Balkinization  

Wednesday, July 01, 2015

A Telling Substitution

Gerard N. Magliocca

I want to make a small observation about the Court's opinion on same-sex marriage.  In West Virginia State Board of Education v. Barnette, Justice Robert H. Jackson made this famous observation about the Bill of Rights:

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."

Here is how the same quote is reproduced in Obergefell v. Hodges:

"The idea of the Constitution 'was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.'

I think that the latter is not an accurate paraphrase or statement.  The idea of the Constitution was at least as much about enabling democratic politics and reserving certain subjects to state politics.  The idea of the Bill of Rights, by contrast, is much more about judicial review and minority rights.

Now you may consider the comment thread an open forum about the decision.

Comments:

Yes, better to say "an idea," since as much as that the original Constitution was in place to expand national power. And, the issue at hand was about the BOR (the 14A in effect seen as part of it by many), so the edit was unnecessary.

It suggests the current trend, shared by each wing of the Court, to expand the reach of strong judicial review, including to congressional and presidential powers that the early Court gave more discretion.


 

All institutions seek to expand their own power, after all. The Supreme court is no exception.

The outcome in Obergefell is arguable as a matter of policy, though the impending pogrom against anyone who continues to publicly uphold contrary views is going to be as ugly as it is inevitable. The problem is that the Court is not, properly, a policy making body. They're not there to uphold the dignity of Man, or the sweet mystery of love. They're there to uphold the Constitution and the laws made pursuant to it.

And, love it or hate it, the Constitution wasn't written by 21st century liberals. If it's true that "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.", it's just as true that it doesn't enact Mr. Rawls' A Theory of Justice. You want all that jazz, and a right to a pony, to be in it? I direct your attention to Article V.

The Court has just attributed to the 14th amendment a meaning it's authors, and the people who ratified it, did not intend. Could not have intended. Would have rewritten it to exclude, had it been suggested. A meaning that never went through Article V, would have failed, would STILL fail, if subject to Article V.

The have overturned the democratically enacted laws of the majority of states in doing so. No, not just 15 states, because the only reason it was down to 15 states is because state and lower federal courts had already been very busy.

You may love the outcome, but the means were the abolition of the rule of law, and it WILL come back to bite you. I think this may just provide the last impetus a Constitutional convention needs, and given the Republican strength in the state legislatures, liberals are not going to like the resulting amendments, or have much chance to block them.


 

Commenters Brett and Bart love the Constitution so much they're itching for a Convention to redo it!

"the abolition of the rule of law"

Ugh, let's drop this hyperbole. Even if you can't bring yourself to conceive of the idea that out system contemplated some unenumerated rights enforced via some judicial mechanism and therefore this case is, at worst, an exercise of that you think was wrong, let's at least realize how far we are from 'the abolition of the rule of law,' since our laws allow many ways to rectify this decision if you think it wrong. As you yourself invoke, it allows for a Convention if that's what the people want. Less drastically, it allows for an Constitutional Amendment if that's what the people want. Also effective, simply voting in candidates who are dedicated to appointing justices to eventually overturn the precedent (that's how Lochner was dealt with). If these avenues were blocked then maybe that kind of rhetoric would be something more than Chicken-little-ism, but they're not.

 

It's an interesting substitution, but I'm not sure it's anything more than an interesting change of words, since the 14th Amendment relied on here, while not part of the 'Bill of Rights,' was certainly meant to be an anti-majoritarian restriction on the states.
 

"Pogrom": "an organized massacre of a particular ethnic group, in particular that of Jews in Russia or eastern Europe."

In the 1920s, conservative Judge McReynolds, contra Scalia/Thomas, thought it "without a doubt" true that the 14A in part protected a "right to marry." Marriage was long a basic liberty & the right to marriage was a much prized right of freedom. Here is was denied without legitimate public purpose to a class of individuals. Class legislation was a concern of many at that time though the ultimate reach was greatly debated then (see Slaughterhouse Cases, 5-4) and now.

The Constitution protects certain rights and judicial review protects them from legislative overreaching. For instance, even though millions of people in multiple states & D.C. opposed it, by a 5-4 vote, the USSC protected an individual right to keep and bear arms broader than democratically passed laws favored. And, when applied, modern knowledge and practice factor in so, e.g., once homosexuality is no longer seen as a mental illness, equal protection will likely be understood differently or as millions are shown by their actions to be equal to everyone else including in getting married and raising families.

There is no "abolition of the rule of law" because Brett et. al. disagrees with the outcome here, based on decades of precedent and using typical legal principles. Likewise, the rights of same sex couples to equal protection is not merely something "Democrats" support. This is seen in part by multiple briefs, one signed by a slew of important Republicans.


 

I've always seen the BoR as a limitation on the N&P clause. That said, I think the OP makes a good point.
 

There are parts of the Constitution I love, there are parts I frankly despise, but it's the constitution we have, and the court is not replacing it with a different constitution. They're replacing it with no constitution at all.

The point of having a constitution instead of just statutory law or tradition, (Like England has.) is stability: The constitution continues to mean the same thing until it is formally changed by stated procedure to mean a new thing, which it then continues to mean until again amended.

A constitution which can change without amendment isn't a constitution anymore. It no longer provides that stability.

It's like if you decided it would be nice to have a joint between the ankle and the knee, and broke my leg. I wouldn't have an extra joint, I'd have a broken leg, and couldn't stand on it anymore.

We can't stand on the Constitution anymore, we can't count on it meaning tomorrow what it meant yesterday. It no longer serves the purpose of a constitution.

Can we amend it? Laborously, yes, like I could spend months healing the leg you broke in a moment, only to have you break it again at your whim. That's no answer to judicial usupations like this, any more than "You can always deposit more money" is an answer to bank robberies.

We have to fix the problem with the Court, that they think they're entitled to 'change' the meaning of the highest law of the land on a whim. Unless we do that, any amendment is futile, it's rewritting at great trouble something written in dust while hurricane is blowing.

Yes, it is the abolition of the rule of law, even if you find the rule of law unimaginably tedious, and welcome it's death.
 

The Committee of Detail set forth two basic principles when writing the final draft of the original document:

1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and

2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states.


Flexibility was intended; recall that this was said even though amendments were possible. A core point is that "interstate commerce" etc. was supposed to last the test of time even as the times resulted in that meaning quite different than the local economy of 1787. As John Marshall noted in McCulloch v. Maryland, "only its great outlines" are marked. The applications will develop over the ages.

When you use general propositions like "free speech" or "due process," they will not have fixed meanings as applied as there are changing understandings and other societal developments. "Times and events" might show that certain "persons" are "equal" though at the time they don't appear to be. Many Framers themselves changed their mind on the meaning of the specific constitutional terms and principles as events went by.

Certain things are fixed. Lots of things are open-ended with some floor. If you don't like this, fine. But, the framers knew it. They knew how "due process," the criminal process protections, the true reach of free speech etc. develops over time. Leonard Levy, e.g., examined this in his book, looking at the history. They surely knew this by 1868.
 

Again, what golden age is Brett appealing to?
 

This comment has been removed by a blog administrator.
 

I don't think that there was a golden age, but that doesn't obligate me to welcome a leaden age with a smile.
 

Again, what golden age is Brett appealing to?
# posted by Blogger Joe : 2:52 PM


When he agrees with SCOTUS rulings.
 

You state principles that didn't even occur the way you express as ideal as far back in the 1790s. If history never matched the alleged "point," perhaps, you are confused as to it. And, when you voice opposition to the current day in tones that suggest things got so much worse, the fact they match history again belies this.




 

Brett, a self-proclaimed anarcho libertarian and a 2nd A absolutist, is concerned with the rule of law? Did a real leg breaker get to Brett or is he engaging in show business terminology? And Brett, get with the program on the real meaning of pogrom before applying it to yourself as a victim.

As to Golden Age, I seem to recall Brett making that claim for the Roaring Twenties that "broke a leg" in 1929.

As I noted at CC, Brett continues "Whistling Dixie." (Literalists might Google that term to understand its meaning.)

By the Bybee [expletives deleted], while the 1787 Constitutions gave further protection to slavery beyond the protective Articles of Confederation, the bill of rights (ratified 1791) even further protected slavery (especially via the 2nd and 5th As).
 

I suspect that Kennedy deliberately misquoted Jackson and replaced the Bill of Rights with the Constitution because a "fundamental right" to SSM is nowhere found in the Bill of Rights. Redefining government civil marriage is also not life, liberty or property as those terms in the 14th Amendment are normally understood, but that is another issue.
 

Joe:

The term "due process" is indeed broad, but it is not meaningless and without bounds.

The word "process" refers to the procedures the government must undergo before it can deny you your life, liberty or property.

By only using the word "due" to describe the required procedures, the Constitution invites the Congress and Courts to fill in the blanks.

The phrase "substantive due process" is a contradiction in terms. Process in no way refers to a substantive guarantee of liberty. Process most certainly does not grant the judiciary the power to create a fundamental substantive constitutional right based upon a majority's "enhanced understanding" derived from a political campaign to change the law, as Kennedy argued in Obergefell.




 

Is a fundamental right to traditional marriage to be found in the Constitution as amended? Is such marriage recognized as a fundamental right? [I'm setting a trap here.] Some things not specifically found in the Constitution as amended have been accepted as fundamental rights supported by the Constitution.
 

Is a fundamental right to traditional marriage to be found in the Constitution as amended? Is such marriage recognized as a fundamental right? [I'm setting a trap here.] Some things not specifically found in the Constitution as amended have been accepted as fundamental rights supported by the Constitution.
# posted by Blogger Shag from Brookline : 4:40 PM


Maryland is mentioned. Is that close enough?
 

Mr. W:

Do you actually believe that the current Supreme Court is not working toward the abolition of the rule of law?

Let's consider the following week.

In King, the Court added language to a law of Congress by rewriting the phrase "established by the state" to "established by the state and federal governments." This rewrite was in direct contravention of one of the most basic cannons of statutory interpretation - expressio unius est exclusio alterius ("the express mention of one thing excludes all others"). The last time I recall the judiciary attempting something similar was when pre-Heller progressive courts willfully misinterpreted the phrase "right of the people" in the Second Amendment to mean "right of the states."

In Arizona State Legislature, Justice Ginsberg offered this stunning assertion: "There is no suggestion that the Election Clause, by specifying “the Legislature thereof,” required assignment of congressional redistricting authority to the State’s representative body." I guess she means apart from the quoted text itself. Consider that claim for a moment. Ginsberg finds that a hardwired provision of the Elections Clause does not mean what it says before she effectively erases it from the Constitution.

Finally, we have the crown jewel of this lawless trilogy - Obergefell. The traditional test for identifying constitutionally protected, unenumerated liberties is that they are basic, fundamental and deeply rooted in our society. Same sex civil marriage is a government benefit, not a liberty, and is hardly deeply rooted in our society. To get around the Constitution, Kennedy simply proclaimed that the Court can create new fundamental rights based upon its "enhanced understanding" derived from a political campaign to change the law. I can see no limit to this newly proclaimed power, can you?

If the judiciary claims that it can amend, erase and create entirely new laws by decree, what exactly is left of the rule of law?

Said another way, is there any provision of the Constitution or law of Congress that the courts may not change at will under this lawless precedent?

These are deadly serious questions and deserve serious answers.
 

Shag:

The Ninth Amendment guarantees unenumerated liberties which are basic, fundamental and deeply rooted in society. A man and woman's right to marry without government interference meets this definition. There is no right to compel the government to establish civil marriage of any type offering benefits and recognition.
 

"Brett, a self-proclaimed anarcho libertarian and a 2nd A absolutist, is concerned with the rule of law?"

Of course I am. The rule of law is a step in the direction of anarchism, when you're starting from arbitrary governmental tyranny. The rule of law constrains government. That's why the people who run governments hate it, and try, all too successfully, to abolish it.

"Is a fundamental right to traditional marriage to be found in the Constitution as amended?"

9th amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The 9th amendment is not a blank check for the judiciary to invent rights nobody imagined. It's a guarantee of the rights which pre-existed the Constitution, which might have been considered too obvious or unthreatened to bother enumerating. The right to "marry" was absolutely among these. Where "marriage" incorporates the heterosexual nature of the institution into it's fundamental definition. Just like it incorporates the fact that the participants all have to be alive, and human...

I don't object to the Court citing marriage as a fundamental right protected by the 14th amendment. It certainly is a fundamental right. I object to them changing the definition of marriage to encompass something else which wasn't understood to be marriage.


 

"Do you actually believe that the current Supreme Court is not working toward the abolition of the rule of law?"

I don't believe it is. I hate to repeat myself (or do I like it and you keep helping me out by ignoring my points made previously to engage your sound bites), but even if the cases you cite were not just wrongly decided (and I'm not saying they were, they certainly seem arguably within judicial norms of traditions of substantive due process, interpreting ambiguity in a provision brought about by looking at other parts of the entire document, and such) but were also plain judicial travesties we still have processes to rectify them within the law, so the rule of law is not defeated. The Progressives, appalled at decisions of the Court they denounced as destructive and lawless as you and your fellow travelers do, remedied the situation via amendments and electing candidates who would nominate replacements for the Court to overturn infamous precedents. The sky is not falling.
 

"Ginsberg finds that a hardwired provision of the Elections Clause does not mean what it says before she effectively erases it from the Constitution."

Because, of course, she cites to Founding Era definitions of that including 'the legislative power' generally, a power that many states have blessed.

"The traditional test for identifying constitutionally protected, unenumerated liberties is that they are basic, fundamental and deeply rooted in our society. Same sex civil marriage is a government benefit, not a liberty, and is hardly deeply rooted in our society. "

I can't let this one pass either. Kennedy explains that he rejects the Glucksberg test that says the Court must define the right in question at that specific of a level, moreso he cites cases to the effect that the Court has not followed this Glucksberg test on other occasions (as a Balkinization OP recently noted, it seemed to only be the accepted test of those who didn't care much for substantive due process in the first place, not the Court itself). Therefore he defines the right at a broader level-the right to marry (and in today's society that means the right to participate in civil marriage), the same right as Joe notes was seen obviously as a right by the famed 'libertarian' Court in Meyer, and then asks if there's a good reason to keep gays from exercising the right. Perhaps this move is unpersuasive, I certainly would have liked to see the decision rest on firmer textual grounds such as the EPC, but it's borderline disingenuous to ignore that he explains why Glucksberg is not followed or to ignore cases like Meyer, Turner, Zablocki, etc, which abounded with the language of a 'right to marry.'

 

"Marriage" in 1791 was understood to involve certain roles of men and women. Today, men and women's roles in marriage are understood to be quite different.

Brett appeals to history, but selectively respects it. The people who wrote the Constitution spoke of how the text was only "general" so that it could be "accommodated to times and events" including changing understandings of the nature of homosexuality and gender dynamics. So, e.g., "equal protection of the laws" is not reliant on the knowledge of the past.

The framers were men of science and accepted change with new information arose. Open-ended provisions like "due process" and unenumerated rights allow for this. Marriage is a social institution which changed over the ages. It is not like an oxygen atom that is fixed "heterosexual" or reliant on coverture, which was seen as no less obvious of a component (see Blackstone) as a man and woman.

Picking and choosing here is on some level unprincipled and more policy than "rule of law."
 

Mr. W:

The Elections Clause did not grant redistricting power to the "state legislative power," it expressly and unambiguously granted it to the state legislatures. Similarly, Section 8 of Article I granted a list of powers to Congress, not some "federal legislative power." The Constitution nowhere grants the state and federal legislatures the power to delegate those granted powers to other entities. The bottom line is that Ginsberg and the other four justices prefer unelected and generally progressive commissions to perform redistricting, so she erased the Constitution's express grant of that power to state legislatures.

I have elsewhere addressed the lawless and self-contradictory doctrine of substantive due process and Kennedy's expansion of that doctrine to previously unseen extremes. Let's move on to equal protection.

To make an equal protection case, the plaintiffs have to show that homosexual unions are similarly situated to heterosexual unions and then that state governments have no rational reason to maintain a several millennium old definition of marriage as the union of a man and a woman. Kennedy did not even bother applying this test and his equal protection reasoning is largely indistinguishable from his substantive due process reasoning. He reduced marriage to nothing more than a contract for government benefits and recognition, then held that same sex couples should be able to enter into this contract like opposite sex couples.

Kennedy's approach here is very similar to Jack Balkin's self-contradictory theory of "living originalism." Professor Balkin expands provisions of the Constitution to principles so broad that you can fit nearly anything you want under the resulting umbrella.

Eviscerating the law of meaning is the same thing as eliminating it all together.

Once again, how can you believe the current Supreme Court is not working toward the abolition of the rule of law?

 

"The Elections Clause did not grant redistricting power to the "state legislative power," it expressly and unambiguously granted it to the state legislatures."

And as Kagan noted, Founding sources defined 'Legislature' expansively to include 'the legislative power' in general, so you're just going in a circle here, passing by the same way station we've already discussed without seeming to register it. Now, perhaps that's not the best ascription of the meaning of what would have been understood by the Founding generation, but it does show that it's not just as simple as 'see, it says Legislature, so there's no other possible interpretation save lawlessness!'

"He reduced marriage to nothing more than a contract for government benefits and recognition"

And here I thought one of the chief criticisms of the opinion was it's over-the-top, dignity bestowing romanticized view of marriage as the chief vehicle for life fulfillment! Conservative critics need to get their stories straight ;)

"I have elsewhere addressed the lawless and self-contradictory doctrine of substantive due process and Kennedy's expansion of that doctrine to previously unseen extremes."

Again, you don't like substantive due process. I get that. But don't act like this is some thing Kennedy has just birthed-substantive due process has been around since Bloomer v. McQuewan and has been used to strike state laws by possibly the most libertarian of Courts (Meyer, Pierce), Courts which themselves explicitly noted the 'right to marry' in those decisions, and then has been used in many cases since then. I agree with you that substantive due process is uniquely vulnerable doctrine, but the Republic has survived it's invocation over a dozen times and is going to get by here as well.

 

Brett's:

"Of course I am. The rule of law is a step in the direction of anarchism, when you're starting from arbitrary governmental tyranny. The rule of law constrains government. That's why the people who run governments hate it, and try, all too successfully, to abolish it."

seems to be suggesting that "the rule of law" leads to anarchism. While "the rule of law" constrains government, it also constrains individuals (sometimes even corporations). So perhaps Brett feels constrained by rules of law that might afford others protection from his desires. Can pure anarchism survive without its community developing some "rule of law" to address disputes, or is it the law of the wild, wild West that governs anarchism? Who and how is "the rule of law" established whether in government or in anarchy and how is "the rule of law" enforced in each? Brett loosely uses "tyranny" as he did pogrom earlier. Perhaps Brett believes that "the rule of law" is innate, fixed for all time, perhaps set by the Creator and is and has been universal. Or maybe the Creator was an anarchist. Perhaps Brett's Golden Days were in a time of anarchy, but did he live them first hand, rejecting the social contract? Or is he once agains "Whistling Dixie"?
 

Of course the rule of law leads to anarchism. Just not all the way there. But starting from where we are now, it's the first part of the journey.

I personally think the Arizona case was defensible. Not on the basis that "legislature" means "the legislative power". On the basis that the federal government, Congress specifically, is constitutionally authorized to take over those election related decisions. State control over election law is merely the default, not constitutionally mandated:

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

There's a colorable argument, much stronger than a lot of what passes for constitutional reasoning today, that by legislatively approving of the independent commission districts, (The ruling noted that Congress had amended the law to account for them.) they had fallen under the bolded portion of the above clause.

I wouldn't have gone there myself, not a direct enough exercise of the legislative authority. But you have to be able to admit when disagreements are reasonable, if you're going to call some of them unreasonable. And reasonable people could disagree about this.
 

What came first, the chicken or the egg? Let's adapt this to Brett's:

"Of course the rule of law leads to anarchism. Just not all the way there. But starting from where we are now, it's the first part of the journey."

What came first, anarchism or government? Do we go back to Genesis I when there was no need for government, with only Adam who had 'em. Then we had the ribbing, and along came Eve, to keep Adam company, no, not in the nasty way, merely companionship. There was no rule of law on marriage. But along came the snake in the grass resulting in luring them to violate the rule of law by eating the fruit of the tree of knowledge. [Did the creator want to keep them dumb?] That led to the nasty, original sin. We've come 6,000 years since then [cite Rick Santorum and Mike Huckabee] And we continue to pay the price of original sin, now with a cast of billions. During those 6,000 years governments of various types were formed, evolved, based upon the rule of law, which it turns out was not universal. So governments challenged each other and continue to do so today. So, the rule of law, what is it good for? [cite Elaine on Seinfeld on "What is war good for? Absolutely nothing."] Brett's answer seems to be it's the first part of the journey to anarchism, apparently Brett's promised land, with a goal to undo original sin, and restore the Golden Age of Adam and Eve as good buds. But keep in mind that without original sin, would there have been any need for government as there would not have been a cast of billions?

I respectfully dissent.
 

Mr. W:

And as Kagan noted, Founding sources defined 'Legislature' expansively to include 'the legislative power' in general

Ginsberg (not Kagan) admitted that citizen initiatives did not exist when the Founders drafted the Constitution and were progressive creations a century later. Legislatures were the only state legislative power at the time the Constitution was drafted. Thus, even if the term "legislature" could possibly be in any way vague, the drafters of that word could not possibly have meant citizen initiative. Ginsberg does not cite "founding sources," she grounds her erasure of the text of the Constitution on interpretations of past court cases.




 

Mr. W. shares the belief of various people that the ruling should have been more strongly based on EPC grounds. I think the usage of the "right to marry" grounds was overall a more positive approach & akin to many in the movement toward marriage equality take. There is marriage & they shouldn't be denied it. It's sort of a content based freedom of speech approach, which if looked at a certain way is a sort of equal protection argument. So, e.g., a case once held that a locality could not favor certain types of picketing over others on EPC grounds. But, like the religion clauses, free expression also has an equality component.

BTW, the positive gung ho "marriage is great" tone of the opinion along with even the schmaltz is part of the overall message in the political movement too, which is likely to affect how courts see things. Marriage is great, look how lovely me and my partner are with our kids. We are just trying to be part of the wonderful institution of marriage with who we love. Marriage isn't always that sweet, obviously, but that is often the general image.

Finally, a right to marry is not only a long held right (and as the majority opinion notes, used in an open-ended and changing way so e.g. coverture might be "traditional" but in time it was seen as not part of the right) but if you use equal protection, the general rule is that a "fundamental right" requires closer care. Anyway, equal protection would still have to examine why same sex couples are not being treated unequally. If "marriage" does not by definition include them (like jury duty might require being able to see), it wouldn't be invidious discrimination. Also, as to level of scrutiny, that has in general not been used in many cases in recent years.

Plus, if sexual orientation was given heightened scrutiny, the opinion would actually be more activist. And, maybe it confuses Roberts et. al. (who could have dissented without the vitriol esp. Roberts, whose dissent is disappointing even if I thought the result wrong), but past cases DID show a "synergy" between equal protection and due process rights. Is this another case where funny sounding words lead people to immaturely not be able to comprehend (or even try) the basic principles? Loving v. VA also showed the connection. The government should be particularly careful when dealing with rights in denying them without good reason to specific groups of people, especially those with a history of discrimination and arising from personal characteristics not relevant to the issue at hand.
 

Brett:

Of course the rule of law leads to anarchism.

Anarchism is the lack of government rule.

The rule of law does not eliminate or even necessarily limit the scope of government control over the people. Rather, it constrains the government from arbitrarily ruling by decree.

Different subjects.
 

Bart: If you're in Ann Arbor, MI, I-94 won't take you all the way to Miami, Fl. But you'll certainly spend some time on it if you're trying to reach Miami. In that sense, the rule of law is part of the road to anarchy. Given where we are now, without it. From an anarchistic standpoint, constitutionally limited government and the rule of law would be a HUGE advance in the right direction, even though it would never get you all the way to anarchy.

And, yes, constraining the government from arbitrarily ruling by decree does necessarily limit the scope of government control over people; At any given state of the 'law', the rule of law takes off the table actions which it's absence would permit, even though a different state of the law might permit them consistent with the rule of law. "Constraint" is a "limit", trivially.
 

Our dyslexic dynamic duo dissenters, Brat and Bert, are not in sync on anarchism/rule of law.
 

This comment has been removed by the author.
 

Brett:

I suspect we have different definitions of anarchy. My definition is the absence of government rule.

If anarchy is the absence of government rule, then the rule of law is by definition the antithesis of anarchy.

Now, if you are arguing that the rule of law is a necessary prerequisite for limited government, we are in complete agreement. That is why King, Arizona State Legislature and Obergefell, on top of all the dictatorial lawlessness of this administration, scare the hell out of me.
 

Brett provides the GPS for his road to anarchy. Destination Miami? Well, actually Bush v. Gore (5-4) electing George W. president in 2000 by stopping vote counting in FL was a sort of road to anarchy for the next 8 years, ending in the Bush/Cheney 2007-8 Great Recession. But that wasn't trivial. Will the dissing between the dissenters continue?
 

Yes, the rule of law is a necessary prerequisite for limited government, and limited government is a step along the road to no government. You limit it more and more, until it isn't there anymore.
 

Yes, the rule of law is a necessary prerequisite for limited government, and limited government is a step along the road to no government. You limit it more and more, until it isn't there anymore.
# posted by Blogger Brett : 9:36 AM


You would love Afghanistan. Lots of guns and no government.
 

How can anarchists "govern" in a state of anarchy? Is Brett suggesting that that would be oxymoronic? Might "unalienable rights" and/or "natural rights" be considered rule of law in a state of anarchy (assuming such "rights" are universal)? How would Brett anticipate the treatment of LGBT in a state of anarchy?
 

BB provides a GPS for Brett. But this may be a road not taken.
 

I'm pretty sure you will be very happy with their views on SSM, as well.
 

To get back in the direction of the topic of this post, my next read is Michael J. Perry's "Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment." Larry Solum at his Legal Theory Blog provides a link and gave this his "Highly Recommended." Today is (mostly) liberals lunch, so I may not get to the article until later today or tomorrow.

I assume there is no rule of law in the state of anarchy on marriage, since anarchy is the absence of government and the rule of law according to our resident experts. Maybe they could emulate Bob Hope and Bing Crosby by co-starring in "The Road to Afghanistan." That would be great "On Demand."
 

I'm never going to remember that case title.
 

Just think of it as Mfphrght vs Hodges. I do.
 

"Mr. W. shares the belief of various people that the ruling should have been more strongly based on EPC grounds."

Joe, I can see where I might have given that impression, but that's not quite right. I think Substantive Due Process is a doctrine that is, at least theoretically, more vulnerable to the charge of justices 'making stuff up for their policy preferences' than many other doctrines. But I also think it's a long accepted part of our jurisprudence, that it's now become the only real way to vindicate unenumerated rights (the existence of which certainly was explicitly contemplated by the BoR) and that Kennedy's opinion actually does a good job of reaching his conclusion based on the line of precedent's involving the recognized 'right to marry.'

I think it's worth asking, especially from the point of view of the Court being an institution that must walk the line between following the law when its unpopular but also one whose ultimate authority rests upon perceived legitimacy, whether the Court should try to, if it reasonably fits, choose the avenue for vindicating rights that at the least wards off attacks on its legitimacy the most. Here that might have taken the form of focusing more on the EPC grounds (which Kennedy seemed to imply could also have decided the case) and less on the DP grounds.

Having said that, after reading the comments by conservatives here and elsewhere, especially the tendency to over-the-top, apocalyptic hyperbole in nearly every bit of partisan upset experienced by them, I'm not sure it would have made any difference. 'Pogroms,' 'dictatorship' and 'the end of the rule of law' were probably going to be trotted out regardless of, and unrelated to, whatever the opinion might have said. Boys or men that cry wolf earn that conclusion (though in their defense I guess it can be said there eventually is a wolf at the end of that story).


 

Well, yes, they would be, because the "pogroms" remark didn't have anything to do with the Court, as such. Just that they gave activists a further opportunity to engage in the sort of legalistic vendetta against their opponents they've already been doing.

And a ruling in this direction was never going to be well received, no matter how it was written, because there wasn't any way to actually justify it. It's not an accident the opinion was unpersuasive for anyone not already devoted to the cause, (And widely regarded as a piece of legal causitry even by those who approved of the outcome.) there wasn't any good reasoning available to reach that outcome.

Look, the Court can't impose the personal views of 5 of it's members on a nation that has democratically chosen other views, without any serious basis in black letter text, and still be viewed positively, not matter how they write the opinion.
 

The battles over constitutional interpretation/construction continue in full force with the end of the Court's term, with perhaps high anxiety [I wonder what Mel Brooks is doing?] for the next term. The Court's (sometimes) originalists, Scalia and Thomas, seem not to have been persuasive with the Chief, Kennedy and Alito (although Alito has aligned with Scalia and Thomas as the Mediterranean wing of the Court).

This will be a long weekend. So I have to line up reading materials on my continuing search for the Holy Grail of constitutional interpretation/construction. Calvin J. TerBeek's "Originalism's Obituary" is on my list although it's possible this may be an update of an earlier draft which I may have read. (Links are available at the Legal Theory, Legal History and Originalism blogs.)

Earlier this week I had read Francis J. Mootz, III's "Getting Over the Originalist Fixation," which does a number on Larry Solum's "Fixation Thesis" that is central to much of the "new originalism. Despite Mootz's tap dance, Solum gave this article his "Highly recommended." Mootz has written extensively on legal hermeneutics, which I lean towards. He points to the lack of expertise in certain critical fields - history, linguistics, etc - on the part of the members of the Court, making it difficult determining the meaning of text back when per the fixation thesis espoused by Solum and other new originalists. [Our host at this Blog is not so fixated with his "LIving Originalism."] Solum provides a link to his "The Fixation Thesis."

I followed up with a read of Daniel Farber's "The Declaration, the Constitution, and the Interpreter's Dilemma: An Essay on Historical and Iconic Meaning." Solum provides a link to this article as well as to his "The Fixation Thesis," but does not make any recommendation. Farber concludes with a criticism not only of originalism but also of non-originalists. Our host, Jack Balkin, had recently stated, in effect, that we are now all living originalists. Farber doesn't say this but Jack sounds better as time goes on.

TerBeek's obit might have a take on "Living Originalism." But Jack might address the current trend, as Scalia and Thomas are originalism dinosaurs.

I'm laboring through Perry's concurring opinion in Mfphrght vs Hodges. So far it has too many footnotes for even an imagined concurring opinion.
 

Brett's:

"Look, the Court can't impose the personal views of 5 of it's members on a nation that has democratically chosen other views, without any serious basis in black letter text, and still be viewed positively, not matter how they write the opinion."

seems to challenge Bush v. Gore (5-4), obviously unintentionally.

 

Mr. W: I'm not sure it would have made any difference. 'Pogroms,' 'dictatorship' and 'the end of the rule of law' were probably going to be trotted out regardless of, and unrelated to, whatever the opinion might have said. Boys or men that cry wolf earn that conclusion...

As Shag is reading: Calvin J. TerBeek's "Originalism's Obituary," Francis J. Mootz, III's "Getting Over the Originalist Fixation," Larry Solum's "Fixation Thesis


Crying wolf about "the end of the rule of law?" Really?

The progressive legal community is dancing around the dying body of the rule of law as we post.

Our Republic was nice while it lasted.
 

Alas, our well-follicled oracle from the Mile High State (of mind) must be high on something else, not being aware that originalism, in its various forms, is fairly recent historically (as well hysterically). His adaptation on Ben Franklin (1787) with:

"Our Republic was nice while it lasted."

fails to provide a timeline for when it ended. Was it with "The Gilded Age" (which he has often described as America's best days) demise in the 19th century or with King v. Burwell, Obergefell v. Hodges and the Arizona anti-gerrymandering case with the end of the Court's recent term that " ... scare the hell out of [him]" while the heavens seem to be applauding the benefits of healthcare for millions, love equality without procreation and more representative districts (all Mom and apple pie) to celbrate the Fourth of July.
 

Our well-follicled CO-inhaling oracle makes this observation:

"The progressive legal community is dancing around the dying body of the rule of law as we post."

neglecting that many non-progressives in the legal community supported SSM on originalist grounds.

I do admit that some of us progressives enjoyed "Bree" while drinking chablis, speaking of running things down the flag pole.

 

Mr. W. my remark that: "Mr. W. shares the belief of various people that the ruling should have been more strongly based on EPC grounds" comes from this comment of yours: "I certainly would have liked to see the decision rest on firmer textual grounds such as the EPC."

But, thanks for your reply. I'm unsure how relying more on EPC would convince more people on the margins. How would that go? First, per Prof. Lederman's latest, there is more of a chance of comments like Posner that make dissenters look like unreasoned bigots, especially to the degree it relies somehow on animus. Second, equal protection would require showing how the two parties were in effect the same here as to marriage. Which few (even Brett) doubt is a fundamental right; the debate is its contours.

Those who don't think "marriage" means "two men" would reject EPC too. Writ large, legal niceties don't worry people that much. And, the general public accept substantive due process. They think certain unenumerated liberties, like marriage, are so important that they must be protected. They debate details.
 

"activists a further opportunity to engage in the sort of legalistic vendetta against their opponents they've already been doing."

Where was all this when, for decades, anti-discrimination law has been covering everything from gender, to marital status, to religion and in some states smokers! Smokers, religious people, etc., apply to be covered by anti-discrimination laws, win the protection, and then file lawsuits under those laws, but the moment some states pass similar protections for sexual orientation and it starts being invoked it's 'pogroms!' No animus indeed...

"And a ruling in this direction was never going to be well received, no matter how it was written, because there wasn't any way to actually justify it."

Well, thinks for confirming my suspicions there.

"unpersuasive for anyone not already devoted to the cause"

Are you talking about the lawsuit and dissents in Burwell? Because that certainly applied there. I can't think of one person who wasn't dead set against the ACA who bought that one.

"the Court can't impose the personal views of 5 of it's members on a nation that has democratically chosen other views, without any serious basis in black letter text, and still be viewed positively"

And now you're talking about Shelby County (among other cases)?

These aren't tu quoque's but pointing out inconsistent reactions to similar stimuli, differing really only in the partisan desired outcome...
 

"The progressive legal community is dancing around the dying body of the rule of law as we post.

Our Republic was nice while it lasted."

We've covered this, it's laughable hyperbole.
 

"the Court can't impose the personal views of 5 of it's members"

The Court, as it did in D.C. v. Heller and a range of other 5-4 opinions, did not rest on "the personal views" of its members, but on long held legal principles.

"democratically chosen other views"

Putting aside that same sex unions (I phrase this since some measures block even domestic partnerships and the like) were specially blocked by state constitutional measures, constitutional rights are not merely subject to vote.

So, it boils down to a difference of opinion on long disputed constitutional principles.

"without any serious basis in black letter text"

"Equal protection of the law" seems to be a "serious basis" and fairly "black letter" text & the opinion explains (citing loads of precedent aka law not "personal views") how that worked with due process to decide many questions including those in the area of personal rights in this area of law.

The right to marry has for over a hundred years been considered "without a doubt" (quoting a conservative justice) a "liberty" under the Due Process Clause. Nonetheless, the 9A alone suggests "black letter" text is not the only way the Supreme Court decided things by LAW (going back to McCulloch v. Maryland where the "spirit" of the Constitution served as one check on the Necessary and Proper Clause). There is no "black letter text," e.g., that says states should have immunity except for the limited one provided by the 11A. But, that has long been the understanding of the Supreme Court at times based in 5-4 opinions.


There was a good legal argument for the outcome. One not just supported by "Democrats" as shown, e.g., by a brief in support signed by loads of Republicans. The dissents are weak based on arguments repeatedly refuted by court after court, multiple times ones with Reagan and Bush nominees involved. But, granted there is a LEGAL difference of opinion here. That should be the focus. Some though can't admit to this. It is merely "personal policy choices."

This is wrong when made by either side. But, there is nothing novel here. Cries of personal infamy here goes back to the constitutional debates of the 1790s.


 

Joe

I still stand by that comment, I just don't think it necessarily means what you think it does. I guess I didn't explain myself well in my most recent reply to you. My point is that I think grounding unenumerated rights (which, by definition are not grounded in the text) in the due process clause is, on a de novo view, hard to defend. But the Court long ago went this route instead of developing a 9th Amendment jurisprudence or perhaps something with the P&I clause, which would have been a more textually sensible one in my opinion. For better or worse, it's the vehicle we have now, but of course it will always be open to the natural criticisms against any jurisprudence of unenumerated rights (it will always be open to the charge of 'you're just making up or picking and choosing your preferences as rights') plus the charge that the right in question seems to have little to do with due process. Rooting the opinion in the EPC clause would have seemed more textually grounded to me, and that might have been seen as creating a further bulwark against some of the expected push back against the decision.

Having said that, given that we do have a long established jurisprudence of due process, and given that jurisprudence has long made reference to and invoked a 'right to marry,' I think Kennedy's decision is firmly grounded in that precedent (note I said precedent, not text, alas unenumerated rights cannot be grounded in text firmly).

"Those who don't think "marriage" means "two men" would reject EPC too."

Of course many would, as Brett admits. I suspect beyond this definitional game of what is 'essential' to marriage (something that exists at the axiomatic level in my opinion, no one who just 'sees' gender as essential to the concept is going to be persuaded otherwise and vice versa) there's a general animus toward the 'ickiness' of gay anything behind a lot of that. But at the least, if the opinion were grounded in EPC, the reply could be 'ok, you see gender as essential to marriage, but lots of otherwise reasonable people do not, and all those people on the Court did was apply traditional EPC tests to this group's exclusion.' They could argue the Court misunderstood the nature of marriage (again, a pointless debate about axioms), but they couldn't argue (at least in any way one need respect) that the Court had 'made up' the jurisprudence behind such a hypothetical decision the way they can with substantive due process grounds.
 

I'd add that re-reading the opinion, it is to me a rather impressive document. I might have tinkered with it some but even the alleged over the top saccharine "dignity" of marriage stuff really is exaggerated. The fact that marriage has changed over the years and the expanding nature of it has been recognized in the fundamental rights context was covered too. Again, coverture is a prime case here.

And, to the extent people don't like the fact that rights develop over time, that is a long debate. A 1908 opinion, e.g., rejected the "8A means what was banned in 1791" argument. (Weems v. U.S.) Boyd v. U.S. rejects that as to the 4A. Except for maybe two justices (one at least "faint hearted" about it), all the justices agree. They just debate scope.
 

Mr. W: I'm not sure how much we actually disagree on what "you meant" but I don't think it matters that much really.

Anyway, the right to marry isn't "de novo," as you note. That is why this isn't Glucksberg, which involved the right to affirmative euthanasia. Even to the expanding nature of marriage, that was standard. In fact, back in the 1970s even, Justice Powell in Zablocki v. Redhail feared the open-ended language would result in overturning marriage bans on various groups including "homosexuals."

If marriage is a "liberty" of long-standing, seems "textually grounded." But, the ruling was in part based on EPC. The state is denying a "liberty" (also various "property") rights to a certain group of people. The fact "reasonable" people disagree is cited by the dissent as a reason to UPHOLD. This would require showing either it isn't reasonable (Posner) or use heightened scrutiny, which would immediately make the ruling more expansive than it is. Plus would be new law.

Since they already used equal protection in part, latching on to the marriage part is to me an exercise of just trying to find an excuse. And, equal protection would require showing the states are wrong that "marriage" doesn't include same sex couples. This is the core debate and legal niceties just is not likely to avoid it writ large even if some small segment of the population cares about that.


 

"without any serious basis in black letter text"

Like those textually supported principles of "federalism" and "equal dignity of the states". I guess, per Justice Thomas, that the latter can never be taken away....
 

Joe, I didn't say the right to marry was 'de novo.' In fact, about that I said "we do have a long established jurisprudence of due process, and given that jurisprudence has long made reference to and invoked a 'right to marry,' I think Kennedy's decision is firmly grounded in that precedent." What I said about 'de novo' was that if we were developing a jurisprudence of unenumerated rights 'de nove' or starting with the text sans history we'd be unlikely to locate them in the due process clause but rather the 9th or P&I clause. But, as I said, having as a matter of history long ago opted for the due process clause, starting over from a more initially obvious source for these rights would be more problematic than just building on the foundation we've got.
 

BD: "The progressive legal community is dancing around the dying body of the rule of law as we post."

Shag: neglecting that many non-progressives in the legal community supported SSM on originalist grounds.


SSM is not the issue. No one here is arguing that the people cannot democratically define their government's civil marriage any way they like.

The issue is an unelected judiciary and bureaucracy ruling by decree in direct contravention of the law as it is written in the Constitution and statute.

There are zero "originalist grounds" for a "right" to redefine civil marriage to include same-sex unions because there is no right to government benefits and recognition for any reason. Rights are guarantees of individual liberty. If a homosexual couple declares themselves to be married, the very arguably have a liberty right under the Ninth Amendment to be free of government sanction, but there is no right to compel society to provide them benefits and recognition.

BD: "Our Republic was nice while it lasted."

Shag: fails to provide a timeline for when it ended.


Piece by piece since the New Deal. With the expansion of executive and judicial rule by decree without any real political consequences, and with the government now directing nearly every part of our lives to some degree, our Republic is arguably in its final years unless we implement some fundamental reforms over the next couple decades.
 

BD: "The progressive legal community is dancing around the dying body of the rule of law as we post...Our Republic was nice while it lasted."

Mr. W: We've covered this, it's laughable hyperbole.


Really?

Go read the gloating reaction by the Democrat media at RealClearPolitics.com and the professors here at Balkinization to Obergefell, King and Arizona State Legislature. Do you find even a single pause that the Court is ruling by decree in direct contravention of the written law? No, you will find uninterrupted celebration of this lawlessness.

What do you think the rule of law means? Do you realize that the rule of law is original meaning jurisprudence or following the law as it is written and how those words were understood when they were written? Once you understand that reality, Calvin J. TerBeek's "Originalism's Obituary," Francis J. Mootz, III's "Getting Over the Originalist Fixation," and Larry Solum's "Fixation Thesis" are all celebrating the demise of the rule of law.

Do you consider the rule of law to be a cornerstone of our Republic? Can our Republic or any republic long exist without it?


 

Anyway, the right to marry isn't "de novo," as you note.

This was not meant to express the idea Mr. W. thinks the right to marry is novel. It to say -- since he was talking about the problem of novel rights -- just the opposite. "As you note, the right to marry isn't de novo." Sorry for any confusion.
 

So according to our well-follicated CO inhaling oracle "Our Republic was nice" until the New Deal came along This is really a fast shuffle by our WFCOIO of the history of America that preceded the New Deal and ignores especially how the GOP Roaring Twenties brought about the New Deal.

Our WFCOIO apparently does not understand the issues in Obergefell and the decision (5-4) as to the application of the Constitution to SSM. I'm not suggesting that originalism provides the grounds for this decision, merely pointing out that some non-progressive legal scholars of the conservative ilk had supported the constitutionality of SSM on originalist grounds.

As to the unelected judiciary being the issue, that's a fault of the Constitution beginning with the 1787 version. The unelected judiciary, many of whom were slaveowners, protected slavery up to the Civil War. Was "Our Republic nice" during that period? And even after the Reconstruction Amendments, the former slaveowner mentality provided for Jim Crow that continued in spades until 1954's Brown v. Bd. of Education. With our WFCOIO naughty/nice Republic timeline test, presumably he is of the view in his heart of hearts that Brown post-New Deal added to the naughty side of his measure of our Republic. Leveling the playing field of America for African-Americans and other minorities beginning with the New Deal apparently has not been nice for our Republic, according to our WFCOIO.

As to " ... the bureaucracy ruling by decree, I incorporate by reference our many previous discussions on the Administrative State. It is here to stay. And the unelected judiciary does impose limitations from time to time, including just before this term ended.

It should be noted that our WFCOIO does not take Congress to task, perhaps because of the Republican current control, including via gerrymandering of House districts. This failure may also be attributed to the Bush/Cheney 8 years that gave us two wars, et, etc, pushed by GOP members of Congress in control much of that time, ending in the Bush/Cheney 2007-8 Great Recession that was just short of the GOP Great Depression that led to the New Deal, which our WFCOIO identifies as the timetable of resulting in our Republic no longer being nice.

Our WFCOIO has a New Deal phobia, as well as several others.
 

"Rights are guarantees of individual liberty."

This was a long standing philosophical view, but one that I don't think has been bought into here in the United States, if it ever was anywhere. For example, most, if not all, state constitutions have a right to an education among their enumerated rights.

"Do you realize that the rule of law is original meaning jurisprudence or following the law as it is written and how those words were understood when they were written?"

I'm afraid I don't realize that, and I think that's a rather idiosyncratic at worst and one-of-many views about the subject at best. The 'rule of law' generally has been understood as the other side of the continuum from absolute rule of the arbitrary whim. It's epitomized by constraint, by process over whim, and by everyone, including rulers, being subject to the law. None of that is betrayed by the cases you site. Take the Burwell case. Obama didn't just wish a law into existence and there it was. The law had to go through the procedures of the Senate and House laid out beforehand. Much of what Obama wanted didn't seem to get through, compromises were made in the face of the use of filibuster threats and such. Even after the law, those who felt it was unconstitutional or that its implementation was at odds with the statute could challenge the law. In a true dictatorship such challenges would have ended in the challengers being lined up against a wall and shot. How did ours end? They followed the processes laid out in our Constitution and Judiciary Acts, appearing before numerous judges and justices at various levels. Following all procedures laid out beforehand several appeared before the Court designated as Supreme in our laws. In those cases, twice challenges were turned back, once the administration's application was defeated (Hobby Lobby). Again, striking down the administration's application of a law in a true lawless,dictatorial society would end in the shooting or imprisonment of the justices who ruled so (probably their families too, of course the bringer of the suits would have met that fate well before it got to that point). In the most recent case upon which you ground your eternally recurring Chicken-Little-ism, the Burwell case, we find that six of the properly appointed justices, two of which were appointees of the party in opposition to the administration involved in the suit and one which voted the act in question unconstitutional on other grounds a couple years ago did something that you find apocalyptic, but which anyone not already squarely against the law in question thought imminently reasonable and within judicial tradition-looked at the entire four corners of the document, found tension and ambiguity, and resolved it with a consideration of results intended. Upon that result you find lawlessness!


 

Bart, you're certainly a very well informed person. But methinks you're the kind of person that, if you were a law professor, and someone turned in an essay to you that staked a position that drew well upon existing precedent but with which you ultimately disagreed, you'd not only give the student an F for the assignment, but likely for the course and also call for the student's expulsion!

Consider that in your zeal you would seemingly find Brett, who agrees with you on so many points, but also seems to find the Arizona case decision as at least OK, as representing a 'lawless' position! That's because you don't just see some results and decisions as wrong, but see them as evidence, nay, proof!, of traitorous rejection of all legal principle. That can't be correct. Whatever else can be said about the values of a democracy or republic, let's say it is this: that it realizes that life is capacious, that any society of size will have people who have different ideas about what the right result of this or that issue is, that lays down, beforehand a process for contesting such disagreement, and that when one side loses that contest, that doesn't equate to cosmic injustice necessarily...
 

Shag:

I suggest you educate yourself about the causes of the 1930-32 recession and the following years of depression. It was a perfect storm of progressive monetary, fiscal and regulatory misdirection. The following books are the most accessible for the lay person:

Amity Shlaes, the Forgotten Man

Robert P. Murphy, Phd, The Politically Incorrect Guide to the Great Depression and the New Deal

Jim Powell, FDR's Folly

The next two books are dense classic economic books:

Milton Friedman and Anna Jacobson Schwartz, The Great Contraction

Murray Rothbard, America's Great Depression

Between 1790 and 1889, the United States underwent the greatest sustained economic and population growth in world history, moving from a bankrupt colonial backwater to the worlds largest and most efficient economic power with the highest wages in the developed world.

From the advert of progressivism, socialism and populism in 1890 through he present, the United States has undergone cycles of government expansion and partial liberalizations, with economic growth falling off more as time went on until we reached the current stagnation of this our second progressive depression (recession without a recovery).
 

BD: "Rights are guarantees of individual liberty."

Mr. W: This was a long standing philosophical view, but one that I don't think has been bought into here in the United States, if it ever was anywhere. For example, most, if not all, state constitutions have a right to an education among their enumerated rights.


Our Constitution's Bill of Rights was a series of individual rights to liberty from government direction in accordance the the classical liberal thought of the time. The idea that the collective citizenry enjoyed the right to have the government take money from their neighbors and provide them with goods and services is a socialist idea that arose decades later and is nowhere to be found in our Constitution, although some some states added such "rights" to their constitutions, which have occasionally undermined our small "r" republican system when Courts have issued appropriation and legislative decrees to enforce these "rights."

BD: "Do you realize that the rule of law is original meaning jurisprudence or following the law as it is written and how those words were understood when they were written?"

Mr. M: I'm afraid I don't realize that, and I think that's a rather idiosyncratic at worst and one-of-many views about the subject at best.


The rule of law means the enforcement of law. If an executive or court can add or subtract from existing written law or create entirely new law by decree in order to avoid enforcing the law, this is the anti-thesis of the rule of law.

Let us take for example the First Amendments guarantee of free speech: "Congress shall make no law...abridging the freedom of speech." If a court rewrites this guarantee to instead state: "Congress shall make no law...abridging the freedom of speech, except if the person owns a corporation," is that Court enforcing the guarantee? Is the rule of law being served?

Now let us take the Second Amendment's guarantee: "The right of the people to keep and bear arms, shall not be infringed." If a court rewrites this guarantee to instead state: "The right of the states to keep and bear arms, shall not be infringed." is that Court enforcing the guarantee? Is the rule of law being served?

The 'rule of law' generally has been understood as the other side of the continuum from absolute rule of the arbitrary whim. It's epitomized by constraint, by process over whim, and by everyone, including rulers, being subject to the law. None of that is betrayed by the cases you site.

Really?

King rubber-stamped the IRS's rewriting of an express provision of the Obamacare statute limiting subsidies to exchanges "established by the state" and illegally appropriated billions of dollars to the federal exchanges. Is this constraint of our rulers?

Arizona State Legislature erased an express provision of the Constitution's Elections Clause granting the power to set House districts to state legislatures. Is this a constraint on our rulers?

Obergefell rewrote the democratically enacted definition of marriage in nearly 40 states. Is this constraint on our rulers in the judiciary?

Take the Burwell case..

The bureaucracy rewrote the law enacted by Congress and signed by Obama. The Courts rubber stamped the illegal act. Such abrogations of the rule of law were common place in Nazi Germany and Soviet Russia. A dictatorship does not have to execute political opponents in order to be dictatorial.
 

Our well-follicled CO inhaling oracle continues to display his amazing gracelessness with his most recent responses to me and Mr. W. Our WFCOIO reverts to his frequent claims of The Gilded Age being America's best days. And he also reverts to the role of the Progressive movement beginning after the demise of The Gilded Age late in the 19th century tying it into the New Deal, ignoring the 12 years of Harding, Coolidge and Hoover. Actually Hoover left more than a recession; the '29 crash occurred in his first year and it went downhill in the next 3 years, dumping the Great Depression on FDR's lap. Our WFCOIO provides jaded history, blinders in fact. Our WFCOIO's history is even worse than his economics, crawling from under rocks of vileness. He seems to have had a miserable life, made miserable by progressives and liberals. So perhaps on America's birthday, we are fortunate that he has failed to procreate - or adopt - as apparently he has no hope for America's future, that all are out of step except him (and perhaps Brett, Bundy, Cruz, Trump, etc). Apparently our WFCOIO came out of his funk with Bush. V. Gore (5-4) "electing" George W. as President, with our WFCOIO salivating with Bush/Cheney's 8 years virtually in lockstep. (Just go to the archives of this Blog for verification.) And somewhat in Hoover-fashion, Bush/Cheney dumped the 2007-8 Great Recession on America's first African-American President. And the archives of this Blog reveal well his phobia with Obama. His dilemma for 2016: which of the GOP Clown Car candidates to support? Or is our WFCOIO leaning towards anarchy?

In any event, Happy Birthday America. And I look forward to an even more perfect union: progress. Here's to better health. Here's to greater equality. Here's to more representative House districts. Yes, progress, two steps forward, one step back, but forward.
 

With respect to the Michael Perry imagined concurring opinion in Obergefell, Michael (I'm not Rappaport") Ramsey posts on it at the Originalism Blog with this comment:

"I found the first part of the paper (rejecting the equal protection argument) especially interesting because, as I've argued previously, I think the equal protection argument is the only plausible textualist/originalist route to requiring states to recognize same-sex marriage. But Professor Perry's contrary argument is pretty persuasive. (And I won't add any spoiler about what he thinks is the better argument)."

I'm into the second part that I should finish sometime this morning. And I do not expect to add a spoiler.
 

Check out the Legal History Blog post "Historians and the Obergefell Decision-Updated" at:

http://legalhistoryblog.blogspot.com/2015/07/historians-and-obergefell-decision.html

for links to articles on the subject.
 

"The idea that the collective citizenry enjoyed the right to have the government take money from their neighbors and provide them with goods and services is a socialist idea that arose decades later"

Wrong, education clauses in state Constitution were common even at the Founding. This is typical of your argumentation style:

You: All rights are negative ones.
Me: That's not been accepted in our nation, for instance state constitutions commonly have and had right to education clauses.
You: Those don't count because they're socialist!

The evidence is demonstrable that Americans have long and commonly accepted rights that are not negative alone. You wish they hadn't, it would be nice if everyone agreed with your political philosophy but wishes are not facts.

This is, I think, what's problematic with your overall arguments. You have a political philosophy and you think your political philosophy is the only one that is not dictatorial. Of course, lots of people disagree with you and have political philosophies of their own. The brilliant Founders of our nation proved their brilliance by designing a system with processes so that all the people with different political philosophies can, through political and legal avenues, work these differences out. Your political philosophy has often not won out under these processes, and your reply is to cry 'dictatorship!' Ironically, it's you that would like to impose a dictatorship, with your political philosophy as the rules everyone else must follow (because deviation would, in your view, be the 'end of the rule of law'). There's no conception in your philosophy that people with different ideas about the rule of law, proper application of the law, interpretations of constitutional provisions and statutes, etc., are merely reasonable disagreements within a population of diverse political philosophies, they are in your opinion totally illegitimate. It's 'your way or the dictatorial highway' which, ironically, is exactly how dictators think!

I especially note how your goal post moving in your highlighting of how you think the three cases mentioned exhibit the lack of the rule of law actually undermines your argument itself. You move from "Is this a constraint on our rulers?" in the first two to "Is this constraint on our rulers in the judiciary?" without realizing the fatal blow you've dealt your own argument, acknowledging, albeit unconsciously no doubt, the constraint on any given one of the three governmental powers by one or more of the others. How could you not given that your three examples involve different branches contesting with other branches with different results in each case? Constraining is demonstrably going on. What you're left with, as usual, is just not liking the results and replying with the tired charge of 'dictatorship' and 'end of the rule of law' at a result you don't like.




 

"Happy Birthday America. And I look forward to an even more perfect union: progress."

Beautifully put Shaq!
 

Shag:

Please read the books I recommended. Self imposed ignorance is a terrible thing.

Harding and especially Coolidge were the last classical liberals to serve as President. They cut taxes/spending by over half and both the economy in individual income soared at the fastest pace since the Laissez Faire era.

Hoover was a progressive who massively increased taxes and spending and was paired with a progressive Federal Reserve who first created a market bubble and then a sharp deflation. FDR promised to reverse Hoover's policies to get elected in 1932 and then proceeded to put them on steroids. The result was a depression where the private economy did not full recover for a decade and a half.
 

July 4th is in effect the birthday of our ideals and the legal framing how they so often are expressed. Independence itself was formally declared on the 2nd of July. July 4th was the date the DOI was agreed to.

"That to secure these rights, Governments are instituted among Men."

So, you have natural rights (for those who accept that sort of thing) and then rights are established by society "to secure these rights" in our "more perfect [not perfect] union."

Happy 4th and yes, well said Mr. S. (1776 reference)
 

I'm seeing an interesting parallel between the SSM and illegal immigration movements. Advocates of permitting illegal immigration have long followed a tactic of relentlessly refusing to admit that illegal immigration is an actual category, insisting on discussing only "immigration".

SSM advocates seem to have recently taken the same tack, relentlessly referring to same sex marriage as just "marriage".

Verbally erasing inconvenient categories doesn't make them go away.
 

Yes. Same with those who say "marriage" means men and women are equal and men don't get control of the assets. Or, that it's just this institution you can easily get out of even without fault. What is this? Surely not "traditional marriage." It would be deemed laughable to the general understanding in 1787.

Moving past sarcasm, it might be "inconvenient" to Brett, but looking at the various forms of marriage (civil, religious, secular but private) a range of people and institutions, including churches, members of both main political parties, legislatures, courts and so forth understand marriage to include same sex.

There are also rules regarding immigration. A major concern there is that some selectively label those who break them in this one area as "illegals" while let's say someone who is an unlicensed plumber isn't called an "illegal" as that is the full nature of their existence. Others think immigration, as it was for a long time (especially if you weren't a certain race), should be relatively unregulated. A libertarian might like that sort of thing. They don't "refuse to accept" current laws, but find them wrong.

Anyway, the parallel doesn't really seem quite the same for me. The changing understanding of an institution (such as a church who now thinks "ministers" can include women, even if earlier interpretations of their sacred text thought otherwise) is not the same as the immigration context.
 

I have my doubts that the public understanding of marriage has actually changed. Granted, it might change over time as a result of this ruling, if the new definition of "marriage" can be imposed on society long enough. But, at the moment, the new definition is widely accepted, except perhaps in a sense of apathetic resignation.
 

BD: "Rights are guarantees of individual liberty."

Mr. W: This was a long standing philosophical view, but one that I don't think has been bought into here in the United States, if it ever was anywhere.


Then you backed away from your original statement...

Mr. W: The evidence is demonstrable that Americans have long and commonly accepted rights that are not negative alone.

My friend, we are discussing the design of the United States Constitution and the reason why Kennedy's newly decreed "right" to government benefits and recognition through civil marriage has no basis in that Constitution.

I do not disagree that state constitutions often included aspirational provisions requiring the state legislatures to provide public education. However, none of these were considered to be enforceable "rights" until relatively recently.

http://camlaw.rutgers.edu/statecon/subpapers/tractenberg.pdf

This idea of a collective right to compel others pay for designated government goods and services is indeed a socialist proposition. The fact that this is a socialist proposition does not mean that collective rights "do not count." The reason why they do not count for the purposes of our discussion is because the Constitution does not include collective rights.


 

"I have my doubts that the public understanding of marriage has actually changed. Granted, it might change over time as a result of this ruling, if the new definition of "marriage" can be imposed on society long enough. But, at the moment, the new definition is widely accepted, except perhaps in a sense of apathetic resignation."

The people and institutions cited before understand marriage as including same sex marriage, just as at some point coverture and permanent marriage except for narrow categories no longer was seen as a required aspect of marriage. A tipping point seems to have arrived, even if there are dissenting views. Ireland is a symbol here. It was not "media created" or some sort of false consciousness or whatever term you used that sounds like you are citing a conservative academic.

It was not merely "imposed" on them. It was an ongoing process over the years that the USSC recognized, as it did in respect to other things down to legally rejecting as a matter of civil law the approach of many that interracial marriage was a contradiction in terms since God meant to separate the races.

There is not merely some "apathetic resignation." Some are resigned as they were when Loving v. VA was handed down or easy divorce or the end of coverture or various things the developed over time in society in some part helped by judicial review that is part of our system.

Some "relentlessly refused to admit" coverture was right. Because it wasn't.
 

On this Independence Day, we would do well to recall why we formed our Republic:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness...

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world...

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance...

For imposing Taxes on us without our Consent...

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever...

 

I wonder if Brett is aware that people may have had an "apathetic resignation" regarding mail-order bride marriages before and after Loving (v. VA).

Regarding our well-follicled CO inhaling oracle's recommended reading list, perhaps he was "brain-washed" in that manner, along with his unmentioned "Atlas Shrugged." But I would suggest he had nothing to be washed.
 

Our well-follicled CO inhaling oracle invokes parts of the Declaration as he sticks his head in the sands of the past, celebrating in his own mind The Gilded Age, America's best days (according to him), ruined by progressives and the New Deal. In contrast, consider Juan Cole's [Informed Comment blog] post:"Your Fourth of July and My Fourth of July" at:

http://www.juancole.com/2015/07/your-fourth-july.html

Times have changed a tad since 1776. Perhaps as I suggested in an earlier comment our WFCOIO is leaning towards anarchy.
 

Reading the Declaration of Independence is an appropriate thing to do today along with other things. Or, you can listen to it be read: https://www.youtube.com/watch?v=ETroXvRFoKY
 

I think it's a quite appropriate thing to do. Every time I read it, I'm struck by how many of the complaints sound current...
 

Shag:

In his Fourth of July post, Cole is being more than a little disingenuous. Neither Cole, you or any other progressive believes that “all men are endowed by their Creator with certain inalienable rights" You oppose “life, liberty and the pursuit of happiness, the freedom of speech, freedom of association, the free exercise of religion, the right to keep and bear arms, and the rights to contract and property, at minimum for your political opponents, often for the citizenry at large.

I am not as long winded as Cole, so let's cut to the chase:

My Fourth of July is for the land of the free, yours is not.
 

My Fourth of July is for the land of the free, yours is not.
# posted by Blogger Bart DePalma : 5:03 PM


You misspelled "delusional".
 

Since Brett is suggesting that he recently read the entire Declaration, perhaps he might declare " ... how many of the complaints [against King George] sound current..." Of course I can understand how Brett feels as a self-proclaimed anarcho libertarian and a 1st A absolutist. Presumably he's keeping his arsenal locked and loaded - but for the sake of his neighbors, hopefully he won't get loaded over more affordable healthcare for more, relief of the SSM minority, etc, etc.

Our WFCOIO cuts to the chase with this:

"My Fourth of July is for the land of the free, yours is not."

Of course he's free to leave or to stay. But back in the day of the Declaration the land was not free for the slaves and Native Americans. It took progress albeit by a bloody war to free the slaves (converted to Jim Crow) and Native Americans still get the short end of the stick.
 

I realize that Brett, our Bubba from Michigas, hasn't had ample opportunity to list Declaration complaints that sound current. As we await his hunting and pecking, take a peek at Juan Cole's "Ghosts of King George III: Top 5 Things that threaten American Independence Today" at:

http://www.juancole.com/2015/07/threaten-american-independence.html

We can cross check to see if Brett shares any of them. Should be Bubba-licious - and a tad Michigas.
 

Strange thought that, on the 4th of July, I might have spent most of the day grilling with friends and watching fireworks, rather than attending to Shag's assignment.

What a pithy description of the regulatory state: "He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance."

The use of 'international agreements' that don't even seem to need Congressional votes looks pretty much like, "He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:"

I can certainly identify instances of "For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:"; Lon Horiuchi still walks a free man, by exactly that means.

"For depriving us in many cases, of the benefits of Trial by Jury:" Over 90% of cases no longer to to trial; The practice of vastly over-charging, and then offering plea bargains, has come close to eliminating the right to trial by jury: You nominally have the right, but are punished for exercising it. Then, of course, there are all sort of other ways the government punishes people without trials. Operation Chokepoint, anyone?

"For transporting us beyond Seas to be tried for pretended offences" Extraordinary rendition.

The list isn't complete yet, but they're working on it.
 

"Our Declaration: A Reading of the Declaration of Independence in Defense of Equality" by Danielle Allen was a very good book and in apt as well for a discussion of the ruling since it too showed the connection between "liberty" and "equality."

Also, is this comment in the majority opinion a dig at the dissents?

"In accordance with the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues."
 

The first one of Brett's "abuses" given his predilections is obvious though it would help if he was more consistent about his concern of governmental power.

I'm not sure what "international agreements" are at issue here (trade agreements, e.g., need congressional support) and various executive agreements are not "foreign to our Constitution" etc.

Lon Horiuchi was a FBI sniper involved in Ruby Ridge. As a federal official, he was subject to federal jurisdiction. Not sure how that is a "mock trial." It was not removed from domestic courts and tried overseas. After a federal appeals court said he could be tried, an elected state prosecutor felt the state could not make the case. Others disagreed.

Trial by jury still exists; Brett there moved the goalposts. Brett finds "equal protection of the law" as applied in the Obergefell not clear "black letter law" but "close to eliminate" means quite often voluntary pleas or the risks one takes when insisting on the still present right to jury. It is clear that the power of the state puts much pressure on people here (strangely though he repeatedly focuses on "Democrats" though Republicans are as a whole more pro-punishment) in troublesome ways. But, the right to jury still exists.

Extraordinary rendition is very troubling but involved taking foreigners from other countries and from what I can tell they are alleged to have done "real" offenses, not citizens ("us") from this country overseas. Which is what the concern of that "abuse" was.

I'm sure various examples can be provided -- played that game in the past myself -- but interesting how it was done here.
 

I think it's certainly fine to read the Declaration as it's a rather momentous statement of a step forward for liberty, equality and representative democracy in the world, but I think it should be paired with something like the the Emancipation Proclamation, perhaps the Brown v. Board of Education decision, or while a bit more 'rabble-rousey' Frederick Douglass' Fifth of July speech so that we can be reminded about how achieving those values is much more of a long fought process rather than some ossified moment in time.
 

"obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither"

So King George was against a pathway to citizenship!

This is just a little fun here, but part of what I think is a more serious lesson: the value of things like the Declaration of Independence come not from an attempt to shoehorn current policies and activities into the literal categories in it, but to discern the broad principles embodied in it and try to look at our current practices, recognize any tension there, and try to rectify it using the processes of law established. When I read the Declaration I don't see a principle of smaller government per se, while there are indeed parts like the conservative's favorite "erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people" a great deal of the grievances involve efforts by the Monarch to thwart the attempts of the colonists at effective governance ("refused to pass other Laws," "forbidden his Governors to pass Laws of immediate and pressing importance," "refused his Assent to Laws", etc.,). Clearly the Founders saw the obstruction of the effective conduct of government as a problem as well as the overbearing use of government.

Instead, the broad principles that pop out to me are:

1. The importance of an effective government that can act to solve problems (whether those problems be of 'population of the states,' dealing with 'merciless Indian Savages' (!)); we see a chief grievance involves the Crown's thwarting of the attempts of the colonists to govern themselves effectively ('dissolved Representative Houses repeatedly,'refused for a long time, after such dissolutions, to cause others to be elected...the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within, etc.,)

2. But a government that does not violate civil liberties (quartering, impressment, denial of trial by jury and failure to hold government agents accountable under law are all denounced)

3. And a government that is representative of the people ("imposing Taxes on us without our Consent,' 'suspending our own Legislatures, and declaring themselves invested with power to legislate for us', etc).
 

"It is for us the living rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us"
 

In following up Mr. W's comment, it should be kept in mind that the Declaration was not formally "amended" or even designed to be "amended." Many over the years and currently look back to the Declaration as informally "amended" by the combination of the Civil War, the Emancipation Proclamation, the the Reconstruction Amendments, Brown v. Bd. of Educ., the 1960s Civil Rights Acts, that have given new meaning to the Declaration, especially on the Declaration's "all men are created equal [etc] statement, in effect creating values of equality for more in America. We are not there all the way, but we are making progress, sometimes two steps forward, one step back, with forward momentum.
 

While the Declaration arose from a revolution, it indicated that a revolution - or several of them - could be justified in the future under certain circumstances. America has not had a second revolution as yet. (The Civil War was not a revolution.)

The Sunday Book Review Section of the NYTimes lead review "By the People" and "Wages of Rebellion" by George Packer caught my attention. Conservative Charles Murray is the author of "By the People, Rebuilding Liberty Without Permission" and progressive Chris Hedges is the author of "Wages of Rebellion." Packer critiques both, closing with this:

"Our elites have led us to a dead end, but our populists, barricaded in their corners, lack the clarity of vision to find a way out. It's hard to imagine that we'll get better elites anytime soon. In the absence of a revolution, we have to hope for better populists."

(For those who do not subscribe to the NYTimes, a link to this review is available at the Legal History Blog's Sunday book roundup feature.)
 

Shag:

Packer, Murray and Hedges can at least see the corrupt alliance between big government and big business, but Packer and Hedges appear to be oblivious that big business can game big government for its own benefit because progressive government slipped nearly all of its constitutional leashes and is now directing almost every area of our economy. If the government did not possess the power to direct the economy, there would be nothing for bug business to game to benefit itself and to harm small business competitors. I wonder if Murray realizes this.

I have just ordered Charles Murray's book to find out. (Thanks for the tip.)

If the Packer review is complete, though, Murray is too small "c"conservative in his prescription. Massive and inexorably increasing regulation is indeed a clear and present danger to what is left of our Republic and is one of the primary reasons why progressivism is unsustainable, but it is not the only danger and reason. Government taxing, borrowing, spending and the welfare state are equally clear and present dangers and and are also unsustainable. See Greece and the rest of the EU.

Nor will establishing what is effectively insurance for business disobedience of regulation reverse the regulatory state. The bureaucracy can and will go well beyond fines and abuse its considerable power to shut down the insurer and the business. Count on progressives in the Justice Department to pursue criminal charges to further protect the bureaucracy. There is only one cure for the regulatory bureaucracy - changing the Constitution to expressly strip the bureaucracy of all legislative and judicial powers, then sunsetting all current regulations if Congress does not enact them into law in say five years.

We do not need a better populist movement. Packer misunderestimates the Tea Party movement, which is alive, well and was the key reason why the voters across most of the country fired over 1,000 Democrats. Their problem is that the GOP establishment is only marginally less progressive than the Democrats they fired. The Tea Party needs to get behind more fundamental constitutional reform. I suspect that they will get this after they elect a GOP president in 2016 and nothing much changes.
 

I suspect that they will get this after they elect a GOP president in 2016 and nothing much changes.
# posted by Blogger Bart DePalma : 6:05 PM


These poll numbers are great news for John McCain!!!
 

Unfortunately, America possesses many of the grievances against today's national government that we had against the English crown in 1776.

He has forbidden his Governors to pass Laws of immediate and pressing importance...

See our executive and judiciary forbidding the states from enforcing Congress' immigration laws and even checking the citizenship of voters.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

Exercising legislative, executive and judicial power, our regulatory bureaucracy with its nearly 180,000 pages of regulations and an entire library of interpretations of those regulations makes the bureaucracy of the British crown appear in comparison like a band of Ayn Rand libertarians.

He has affected to render the Military independent of and superior to the Civil power.

Presidents have been going to war without declarations of war increasingly frequently. The Bush 41 and 43 request and receipt of AUMF's to go to war gave me brief hope that the Declaration of War Clause might yet have some life, but Mr. Obama killed that hope.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation...

See the president decreeing executive agreements in the place of treaties to avoid the requirement for Senate approval, but giving them the legal effect of treaties.

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States...

See, for example, the refusal to prosecute Hillary Clinton to dozens of violations of the classified materials laws and Lois Lerner & Co abusing the IRS to harass political opponents in violation of the honest services provisions of the federal fraud statutes.

For imposing Taxes on us without our Consent...

See the Obamacare bureaucracy (rubber stamped by the judiciary) providing subsidies not appropriated by Congress to the federal health insurance exchange and to bail out the exchange insurers.

For depriving us in many cases, of the benefits of Trial by Jury

See the regulatory bureaucracy exercising judicial power and the courts refusing to provide a remedy to the administratively prosecuted citizens until the administrative process has finished over years.

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments

See the progressive judiciary erasing by decree most of the Constitution's limits on our government and erasing state laws concerning abortion and civil marriage.

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

See, for just three examples among hundreds, King, Arizona State Legislature and Obergefell, and the supra discussions of these cases.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.

See the judiciary turning away nearly all the citizenry's complaints against the progressive state for violating the Constitution and laws of Congress.

Beyond the grievances listed in the Declaration, our president is inflicting on our nation something King George would not have dared less than a century after the Glorious Revolution and the English Bill of Rights of 1689 - the dispensing power relieving the politically connected from having to follow the laws of Congress.
 

Unfortunately, America possesses many of the grievances against today's national government that we had against the English crown in 1776.

# posted by Blogger Bart DePalma : 6:55 PM


Blankshot, you don't speak for America, and the polling indicates that America is pretty happy with the SSM and Obamacare SCOTUS decisions.

 

"If the government did not possess the power to direct the economy, there would be nothing for bug business to game to benefit itself and to harm small business competitors."

That's a common line among libertarians and conservatives, but I find it to be as profound as 'if a government had no power, then it couldn't abuse it!'

"See our executive and judiciary forbidding the states from enforcing Congress' immigration laws"

What chutzpah, as I've noted another one of the grievances was explicitly stated as the Crown obstructing colonial efforts to increase naturalization and migration!

"Presidents have been going to war without declarations of war increasingly frequently"

That's a terrible analogy, the military in those instances still initiates action at the command of civilian leadership. You can argue it's unconstitutional, but it's not an example of 'the Military independent of and superior to the Civil power.'

"giving them the legal effect of treaties"

If they are executive decrees then, unlike a treaty, the next administration can ignore or change them. So not the legal effect of treaties.

"See the Obamacare bureaucracy (rubber stamped by the judiciary) providing subsidies not appropriated"

Now subsidies equals taxation? Next up will be down. The grasping is getting desperate.

"See the judiciary turning away nearly all the citizenry's complaints against the progressive state for violating the Constitution and laws of Congress."

This is really what nearly all Bart's comments here boil down to: following the processes our Founders laid out, the people keep electing Presidents and Congresses that enact certain laws and also nominate/confirm Supreme Court Justices that refuse to agree with Bart's political and legal philosophy. He wants it his way; all other contrary opinions in this huge and diverse nation, for which our Founders set up these processes to sort through and reflect as best as possible the will of the majority on the whole (with some minority protections) are all not just temporary failings of his fellow citizens, but they are a parade of betrayals of our nation with their believers then illegitimate, progressives, socialists, and other betrayers of the country. In essence he's intolerant of any who disagree. It's Bart will and whims that must be imposed here, any other result is usurpation. His chicken-little-ism about despotism is striking me more and more as the deepest of projections...



 

bb:

If actual majorities of voters supported these policies, why did the Court feel the need to rewrite the law by decree?

When the polls do not match reality, get a clue.
 

Mr. W:

There is nothing profound about the observation that the politically connected cannot abuse government power which does not exist. This is common sense and one of the underlying assumptions of what used to be our constitutionally limited government.

The fact that a decree by a current dictator can be reversed by a future dictator does not make the decree any less dictatorial, or acceptable to anyone who actually believes in liberty.

We are talking about core propositions of our Republic. Didn't you learn any of this in your govermemt school civics class?

Finally, have you noticed that politicians of both parties campaign on these propositions and judge nominees promise to uphold them, before they govern in violation of them? The voters are begining to get a clue, which is why faith in government is falling to near revolutionary lows and populism is on the rise. You will get a clue eventually.
 

And who among the occupants 914 and counting) of the 2016 GOP Clown Car will the Tea Party, led by our own well-follicled CO inhaling oracle, elect as President? Right now, the honors seem to go to Donald T-Rump who after his candidacy announcement following an escalator down ride slandering Mexicans shot up first to #2 in the NH polls and shortly later #2 in Iowa polls. Sounds like the Tea Party remembers the Alamo. And T-Rump has announced how he is also #2 in many important categories of national polling, assuring he will make the GOP Clown Car FOX presidential debates destined for a one-car crash. This is definitely a T-Rump movement, inspired by the Tea Party. Yet it seems that T-Rump is not considered by any other of the Clowns as their #2. But fear not, Tea Partiers, T-Rump will always be celebrated as #2 by parents toilet training their children, cheering on a successful T-Rump movement. {Who out there remembers the parody of "You Call Everybody Darling" with this: "You call everybody number/And everybody calls you #2 ...."?)

Perhaps our own WFCOIO will reread Murray's earlier "The Bell Curve" that i assume our WFCOIO enjoyed in the colorful way Murray intended. They also seem to share the joy of The Gilded Age. So we can expect our own WFCOIO to join what George Packer refers to as "MURRAY'S REBELLION" in sort of a reenactment of Shay's Rebellion here in MA that the Framers addressed at the 1787 Constitutional Convention, perhaps with the hope that it may lead to a Second Constitutional Convention. [Comment, Sandy?] I don't plan to read either book reviewed by Packer. But I'm sure our own WFCOIO will be furnishing tidbits from Murray's screed to support his positions, including that The Gilded Age were America's best days. Check our this from Packer's review: "(His [Murray's] nostalgia for the 1880s might as well include the robber barons, who paid for legislatures the old-fashioned way.)" As a wise philosopher once said "Turds of a feather stick together."
 

Shag:

Do you actually believe there is daylight between the governance of Hillary Clinton and Jeb Bush?

Even if we elect a genuine libertarian as president, do you believe the current GOP Congress will substantially or even marginally reverse the progressive political economy? The GOP appointments to the judiciary have not.

We need more fundamental change.
 

When the polls do not match reality, get a clue.
# posted by Blogger Bart DePalma : 9:30 PM


These poll numbers are great news for John McCain!!

Blankshot, you are laughably clueless.
 

"There is nothing profound about the observation that the politically connected cannot abuse government power which does not exist."

It's about as profound as 'bad guys can't abuse guns if no guns exist.' It misses that while, yes, bad guys can abuse guns/government power that guns/government power can and often does also act as a check on bad guys.

"The fact that a decree by a current dictator can be reversed by a future dictator does not make the decree any less dictatorial"

The way you elide the fact that in our system the 'current dictator' is replaced by the 'future dictator' every four years by periodic, popular elections shows, by itself, the incredibly hyperbolic nature of your rhetoric.
 

"If actual majorities of voters supported these policies, why did the Court feel the need to rewrite the law by decree?"

The Court's job is not to rule by polls, but by precedent/law. Here there was a long line of precedent of the invocation of substantive due process recognizing a right to marry, and people filed suit in states that denied them marriage. The Court applied that precedent. Your howling about the end of the rule of law here boils down to you thinking the Court made a mistake in distinguishing that precedent from the facts of this case, an irresponsibly hyperbolic response.
 

Our own well-follicled CO inhaling oracle seems to believe that there may exist a "genuine libertarian" that might be elected President (although his/her hands would be tied-up by the GOP Congress and the GOP appointed Court). Who is this "genuine libertarian"? Is he/she one of the 14 declared GOP Clowns? Our own WFCOIO's solution?

"We need more fundamental change."

Alas, our own WFCOIO declines to elaborate in the manner of Donald T-Rump's ISIS solution. [Hey, gang, how many of you remember first hand the 1968 campaign and Nixon's secret plan for the Vietnam War?] Is this our own WFCOIO's silent call for revolution? We may have to await his read of Charles Murray's new screed. I can see the need for more "fun" - as Homer Simpson would say, in modified form: "da"! - but it is my concern with the "mental" status of our own WFCOIO regarding change that he considers "fundamental." Apparently the hills of CO are alive with the aroma of Ganja.
 

"Here there was a long line of precedent of the invocation of substantive due process recognizing a right to marry,"

And not one of the plaintifs was legally barred from marrying. They just didn't want to marry anybody they were legally entitled to, a situation anybody in an incestuous relationship would be familiar with. Wonder how long those laws will survive this ruling? I think it's a toss up whether the judiciary legalizes incest or polygamy first. But both are pretty much inevitable at this point.

The argument here really isn't about policy, but about who was entitled to make the policy decision. I suppose it's unsuprising that the judiciary decided the judiciary were entitled to.
 

Brett adds to his rhetorical flourishes:

" ... a situation anybody in an incestuous relationship would be familiar with."

As I understand it, the comments feature of this Blog is not designed as a confessional, but Brett clearly has the benefits of the 1st A's speech, press, religion clauses.

As to Brett's:

"I suppose it's unsuprising that the judiciary decided the judiciary were entitled to."

perhaps he should castigate CJ John Marshall's Marbury v. Madison (1803) regarding the role of the Court.
 

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Thanks, Shag, I won that bet. You are remarkably predictable.
 

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Brett:

Polygamy has a far longer lineage and argument for recognition that SSM. Polygamisyts have already applied for marriage licenses to start the legal process.

You could replace "same sex" with "polygamous" in the Kennedy opinion and still create the same "fundamental right." However, I do not expect Kennedy to be consistent in the applicaiton of the law, even that which he himself has created. All he has to do is decree that his "enhanced understanding" of society prevents him from recognizing polygamy.

Such is life under an arbitrary dictatorship.
 

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Mr. W:

The better analogy between limited government and gun laws are the constitutional provisions preventing government from directing our lives and laws which prevent people from criminally abusing firearms.

A dictator is someone who rules by decree by rewriting the laws of the legislature and pronouncing new law. Nothing prevents voters from electing dictators. Remember that Hiter was initially elected promising order under what he called the Fuehrer principle.
 

"And not one of the plaintifs was legally barred from marrying. They just didn't want to marry anybody they were legally entitled to"

Of course this was true in the interracial marriage situations too. Now, perhaps you think that can be distinguished upon closer inspection, but this is my point: we've gone a long way from 'dictatorship' and 'the end of the rule of law,' we're talking about a pretty specific possible distinction.
 

No, I don't expect Kennedy to immediately apply his reasoning to polygamy or incest.

I expect the lower courts to so apply his reasoning, creating a lot of facts on the ground. And I expect the Court to refuse cert on the topic for a good long while, so that plenty of incestuous and/or polygamous marriages accumulate. Then Kennedy, if he's still the swing vote, won't want to undo all those facts on the ground.

A lot easier for him to draw an arbitrary line, if there isn't a crowd that's already crossed it.
 

And not one of the plaintiffs was legally barred from marrying. They just didn't want to marry anybody they were legally entitled to, a situation anybody in an incestuous relationship would be familiar with.

The "right to marry" includes the right to marry a person without illicit classifications so all this does is debate the merits. This is akin to saying not being allowed to read libertarian books doesn't mean I am not legally barred from reading. Just not that type of books. [insert Loving v. VA reference, where the state also raised incest, polygamy and "what about the children" arguments]

Wonder how long those laws will survive this ruling? I think it's a toss up whether the judiciary legalizes incest or polygamy first. But both are pretty much inevitable at this point.

First, cousins already can marry in a slew of places & states that blocked recognition of out of state same sex marriages have recognized them even when their own states do not hand out licenses. This underlines the special treatment, including by special constitutional barriers that block regular democratic processes.

Second, same sex marriages were accepted along with same sex relationships in many states etc. for years now. Once we legalized same sex relationships was it "inevitable" that we legalized (with the equal treatment) incest between fathers and daughters?

Finally, there are differences of constitutional dimension between equal treatment between monogamous non-incestual marriages that society (which has led the way) and the courts have long recognized. The people have also accepted cohabitation of three people which would have once been deemed illegal. I don't see society-wide allowance of close family members or polygamy license-wise soon though.

The argument here really isn't about policy, but about who was entitled to make the policy decision. I suppose it's unsurprising that the judiciary decided the judiciary were entitled to.

As Mr. W. notes, the people themselves have decided the judicial review is appropriate, so it is a matter of deep differences over the proper application of details. If you are against the US Supreme Court mandating that the millions of people in states with strong gun control laws that under your lights violates the 2A not have them, let me know. If not, "who decides" is granted here.

It is a debate over details. The "policy decision" as with a slew of other things involves constitutional limitations that the people by direct democracy alone cannot do. The "black letter" law of "equal protection of the laws" is at stake as is the right to marry, which is part of a more opaque 9A and so forth.

Brett selectively relies on popular sovereignty here. It's just too cute.
 

"The better analogy between limited government and gun laws are the constitutional provisions preventing government from directing our lives and laws which prevent people from criminally abusing firearms."

If you like, but now notice in the analogy we're far from 'getting the government out of everything' (unless, following the analogy you'd like to get guns out of everything). Government/gun use has important roles to play, albeit in both cases with limits, and neither should be scaled back too much because of fears or potential for misuse.

"A dictator is someone who rules by decree"

Every decision maker rules by making decisions to some degree. What gives the term 'dictator' the emotional power you'd like to draw on in using it rhetorically is that dictators are usually thought to rule cruelly and absolutely, in an unchecked way.

(dictator
noun dic·ta·tor \ˈdik-ˌtā-tər, dik-ˈ\

: a person who rules a country with total authority and often in a cruel or brutal way)
http://www.merriam-webster.com/dictionary/dictator

The very fact that our administrations can be rendered absolutely powerless every four years undercuts the idea they rule with 'total authority.'

"rewriting the laws of the legislature and pronouncing new law"

As always you've circled back to the question of whether the laws of the legislature have been rewritten or new law pronounced in recent cases. You can't conceive that the people might have chosen officials who chose justices a majority of whom just disagree with you about what the law was as written and/or in precedent. But such is the way of most fascists, it's 'their way or the highway' on these matters, those who believe like they and traitors, no gray.



 

ETA: My speech example is not inapt since we do not have unlimited freedom of expression in this country. So, e.g., child pornography (sort of the incest of free speech) is not allowed.

Also, if incest and polygamy "accumulates" in the various social, religious, legal etc. ways of same sex marriage, the USSC might in the future recognize it as here. But, again, who is following who there?
 

"Now, perhaps you think that can be distinguished upon closer inspection,"

Doesn't take much closer an inspection, as I've already noted: The 14th amendment was right on point, legalization of interracial marraige was an anticipated effect of the amendment, and the courts immediately started implementing that effect. Only the Slaughterhouse Court's bad faith in regards to the 14th prevented the entire civil rights revolution from happening in the 1800's, including the interracial marriage part.

The 14th amendment might have been put on hold for the better part of a century, but there's no question people knew at the time it was ratified what it's implications were for interracial marriage.

The case for SSM is rather weaker, to put it bluntly. I've said it before: When the Court says that a clause of the Constitution means something, and it took 150 years for anybody to notice that it meant it, skepticism is in order.
 

joe, I will say I agree sort of with Brett and Bart about this: I don't see how the analysis used in Kennedy's decision could not but recognize a right to polygamous or even incestuous marriage.

Kennedy's opinion, for all the talk of rhetorical vaguery, actually seems to be pretty straight forward in it's analysis:

1. The 14th Amendment protects "certain personal choices central to individual dignity and autonomy"
2. One of those personal choices recognized as protected is "the right to marry" (note: there's precedent for all the preceding, that's just demonstrable)
3. Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with
equal force to same-sex couples
a. at the right to personal choice regarding marriage is
inherent in the concept of personal autonomy
b. it supports a right to a union unlike any other in its
importance to the committed individuals
c. it safeguards children and families
d. it is demeaning to them out of a central institution of the
Nation's society, for they too may aspire to the
transcendent purposes of marriage

I don't see any of that that wouldn't apply with equal force to an adult polygamous trio or incestuous couple...

This is why I think the opinion, while based solidly in a train of precedents (which may or may not be distinguishable by reasonable people, I'm just stopping here to note the difference between disagreement and irresponsible silly cries of total illegitimacy) would have been better based in the EPC clause. Kennedy's SDP analysis would seemingly make any restriction of any adult union impossible. With the EPC clause one could have argued that the restriction was a gender based one, or that sexual orientation a suspect class, or heck possibly even under rational basis with bite, could have said that the reasons for the restrictions were just not related well enough to a legitimate government interest here, but the outcome could be different with different unions (polygamy and incest suggest at least some theoretical government justifications that wouldn't exist for same sex unions).

To be clear, I have no negative recoil at all about the prospect of adult incest or polygamous unions, I'm just recognizing the point about them.


 

The Slaughterhouse Cases inhibited a wider application of the 14A, including a range of civil liberties for whites. This was a concern of many, e.g., how free speech for whites and blacks was inhibited because of fears about slavery. This also didn't mean they were only concerned about speech about racial issues here.

But, a few outliers aside, it was broadly understood at the time that the 14A had a limited effect as to social relations & interracial marriage was not understood as covered. If we are going to cite a few people here along with the opponents' "parade of horribles" argument, what is the limit here? Sex equality also had its supporters & opponents (and some supporters) argued the 14A would end coverture and so forth.

The rights of homosexuals was "noticed" before 2018 (1868+15) and as with the rights of blacks (Loving only occurring 100 years later), it took time, new understandings and development of society and its law and practices in various ways before something was recognized. This is a genius of the Constitution which put forth open-ended language for future generations to apply:

1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and

2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states.

 

"legalization of interracial marraige was an anticipated effect of the amendment"

I'm doubtful of that. The congress that passed the resolution for the 14th had segregated seating in the galleries. During ratification debates opponents of it raised the prospect of interracial mixing and supporters tended to deny that would be the result (it's hard to imagine it passing otherwise). Some courts might have seen a logic in striking down segregation laws upon its passing, but as we know most courts didn't. As Kennedy notes the implications for some practices of constitutional principles often takes time to see.
 

"Second, same sex marriages were accepted along with same sex relationships in many states etc. for years now."

Virtually everywhere by judicial fiat.

It wasn't until 2009 that any jurisdiction in the US, (D.C.) legalized SSM by the democratic process. Almost all of the jurisdictions that ever legalized it in the US did so by judicial fiat, usually in the teeth of public opposition.

So I don't think "accepted" is really the right word to use here. "Imposed" is more accurate.
 

"Kennedy's SDP analysis would seemingly make any restriction of any adult union impossible."

Why? Speech is a protected by SDP. Is "any restriction" impossible? No. It is regulated in a slew of ways.

The EPC argument again would require you to explain why the dissents were wrong to argue that "marriage" should only be protected for different sex couples. You have to then explain what marriage is and how it applies to same sex couples as it does for interracial couples. I simply don't understand how this is avoidable.

The opinion also had an equal protection component. It cited that sexual orientation has been understood to be immutable. That it is not a reasonable ground to differentiate for governmental purposes. The history of discrimination. How this was understood by changing understanding in various law, society, medicine etc. This was used to point out the strength of the SDP claim which as it notes is (I feel I'm repeating myself) something precedent did repeatedly.

Does incest and polygamy stand on similar grounds at this time? I don't deny that eventually it can be recognized. Think the case is weaker though. As some note, e.g., polygamous couples have a history of animus against them. They often rely on religious claims. But, how would EPC arguments prevent that from working?

Finally, the SDP argument put forth did put summarize the aspects of marriage. One was its bilateral nature. The opinion didn't have to go into detail here, since it is not about polygamy, but others have noted that -- unlike barring same sex couples -- that is a reasonable criteria for the liberty in question. Also, one of the four principles was family. But, as many have noted, incestuous relationships threaten families. Again, unlike same sex relationships.

There is an argument for both -- we already have cousin marriages in my state. But, I don't see the "equal force" to incest and same sex marraiges myself. And, there is room to differentiate no matter what constitutional argument is used.

So, I retain my sentiment, adding that the straight EPC argument had various other potential issues such as the breadth of the ruling, more likelihood of being negative to dissenters etc.
 

Same sex couples got married privately including by religious ceremony long before 2009. Yes, in this country we have judicial review, and when the government blocks illicitly certain things, the courts have the power to "impose" certain things. This includes when change by normal democratic process is blocked in particular for certain groups. And, the people overall accept this power of judicial review.

Anyway, the decriminalization of same sex behavior is not new & in lots of states was the result of legislative action. Likewise, same sex couples were treated equally in a range of ways. This did not as day follows night lead to incest or polygamous couples getting the same treatment.





 

"Why? "

Because when I take the four criteria that Kennedy uses to establish why 'the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples' they seem to all apply to polygamous unions too. Polygamous unions involve 'personal choice regarding marriage...inherent in the concept of personal autonomy;' they 'union[s] unlike any other in its importance to the committed individuals;' they 'safeguard the children and families' of the offspring of such unions; and it's 'demeaning to lock them out of a central institution of the
Nation's society, for they too may aspire to the
transcendent purposes of marriage.' All that applies to polygamous unions, their decisions to enter into the unions are the kind of intimate choices inherent in personal autonomy, their unions are unlike any other in importance to them, they have children that would be safeguarded by recognition, and they are denied benefits and demeaned by the denial....

If I were representing polygamous couples seeking recognition I'd point to the above analysis, much of which is taken directly from the language (albeit in the syllabus). What parts of the opinion itself would you draw a Court's attention to if you were arguing that the holding should not apply to polygamous couples?
 

Brett's observation:

"The 14th amendment might have been put on hold for the better part of a century, but there's no question people knew at the time it was ratified what it's implications were for interracial marriage."

in its first clause may be accurate but the second clause is questionable. Perhaps Brett can cite to the congressional archives on the 14th A with supportive evidence? Loving v. Va came about in 1967, just a year short of 100 years after the ratification of the 14th A. Brett expresses skepticism that " ... it took 150 years for anybody to notice that it meant it" regarding SSM." Each took a long time. Perhaps it is some solace to Brett, apparently our resident expert on incest, that the Court's decision in Obergefell covers interracial SSM, but not polygamy, incest, etc.

But to his credit Brett blames the Court's Slaughterhouse Cases for hampering civil rights more promptly following the Reconstruction Amendments such that Jim Crow would have ceased to exist before the 20th century, integrating American society, such that racial divisions would have disappeared, and we could all get along (in the spirit of Rodney King), without the discriminations that continue to divide us, a veritable Nirvana - but for the Slaughterhouse cases. But then, the Brett that is would not be the Brett that ought. I wish happiness to Brett with his interracial - now traditional per Loving v. VA - marriage. Times change. Sadly, the hearts and minds of some do not.
 

Shag, interracial marraige WAS traditional marriage. It's not like it was ever illegal in all states, and was legal from the very beginning in half of the original states.

And it certainly was brought up during Congressional debates. Granted, mostly by opponents of the amendment, as interracial marriage wasn't particularly popular even where legal. But courts did immediately start interpreting it that way, before the Supreme court put a stop to it.

There's a huge difference, I think, between an interpretation of an amendment which was widely noted before it was ratified, and was applied by the courts immediately, and one which nobody though of for a century and a half. The latter sort of interpretation is deserving of some considerable skepticism.
 

"Traditional" marriage was coverture, strict divorce laws, no sex before marriage with cohabitation assuming that & taken so far at times that in Jane Austen merely writing to a member of the opposite sex when not married was improper.

The state not all states barred interracial marriage does not mean "traditionally" it was understood wrong to deny them. It was "traditionally" understood states can bar interracial marriage. Moderate Republicans, like the one the OP wrote a book about, took this as patently clear even after the 14A was written.

A few courts held that separate but equal was unconstitutional, but it was not a widely held sentiment even here. The SC did not "put a stop" to state courts applying their own state constitutional barriers there either. The SC, with John Harlan agreeing on this point, did not think selectively targeting interracial relationships here was unconstitutional. It was a widely held understanding "social rights" overall wasn't covered.

Again, it didn't take "a century and a half" for people to recognize same sex couples are protected by the 14A including as applied to their personal associations. It did take a long time for interracial marriage to be recognized as a matter of federal constitutional law -- a hundred years. And, given it was race, it was an easier case in various ways.

Anyway, skepticism can be provided. Over time, as was understood in 1787, things once deemed skeptically or even barely conceived at all would occur though. Such is what the text leaves open. Words matter.
 

Because when I take the four criteria that Kennedy uses to establish why 'the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples' they seem to all apply to polygamous unions too.

"A second principle in this Court's jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals." Tricky one that. Also, one thing cited was how marriage was about stopping loneliness. A bit sentimental, perhaps, but family doesn't need government recognition to do that. But, if someone is a legal stranger otherwise, non-incestuous relationships do not equally apply there either.

'safeguard the children and families' of the offspring of such unions

Does not "equally" apply to incest. With genetic concerns seen as weak these days, the strongest claim against incest (and expressed in state case law on the subject in recent years) probably is along with consent (somewhat overinclusive) are concerns about familial integrity. Also, polygamy in certain ways threaten the well being of families and children. This has been discussed by various people as well.

'demeaning to lock them out of a central institution of the Nation's society, for they too may aspire to the transcendent purposes of marriage.'

EPC would include concern about "demeaning" and/or animus. The history of discrimination test would apply to some extent too including Utah even blocking people from "purporting" (maybe even for religious reasons) to be married & special federal targeting even in an era (late 19th Century) when the national government in general did not get involved in domestic relationships much at all.

If I were representing polygamous couples seeking recognition I'd point to the above analysis, much of which is taken directly from the language (albeit in the syllabus).

Yes, selectively citing (e.g., skipping a whole principle) would be useful, and a means to move the law. The states had very little offer in respect to compelling state interests here, which are allowed to override fundamental rights. They were easily refuted. Incest and polygamy bars are harder to handle. They can be but then so would equal protection arguments.
 

[I'm moving on but appreciate the discussion.]
 

Joe, you seem to be having a bit of trouble with history.

Fact: About half of the founding states never had laws against interracial marriage. They may have thought they were entitled to pass such laws if they wanted, but they didn't.

Fact: Interracial marriage was brought up during the Congressional debate about the 14th amendment. The majority may have denied that it compelled legalizing interracial marriage, but it certainly was a widely held view of the amendment.

Fact: Once it was ratified, state courts DID start striking down laws against interracial marriage on the basis of the 14th amendment.

Now, all this doesn't, IMO, add up to proof that the 14th amendment banned laws against interracial marriage. But it certainly proves that this wasn't some goofy interpretation that nobody at the time even thought of, let alone took seriously. Loving wasn't something the Supreme court pulled out of their nether regions.

Fact: Sodomy was illegal in all states at the time the 14th amendment was ratified.

Fact: Nobody at the time suggested, even as a talking point against it, that the 14th amendment mandated that sodomy laws be repealed, let alone that SSM had to be legal.

Fact: No court even entertained the notion for over a century after the 14th was ratified, or did anything but slap it down for more like 140 years after.

All of which goes a long way towards proving that the idea that the 14th amendment mandates the legality of SSM IS something judges pulled out of their nether regions.

"The SC, with John Harlan agreeing on this point, did not think selectively targeting interracial relationships here was unconstitutional."

The SC, with malice, set out to render the 14th amendment a nulity. Pace v Alabama was just part of the damage.
 

Mr. M:

We are discussing law, not decisions an executive or judge may perform in the conduct of their constitutional duties. In our Republic, we elect a legislature to enact law.

Historically, the common element of dictatorship is a person or persons revising the law of the legislature and enacting new law by decree. The dictator does not have to exercise total control or harm people.

You are making the same absolutist argument Team Obama made in stating they were not practicing socialism because they do not own and are not in control of the entire economy. In reality, no nation has ever been 100% socialist, progressive or free market. Authoritarian regimes impose hybrid political economies.

If your government employs progressivism and socialism on an ad hoc, part time basis, your government is progressive and socialist.

If you follow the laws of Congress or the provisions of the Constitution that you like and change what you do not like, you are very much a dictator.

Finally, it is immaterial whether I agree with the Supreme Court's recent decrees of law. It is an objective fact that the Court added or subtracted from express provisions of the law or created an entirely new law by decree. This is not in reasonable dispute and this is a form of dictatorship.
 

Finally, it is immaterial whether I agree with the Supreme Court's recent decrees of law. It is an objective fact that the Court added or subtracted from express provisions of the law or created an entirely new law by decree. This is not in reasonable dispute and this is a form of dictatorship.
# posted by Blogger Bart DePalma : 12:52 PM


Unless a Republican president does it. Then it's Democracy!!.
 

bb:

The partisan affiliation of the dictator is immaterial. Kennedy was a GOP appointee and still authored or signed off on all of the decrees changing the Constitution and the laws of Congress this term. Roberts authored the reprehensible decision in King v. Burwell.

Our emerging dictatorship is very much a bipartisan affair.
 

The partisan affiliation of the dictator is immaterial.
# posted by Blogger Bart DePalma : 1:17 PM


Not to you, it isn't. You can find a way to justify pretty much anything when the "dictator" is a Republican.
 

Our own well-follicled CO inhaling oracle, after walking in lockstep with Bush/Cheney for 8 years, declares:

"Our emerging dictatorship is very much a bipartisan affair."

Earlier he proclaimed:

"We need more fundamental change."

But our own WFCOIO has failed to elaborate when challenged on how he would respond. Perhaps, as I earlier suggested, he is awaiting Charles Murray's recent screed for some ideas. Is our own WFCOIO considering nullification, secession, anarchy, rebellion/revolution or some other counter measures? I remind him of the oaths he has taken as an attorney regarding the Constitution.


 

Regard "separate but equal" of Plessy infamy, how would that have applied with respect to interracial marriage?
 

Shag:

For some weeks now, I have been discussing my current book project detailing why progressivism is unsustainable and my suggested amendments prohibiting most of the progressive political economy and placing checks on the judiciary.

This is my suggested fundamental change.
 

Our own WFCOIO's response:

"This is my suggested fundamental change."

referring to his proposed work of friction exemplifies the meaning of GIGO.
 

Shag:

Why ask the question if you already intend to reject the answer?

I have better things to do with my time.
 

I have better things to do with my time.
# posted by Blogger Bart DePalma : 4:35 PM


All evidence to the contrary...
 

"the common element of dictatorship is a person or persons revising the law of the legislature and enacting new law by decree. The dictator does not have to exercise total control or harm people."

You're arguing with the dictionary again. As I've said I think it's a form of equivocation, you want the rhetorical impact that the word 'dictator' conjures in the common understanding as reflected in the dictionary definition I supplied but since you don't have something like that to refer to you'd like to say you're referring to some different conception of a 'dictator.' The understanding of a 'dictator' commonly accepted, and feared, is of an unchecked ruler. You know you don't have that (the Obama administration's positions won at SCOTUS this year a remarkably small percent of the time, some dictator that).

"It is an objective fact that the Court added or subtracted from express provisions of the law or created an entirely new law by decree."

That's light years from being 'objective fact.' In Burwell for example the Court did something Court's have been doing for a long time, they looked at the passage in light of the entire document, found ambiguity and resolved it taking intent and consideration into account. It's taking a single provision in such a literal sense that would have created a new law by decree.

Consider a will that read: "Susie shall use my money to build a house for orphans. Orphans living in the house will get money from my trust for books. If Susie doesn’t build a house for orphans, Max will build a house for orphans." A reasonable person could read that and say "that guy wants the money from the trust to go to those kids for books." A less, but still, reasonable person could I guess say "only if Susie builds the house should those orphans get that money!" But this is the kind of thing reasonable people can differ over when interpreting less-than-perfectly written law. Choosing one over the other hardly denotes lawless lack of any consideration for the will. That kind of charge is, well, pure applesauce. And I think this is why six of the justices, including two who were appointed by this administration's opposing party, who voted against the administration in the implementation of the ACA's contraception mandate, and one who voted that the individual mandate was unconstitutional, voted for the administration's position here. Some 'dictatorship.'

 

"Nobody at the time suggested, even as a talking point against it, that the 14th amendment mandated that sodomy laws be repealed, let alone that SSM had to be legal."

I'm not sure this is dispositive of much. For example, under the common law at the time the Fourth Amendment was written and proposed it was well established that an officer could search someone they arrested and seize and search items they found on him. I don't know that anyone at the time of ratification siad or would have suggested that the Fourth Amendment would find future practices of this unconstitutional. Then, hundreds of years later, came cell phones, and then smart phones...I guess Brett would be all for an officer scrolling through his iphone contents if he were arrested based on his reasoning re: the 14th and SSM...
 

"the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals."

If Kennedy is going to look at past precedents that 'assumed man woman marriage' when they talked about marriage but conclude (rightly I think) that the 'man-woman' part of that is not the essential part, I don't see how a follower of his can take that above sentence and put such import on the 'two-person' rather than 'union unlike any other in its importance to the committed individuals' (which polygamous couples could certainly say their unions are to them). Besides, there's no defense here for adult incest.

"concerns about familial integrity"

In the quoted section I take Kennedy to be talking about how marriage *recognition* safeguards the children and families of unions in question. After all, it's been argued (I don't believe it, but it's at least a 'rational basis') that *living* under same sex couples is worse for children than living under man-woman unions, so I'm not sure an argument that the dynamics of living in a polygamous household can be dispositive. But certainly, just as with same sex families, the children of polygamous unions are open to the kind of fragility, instability and demeaning that comes with the government refusing to recognize the unions of their parents.

"Incest and polygamy bars are harder to handle. They can be but then so would equal protection arguments."

But if you're talking SDP and a fundamental right then you have to have a more compelling interest to override-under EPC analysis, if you went with the idea that SSM bans are gender discrimination you could demand a substantial interest to be shown there, while with polygamy and incest 'number', etc., wouldn't be classes warranting heightened scrutiny so all you'd need is a rational basis and relationship to legitimate end of government.

 

Mr. W:

Dictionaries are useful to determine the common usage of a word at the time the dictionary was published. Not so much for describing political economies. Here is a fairly good description of the Roman dictatorship, which our emerging dictatorship most closely resembles.

https://en.wikipedia.org/wiki/Roman_dictator

BD: "It is an objective fact that the Court added or subtracted from express provisions of the law or created an entirely new law by decree."

Mr. W: That's light years from being 'objective fact.'


I understand the sophistry the Court engaged in in issuing its decrees. However, the inescapable objective fact is that the Court added the federal exchanges to a provision of the Obamcare law which expressly excluded them, erased the Elections Clause's express grant of districting power to the state legislatures, and invented an completely new right to SSM which is nowhere to be found in the Constitution or in the history of our or any other nation. I'm sorry, but you cannot get around those facts.


 

Sure, he can. Living constitutionalist; If he was looking for yes, he could get around "No!".

It's not a question of legal interpretation. It's a language problem: We have language to communicate meanings from one person to another, and living constitutionalists have resolved that they won't let it work if they don't like the meaning that would be communicated.

They've gotten themselves into a logical trap there's no getting them out of, since you use language to argue with them. Their defense against being proven wrong about essentially anything is perfect. The only real limit to this sort of thing is what they're in a position to get away with, and whether they care enough about a particular topic to ignore plain meanings.

I don't think living constitutionalists quite grasp what a huge break from reasoned discourse and rationality they've made, just to avoid admitting that a constitution written by people who held different views from their's genuinely means things they don't like.
 

Sorry, Mr. W, but there's no non-perjorative way of describing living constitutionalism.

We have a constitution written by people who decidedly were NOT liberal Democrats, and people who don't share their philosophy and aims are absolutely determined that it must be 'interpreted' to mean something they find congenial. (Because not enough people agree with their idea of what's congenial to have any hope of amending it to actually mean that.)

To do that, you have to throw out every factor that's normally used to determine the meaning of documents, particularly old ones, because they generally work, and the meaning of this document is frequently not going to be something you'd like.

So you can't admit they're dispositive.

My 6 year old does the same sort of thing when told to brush his teeth and put on his PJs. It's not any less obnoxious in a grown adult.
 

Bart, when people use the word 'dictator' today, unless they are historians of the Roman age, they are using it in the sense the dictionary uses the word (as you concede, it's the use common at the time). You're continued use of the term right now while referring to the technical meanings of historians is a rhetorical equivocation, trading on the emotion of the current meaning but not the common understanding (because even you seem to sense you can't with a straight face claim the dictionary definition is being met). It's close to being autistic, or perhaps disingenuous.

"inescapable objective fact is that the Court added the federal exchanges to a provision of the Obamcare law which expressly excluded them,"

It's telling you didn't even attempt to engage my analogy. The Court did what Courts and common sense people have been doing for years, reading the reasonable intent of an entire document/statement and it's context over a literalistic reading of one small part of it.


"erased the Elections Clause's express grant of districting power to the state legislatures,"

Again, they read the phrase in the context of states developing a longstanding new form of legislating power via referendum/initiative. They asked the completely reasonable question: what were the Founders trying to protect here, the rights of the particular legislative power which they may have referred to only in the one form it existed in their society at the time, or the idea of a legislative body derived from the people which could evolve in ways they'd likely approve of or at least allow? The latter might not be the simplest or even correct way, but it's hardly lawless.

"and invented an completely new right to SSM which is nowhere to be found in the Constitution or in the history of our or any other nation."

They found the right in the many invocations of a fundamental right to marry in SCOTUS precedent. All you're left with is Brett's argument that they should have distinguished in this case. Again, hardly the stuff of dictators (as commonly understood!) and the absence of the rule of law.
 

Our own well-follicled CO inhaling oracle shows his exasperation with this:

"Why ask the question if you already intend to reject the answer?

I have better things to do with my time."

Alas, I was throwing him softballs to help him in his promotion of his upchucking work of friction. I assume visitors to this Bog are well aware of his use of comment threads for self-promotion. Here I gave him an opportunity to provide the equivalent of sound bytes [sick!] for such promotion. The question I asked:

"Is our own WFCOIO considering nullification, secession, anarchy, rebellion/revolution or some other counter measures?"

was based upon his scattershot comments on this and earlier threads trying out themes for his new work of friction.

But our own WFCOIO has better things to do with his time. I guess that's the good news for many visitors to this Blog. The bad news is that he will continue his diatribe of vileness and hatred dealing with his many phobias displayed in his comments. George Packer's review was critical of both Murray and Hedges that each was preaching to his choir: "Some will say amen and read on. But it's a depressing commentary on our intellectual Balkanization [correct spelling!] that neither writer seems to think persuasion is worth the effort." For the decade or so that our own WFCOIO has un-graced comment threads at this Blog, how persuasive has he been? He may be the top DUI attorney in his little mountaintop community but in the scheme of things he is merely a NOAGN.*

*NIT ON A GNAT'S NUT
 

Mr. W:

My final word on the subject. You go to histories and not dictionaries for descriptions of human systems. Histories almost never cite dictionaries as subject matter sources and certainly do not rely upon them.

I read your analogy and it was inapt. Do you really want me to tear it apart for you?

The text at issue and the Court's rewrites speak for themselves. You get the final word here.
 

Brett

You've got a caricature of 'living constitutionalism' going on in your head. Living constitutionalism simply starts with the idea that it's inevitable when applying a Constitution written long ago to contemporary issues that there's going to be some abstraction going on. For example, I think everyone here would agree that when the First Amendment says it protects the freedom of the press that the most literal way to read that would be that it protects the kinds of press that were around at the Founding and that's it, so for example internet blogs, not having been contemplated by the Ratifiers, are therefore not protected. But I also think no one here would think that's the correct way to read it. You have to think that when they wrote 'freedom of the press' they were expressing a concept, a principle, that at the very least would have to be abstracted to uncontemplated situations that can be seen as analogous.

This is really all 'living constitutionalists' believe too, the only real difference between you and them is the level and amount of abstraction that goes on.


 

So take the Equal Protection Clause of the 14th Amendment. As a fact of history we all know what was up with this: it was written, led chiefly by the Radical Republicans (a group that, btw, undercuts your idea that the Constitution was written by groups so at odds with current liberals, remember the Constitution was not just written by the Founders, it was also written by those who passed the Reconstruction Amendments in the midst of unprecedented federal spending on social projects as well as by the Progressives who passed the 16th, 17th, 18th, 19th, etc., Amendments) with the goal of protecting the rights of blacks in the formerly Confederate states. If you asked the average ratifier what they thought this Amendment was for and what it would do, almost to a man they would have said it was to protect Blacks from unequal treatment as found in things like the Black Codes of the day. Now, should it be limited to just that? After all, it doesn't say it prohibits 'unequal protection of the laws FOR BLACKS' or even 'unequal protection of the laws ON RACE.' If we stuck to the line you're peddling of adhering to the applications contemplated at the time it was ratified then you'd have to say the Amendment can't be used to combat anti-white affirmative action (if you find me a quote of any ratifier contemplating that it would be used to protect whites from law favoring blacks I'd be quite surprised). But I imagine you reason thusly about that: while it was contemplated to help blacks the meanings of the terms used were more general and encompass legal bias against whites however much that wasn't contemplated as the purpose of the Amendment when it was passed.

Now, all the 'living constitutionalist' you decry does is follow your line of thinking farther: while it's true the Ratifiers weren't thinking of equal treatment for women, the terms are quite general and encompass legal bias against them (after all, they're certainly 'persons within the jurisdiction' of the states to which some laws were applied unequally), so perhaps women are covered too. That's all that's going on there.

I think it's a bit ironic that you see that kind of thinking as evidence of an abandonment of rationality, as most defenders of living constitutionalism condemn 'strict constructionists' as overly literalistic types incapable or made uncomfortable by abstract thought and use of analogy*. Again, I guess it's hard for people to see that those that disagree with them can do so reasonably. So much the worse for such a diverse polity as ours.

* One is reminded of the book (not the very different movie) The Planet of the Apes. In it we find that society devolved to one dominated by apes because learning became confused with dogmatic 'aping' of past knowledge over creative, abstract, innovative thought. Some of this does remain in the famous film starring Charlton Heston as can be seen in that in ape society you have the brutish soldier gorillas, the learned orangutans who are capable only of dogmatic, rote recitation of past learning, and the heroic chimpanzees who think abstractly and innovatively serving as the societies scientists developing new knowledge. Of course the orangutans are very threatened and put off by the chimpanzees!
 

Has our own WFCOIO given up, abandoned, the Republican Party in his claims that the problems are bipartisan, requiring fundamental changes? Or is he being a realist based upon the 2012 presidential campaigns with its GOP Clown Car candidates that is being emulated in spades with the 2016 GOP Clown Car expanded into a Limo to accommodate 14 (and counting) Republican candidates, especially with the Trump-card having been played? Here's my offering in verse:

***

TR(i)UMPhant?

Is “The Donald” a left-wing mole
In the guise of a GOP troll,
The clown of conservative clowns
Among the GOP renowns?

Or does he serve as a foil
To get Republicans to recoil
In support of another candidate
Whom they can validate?

NH polls have him in second place
In a GOP crowded race,
Causing Republicans to despair
Ore “The Donald” of the crazy hair.

The GOP clown car debates on TV
Will serve as a reality
That this intra-party strife
Will elect Bill Clinton’s wife.

June 26, 2015

***

Will our WFCOIO promote a third-party movement? A lot can happen between now and the nominating conventions, much of it entertaining with the TRUMPettes blares on GOP TV debates. No, I think our WFCOIO is not a political realist but merely an opportunist engaged in self-promotion.

 

Promises, promises from our own WFCOIO:

"My final word on the subject."

Wanna bet?
 

Bart, the historical etymology of a word can be useful, but if you're using a word in line with a technical historical meaning but everyone else understands that word to mean something else you're wasting everyone's time. It's as if you were saying 'I don't object to gay marriage, all marriages should be happy ones!'

The function of language is not historical correctness it is contemporary communication. If you'd like to be less idiosyncratic/autistic (or perhaps equivocating) you should probably say 'Obama is a dictator, not in the sense commonly understood by that term, yes, but in the sense the Romans would have understood it.' Of course I doubt you want to do that, because you want the contemporary emotional reaction based on the common understanding while knowing no one is going to buy that that common understanding is being fulfilled here.

"I read your analogy and it was inapt. Do you really want me to tear it apart for you? "

I didn't put it out there for my sake, that's for sure. I already understand how the entire context of a long document or statement can make the strict, literal reading of any one part of it unpersuasive, in part because the study of law, as well as common sense living of life, abounds with such examples.

Let me provide an example from Scripture. In Scripture, if you just take some isolated verses, you can find more evidence that God is, if not in favor, at least not much opposed, to slavery. So how did abolitionists, most of whom were quite religious, come to the idea that slavery was sinful? They often argued that if you take the entire Bible, especially the GENERAL tenets of love, mercy, kindness and fairness to the weak by the strong, stories of escape from slavery both historical/physical and spiritual, that these general principles can and should override the instances of verses that taken quite literally seem to condone slavery. The view of you and Brett, and many conservatives it seems, seem quite hide-bound in sticking to dogmatic obedience to such literal readings without context whether Biblical or Constitutional. Interestingly for our current purposes, Kennedy's opinion contains a great section in which he discusses how tradition and traditional understandings must be the starting point, but never the stopping point, when interpreting principles given to us in the past but which are asked to be applied in the present, otherwise past accepted deviations from the principle become the justification for their continued existence.
 

Shag from Brookline said...

Has our own WFCOIO given up, abandoned, the Republican Party in his claims that the problems are bipartisan, requiring fundamental changes?

The GOP establishment is a somewhat less progressive/socialist version of the the Democrat establishment.

The Tea Party movement has electorally moved the GOP in a libertarian direction, primarily at the state level, but has not taken the national party from its establishment.

The GOP is the least worst choice right now.

There are several reasons beyond electoral balance of power why we cannot democratically repair the progressive political economy. That leaves constitutional reform.
 

Our dynamic dyslexic duo, Brat and Bert, continue with their Humpty-Dumpty textualism/originalism clutching the dead-hands of the Founders/Framers/Ratifiers in a seance to ascertain the meaning of their words first having expunged their personal biases for purposes of their efforts at objectivity, with the magic words: "Beam us down."
 

Mr. W:

Statutory Interpretation 101 - Courts enforce the law as written and do not engage in the snipe hunt of divining legislative intent unless the provision at issue is vague. The provision can be vague if its language is unclear or it conflicts with another provision of the law.

NEITHER is the case in King or Arizona State Legislature. Constitutional and statutory text rarely gets clearer. The passages at issue did not conflict with any other provision of the law. State means state and legislature means legislature.

When the Constitution states that: "The executive power shall be vested in a President of the United States of America," this does not mean "a President of the United States of America and Congress," nor does it mean "the executive power." The Constitution is granting the power solely and exclusively to the office of the President.

To hold otherwise in not merely wrong. It is a direct assault on the rule of law and an unconstitutional arrogation of legislative power by the Court making the holding. In short, it is a constitutional crisis.
 

I've already supplied a non-controversial analogy arguing why the text in Burwell wasn't necessarily clear. When it comes to the Arizona case, it strikes me as analogous to a provision, made when coverture was in effect saying "the husband's approval for all family purchases shall be required before a contract for said purchases is formed." Eventually some jurisdictions get rid of coverture allowing for contracts for a household to be made either by the husband or wife (or either of two husbands or wives ;)). A husband challenges a contract made by the woman on the grounds "but the provision explicitly and clearly says 'HUSBAND'S' approval only!" A court could certainly reasonably say "the term husband written at a time when only husbands were head of families was meant for the general idea of the 'head of household,' and since the concept of 'head of household' has broadened past just 'the husband' the other spouse should be allowed to make such contracts." This would be even stronger of a conclusion if there were evidence that at the time the provision in question was written the writers were concerned generally that 'adult providers' only make contracts, but used the word 'husband' only because at the time other spouses were essentially prevented from being 'providers.'
 

"Eventually some jurisdictions get rid of coverture allowing for contracts for a household to be made either by the husband or wife"

To clarify for the analogy, let's say there was coverture in general subsuming legal rights of the wife into the husband, but that this law in question was written specifically to deal with the problem of inferred or equitable consent found when a wife purchased necessaries for family households. General coverture gets repealed but this law stays on the books.
 

Meanwhile, before the next round starts, fans should check out the NYTimes' "Room for Debate" feature currently "Is The Supreme Court Too Powerful?" for the fairly brief, presumably uncoordinated (?), views of 7 academics.

Also, check out Tom Toles' WaPo political cartoon on the Great Wall of Donald T-Rump at the Mexican border.
 

I wonder if the progressive view of the Court adding and subtracting law by decree would change if conservatives joined the game?

What if a conservative court decreed that the unborn are legal persons and the 14A Due Process Clause protection of life required the unborn be included in all homicide statutes?

What if a conservative court decreed that traditional one man, one woman marriages is a fundamental right and thus all state SSM civil marriage laws are unconstitutional?

What if a conservative IRS decided that Congress intended that the corporate income tax include unions and rewrote the tax law by rule to start collecting the tax from unions, then a conservative court rubber stamped that decree?

Ruling by decree is only fun and games when it is your team issuing the decrees.
 

Query: But for the progressive movement, would our WFCOIO even exist?
 

I wonder if the progressive view of the Court adding and subtracting law by decree would change if conservatives joined the game?

# posted by Blogger Bart DePalma : 10:27 AM


Numbnuts, the SSM and Obamacare decisions would not have happened without conservatives "joining the game".
 

bb:

There is nothing remotely "conservative" about the King, Arizona State Legislature and Obergefell decisions.
 

There is nothing remotely "conservative" about the King, Arizona State Legislature and Obergefell decisions.
# posted by Blogger Bart DePalma : 12:07 PM


I guess that depends on whether it's the pre-Obama definition of "conservative", or the post-Obama definition. Pre Obama "conservatives" were in favor of marriage and Obamacare was known as Romneycare. But a lot has changed since then.
 

bb:

If Ted Cruz was president, decisions rubber stamping the bureaucracy rewriting a law of Congress, erasing an express grant of power in the Constitution, and creating a "fundamental right" to SSM would not be remotely "conservative."
 

Endangered species sighting!

Apparently, there is still a federal judge willing to enforce the law.

http://www.scribd.com/doc/270843796/Hanen-Order-July-7
 

If Ted Cruz was president, decisions rubber stamping the bureaucracy rewriting a law of Congress, erasing an express grant of power in the Constitution, and creating a "fundamental right" to SSM would not be remotely "conservative."
# posted by Blogger Bart DePalma : 12:43 PM


I'm pretty sure that "Ted Cruz is president" is a sure sign that the apocalypse has arrived.
 

We don't need hypotheticals. What if a conservative court decreed unconstitutional a law with nearly unanimous bipartisan support on the grounds a non-textual 'equal dignitude of the states'?


 

" the SSM and Obamacare decisions would not have happened without conservatives "joining the game".

"bb:

There is nothing remotely "conservative" about the King, Arizona State Legislature and Obergefell decisions."

And yet, the writer of the King decision was also the writer of the Arizona and Ogberfell dissents. I guess he's a conservative when he agrees with Bart and not when he doesnt.
 

Mr. W:

Equal application of the law is a core constitutional principle. Congress can no more restrict the VRA to a handful of states than it can restrict the criminal laws to only African Americans. The original Supreme Court rubber stamp of the VRA was the rewrite of the Constitution.

Your observation of Roberts in your face hypocrisy is spot on. I have lost all respect for the man.

I am discussing two different dichotomies here. One is judicial - enforcing the law as written v. rewriting it by decree. The other is political - conservative v. progressive.

I offered the hypothetical of a politically conservative court rewriting the law by decree to impose their preferred policy on the people.
 

Our own WFCOIO has quickly gone from denouncing both parties to "The GOP is the least worst choice right now" to what appears to be an endorsement of Ted Cruz, one of the currently 14 (and counting) GOP Clown Car candidates (presumably after much soul searching). This brought to mind the Mary Typer Moore Chuckles the Clown episodes with Chuckles done in by stampeding elephants - symbolic of the GOP - perhaps prescient of what may result from the GOP TV debates. Democrats' counter-programming might feature the eulogy delivered by Ted Baxter. [SNL, The Daily Show, The Nightly Show, please copy.]
 

Where is the 'equal dignity of the states' clause found in the Constitution Bart? Is it somewhere near the 'anti-Commandeering clause (used to strike down another democratically enacted law)? Because my copy seems to lack both clauses...But I'm sure you'll point out where each is exactly (perhaps in a penumbra somewhere?)
 

Shag:

A progressive supporting the Democrat candidates of "Cash n Carry" Hillary, Bernie the Socialist and O'Malley who? calling the GOP presidential bench a clown car?

:::heh:::

I offered the hypothetical of a Ted Cruz presidency because he is arguably the most conservative of the lot and the diametric political opposite to Barack Obama.

FWIW, Cruz is currently among my top three candidates because the man is a brilliant constitutional mind. He might make a better Attorney General or Supreme Court justice than a president, though.
 

Mr. W:

The Constitution textually grants all powers to and places all restrictions on the states equally. The 14A nowhere states that its restrictions only apply to some of the states. Thus, it is textually reasonable to require a Congress enforcing the 14th Amendment's restrictions on the states to enforce them equally.
 

Bart,

There is no text requiring equal dignity of the states re: federal legislation. The 14th Amendment requires that all states respect equal protection of the law to all citizens (these terms are explicitly in the text) with their jurisdictions, but it nowhere requires the federal government to respect the 'equal dignity of the states' (these terms are absent from the text).

Try again (invoking non-textual 'core principles' to strike down democratically laws...methinks I smell an usurper who supports the end of the rule of law ;) ).
 

There's also no 'anti-Commandeering' clause in the US Constitution. The Rehnquist Court that created that right to strike down a democratically enacted law (dictators?) admit as much when they base the principle not on text (because there is none) but instead on “historical understanding and practice,” “the structure of the Constitution,” and “the jurisprudence of Court."

THAT'S how you make up a-textual constitutional law to strike down democratically enacted legislation when you're a conservative I guess.
 

Mr. W:

What is the anti-comandeering case to which you refer?
 

I wonder if our own WFCOIO has noticed the resemblance of Ted Cruz to Sen. Joseph McCarthy politically, perhaps suggesting his choice of Cruz. Which of the other GOP Clowns take Place and Show? Does "Crazy Hair" fit? Gilmore, Walker and Kasich are getting made-up to increase the GOP Clown Car to 17. What was it Pres. Obama said about the Hunger Games?
 

BREAKING NEWS! Donald T-Rump (aka "Crazy Hair") is #1 in North Carolina. Credit goes to the Tea Party., but with our own WFCOIO set on his Cruz to nowhere.
 

Joey Fishkin's latest post at this Blog closes with this:

"Courts can try to go about the work of constitutional interpretation clause by clause and word by word, viewing small units like the word “Legislature” like little scientific specimens, as if interpretation were a science. They can consult dictionaries and the rest of the textualist tool chest. But I actually do not think it is possible to avoid thinking about the larger constitutional problems that an interpretation either helps solve or makes worse. If judges are being honest with themselves, they acknowledge that this is part of what they're doing. The real question is which constitutional problems they think are worthy of attention."

It reminded me of Mr. W's responses to our own WFCOIO's diatribe on the AZ Commission decision.

And I'm also reminded of Saint Ronnie's pre-presidential "Progress is our most important product." This thought has served us well since the end of The Gilded Age.
 

Back on topic, this thread has included discussions on history of marriage. Over at the Legal History Blog a link is provided to Nacny Cott's "Which History in Obergefell v. Hodges?" which closes with:

***


“To blind yourself to history is both prideful and unwise,” the chief justice writes in his dissent. But which history does he have in mind? History, like the Constitution, can be read in more than one way. In the dissenters’ reading of history, marriage is an “unvarying social institution.” Changes over time in marriage in the United States, including those brought about by judicial review, do not figure in it. The majority has a different reading of history as well as of the Constitution. The majority sees marriage as a civil institution that has contained constitutionally impermissible inequities in the past—inequities that were addressed by judicial review. Taking a cue from the historians’ brief, the majority understands previous changes to “have strengthened, not weakened the institution of marriage” and intends to continue on that path, removing another inequity with its current ruling.

***

Apparently amici briefs submitted by historians may have been influential in the majority's decision.

 

Is GOP candidate Donald T-Rump the counter-Elmer Gantry GOP candidate(s)?

I am currently of the view that the GOP candidate coming out of its convention will NOT be any of the passengers in the GOP Clown Stretch-Limo/bus. Rather, the convention will come to its senses and nominate (drum roll) Mitt R-MONEY. By convention time, Jeb! will have morphed into Job. But don't underestimate the venality of the Tea Party.
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Joey Fishkin's latest post at this Blog closes with this:

"Courts can try to go about the work of constitutional interpretation clause by clause and word by word, viewing small units like the word “Legislature” like little scientific specimens, as if interpretation were a science. They can consult dictionaries and the rest of the textualist tool chest. But I actually do not think it is possible to avoid thinking about the larger constitutional problems that an interpretation either helps solve or makes worse. If judges are being honest with themselves, they acknowledge that this is part of what they're doing. The real question is which constitutional problems they think are worthy of attention."


A professor of law believes the real question is not interpreting the Constitution, but which constitutional problems five members of the Supreme Court think are worthy of attention?

The Supreme Court has NO role in "constitutional problem solving," to address progressive fears of an "oligarchy" or any other perceived problem.

Ironically, by rewriting the Constitution by decree, the Supreme Court has become the very oligarchy Fiskin claims to fear.

Incredible and appalling.
 

Bart, Professor Fishkin's starting point is unanimous Court precedent that gerrymandering is a constitutional problem (it's just that some-a bare majority-thought it was of the nonjusticiable kind).

I would think a good example of this from your side was the decision invalidating the ACA's original Medicaid expansion provision as unduly 'coercive' on the states. There's absolutely no textual provision forbidding Congress from enacting legislation that contains deals so sweet it would be difficult for a state to refuse, but the conservatives on the Court (this time joined by two of the liberals) looked into the murky penumbras of the spirit and 'overall structure' of the Constitution and considered such sweet deals to be a threat to the spirit of federalism (or some such thing) that lies behind (or in front, or above perhaps) the Constitution as a whole. In short, they thought such a practice writ large would undermine underlying (not textual) values of the Constitution creating a problem they should solve with a judicially created 'undue coercion' doctrine (it was delightful to see libertarians, who usually insist on the strictest definitions of coercion limited to force and threats of same, strain to find 'a deal too sweet' as such).
 

BTW-the 'anti-commandeering' doctrine is from Printz, where Scalia said in his opinion for the Court:

"*Because there is no constitutional text* speaking to this precise question, the answer to the CLEOs' challenge must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court." *emphasis mine*
 

This comment has been removed by the author.
 

Mr. W:

I agree with you that Robert's Medicaid reasoning was dodgy. The proper resolution of that case under the text of Constitution was the opposite of what the court ruled. Congress has no power to fine you for not participating in the government's preferred commerce, but Congress does have the power to put strings on its welfare state funding.

The lesson is that the Court should not impose either progressive or conservative political policy by decreeing changes in the Constitution or laws of Congress.
 

Mr. W:

I agree that the Courts necessarily have more leeway in interpreting vague or absent provisions in the Constitution and statute. That was not the case in either King or Arizona State Legislature, where the court rewrote express provisions.
 

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