being unconscionably marked by monstrous failures, I posit that something of the same effects were brought about as well under some of their predecessors who today – as Bush at least apparently hopes will be granted him [I expect Cheney is more inclined to dream of Kuwaiti citizenship.] – are widely lionized: among whom FDR & Reagan are most prominently featured on the banners of the two vast armies competing for the affections of the citizenry [diminishing how the legacies of others denied beatification have contributed to the current state of trench warfare at the seat of national government & banditry in outlying regions like Alabama: EG LBJ & Nixon].
For my own part though I share your sense of alarm over the long term consequences of the dilemma I am convinced that it is an inevitable by product of – well – the genius of the existing model – bearing in mind a coldly rational appreciation of both the circumstances of its birth & those of the many challenges it has endured [I would particularly look forward to President Bush opting on the occasion of his last obligated attendance on Congress to report succinctly – such as: “The state of the Union is that for the most part it still endures under a single flag. Good bye & good luck.”].
In my view real valid just calls on the citizenry to forego some manifestations of their expectations for individual citizenship status are a necessary expense to the end of sustaining the venture – the concerted restoration of which is an absolute necessity to that which you & I - & I hope the majority of citizens – something beyond maintaining the bare outlines of distinct nationhood IE the Terry Schiavo model of living under a facsimile of “life” – which the Founders sought to capture in the phrase “life [plus] liberty [plus] the pursuit of happiness” - & which 235 years on IMO should be interpreted as “individual security with rational justified tolerance for both potentially progressive variation on the notion of pursuing human fulfillment”.
But the model has also been subjected to a number of “national security crises” which are neither real nor rational – but instead were phoney contrived esoteric or ideological – in which something like the same quality of sacrifice has been imposed on a deeply divided citizenry as that which it has been called upon to “voluntarily” forego in times when no rational patriot could decline.
If I’m right [I concede the possibility that many may conclude I’m left – or at least wrong – or necessarily both] then I think it means you - & the two faithists with pretensions to chief executive-hood – have succeeded in convincing me of the need for Constitutional amendment – but in ways that are more like the faithists in its number & more like you in its effects [or put conversely, less comprehensive than what you propose & less likely to amount to surrendering the essence of the model than the faithists propose].
Is it possible to achieve one of the two goals I favor without a major resort to the agonies of protracted amendment [EG (1) the Emancipation Proclamation (2) suffrage & (3) the failed ERA - despite the ease with which all would seem to flow naturally from the model]? I’m thinking now of the challenge to presidential authority posed by the Unitary Executive interpretation. Could that be settled by bundling a relatively more marketable “minor” amendment establishing & safeguarding an independent prosecutorial office [I’d be willing to endure the odd trial over lying about getting a blow job to enable Congress to exercise its obligations of oversight in a meaningful way - after all impeachment is a critical component to the model] together with a court challenge which squarely engages the essential precept of the Federalist Society?
[Surely a few among its alumni would find pleasure in the prospect of burning their membership cards.]
I think the other necessary amendment holds the same promise of marketability – a requirement to adhere to a Congressional determination that the crisis is ended – or that the call to sacrifice is no longer justified – together with a mandatory process of restoring the promises of the model.
Also if you have the time I have some pigs I need help with getting airborne.
 

LD – Professor Levinson:
Please forgive the length of this comment – owing to which I would understand your foregoing it.
I should like to start with stating my read on Mark’s earlier comment which you found “completely fair”.
“what I am trying to do [ ] is to get Americans to stop obsessing [ ] about hot button "social issues" and reflect about the unfortunate consequences [ ]of our basic structures.”
Critical as I am about some aspects of the Constitution I don't see your position as plausible. Essentially you are asking some to put aside issues THEY think important to discuss those YOU think important. Strategically shouldn't they at least demand changes to suit them as the price of agreeing to your changes? This also assumes important issues can be sorted into distinct piles – EG structural vs social - which I don’t see EG Huckabee's proposal [assuming his hot button vague posturing is reducible to a concept which is amenable to articulation in written English stripped of nuances requiring an overwhelming consensus to starting from a single set of faith-based assumptions (which the trends towards increased numbers of typically Catholic & Muslim & non-faith-based voters suggests is a bridge long past)] could easily be construed as structural in ways which I expect you would argue negate the point of the exercise EG in the case of Huckabee establishing a particular brand of preference for selected passages from the King James translation of the various Old & New & dubiously originating books from the Judeo-Christian heritage as the basis for a codified national set of articles of faith IOW a “national religion” – something which in the case of 17th century England it appears was only “accomplished” in a context of a practical exclusivity of Catholic-based barely enfranchised mostly illiterate citizens with nothing even approaching the sort of 21st century US sense of entitlements to citizenry over a period of decades through a process marked by arbitrarily imposed & politicized textual choices & a level of violence which I would think would be roughly equivalent to that seen in Baghdad over the past 5 years – plus precisely those pulls to emigration which contributed so critically to the establishment of the American colonies which facilitated the narrowly defined circumstances under which the subject of your post came to be so broadly accepted by a remarkably homogenous group of like-minded ethno-centric actors as the least worst poltitical expedient in the first place – especially given what I would forsee as a reliably predictable starting point of a religious test for suitability for any service above strictly janitorial in all 3 [4?] branches of public office – IOW a franchise limited to church members. : Mark Field as ghost re-written by Diderot’s Dog
Now to my own growl:
In my view the component which is critical to the enabling the process you argue for is a single baseline: practically unanimous acceptance that workable solutions to the variety of structural conundrums which are impairing human progress in the context of this Union clearly – plainly – obviously – carry significantly greater value than the shared baseline values of any minority group of individuals within the committee of the whole IE all citizens.
It strikes me that the only circumstance which history suggests carries the degree of compulsion necessary to achieving such a baseline is national security – which if I may be forgiven a second time for now extrapolating beyond what I suggest is the relatively indisputable proposition in the paragraph immediately preceding this one - is precisely the base on which the structures of the dilemma were erected.
In the case of the current administration I suggest it may be more accurate to describe the effect as ‘precisely the rationale for removing or enfeebling the weight-bearing walls on which the premise was erected. Although the [in my view entirely correct] deeply accepted perception the record of the Bush-Cheney administration being unconscionably marked by monstrous failures, I posit that something of the same effects were brought about as well under some of their predecessors who today – as Bush at least apparently hopes will be granted him [I expect Cheney is more inclined to dream of Kuwaiti citizenship.] – are widely lionized: among whom FDR & Reagan are most prominently featured on the banners of the two vast armies competing for the affections of the citizenry [diminishing how the legacies of others denied beatification have contributed to the current state of trench warfare at the seat of national government & banditry in outlying regions like Alabama: EG LBJ & Nixon].
For my own part though I share your sense of alarm over the long term consequences of the dilemma I am convinced that it is an inevitable by product of – well – the genius of the existing model – bearing in mind a coldly rational appreciation of both the circumstances of its birth & those of the many challenges it has endured [I would particularly look forward to President Bush opting on the occasion of his last obligated attendance on Congress to report succinctly – such as: “The state of the Union is that for the most part it still endures under a single flag. Good bye & good luck.”].
In my view real valid just calls on the citizenry to forego some manifestations of their expectations for individual citizenship status are a necessary expense to the end of sustaining the venture – the concerted restoration of which is an absolute necessity to that which you & I - & I hope the majority of citizens – something beyond maintaining the bare outlines of distinct nationhood IE the Terry Schiavo model of living under a facsimile of “life” – which the Founders sought to capture in the phrase “life [plus] liberty [plus] the pursuit of happiness” - & which 235 years on IMO should be interpreted as “individual security with rational justified tolerance for both potentially progressive variation on the notion of pursuing human fulfillment”.
But the model has also been subjected to a number of “national security crises” which are neither real nor rational – but instead were phoney contrived esoteric or ideological – in which something like the same quality of sacrifice has been imposed on a deeply divided citizenry as that which it has been called upon to “voluntarily” forego in times when no rational patriot could decline.
If I’m right [I concede the possibility that many may conclude I’m left – or at least wrong – or necessarily both] then I think it means you - & the two faithists with pretensions to chief executive-hood – have succeeded in convincing me of the need for Constitutional amendment – but in ways that are more like the faithists in its number & more like you in its effects [or put conversely, less comprehensive than what you propose & less likely to amount to surrendering the essence of the model than the faithists propose].
Is it possible to achieve one of the two goals I favor without a major resort to the agonies of protracted amendment [EG (1) the Emancipation Proclamation (2) suffrage & (3) the failed ERA - despite the ease with which all would seem to flow naturally from the model]? I’m thinking now of the challenge to presidential authority posed by the Unitary Executive interpretation. Could that be settled by bundling a relatively more marketable “minor” amendment establishing & safeguarding an independent prosecutorial office [I’d be willing to endure the odd trial over lying about getting a blow job to enable Congress to exercise its obligations of oversight in a meaningful way - after all impeachment is a critical component to the model] together with a court challenge which squarely engages the essential precept of the Federalist Society?
[Surely a few among its alumni would find pleasure in the prospect of burning their membership cards.]
I think the other necessary amendment holds the same promise of marketability – a requirement to adhere to a Congressional determination that the crisis is ended – or that the call to sacrifice is no longer justified – together with a mandatory process of restoring the promises of the model.
Also if you have the time I have some pigs I need help with getting airborne.
 

"Lottery election would assure, incidentally, that there would indeed be some "social conservatives" as well as some people having many other attributes."

Honestly? Lottery selection would be an excellent approach. There's just one little problem...

The convention is a means for circumventing a Congress which refuses to originate needed amendments. And yet, the states must ask that very Congress for the convention.

Think they'll get it? I don't. But if they do, it's a lead pipe cinch that Congress will decide the matter of how the delegates are chosen itself, and to the advantage of ... Congress, not the nation.

Why, after all, should Congress open the door to a procedure whose only purpose is to originate amendments Congress won't?

And if the states don't like it, what are they going to do, sue in federal court? Demand the Supreme court issue a writ of mandamus? That matter would be declared "non-judicable" so fast your head would spin.

You can spin a perfect way for the convention to be constituted, but how do you get around Congress not wanting to be gotten around?
 

Gay marriage is inaccurate because it only uses the popular term for homosexual men. Homosexual is the proper term for both gays and lesbians. When did homosexual become a dirty word?

It isn't a dirty word. It is a word used by two groups of people:

1. Clinicians and scientists, contrasting with heterosexuals.

2. Gay bashing homophobic hateful bigots, who emphasize it as HOMOsexual.

Since you aren't in group 1, you should use the term that the community prefers, gay and lesbian. Not using that term indicates disrespect.

If you don't want to use gay marriage, an alternate, respectful term, used by many conservatives, is same sex marriage. Use that.

Scare quotes?

The quotations were used to indicate that the term "marriage," which is and always has been the union of a man and woman, is a misnomer when applied to a homosexual union. I doubt anyone was scared by the quotes.

The term "scare quotes" refer to quotation marks used for the purpose that you just admitted to using them for-- in other words, to say "this is what the other guy calls it, but it isn't a proper term". For instance, when faced with an statement of facts in an opposing brief that doesn't get the facts right, one might use scare quotes: Appellant's "statement of facts" is nothing of the sort.

Using scare quotes around the word marriage IS disrespectful. These people are married. They have lives together. Many have marriage certificates. They have had ceremonies officiated by ministers. They are devoted to each other.

And yet you, Bart DePalma, refuse to give them the basic courtesy of calling what they have a marriage. No, it's a "marriage". You are saying that something that these people put their lives into and attach great meaning to is not really a marriage, because you, Bart DePalma, an expert on what does and doesn't constitute a marriage, hate gays and lesbians and therefore refuse to acknowledge their familial relationships.

Look, if you want to continue putting the word in quotes, go ahead. It just exposes you as the narrow minded bigot that you are. But I'd like you to go meet some gay, married couples and tell them that their marriages aren't real marriages. You'd learn something, real quick.
 

dilan said...

BD: Gay marriage is inaccurate because it only uses the popular term for homosexual men. Homosexual is the proper term for both gays and lesbians. When did homosexual become a dirty word?

It isn't a dirty word. It is a word used by two groups of people:

1. Clinicians and scientists, contrasting with heterosexuals.

2. Gay bashing homophobic hateful bigots, who emphasize it as HOMOsexual.

Since you aren't in group 1, you should use the term that the community prefers, gay and lesbian. Not using that term indicates disrespect.

Professor Levinson, I apologize for the diversion, but I take exception at being called a bigot.

Dilan:

If homosexual is not a dirty word, then it cannot be hateful, bigoted or disrespectful to use the term.

Moreover, If you google "homosexual," you get 20,500,000 hits, the first page of which is filled with gay and lesbian support groups and dating sites. Apparently, gays and lesbians do not share your horror at the use of the word homosexual.

If you don't want to use gay marriage, an alternate, respectful term, used by many conservatives, is same sex marriage. Use that.

I am sorry, but I have no respect for the attempt to redefine marriage into something it is not and never has been. This effort is fundamentally dishonest.

Using scare quotes around the word marriage IS disrespectful. These people are married. They have lives together. Many have marriage certificates. They have had ceremonies officiated by ministers. They are devoted to each other.

To borrow a metaphor, there are a rainbow of different devoted relationships between people. However, the term marriage does not cover all of them. The term marriage has always been and remains the union of a man and a woman.

The EPC argument fails when applied honestly because homosexual unions are not similarly situated to marriages. The only common denominator between the two is a committed relationship, which is also common to many other human relationships. No one thinks that all committed human relationships are marriages. Consequently, homosexual unions and marriages are not similarly situated.

But I'd like you to go meet some gay, married couples and tell them that their marriages aren't real marriages. You'd learn something, real quick.

If you have not noticed, I am not shy about telling the truth, even if it upsets others. I would have no trouble telling a loving homosexual couple that they are not married because they are not.

I have loving relationships with many friends and family with whom I am not married. I am married to one person, my wife.

Finally, name calling does not recommend an argument. You are better than that.

I have said my piece on the subject.
 

The (Admittedly less common) term "sneer quotes" is more to the point, I believe; There's generally nothing the least bit scary involved in these quotes, so I'm at a loss as to how they came to be called "scare" quotes in the first place.

Anyway, I've got to back Bart on this: "Homosexual" is a term which encompasses both males and females, while "gay" is specific to the male. Like it or not, he used the more accurate terminology.

"Gay and lesbian marriage" would be equally valid, but more awkward.
 

"I would have no trouble telling a loving homosexual couple that they are not married because they are not."

They are if they were married in Massachusetts, whether you like or not.

And the problem here isn't that you're telling the truth, the problem is that you're a despicable little piece of shit.

BTW, someone who is whining about "outlaw judges" really isn't in a position to accuse others of name-calling.
 

I see that in F. 43, Madison expressly supports Art. V.

The later reference to Jefferson concerned a means of amendment, which would include two of three branches of gov't having the means to bring forth a constitutional convention.

M. partially appealled to the people's power when criticizing this suggestion. Likewise, concern with too easy of a means does not mean he opposed it totally. See, F. 43.

Social liberals are calling for a right to gay marriage.

To be exact, people are asking for state recognition of same sex marriage as to various privileges and such. One need not be "gay" in such a situation to get married any more than opposite sex couples need to be "straight" when they get married.

Likewise, either way, churches and such can "marry" as in the holy sacrament of matrimony. Back in the day, to enjoy holy marriage you generally had to have a license, esp. since fornication and cohabitation was illegal. To the degree it still is, it barely is in most places.

But, anyway, to many, "marriage" is more than a state issued piece of paper, so the word has more than one connotation. Likewise, since state legislatures are not doing too much to stop homosexual couples, railing at the courts is pretty limiting for Huckabee et. al.
 

Essentially you are asking some to put aside issues THEY think important to discuss those YOU think important.

Quite so! And there is perhaps no better evidence of how unlikely this is to happen than that, even here on a high brow legal blog, discussions of constitutional reform so readily segue into discussions of gay marriage.
 

Bart writes:
I do not intend to insult anyone apart from the four outlaw justices on the Bay State Supreme Court.

So, those who disagree with you deserve insults and name calling - your own admission.

Yet:
Finally, name calling does not recommend an argument.


So, its okay when you do it, but not when others so it.

While nobody should be dictating what terms to use when, such blatant double standards indicate you have no desire for an honest discourse.

Basing governments and government policies on religion has always been a disaster, and it always will be.
 

Bart, if someone decided that based on their own criteria, what you have with your wife is in fact NOT a marriage, I would HOPE you would feel insulted.

Refusing to acknowledge that married gay and lesbian couples are, indeed, married, is bigotry. And you are a bigot.

Really, I'd like to see you walk up to a gay married couple and tell them they don't have a real marriage. And I'd love to see you get what you deserve in response.
 

Ahem. I don't mean to jump in on the exchange of nastiness. Just a couple points of fact for Prof Levinson.

1. The LDS Church does not advocate a constitutional amendment proscribing gay marriage. It has made its official declaration that "marriage" is rightly (i.e., righteously) defined as being between a man and a woman. That is all. Most Mormons understand this to be a statement of religious belief and NOT a call to political action. At most, it might be taken as an admonition against politically supporting gay marriage. But it would be taken (i.e., misinterpreted) as an endorsement of affirmative legal action against gay marriage only by those who already support such action for their own personal reasons. There is widespread understanding in the Church that the Church remains neutral on political issues unless and until it makes an explicit statement otherwise. Absent such an explicit statement, it would not be fair -- even for a Mormon "insider," let alone a non-Mormon "outsider" such as yourself -- to assume that a statement about what is marriage in the eyes of God advocated the sort of affirmative legal action against gay marriage that you assume it does.

2. Joseph Smith did not discover the Gold Plates in 1831. You lose credibility as a liberal when you exhibit scorn for the beliefs of others. And you lose credibility as a scholar and public intellectual when you get simple facts -- or historical claims, if you do not recognize them as "facts" -- so grossly incorrect.

P.S. I am not a Romney supporter. I prefer Obama. None of this is intended as a defense of Romney as a candidate. I mean only to point out your simple factual errors (#2) and to illuminate your understanding of Mormondom and the implications of statements made by Mormon leaders (#1), in the hopes that you will avoid reductive and condescending assumptions about Mormons and Mormondom in the future.

That is all. Now the bickering amongst others may continue.