Because what the hell were we thinking all that time, that’s why!

The Leopard. One less ‘i’, lots more humor.

Franck is right. The courts have no business ruling about any of these matters by using the Constitution or the Bill of Rights as their go-to guide.

Sheesh.

Next thing we know, scientists will be resorting to books on biology, chemistry, astronomy and evolution and then where will we be!!!

What’s more interesting to me is the political judgement of the Repubs on the Supreme Court and elsewhere. The decision not to take the cases must have had the support of Kennedy and Roberts (IANAL but I read that 4 votes are enough to take a case). I guess it makes sense that, with public opinion shifting so rapidly, they would let it slide.

And with the inevitable exception of Ted Cruz, Repub pols have treated the decision as a fait accompli. Will the base accept this? And, if the majority of the base goes along with it, what about the Christianist right? Will they keep turning out to vote for a party that’s sold them out so thoroughly?

Hmm. I see the Court Repubs as entirely partisan, but not subservient to the Congressional party. I don’t think Roberts had any thought of the Court making a ruling against equal marriage. So, ducking the whole thing is the path of least resistance for him also. I guess it makes sense for both Court and Congress.

But it leaves the base even further out in the cold. The desire to control the Court has been one of the big factors that kept the Christian right voting for Repubs who sold them out in so may other ways.

I wonder if gay marriage will be like slavery, where conservatives in a few decades will try to claim it as their own victory because it’s an issue of freedom, or more like feminism and abortion, which they’ll tolerate only to the extent that they can’t actively legislate against it.

My rule of thumb, regardless of my opinion of the policy merits of a ruling, is this:

If it takes a century or more to ‘notice’ that an existing part of the Constitution ‘means’ something, and that something is such that for most of that century the clause in question would have been defeated or repealed if people had thought it meant that… All that’s been noticed is a useful pretext for ruling from the bench.

Take inter-racial marriage, for instance. It took a long while for the Supreme court to get around to admitting that inter-racial marriage was constitutionally guaranteed by the 14th amendment. (And both I and my wife are very glad this happened!) But that it demanded this wasn’t something that went a century without being noticed. It was argued during the ratification of the 14th amendment, lower courts started so ruling almost immediately after the 14th amendment was ratified.

It wasn’t a novel interpretation. It was an obvious interpretation that got buried because the Supreme court deliberately killed by bad faith rulings an amendment its members didn’t like.

Same with Brown. Not the least bit novel. Even the rejection of separate but equal wasn’t so much a novel interpretation of the amendment, as just a recognition that, no matter what theoretically might be possible, separate was never equal in practice.

Not so, here. This is an interpretation of the amendment which is, so far as I can tell, wholly novel. If raised as a plausible interpretation of the 14th amendment, it would have prevented ratification until a re-write took place. If these rulings had come a few decades earlier, they would have produced a likely successful amendment overturning them.

Heck, they DID produce amendments overturning them, at the state level.

Again, regardless of what one might think of the policy merits, I do not believe this is legitimate constitutional law. This should have taken an amendment.

You might think this is a great policy victory, but it is also another step in making the US Constitution an irrelevancy. Just a symbol that gets waived around and used as an excuse for the legal community to get what they want, but whose actual content no longer rules.

“Take inter-racial marriage…this wasn’t something that went a century without being noticed. It was argued during the ratification of the 14th amendment, lower courts started so ruling almost immediately after the 14th amendment was ratified.”

Now I’m no expert on American history, but I rather suspect that non-white people were acknowledged to exist at that point in time, and their race wasn’t regarded as either a willful crime or a degenerate pattern of behaviour that they weren’t godly enough to resist. Gays had to wait until the late 20th century for that luxury.

Brett Bellmore: Imagine we’re tasked with enforcing a rule. Say, “If you hold mammals in captivity you must pay the Mammal Tax, and if you hold fish in captivity, you must pay the Fish Tax.” And imagine that when this rule was adopted by our society, they had exactly the same definition of “mammal” and “fish” that we do (the “original meaning” of the language was the same as today’s meaning), but they were factually confused about biology: for whatever reason, it was universally thought that cetaceans were fish, and for a long time after the adoption of the rule, people who held cetaceans in captivity paid the Fish Tax, not the Mammal Tax.

Now, we discover that we’ve been wrong all this time, and in fact, cetaceans are mammals, not fish. So the issue comes up: if someone holds a cetacean in captivity, do they pay the Fish Tax or the Mammal Tax? If you care about applying text as written, and you care about applying text as written according to its original meaning, then there can be only one answer to that question: the text says “mammals,” cetaceans are mammals, so people who hold cetaceans in captivity pay the Mammal Tax. Sure, perhaps people did otherwise before, but the fact that a rule has been misapplied in the past does not mean it should be misapplied in the future.

Now, if you are an interpretative liberal, if you care about loosey-goosey things like the purpose and spirit of the laws, you have more flexibility. You could ask, “If the people who enacted the rule had known that cetaceans were mammals, would they have included them in this rule? What’s the purpose of the fish/mammals distinction, and where do cetaceans fit in that?” But even for a purposivist, “what people thought about this case at the time the rule was adopted” is not going to be dispositive when it was based on error.

Likewise with same-sex marriage. No, nobody in 1868 thought that the Equal Protection Clause required same-sex marriage. But that’s not because their notion of “equal protection” was all that different from ours. It’s because of other differences between today and 1868: their view of gender difference has largely been discredited; their law of marriage has been radically overhauled; their understanding of same-sex sexual and romantic relationships (to the extent it existed in any substantial way at all) today is rightly understood as mired in prejudice and distortion. It is not constitutional fidelity to adhere to old prejudices that were never enacted into constitutional text.

#14

… but they were regarded as degenerate, inferior, maybe not even quite the same species. There were blacks, but perhaps not black people.

But then, nobody imagined that interracial couples in families didn’t produce fertile interracial offspring that were considered black.

When I was a kid, and my old small-town barber argued that blacks were inferior and I pointed out examples of American blacks who did important things, he always argued that they must have some white blood. I had to agree, they surely did.

#18

Well, we still aren’t at the stage of American conservatives dropping “Obamacare” for “Affordable Care Act” and declaring it was a great idea stolen from Heritage and Mitt Romney, who would have been president if only the Kenyan had let him run on it.

The Brett Bellmores are always on the right side of history. But only when it’s history.

https://medium.com/the-nib/the-underdog-myth-3eceda907ec4

After the last JH thread, I should be more leery of commenting on this one. But without the colorful fireworks of “Sixth Day, No Way” and so on, it appears to me that if what you care about is the law rather than morality, then Matthew Frank is basically right and JH is basically wrong. I think that JH tacitly admits as much when he writes “There are lots of moral arguments, and people now find them overwhelmingly convincing. I do.) This isn’t a legal argument, of course. ” But of course I don’t agree with Matthew Frank is a larger sense. Matthew Frank is trying to use a disconnection between law and morality in order to get us to question our sense of morality. Instead, it should make us question the law.

The Constitution is a dinosaur, and the U.S. has the oldest form of formal government of any nation that I know of. If the Constitution was a model to the world, other countries have had plenty of time to adopt it, and they haven’t. (Many have constitutions, but they are fundamentally, structurally different from ours.) The Bill of Rights was not, until fairly recently (perhaps the 60s), seen as guaranteeing anything like what we now think that they guarantee. The rights that people take for granted now are mostly recent interpretations, grounded on changing morality.

Consider how our ideas on sexual morality would have to fit into this framework. The U.S. now has a morally and philosophically well-grounded and consistent ideal of consent morality around sex. Imagine how it would be if we had formal, legal rules on sexual morality dating from various times before people thought that consent was the most important thing, and we had to express consent as new interpretations of these rules. People would have to express consent as various forms of ownership and taboo-breaking. And someone would be able to point to the rules and say how people weren’t following the rule procedure in a serious way. And the answer should be, yes we aren’t, let’s toss the antiquated thing out.

“But then, nobody imagined that interracial couples in families didn’t produce fertile interracial offspring that were considered black.”

But nobody dismissed as insane the idea that the 14th amendment would require inter-racial marriage. As I pointed out, it was discussed during the ratification debates, and the courts immediately began striking down laws against interracial marriage.

Legalization of inter-racial marriage wasn’t something the judiciary pulled out of their rears a century after the fact. It was an obvious and debated consequence of the 14th amendment. Unlike legalization of same sex marriage.

Nor do I think we’ve learned anything similar to the fish/cetacean distinction. The people who wrote and ratified the 14th amendment would not particularly have cared that homosexuality had a biological basis, any more than today we care that rape or pedophilia do. They thought it was depraved.

The only relevant thing that changed is that this opinion has changed in the legal community, and much faster than it has in the general population. And since they were in a position to impose their opinion on the general public, they went ahead and did so.

The 14th amendment simply made a useful pretext for doing it.

“I take it your answer is: the law must have changed, because otherwise how could Smith go from innocent to guilty overnight?”

No, my answer is that morality must have changed, which forces the law to be interpreted in a different way. This implies that legal systems that are based on the fiction of rules going back to up to 2 centuries ago are bad legal systems. In particular, maybe the “something” that Smith murdered on Tuesday isn’t a person, and by having to shoehorn Smith’s crime into the framework of murder of people because we have an old list of things that are considered crimes that can’t be changed, Smith is now being punished for murder when he did something that we really think has different moral seriousness than murdering a person.

I don’t think you’re at all familiar with sociobiology.

Brett,

You make a very useful point about the lack of noticing things. But, ironically.

In the case of same-sex marriage, the Constitution protected it from the beginning, by accident, most likely. It’s just that society’s prejudices prevented even thinking that it was a possibility, much less that the Constitution protected it, albeit by accident.

It’s similar to the slip up with “All men are created equal.” They didn’t mean that, of course. They meant all white men with a certain amount of property and from ‘good families’ were equal. But the damage was done. The words were said. Now, they really would have screwed themselves — that old white boys club — if they had said “All human beings are created equal.” But, thankfully, they at least didn’t open the door for women, too, or so they must have thought, breathing a deep sigh of relief soon after.

The Constitution, from the start, provides for equal protection under the law. Throughout its very short duration — it’s just four pages, soaking wet — it repeatedly speaks in broad strokes, which left later generations of interpreters to continuously try to narrow what it said down to suit their own political agendas. Take for instance the Second Amendment, though in a different sense. It’s so broadly written that there is absolutely nothing in it to prevent the government from banning all kinds of weaponry and extras, like bullets or loaded guns, if they so chose. Because all it says is “keep and bear arms,” within the context of state militias. There is no prohibition on limiting the numbers, capacity, types of guns, nor is there anything in it about bullets.

But saying equal protection under the law is a different kind of broadness. Unlike the SA, it doesn’t lend itself to limitations after the fact. Its very wording leaves no room to wiggle. Keep and bear arms doesn’t say keep and bear any loaded arm, of any capacity or number. So if we decided to ban all but one kind, and banned all bullets, it would still fit comfortably within the broad parameters of the SA. Per the letter of that amendment. But you can’t logically derive certain kinds of marriage restrictions from “equal protection under the law.” It’s apples and oranges. Worse than that, in fact.

. It may be that one of the very worst and most political Supreme Court majorities in our history saw that, for once.

I think your argument using dogs could be stronger if you’d use “corporations” instead, because that’s what actually happened in the real (or is it fantasy?) world of the Supreme Court.

“Yes, this would neatly explain all those state constitutional amendments and initiatives and laws the courts are striking down: Public opinion changed ahead of the courts, and somehow, democratic processes just kept going on producing the opposite outcome from public opinion.”

That’s actually the case. The bizarreness of politics creates these situations where the ruling classes engineer outcomes that are explicitly contrary to the ideals of the people.

The way you tell it, activist judges are forcing gay marriage on a horrified populace, when really what’s happening is the populace shopping around to every legislative mechanism, trying to get same-sex marriage legalised.

Humans are very adaptable creatures. In ten, twenty years, same-sex marriage is going to be a part of the furniture. It’s going to be such a “who cares?” thing, people will laugh at the few stragglers still trying to roll back the clock. And it’s something we should have adapted to thousands of years ago.

Class rule, OTOH? That’s something we should have said no to from the start, without alteration. There was never any reason to adapt to a ruling class. But we have, tragically.

@ 7 – John Quiggin with 2 “i”s

I think the Republican party is in the midst of a nervous breakdown helped on by back to back loses in Presidential elections. Another loss in 2016 will increase the raging cognitive dissonance.

The situtation is kind of masked by their hold on Congress via voter apathy, money/bribery, anti-majoritian rules (like fillibusters) and gerrymandering, etc. It’s not via democratic will.

The one percent need the votes of the white, male southern regional, religious ethnic vote but aren’t delivering. The Supreme Court is delivering on affirmative action and voting rights, but the demographic shift over religion and culture is against them. They’re damned if they do and damned if they don’t.

@ 37

“Humans are very adaptable creatures. In ten, twenty years, same-sex marriage is going to be a part of the furniture. It’s going to be such a “who cares?” thing, people will laugh at the few stragglers still trying to roll back the clock. And it’s something we should have adapted to thousands of years ago.

Class rule, OTOH?…”

What a weird comment. I completely disagree.

I miss Spiro Agnew. Rather, I miss David Frye’s impersonations of Spiro Agnew.

Peter K,

Just look all around you, if you live in America, or the West, or pretty much anywhere else in the world. People have adapted to rule by the 1%, and all too many don’t have a problem with that. They, in fact, celebrate the system that makes it possible.

The actual case concerns our ideas about same-sex couples. Nothing about same-sex couples has changed, intrinsically, from before we considered their committed relationships to be marriage to after. If you insist that you’re talking about one physical thing being replaced by a different physical thing, you’re just giving an example that has nothing to do with this.

I think that the law changes, not every time that someone murders someone — where do you come up with these weird misinterpretations? — but when we change our ideas of what a person is. The law in the U.S. always said that people had certain rights, but black people weren’t really considered to be fully people. When they were considered to be fully people, the law had to change. And yes, jurists had to find various new legal justifications and create new law (“separate but equal” is not equal, etc.) to try to fit this into an antiquated legal framework that had never considered black people to be fully people.

The question of whether gay marriage is protected under the 14th amendment (or any other law) was successfully avoided for many years through means of other, non-legal forms of institutional discrimination. For example, homosexuality was classified as a psychological disorder by the APA until 1973 (and by a number of other psychological and health organizations until 1990).

If “If b then c” has always been held as an assumption, then as soon as “If a then b” becomes part of the accepted assumption base, “If a then c” follows without need for discussion or delay, and should not be viewed as a nefarious conclusion. In this case, a = “You are gay”, b = “Your choice of romantic partner is not in violation of any laws or tangibly damaging to anyone directly involved”, and c = “You can get married”.

Also, while there is a lot to be said for solidarity among causes, it’s disingenuous to assume that every oppressed groups experiences, including the way that they have been viewed by the majority, are identical. Being oppressed because of the color of your skin, shared by the people who birthed you and evident from essentially the beginning of your life, is not the same as being oppressed for sexual preferences that may not become evident even to you for years, are typically not shared by anyone in your family and have never been well-understood in how they come about.

Do you believe that every time someone murders someone, that transforms the very nature of the law against murder, because it changes the nature of who is guilty of murder?

I think the Hinckley case is supposed to have changed the definition of who was guilty of murder, or at least threatened to.

Consider an analogy. Suppose we got up tomorrow morning and noticed, for the first time – somehow we just hadn’t been paying much attention, I guess – that people born on the 6th day of the month have always been legally forbidden to marry.

This is confusing, I think. It suggests a case like Bowers v. Hardwick rather than same-sex marriage.

While decriminalization was achieved by legislative action before courts ruled that people had a right to conduct sodomy,

This is not quite the case. There were conventions not to prosecute sodomy, which were relied on by citizens, until prosecutors decided to bring cases before friendly judges and won. What was the case regarding contraception? In that case, the people who brought the case eventually to the Supreme Court had to work hard to find someone to prosecute them.

The legal issue arises because our conception of “democratic process” constitutionally excludes simple specific enactments. We requires general rules, relatable to general principles. We don’t permit the legislature to enact a specific tax bill for Brett Bellmore — Brett, you will pay $1536.86 in May 2015. We require that the rules be general, and derive from general principles and purposes.

It is because we enact laws as general rules, related to general principles, that we have a judicial system, which deliberates on how, exactly, to apply the general rules and principles to cases. And, not incidentally, enforces the requirement that laws be in the form of general rules, rationalizable in relation to general principles.

It shouldn’t be surprising that “democratic processes” and politics require such a rule in favor of rules and principles. It’s not unrelated to Rawls’ veil of ignorance. If we didn’t constrain politics in this way, democracy could easily break down quite quickly, and all deliberation and argument would cease, as partisans formed a sufficient and persistent majority — or just a well-armed and disciplined minority — and simply enacted arbitrary declarations in their own and exclusive favor.

The 14th amendment was a constitutional enactment requiring general rules and principles, and prohibiting arbitrary discrimination. The language is general:“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Contrary to the assertions of some reactionaries, there’s no codicil or corollary attaching a list of anachronisms drawn from the supposed prejudices of 1868 to the 14th amendment.

Bruce,

Yes. The language and letter of that amendment covers far too much to back hoe some piece of prejudiced limitation. As mentioned. And in this case, there is no gender carve out. It says “person.”

The sign says “All people are welcomed,” without any fine print. Too late to make exceptions later.

“The 14th amendment was a constitutional enactment requiring general rules and principles, and prohibiting arbitrary discrimination.”

It only requires that if someone can get married, then everyone should be able to get married. It doesn’t tell us what marriage is. The issue, it seems to me, is the definition of marriage.

Norwegian Guy,

I am not a lawyer either, but it’s not as simple as passing a law, because marriage licenses are issued by the states. I think it was Jonathan Rauch (might have been Chait?) who wrote a good, long article for the Atlantic Monthly a few years ago about the constitutional issues. The states are supposed to grant “full faith and credit” to certain things granted by other states, and marriage has traditionally been one of them (someone who married a 15 year old in a state that permits it won’t be prosecuted when he visits a state that doesn’t).

Interestingly, Israeli courts (in certain cases) have declared US marriages null and void for, among other reasons, having taken place on a Saturday before sunset. There, there’s also an agreement to recognize other countries’ marriages, but it’s not an actual law. (There’s no chance that US courts, for example, would start asking Israeli courts what marriages between Jewish persons to allow.) I don’t think John H. intended to raise this issue, connotations of “6th day” or not. I’ve found it’s best with his posts to strip the argument down to the fundamental issues, and ignore the extra bits (though it helps to know ahead of time what the fundamental issues are understood to be).

But there, though there are conventions between states recognizing one another’s marriages, there’s no explicit law about it.

@66 Okay, the title is “On the Question of the Law”: “Our laws are unfortunately not generally well understood, but rather a secret possessed by the aristocratic minority that rules us.”

Also @65 the third paragraph is an editing error and shouldn’t be there.

bianca,

I’m looking for the story with the starting words you mention.

Here’s a link to the Before the Law parable:

http://www.kafka.org/index.php?id=162,165,0,0,1,0

In terms of the rapid change in views on SSM, what happened, in my opinion, was that first there was a relatively slow process of getting people to accept same sex relationships. There was a lag period when many people were OK with gay couples but gay marriage was still consiered beyond the pale. But that is a pretty contradictory position: if you have nothing in particular against gay couples, the arguments against gay marriage are pretty weak. So once gay marriage became a realistic idea to people, the opposition crumbled quickly.

72 was directed at Plume.

By the way Scalia called it on gay marriage.

Watson Ladd @52

I think it’s pretty dismissive to say it was merely judicial activism.

People like me, if any, think that the law is an attempt to build straight paths through the fields of morality. Engineering is required, so much less perfect than Science, and always an ongoing project of dealing with bugs and the other unforseen. Positivists think that Law grants Rights, that is that law is lord over morality, and here we see the silliness that leads to. Whereas rights in the sense of allowed behavior are “granted” or rather tolerated by the culture, and cultures are fluxive. We are relativistically enabled to change our culture if we can.

“If you don’t like the news [or the law], go make some of your own.” -Scoop Nisker

“Nor do I think we’ve learned anything similar to the fish/cetacean distinction. The people who wrote and ratified the 14th amendment would not particularly have cared that homosexuality had a biological basis, any more than today we care that rape or pedophilia do. They thought it was depraved.”

This isn’t an original meaning argument anymore. There’s no Fourteenth Amendment Sec. 6 reading, “By the way, homosexuality is depraved.” The Fourteenth Amendment requires that states afford to all persons the equal protection of the laws. The question is how to apply that to the case of same-sex marriage. In considering the status of same-sex couples, and what public purposes are served by denying them access to marriage, courts today are not bound in any way by the social or moral views of people in 1868.

Perhaps you mean to suggest that the original meaning of the Equal Protection Clause requires deferring to popular moral judgments. But that can’t be right if the Equal Protection Clause is to have any practical force. Certain kinds of discriminatory moral judgments have to be disallowed; otherwise you could enact segregation and anti-“miscegenation” laws based on the moral judgment that race-mixing is immoral. So courts are inevitably forced to make evaluations: which kinds of moral judgments reflect legitimate public purposes, and which kinds merely rationalize invidious discrimination? Thankfully, we’ve progressed far enough that courts understand moral disapproval of homosexuality, in the context of public policy, to be in the second category rather than the first.

If I were a Republican pol, I would like to come up with some news that would enrage my reactionary voting base a few weeks before I want them to turn out and vote.

Preferably, some news that has no material effect upon those who provide my funding.

And, while we’re chopping off heads crossing up threads, when I see the word “sodomy” in reference to gay marriage, well, My Dear Mr. Quiggan said it:

I don’t have to read any further to know that the subsequent comment will be both hostile and silly.

But, I also wonder if those who oppose sodomy would agree that registration leads to confiscation.

Peter K @ 72
“Homophobia, white (ethnic) supremacism, patriarchy, etc. were pretty much the rule throughout human history only until very recently”

As far as I’m aware that’s wrong, unless you define “human history” as starting only a few thousand years ago. I’m not sure about homophobia and white supremacism, but patriarchy is only a few thousand years old, as far as I’m aware. Hopefully others may respond on homophobia and white supremacism.

This kind of misguided belief that ‘we’ve always been like that’ is quite damaging to people’s ability to imagine a better future I think. Let’s at least start with historical evidence rather than assumptions.

It turns out Hesperus really was Phosphorous all along!

They’re wrong about all of this morally, but the law seems to me to be mostly on their side, as the law is almost always on the side of he oppressor.

Cart-before-horse: you can’t oppress unless the law is on your side. “Law” here is law-in-practice, not the law-as-text; the legal approach to ending oppression is to demonstrate inconsistencies between law-in-practice and law-as-text.

Which is, yes, in a certain sense a “change in the law”. In another sense it isn’t.

Brett @26:

If you look closely, all of those constitutional amendments (except for North Carolina’s) date from the 2004-08 period, and in the most recent tests of actual voter opinion same-sex marriage was approved (or at least not outlawed) in ME, MD, MN, and WA. And I have no doubt that an initiative to repeal Article I, section 25 of the Michigan Constitution would be approved quite handily, although the Catholic and LDS churches no doubt would spend heavily to keep things as they are. I’m under no illusion that the same would happen in AL, MS, OK, or UT, but I’m fairly certain that majority opinion is on my side now, and in this case the judges really are following the public. In any event, right is right, and shouldn’t depend on majority opinion.

mds: “Among the many people who thought there indeed was a legal conflict was Frederick Douglass. He argued, pre-war, that an abolition President could declare all slaves free under the fifth amendment.”

And was he successful in this? No. Sounds like that argument was lost.

“Person” doesn’t mean “bearer of equal rights.” According to some metaphysical or moral theory of personhood, maybe so, […]”

OK, since that’s the sense that I mean (morally) and that’s the sense in which rights of persons can be later found to apply to other persons that they didn’t originally apply to without a major change in law, I don’t see why this matters.

Jerry Vinokurov; “Surprise, liberals disagree with conservatives on what “equality” entails!”

Well, I didn’t make John Holbo’s original argument. Take it up with him on the implicit contention that everyone agrees, including the people standing outside with protest signs, that there’s only a very minor difference between getting married on the 6th and getting married on any other day.

Liberals may disagree with conservatives on what equality entails, and for just this reason they found that they had to write pretty clear statements into the document. Amendment XIX: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Rich, the problem with your argument is that it only works if you assume that obviously vague words like “equality” have some eternally fixed meaning. I hope we don’t have to rehash the obvious absurdity of that proposition. It’s not at all out of the norm of the history of American legal thought to retroactively expand such categories in various ways. I’m not sure what your brand of leftist originalism is supposed to accomplish, but it doesn’t defeat JH’s argument in any way.

Mdc 10.08.14 at 11:13 pm:

Still think this is wrong. Eg, foreigners and some excons can’t vote, even though they are “fully” persons.

I think you will find that persons and citizens are different things in The Constitution of The US.

I read somewhere that common law treats a felony conviction as a sort of death penalty. Even if not put to death, the perpetrator is (or can be) perpetually deprived of some rights.

“I think you will find that persons and citizens are different things in The Constitution of The US.”

Bingo.

Will it satisfy the sticklers for historical / linguistic accuracy if they just replace each instance of “person” with “citizen” in the passage below?

“I think that the law changes […] when we change our ideas of what a person is. The law in the U.S. always said that people had certain rights, but black people weren’t really considered to be fully people. When they were considered to be fully people, the law had to change.”

If that just prompts a further round of corrections that says that black slaves were actually considered to be citizens despite being deprived of almost all rights of citizens, perhaps someone could suggest wording that allows for some kind of acknowledgement of historical change and then we can go on from there. I’d kind of prefer this to include an acknowledgement that every time these rights were expanded to a major new group of person / citizens / homo sapiens / whatever, it’s been a big deal, involving large changes in law.

“Really? Entirely separate issue, there?”

Yes. It’s clearer if you think about the Fourteenth and Fifteenth Amendments. The urgent cause behind both was to protect the same group of people. But they needed both because they thought they applied to different spheres.

“But I wouldn’t pretend that I’d won some kind of legal argument by doing so.”

I’m not sure what you mean here. To the extent your point is that the difference between liberals and conservatives on the constitutional status of same-sex marriage is less about who is better at or more faithful to “law” than it is about substantive policy disagreements, I agree. But that doesn’t in any way support the conservative claim that we should need a constitutional amendment for same-sex marriage to be constitutionally established. Politics comes in because the test of whether something violates “equal protection” is inextricably political. That is true both ways. Conservatives saying “Well, you should amend the Constitution to explicitly protect same-sex marriage if that’s what you want” are on basically the same ground as liberals who could reply “Well, you should amend the Constitution to explicitly remove sexual orientation discrimination from the scope of the Equal Protection Clause.”

The modifier “illegal” hasn’t been as important as all that; after all, back in the day lesbianism generally wasn’t covered by law (not being able to explain it to Queen Victoria, and all that) but that didn’t mean that gay women could get married and gay men couldn’t.
And way back in the day there was the belief, as to a matter of fact, that (as at Sodom) the practice would invite divine retribution on the community that permitted it. If the law had been phrased in a way making it illegal to do things that drew down fire from heaven, when would gay sex have become legal?

So, as I understand it, Rich is saying that conservatives are reasonable when they say the purpose of the constitution should be to maintain the status quo, where liberals say the purpose of the constitution should be to legislate principles that may require change. There are lots of examples upthread of the vast changes that would take place if change was instituted, and we all know how conservatives harp on the fact that change has collateral damage that wouldn’t have happened if things had just stayed the same. But I’m not convinced that we can understand the constitution as really just a lot of words intended to defend the real status quo that didn’t have to be described or defended in words.

And I’m curious why it’s just the constitution that should be treated this way. If Rich and I have a contract that puts me at an advantage, and circumstances change so he’s now at an advantage or I have lower profits, why shouldn’t I claim that the contract is no longer working as it should, and that the terms should change in order to stay the same? (I know, I’m a liberal, so Rich thinks I would never do this.)

23,

“But nobody dismissed as insane the idea that the 14th amendment would require inter-racial marriage.”

Never lived in the South, have we.

That’s exactly why we had laws for centuries against what most of us now think of as a mad and contentless concept of “miscegenation”, precisely because a majority thought it was criminally insane to allow a mixing of the “races”. While there may have been some people in the US who did not subscribe to the idea that the supposed human “races” actually meant anything, and who therefor thought it was the racists who were nuts, they were the minority until quite recently. There’s still plenty of these people who believe in race in the US, especially in the South bit not exclusively there, and they still believe it’s insane to allow the “mongrelization” of the white race.

It’s not like this segment of the population is some tiny fossil remnant either. The Republicans would not have won a single election since 1968 without the racist vote.

JH: “Franck would like to say that it can’t be right for these sorts of sudden, radical shifts in legal implications to take place. He wants just to assume that, if that happens, you’ve got shoddy legal reasoning.”

OK, what does he actually say? I don’t think you’re representing what he actually says well at all. Here’s the first article:

What is the ground of the right to same-sex marriage? Is it the equal protection clause (as the Seventh Circuit seems to believe)? Or the due process clause (which the Fourth appears to lean toward)? Or some penumbras-from-emanations “fundamental right” that partakes equally of both (which seems to be the view of the Tenth)? Who knows? The judges want a result, and legal reasoning is such a nuisance.

He’s complaining that by avoiding a decision, the judges didn’t specify their reasoning. What about the second article? Note that here he’s writing about lower-court decisions, not the one he was blaming the Supreme Court for avoiding:

1. ” judicial decisions in favor of same-sex marriage needlessly divide the country on an important moral issue about which people differ”

2. “such decisions rest on transparently fallacious legal reasoning”

3. “these decisions rely, in part, on the conflation of the due process clause with a constitutionally ungrounded and so far unexplained power of the judiciary to decide what is “arbitrary” or “reasonable” or “just” ”

4. “decisions for same-sex marriage rely on a false anthropology that drives a political decision made by judges”

5. “same-sex marriage rulings are a harbinger of further depredations, by courts and others, on human freedom in other dimensions”

6. “same-sex marriage rulings, for all the reasons above, amount to a comprehensive threat to republican government”

Just because I find his reasons laughable and wrong doesn’t mean that he’s saying what you say he is. I’m really not seeing much in there about how sudden, radical shifts in legal implications necessarily imply shoddy legal reasoning.

JH: “What is his argument that it is rhetorical twaddle, rather than cogent legal reasoning? His argument is the bare fact that people are finding strange new implications of old stuff like equal protection and due process.”

I really don’t see that at all. Here’s the complete paragraph:

Perhaps it is best, in the view of some two or three (or even four) of the justices, to take a loss in some of the states today, rather than risk a loss in a ruling that nationalizes same-sex marriage next spring or summer. But do the people in the five states whose petitions were denied today have no right even to have their arguments heard? The courts in these three circuits wrote various forms of rhetorical twaddle to justify their imposition of a spurious constitutional right on those states. What is the ground of the right to same-sex marriage? Is it the equal protection clause (as the Seventh Circuit seems to believe)? Or the due process clause (which the Fourth appears to lean toward)? Or some penumbras-from-emanations “fundamental right” that partakes equally of both (which seems to be the view of the Tenth)? Who knows? The judges want a result, and legal reasoning is such a nuisance. Now those states are stuck with that result, without a chance to argue their cases in the Supreme Court.

He specifically *doesn’t* say that finding strange new implications equals twaddle. He says that the judges in these cases wrote twaddle to justify their specific decisions, and that the people who thought otherwise have a right to have their arguments heard. If strange new implications are a priori twaddle, then why is it important to hear arguments against them? You can just reject them categorically.

I don’t know anything about his writing other than these two articles. Maybe somewhere else he’s a classic right-wing activist masquerading as an originalist. I even agree that all originalism is discussed activism. But the two articles you chose to link to don’t specifically support this idea that you say he has.

But do the people in the five states whose petitions were denied today have no right even to have their arguments heard?

That’s a pretty weird claim, especially considering that concepts like “standing” have a long history in jurisprudence. On this logic literally anyone whose petition is denied has the right to have their arguments heard. Which, you know, I’m fine with, but I doubt Franck would be so enthusiastic to throw open the doors of the courthouses to literally anyone else with a complaint.

The courts in these three circuits wrote various forms of rhetorical twaddle to justify their imposition of a spurious constitutional right on those states. What is the ground of the right to same-sex marriage? Is it the equal protection clause (as the Seventh Circuit seems to believe)? Or the due process clause (which the Fourth appears to lean toward)? Or some penumbras-from-emanations “fundamental right” that partakes equally of both (which seems to be the view of the Tenth)?

Why not all of the above? None of these are actually specious.

Who knows? The judges want a result, and legal reasoning is such a nuisance. Now those states are stuck with that result, without a chance to argue their cases in the Supreme Court.

Tough shit, cupcake.

He says that the judges in these cases wrote twaddle to justify their specific decisions, and that the people who thought otherwise have a right to have their arguments heard.

But they don’t have such rights. That’s literally not how it works. He just manufactures this right from somewhere and asserts it, which is why he gets dismissed summarily.

Jerry, you seem to think that we’re arguing at cross purposes, and we really aren’t. I don’t see how JH’s “marriage on the 6th” example works unless, deep down, everyone has the same basic idea of what equality means, which changes are minor and major within an existing framework, what the important elements of that framework are, and so on. And they don’t, or they’d all be liberals and there’d be no controversy about same sex marriage in the first place.

Rich, I think (based on following previous exchanges between you and JH), that you and he tend to operate in different… idioms, if that’s the right word. And I think part of the reason that these exchanges repeat themselves is because you find his idiom (ironic, mocking) not congenial to your own (earnest, serious). So this results in all sorts of weird interpretations of what JH is saying, and of course the exchanges themselves are each in your particular idiom and the cycle begins anew.

The thought experiment in the OP is clearly meant to abstract away various details in favor of the following scenario: before, something was illegal, but now, thanks to a shift in morality, all of a sudden courts are reading the Constitution as saying it’s not actually illegal at all. JH’s point, as I read it, is to say: there is no legal magic happening here, morality evolves, and the law evolves with it. The notion of equality expands and what didn’t used to be captured in the sense of the word, now is. So what’s the problem? For the (idealized, not-at-all-politically-motivated) originalist, it’s that the ground seems to have fallen out from underneath the previously accepted meaning of words, and this blows up the legal foundation. How can anything mean anything if it can mean something different? But of course that’s not how language and morality works, and we are perfectly free to decide that something we once thought was normal, say, public flogging, is now actually quite cruel. The text has remained constant but the referent has changed.

Franck et al. are clearly either baffled or outraged at this (or likely both). To them it appears that some kind of weird trick has been played by these crooked judges, when in fact what’s happened is a social process that conservatives choose to ignore for ideological reasons. But just because they’re in the throes of change-blindness doesn’t mean we have to follow them there or credit their arguments, because we can actually figure out what happened.

You keep insisting that we are somehow obligated to defeat Franck in a court of law, but I say that we are not. We have moved the ground from under him altogether, changed the terrain completely, and now he’s disoriented because he thinks he’s fighting a different battle than he actually is. We do not owe it to him to go back to his chosen battlefield.

I don’t believe in perfect language, or on only one meaning for texts, but people do edit texts. Saying “there is no perfect language” is not the same as saying “Hey, it doesn’t matter that we can never really change it.” Have you ever written anything important and then just sent in the first draft?

But we have changed it! We didn’t have a 14th Amendment, and now we do. And that’s enabled incorporation, something that’s probably done as much as any legal concept to spread equality in America. I don’t see how “amending the Constitution is hard” at all implies “things that are not amendments to the Constitution are illegitimate ways to achieve our goals.” I don’t think you believe that either, so why are you so keen to give the benefit of the doubt to someone who actually does hold that view?

And actually, from what I remember of American history there were long, contentious negotiations over various minor points of Constitutional language. The people who wrote it thought that was important. Just because we’re evidently never going to get to do that again doesn’t mean that we should dismiss the whole idea that it’s important.

Sure, but there’s theory and there’s practice, and we talkin’ ’bout practice. I don’t see how to operationalize this idea at all, because while being able to amend the Constitution is important, it’s also not a realistic thing to try and make happen in the current political situation, and I don’t see why we should be limited to attacking on one front when we can attack on ten. And anyway, it’s not worth discussing this idea with dopes like Franck because he’s a dishonest goalpost mover who will never concede anything of substance and we should stop responding to his blatherings as though they had merit.

One thing I haven’t seen noted is the change in the legal nature of marriage itself between the 19th century and now. The early 19th century view of marriage had asymmetric rights and obligations between husband and wife, that were in flux over much of the rest of the century. It’s much harder to conceive of an equal protection argument for same-sex marriage in 1865 if you are trying to graft it onto such an unequal foundation.

But certainly by the late 2oth century, the legal view of marriage in the US had shifted to a symmetric arrangement between equals. I’m not an expert in this area and haven’t done detailed research state by state, but I expect that by 1975 or so, the family law reforms that were widespread in the 60s and 70s would have swept away any remaining vestiges of assymmetry just about everywhere. Now it becomes much harder to formulate a good equal protection argument for why same-sex couples shouldn’t be allowed to marry. You basically can only do it by denying the significance of a same-sex couple’s relationship. Which, admittedly, is what I would expect many judges to do if the argument came up in 1980 or so, with a handwave about how the individuals are not being denied an equal right to marry an opposite-sex partner. But as you get increasing social acceptance of same-sex couples and their relationships, this gets harder for judges to sustain. Starting with the Hawaii decision in 1993, we have court after court looking at the situation and deciding that yes, this really does violate equal protection. This gets slowed down by the legislative wave against it, DOMA, and the like. But ultimately, the opponents of same-sex marriage haven’t been able to come up with a good argument why a ban isn’t an equal protection violation in the 20-odd years since 1993.

Mostly because I often find myself arguing against JH, I want to note that @101, especially the last full paragraph is really, really excellent.

“Surely a marriage consecrated on the Day of Saturn is clearly different morally from one consecrated on the Day of the Moon?”

Obviously marriage is LITERALLY DEFINED such that a marriage “consecrated” on the Day of the Moon is no marriage at all! See Franck point 4, which IN NO WAY CONTRADICTS FRANCK POINT ONE WHAT ARE YOU DOING READING THEM BOTH AT THE SAME TIME STOP THAT

Liberals may disagree with conservatives on what equality entails . . .

Or, conservatives may simply be opposed to equality . . .

Franck: “. . . these decisions rely, in part, on the conflation of the due process clause with a constitutionally ungrounded and so far unexplained power of the judiciary to decide what is “arbitrary” or “reasonable” or “just” in legislation . . .”

Maybe, deep down, he wants the law to be arbitrary and unreasonable and unjust.

I should say, though, that I appreciate JH implicitly acknowledging in the comments that certain conservative theories of legal interpretation have, as their implication, the fact that you can amend a statute by passing a new statute with exactly the same language as the original. This isn’t mentioned often enough.

#116

But to bemoan this is to fall into another trap, namely, that we could somehow craft the perfect language to avoid these problems, if only we could start all over. Unfortunately, nothing that matters in moral terms is ever so unambiguous; probably the authors of the Constitution thought their text was pretty clear, and then when it came time to run the country, those same people immediately fell to squabbling over its meaning.

I am not a constitutional historian, but I want to imagine the possibility that there were a variety of issues that the constitutional authors simply could not agree on, that they left ambiguous precisely because they wanted to have a constitution anyway, so they could have a federal government.

And for better or for worse, that’s what we got.

Possibly we would be better off if we delayed having a federal government until we agreed about all the details. If the constitutional convention was still in session today, imagine what a great constitution they would be producing. After more than 200 years of effort no doubt it would be a marvel in progress!

#134

Perhaps the judges will rule that since corporations are persons and have all the rights of persons, they can marry individual persons or other corporations.

And if a corporation falls on hard times it can collect welfare.

And it will be illegal to murder a corporation. Corporations can never be dissolved by their owners, any more than ….

Oh right. Owning a corporation is slavery. They must all be freed.

No one “changed their idea of what a citizen is”! During slavery, neither blacks nor whites were under the illusion that blacks were citizens. Also, they both agreed that blacks were persons. This is sort of the whole point: there was little relevant disagreement over the meaning of terms; there was profound disagreement over whether slavery was wrong.

It’s not the meaning of “citizen” that has changed, but its extension. And how did that happen? Black won their citizenship at the point of a gun, basically. They didn’t change the meaning of any words.

mdc: “Black won their citizenship at the point of a gun, basically. ”

MLK Jr. was armed and dangerous.

“there was little relevant disagreement over the meaning of terms” seems to me to confuse the issue more than anything else. You say that everyone always agreed that black people were persons. Well, good old Amendments I-X have plenty of mentions of “people”, but everyone agreed that these rights didn’t apply to certain people. Later on, when black people became citizens, everyone agreed that they were citizens, but this was immediately accompanied by the practice that real citizens had a certain bundle of rights and that black people weren’t really citizens in the same sense and didn’t have them.

There’s actually constitutional precedent which fully make’s Rich’s point.

Standing at the moment of January 17th, 1920. The several states ratified the 18th amendment which precluded ” the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.”

So no drinks was suddenly the law when only the day before it was perfectly fine….Dogs were human, yellow balls were blue….the law had been correctly changed because the morality surrounding alcohol had changed in the people of an appropriate plurality of states agreed this was so.

Until it wasn’t. When on December 5, 1933 the 21st amendment said, never mind about the 18th….the law was mistaken, because the morality had shifted back the other direction.

As devils advocate I might ask (since I don’t believe this), how do I know that the fact that we as society presently thinks its ok to have gay marriage, won’t be just like we once thought alcohol should be banned, and at some point in the future we might think it should again be outlawed? If this is a right we all agree should have permanence, shouldn’t it be constitutionally enshrined to give it that permanence?

If we disagree over whether American foreign policy is imperialistic or not, or whether our war of independence was a bourgeois revolution, or whether tomatoes are fruits, then we are only really disagreeing if we agree what imperialism is, or what a bourgeois revolution is, of what a fruit is.

It’s like if my sister argues we can’t go to a restaurant for Thanksgiving dinner because that’s not what Thanksgiving is. That’s sophistry. The real disagreement is over what is best to do on Thanksgiving.

The fight over gay marriage is over whether certain rights and responsibilities should be available to gays. Everyone agrees on what these rights and responsibilities are. For conservatives to say that the fight is about the meaning of the term “marriage” is this same sophistry, which attempts shift to a ground where disagreement is impossible.

#141

As devils advocate I might ask (since I don’t believe this), how do I know that the fact that we as society presently thinks its ok to have gay marriage, won’t be just like we once thought alcohol should be banned, and at some point in the future we might think it should again be outlawed? If this is a right we all agree should have permanence, shouldn’t it be constitutionally enshrined to give it that permanence?

I don’t get it.

Sure, there’s nothing wrong with trying to get a constitutional amendment about it, if you want to.

But if you do, that doesn’t make it permanent any more than the amendment banning alcohol was permanent.

@145 J Thomas

I’m inclined to agree with you in not getting it, for exactly the reason you cite.

That said, the conservative fix is that these changes require amendments so as to essentially establish things taken for granted such as women are people and get to vote, blacks are persons with all rights attached. Ergo: gay couples are in fact couples which are free to marry with such rights attached.

As noted, its not an argument I’m agreeing with, but it is where I believe Rich Pulchasky has a point in representing the difference between a liberal and conservative slant on where the terms of debate lie.

A liberal would say what’s the difference marriage is mariage and we now mean that to include gays as we should have all along. A conservative might say the meaning of marriage is 1 man 1 woman until its properly defined differently – as had been the case with women as voters and blacks as persons. Clearly both sides would prefer to do battle on their own playing field, but neither as yet has fully met on either field.

I’m tired of the whole argument.

I think the US Supreme Court ought to rule that marriage is a religious institution and therefore all laws that affect citizens’ free exercise of marriage are unconstitutional by the First Amendment, and leave it at that.

Then we develop a few standard contracts that give people whichever bundle of legal rights they want with their marriages, and couples can choose one to sign, and we’re done. (Job plan for lawyers!)

After that anybody who wants to argue about who’s really married and who isn’t, can do it on their own time with no input to or from government.

That’s what I want.

143 “The fight over gay marriage is over whether certain rights and responsibilities should be available to gays. Everyone agrees on what these rights and responsibilities are. For conservatives to say that the fight is about the meaning of the term “marriage” is this same sophistry, which attempts shift to a ground where disagreement is impossible.”

Rights and responsibilities could’ve been easily addressed by civil unions, generating little or no controversy. “Marriage”, OTOH, is a quasi-religious institution, and its formal definition is right at the front and center.

By the way, a whole lot of things started out with religious overtones, such as medicine, harvests, the calendar, giving people names, oaths, etc etc.
How is this relevant to a secular society?

The whole “definition of marriage” thing is a crock. Always was. Why? Because it’s shifted radically through time and place. It wasn’t until recently that the woman in this supposedly sacred event had any choice in the matter, for instance. So, now, it’s supposed to set in stone? Bullshit.

Even in the supposedly civilized West, arranged marriages were the norm well into the 19th century in many places; parents usually called the shots; marriages, especially in the Middle and Upper classes were often to extend property (and women were considered negotiable parts of that deal); and in many parts of the world, men could have several wives. In the so-called biblical times that the religious right says we should go back to, polygamy was the norm, girls being married off as young as 9 years old was the norm, and village elders or parents usually made that call. Those young girls were most often married off to much older men.

There were laws on the books in America in most of our states, right up until 1980, that said the man could legally have his way with his wife, regardless of consent. Spousal rape was legal.

The “definition of marriage” for thousands of years was fluid, regarding the details, but the general structure kept most of these features in place:

1. Men ruled. Women were chattel
2. Parents ruled. Kids were chattel
3. Male children were preferred chattel. Girls were all too often discarded.
4. Polygamy was accepted.
5. Parents or village elders called the shots when it came to arranging marriages

Hanging on to “definitions of marriage” is kind of like hanging on to definitions of slavery back in the 19th century.

To make a long story short:

Why would anyone give a shit if gay people want to get married, too? As Jefferson said, regarding a related issue:

“But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.”

Of all the things in the world to worry about, same-sex marriage has to be one of the silliest political fights in our long history of silly political fights.

#16

See, the problem with the current approach, is that the judiciary’s ‘Constitution’ is doing a kind of Drunkard’s walk around the written Constitution, which it gets further and further from on average.

Let’s call a new Constitutional Convention!

It would be fun. You know it would.

“The Constitution, as written, gives more than enough support for same-sex marriage.”

Only at a level of generality which would justify all sorts of interpretations you wouldn’t like one bit. For instance, the 2nd amendment right to guns, which you mention, is, per Congressional debate, one of the rights the 14th amendment was intended to compell the states to respect. You could, with exactly as much historical justice, (Which is to say, none.) insist that the 14th amendment means that right can’t be denied to felons, madmen, or children.

I don’t advocate that, though I think felons SHOULD, upon being released, get all their rights back. I don’t advocate that interpretation because I don’t like that kind of ahistorical sophistry.

J, I favor such a convention being called. I expect it wouldn’t produce as good a constitution as the one we have right now, but for all practical purposes we don’t have that one anymore. Might as well have a new constitution that gets enforced for a little while before the courts have time to twist it into a pretzel.

Historically, marijuana purchases have not been taxed. The reason that they have not been taxed is because purchasing marijuana has been illegal. Once purchasing marijuana becomes legal (where it is legal), there is no reason why it is exempt from the standard sales tax laws applied to other purchases.

The reason that all of a sudden these constitutional protections apply to gay couples looking to wed is that we are still not far removed from a point where being gay was functionally illegal. Now that we have accepted that it is OK and legal for two same-sex adults to be in a relationship, with all that it entails, then a gay couple has a status that makes it eligible for these constitutional protections. We have not changed the methodology of how these constitutional protections work. We have legally redefined gays as an eligible input to this constitutional function.

Ze Kraggash @ 151

“Rights and responsibilities could’ve been easily addressed by civil unions, generating little or no controversy. “Marriage”, OTOH, is a quasi-religious institution, and its formal definition is right at the front and center.”

I honestly can’t grasp why you think this is an argument. Could interracial marriage have been as ‘easily addressed by civil unions’? Could votes for women have been addressed by some ability to state a preference which falls short of real votes?

The state has established that marriage confers certain privileges on people; yet the statte withholds those privileges from some people because the state disapproves of their choice of partner. How is this not an obvious case of denying equal protection under the law to all?

The only thing which has changed, in effect, is our recognition that these people aren’t second class citizens, or non-persons. Past constitutional or legal views on this matter were simply wrong, because of prejudice, just as they were wrong about women, and African Americans, and Japanese Americans, and native Americans, and communists, and a host of other people against whom we discriminated more or less with the approval of the courts.

That marriage is also a religious institution seems irrelevant to the matter. Why? Because religions were free to recognize and perform same sex marriages before this change, and because they are free to refrain from performing them even now. No priest or minister is compelled to officiate over or participate in such a service, and religions are in fact free to expel those members of their faith who do participate in gay marriage, whether as couples or as presiders. This has no bearing on the fact that the state will now issue licenses, and the licensees will benefit under the law.

By way of comparison:

When it comes to same-sex marriage, conservatives misread and then insert selected limits into an amendment which clearly is quite broad in its protections, and doesn’t allow for those particular limits.

When it comes to guns, conservatives misread and then insert a ban on restrictions which can not be found anywhere in the amendment in question. They don’t exist.

In both cases, conservative courts engage in “judicial activism” whenever they take on these issues, as was the case with Hobby Lobby as well and the recent denial of voting rights in Ohio and NC.

Brett, on how many issues are you are so libertarian you couldn’t be mistaken for a Republican? The libertarians I know IRL want the government pared back to a night watchman state, taxes slashed, all drugs and weapons legalized for private use and commerce, and government to do nothing to encourage or suppress any kind of marriage (which all become specialized civil contracts), abortion, contraception, or organ transplant markets. I think they’re kind of crazy but at least there’s a method to their madness. In the unlikely event that they actually shaped public policy there would be a couple of things to look forward to among the chaos. I can’t recall the last thing you said that indicated a view of liberty too radical for plain old Republican policies. No, instead here you are on one of the few issues where most libertarians and mainstream Democrats agree, defending “statism” in service of prejudice allegedly because the wrong procedure has been used to increase personal liberty.

Plume, we both hold, albiet on different topics, views which are way, way outside mainstream opinion. When you’re an extremist, which we both are, it’s an important matter of, I suppose you could call it intellectual hygine, to remain aware that your views are not popular. To not fall into the delusion that a lot of people agree with you.

Again, virtually every state has an analog to the 2nd amendment in it’s state constitution, some added or expanded recently. State constitutions are generally easy to amend. If your point of view is so popular, why haven’t ANY of them been repealed?

Matt, I’m pretty libertarian, as a matter of policy preference, on most topics. Where I seem to differ is on the topic of abortion, where my aversion to late term abortion hardly makes me rare among libertarians, and immigration, where I stress the importantance of of path dependence: Sure, both a night wachman state AND open borders are good things, but it really matters which you get first, and I think getting the open borders first would be a big disaster.

And, yeah, I think procedure is pretty darned important. The rule of law is one of the few things we have protecting us from the state becoming a terror, and the rule of law is all about procedure. As the Soviet Union demonstrated, you can have the nicest civil liberties guarantees you could imagine written into your constitution, and if you don’t have the rule of law they won’t do you a bit of good. Whereas even a far short of ideal state, given the rule of law, at least has the sort of predictablity that allows you to cope.

Lighten up:
http://thecolbertreport.cc.com/videos/khi8w0/john-boehner-vs–america-s-anti-gay-marriage-crusaders

Brett,

I never claimed my point of view was popular. I said yours wasn’t. IMO, ignorance is a huge factor in the debate. All too many assume that the amendment itself is what makes it possible for people to buy and own guns, and its absence would end that. Not true. Not even remotely. The two things are not linked.

The only purpose right now for the SA is to radically increase the bottom line of the gun industry. It has served (through misreadings and outright lies) to confuse and frighten otherwise sane and intelligent people into keeping their distance from the logical removal of said amendment.

OTOH, “gun control” is very popular. A majority of the country is in favor of it. There is a huge different between the desire to remove the amendment (mine) and the desire to regulate guns (also mine). I’m in a minority only when it comes to the first, not the second.

But back to the issue in the OP, and sorry for the diversion.

#178 Ze Kraggash

Marriage needs to be glorified, imbued with mystical qualities. It’s something everyone must do, or else you’re a loser, a failure. And so, it becomes a quasi-religious institution, different from, say, retail banking or healthcare. IMO. If you remove the mystery, fewer people will marry. Why marry? They’ll hook up and drift apart. There will be more single parent families.

Maybe. I don’t see that we need government intervention to mystify marriage.

Plume,

I’ve noticed some libertarians who lean that way, but they seem like a minority among those I’ve actually met. Of course that could be self-selection filters at work. I’m not likely to strike up a conversation with someone who appears more interested in promoting religious values than in ending the war on drugs. Or it could be that Seattle libertarians are geographically pre-filtered toward “shrink government so we can buy and sell anything imaginable” motivations rather than “shrink government so people have no alternative when local patriarchs enforce religious values via property rights.” Not that I think original motivations have much to do with the ultimate outcome of valuing property over democracy, mind you.

#180 Harold

I disagree that you should remove civil marriage — a proposal probably offered in jest. Marriage has to do with the distribution of property and raising of children and other important legal issues.

I say replace those with enforceable contracts.

To the extent that people make religious vows and keep them, then the parallel contract do not need to be enforced.

I’m not completely serious because I don’t see how to get a big public movement to do it that way. It looks to me like an entirely good idea that could defuse a great big debilitating disagreement. But the people who are most into the disagreement don’t want it defused.

Matt,

That makes a lot of sense. We both have those filters, etc. Everyone does.

Something I was thinking about the other day, reflecting on comments about laissez faire by “Ned” in another thread.

Right-libertarians have a distinct advantage under the current context of major distrust of government. At least when they keep things vague and talk about “freedom and liberty.” Who is against that, right? But I think we need to try to pin them down on specifics. And it’s pretty obvious stuff:

Public health and safety:

Do right-libertarians favor an end to government regulations of workplace and product safety? Child labor? OT? Minimum wages? Work hours per week? What would it actually mean if we did “get government off their backs?”

When they talk about “liberty and freedom” but don’t elaborate, they don’t have to say, one way or another. But the logical deductions point to their desire for business owners to pay workers whatever they want; ignore workplace safety entirely, leaving it up to workers if they want to stay under dangerous or toxic conditions; produce dangerous, toxic products without public oversight; lie at will about those products; employ children of any age, which was the case in the days of Dickens, etc.

What would their business owner’s paradise actually entail? So far, they seem to have been really good at winning over a lot of young people (and others) who seem not to even bother asking these questions.

Ironically, the young are more likely to be opposed to the “liberty and freedom” to discriminate against gay people, women and minorities than they are to even ask about overall public health and safety matters . . . . or class issues. They need to do both.

I think we live in very strange times.

Rich Puchalsky @ 174

“I think that everyone has to generally recognize that what we think of as “the Bill of Rights” in the U.S. largely involves rights invented sometime around the 60s. There was no right to be a socialist political candidate and speak out against the war back when Debs was doing it, there was no right to publish a wide range of what we consider to be literary works before the 1973 Miller test, etc. ”

I’m not at all sure I accept this, except in the case where ‘right’ is defined WRT enforceability. Debs surely had the right to speak and engage in political activity; the problem was that legal minds, warped by prejudice, refused to enforce and defend his rights. Likewise Miller – the essence of that case was to recognize that his rights *already existed*, and uphold them, despite a history of having failed to defend those rights before.

“Things will change; for better or for worse – I don’t know. But I can see how this could be a concern.”

Yes, if we let those people freely choose, who knows what will happen?!

This line of argument about the social importance of families (i.e. children) has failed spectacularly, because the state doesn’t limit marriage to procreating couples, and because same-sex couples raise children. If childless people can be married, and same-sex couples rear children, where’s the compelling state interest?

I’m sorry, I have no idea what you mean, J Thomas @183.

On the chance that the problem is that I was unclear, I will try again.

We have a big disagreement about what marriage ought to be.

I say, declare marriage to be a religious issue that government must not infringe on. So to keep government from infringing on marriage, do not allow any government laws at all to affect — or to depend on — marriage.

But a whole lot of government laws and regulations are affected by marriage. Tax status. Inheritance. Next-of-kin in a variety of circumstances. Etc. We can’t just get rid of all that. So we should create special contracts that give people the rights that they used to get from marriage, but that are contracts and have no connection to marriage except that married people might reasonably want to sign those contracts.

Then each religious organization can have marriage their own way, however they want. People who believe that marriage should only involve one man and one woman can declare that they do not recognize marriages that have anything else. But if they get into a situation where they are obligated to recognize the non-marriage contracts, then they will do so or suffer penalties. But in that case they aren’t being required to recognize marriages, only secular contracts.

But I don’t think this would actually work because the people who want to have a big fight about it, want their big fight. They would not accept a way to resolve the issue because they do not want the issue resolved, except by a clear victory for their side and defeat for their enemies.

So they would fight this just as hard as they fight their existing enemies, because it is a way to keep them from having a clear victory and crushing their enemies.

189 “Yes, if we let those people freely choose, who knows what will happen?!”

So, you’re a libertarian? Fair enough. But most people aren’t, so it may be a concern for them.

Brett,

The entirely modern — as in, completely invented — rereading of the SA is the one that says it was put in place so intrepid citizen warriors could mount a rebellion against the rebellion just mounted. It’s the one that claims that the rebels were suicidal in their construction of a new government and wanted to be toppled after risking their lives to topple the British — that they wanted to make it easy to be toppled by those who weren’t in favor of what they had just done, knowing that roughly 2/3rds of the new nation either didn’t care who governed them or sided with the British. It also completely overlooks how that government dealt with the Whiskey and Shays rebellions, and how it defines traitors in Article One, Section Nine.

Being able to own guns isn’t the issue. It’s the idea that the government doesn’t have the right to regulate them in any way. That’s the complete fabrication and invention of the American right of recent vintage. Give or take, since the early 1970s. Such a reading was almost nowhere to be found before that, and existed only in the fringy fringe of white supremacist and other militia groups who believed the SA gave them judge, jury and executioner privileges. Right-libertarians have latched on to that fringe idea and claim they, too, get to decide which government employee — read, which fellow American — is “tyrannical” and can be shot extra-judicially because of that perverse misread of the SA.

Matt,

Your last paragraph, especially, is spot on.

@ 193 “So, you’re a libertarian? Fair enough. But most people aren’t, so it may be a concern for them.”

By no stretch of the imagination am I a libertarian. Just making the point that establishing a compelling interest to restrict personal freedom ought to require more than unspecified fear.

It occurs to me that the “dogs becoming persons” argument, or the “cetaceans are mammals” argument, convoluted as they are, are as far-fetched as they seem. In 1929, the highest court having jurisdiction over Canada “discovered” that women were indeed persons. Up to then, it had been “understood” that of course, the term “person” didn’t apply to women. I wonder how so-called textualists would approach this case – would they say that the dictionary definition of person clearly includes women, and so judges before 1929 had simply misunderstood the law in question? Could they simply have been ill-informed about the meaning of plain English words?

http://en.wikipedia.org/wiki/The_Famous_Five_%28Canada%29

“Oh, BS. They didn’t say “muskets”. They said “arms”. And not Tenche Coxe alone interpreted this to mean that the people were entitled to be armed in the fashion of soldiers.”

So people should be allowed to own F22s and nuclear missiles?

How about, governments shouldn’t?

The primary purpose for the stance against a federal army, or any move to disband state militias, was to protect slave patrols, whose jobs was to crush slave rebellions or catch runaways. All the cries about “freedom and liberty” were about the freedom and liberty of slave holders, which was also the case for the “states rights” movement and those shouting about “property rights.” It boiled down to the power to own slaves.

So when someone in 2014 tries to make the case that the SA is some great touchstone of age-old freedom to fight against oppression, it’s the opposite. It’s a racist amendment at heart and serves no good purpose today but to stand in the way of sensible gun safety laws.

And the idea, also quite recent, that private citizens should be able to match or exceed the firepower of the government, as if this is a heavenly ordained right, is beyond preposterous, and dangerous, obviously. Of course, our police and surveillance sectors are militarized to dangerous and surreal levels, and that should be reversed and ended. But the answer is certainly not for a bunch of Cliven Bundys to go toe to toe with them. They’re not going a win a war against the most powerful military on earth, and one of the most militarized police sectors on earth. This won’t be changed by an arms race between redneck yahoos and the government. It’s going to take a democratic, non-violent revolution, not one spear-headed by Patrick Henry wannabes.

Ronan,

I think Belgian chocolate is better. But the Swiss get most of the pub.

So people should be allowed to own F22s and nuclear missiles?

If governments couldn’t buy them, then it would work out if people bought as many as they could afford. It probably wouldn’t be a problem.

Except — if foreign governments can buy them, then you need a way to at least neutralize them or you’re going to be like the Taliban fighting the US Marines.

As long as we let the current state of military technology determine how the military is set up, sometimes there will be a highly-expensive highly-professional army that can slaughter anything including slightly-less-professional armies, and other times mass armies of poorly-trained soldiers can sweep over everything at great cost to themselves and greater cost to everything else.

Neither way gives you many opportunities for free citizens to reform their governments.

Layman: “I’m not at all sure I accept this, except in the case where ‘right’ is defined WRT enforceability.”

We’re talking about our legal system, in which the Supreme Court is the final interpreter of Federal constitutional law. In Debs V. United States (1919) The Supreme Court upheld his conviction under the Espionage Act of 1917. From wiki:

In its ruling on Debs v. United States, the Court examined several statements that Debs had made regarding the war. While he had tempered his speeches in an attempt to comply with the Espionage Act, the Court found he had shown the “intention and effect of obstructing the draft and recruitment for the war.” Among other things, the Court cited Debs’ praise for those imprisoned for obstructing the draft.

That’s law of the land. I’m not talking about “he had no right to protest the war” in some rhetorical sense. He “had no right” in the sense that he got 10 years imprisonment and this was deemed Constituutional by the highest court in the land. Schenck v. Unites States made it clear that it was not a restriction of freedom of speech to pass out leaflets urging resistance to induction.

BB, I have never see you disagree with the NRA but many of your posts indicate agreement so if my impression that you are defending the NRAs view of A2 is incorrect, it may be because you have given an incorrect impression.

Switzerland, that old hat. Yes, Switzerland has a militia army, and yes, Switzerland has gun control laws (http://www.loc.gov/law/help/firearms-control/switzerland.php), laws that the NRA would decry as pure tyranny. Switzerland is indeed the closest you could ever get to actual implementation of the Second Amendment, as it was understood by the Founders (although to be clear, that still doesn’t mean that the people are “armed in the fashion of soldiers”; Swiss militia men aren’t allowed to take their tanks home, only the rifles).

Now may I interpret your statement at 206 as Brett Bellmore on record in support of gun control?

Hey–just gotta say–the SCOTUS got the voter ID ruling for Wisconsin right! At least for the upcoming election. No voter ID! Almost makes me optimistic. Almost.

Brett, I love Switzerland’s gun laws, and I’d like to see them here:

“Each soldier is required to keep his army-issued personal weapon (the 5.56x45mm SIG SG 550 rifle for enlisted personnel and/or the 9mm SIG P220 semi-automatic pistol for officers, military police, medical and postal personnel) at home or (as of 2010) in the local armoury (Zeughaus). Up until October 2007, ammunition (50 rounds 5.56 mm / 48 rounds 9mm) was issued as well, which was sealed and inspected regularly to ensure that no unauthorized use had taken place.[4] The ammunition was intended for use while travelling to the army barracks in case of invasion.

In October 2007, the Swiss Federal Council decided that the distribution of ammunition to soldiers shall stop and that all previously issued ammo shall be returned. By March 2011, more than 99% of the ammo has been received. Only special rapid deployment units and the military police still store ammunition at home today.[5]

When their period of service has ended, militiamen have the choice of keeping their personal weapon and other selected items of their equipment.[citation needed] However, keeping the weapon after end of service requires a license.” (Wikipedia, naturally.)

I imagine you were counting on nobody knowing this when you asked the question.

Antonin Scalia: “I’m not going to rip all that up. It’s water over the dam. The people have gotten used to it. You know, that’s what Stare Decisis is all about. In other words, I am an originalist. I am a texturalist. I am not a nut.”

Discriminating against gays in access to marriage is nuts. Q.E.D.

@ 149 As you acknowledge, your plan is impractical and would not be accepted by any sane person, or even insane ones, as in your example. For another thing, it would also make it impossible for non-religious people –like myself, for example — to marry. It is things like that that make me despise religion.

As far as the ad hoc bundle of contracts. I simply don’t understand why some people fetishize contracts — the same people who fetishize religion, it sometimes seems.

Layman 199 “By no stretch of the imagination am I a libertarian. Just making the point that establishing a compelling interest to restrict personal freedom ought to require more than unspecified fear.”

In this sub-discussion (where you jumped @189) I only suggested that perhaps the quasi-religious nature of marriage has a societal purpose that transcends private interests. I don’t see how your point applies here. Unless you feel like skipping all the boring intermediate steps and challenging the anticipated conclusion. In which case: fair enough, I guess. Still, not a lot of substance in your point.

What you are proposing would be a bonanza for the lawyers, that’s for sure. Most people could probably not afford it.

“That’s exactly my question – why is it fine to update the meaning of ‘arms,’ but not the meaning of ‘marriage?’”

I’m *not* fine with updating the meaning of “arms”, which is “what soldiers carry”, not, “what soldiers carried on a specific date”.

TM, I think it should be clear that the 2nd amendment was part of trying to replicate the Swiss militia system of the 18th century in the US, not it’s gradual abandonment in the 21st.

Brett Bellmore: You write, in response to a view that same-sex marriage has constitutional support:

“Only at a level of generality which would justify all sorts of interpretations you wouldn’t like one bit. For instance, the 2nd amendment right to guns, which you mention, is, per Congressional debate, one of the rights the 14th amendment was intended to compell the states to respect. You could, with exactly as much historical justice, (Which is to say, none.) insist that the 14th amendment means that right can’t be denied to felons, madmen, or children.”

The constitutional right to bear arms doesn’t mean that any restriction on gun ownership whatsoever is invalid. But the permissible scope of restrictions on that right is also not simply (or primarily) an exercise in history. If you are an originalist, history helps to get a basic grasp of what the right is about, to get a picture of what the standard is. But the standard is applied in a contemporary context. The question is not, “Did this restriction exist in the past?” but “Does this restriction comport with the original meaning of the Constitution, applied in light of our current understanding of the world?” I am completely fine with the implications of this in the context of the right to bear arms. Sometimes it might lead to restrictions without much historical support (modern weaponry poses special dangers that didn’t exist in the past) and other times it might invalidate restrictions with lots of historical support (maybe we come to realize from experience that the state interest in blanketly banning felons from gun ownership is actually pretty weak).

Likewise with equal protection. Effectively, you are saying that you don’t like the level of generality specified in the text (“equal protection of the laws,” without qualification), so you want to add your own qualifications based on history. But whatever that is, and whatever its merits (you could imagine a “traditionalist” methodology of constitutional interpretation, and Justice Scalia, say, is actually rather closer to that in much of his jurisprudence than he is to original-meaning originalism), it’s not fidelity to text and original meaning. The text tells us that laws that deny equal protection are invalid. That’s true irrespective of whether people in 1868 would have enthusiastically approved of them.

@ 223

“In this sub-discussion (where you jumped @189) I only suggested that perhaps the quasi-religious nature of marriage has a societal purpose that transcends private interests. I don’t see how your point applies here. ”

You’re making the basic argument which has always been used to justify bigotry, the restriction of personal behavior, and the denial of rights; i.e. that marriage is special, and that it must be protected for the good of society, and allowing X will endanger marriage and therefore society. X is now same-sex marriage, where earlier it was interracial marriage, and earlier still divorce; and along the way it was equal rights for women, and women in the workforce, and birth control, voting rights, and so on. It’s nonsense, and what makes your using it worse is that it is precisely the argument that the losing side has put to the courts, and they’ve lost because they can’t defend it.

“We’re talking about our legal system, in which the Supreme Court is the final interpreter of Federal constitutional law. In Debs V. United States (1919) The Supreme Court upheld his conviction under the Espionage Act of 1917.”

Yes, I understand. What I’m saying is they were wrong, as they often are and have been. When they later correct themselves, it’s not the case that they’re inventing Constitutional protections out of whole cloth- it’s that they’re recognizing that past ‘settled law’ resulted from prejudice, not jurisprudence. There’s shoddy legal reasoning, but it is the older legal reasoning which was shoddy. As is the case here, with same sex marriage bans.

Layman: “When they later correct themselves, it’s not the case that they’re inventing Constitutional protections out of whole cloth- it’s that they’re recognizing that past ‘settled law’ resulted from prejudice, not jurisprudence. There’s shoddy legal reasoning, but it is the older legal reasoning which was shoddy. As is the case here, with same sex marriage bans.”

I have to say that that’s a weird legal theory, in which all change appears to be progress. When they decided that corporations were people and money was speech and invented new rights, were they recognizing that past decisions resulted from prejudice against corporations or prejudice against money?

Is there a perfect Constitutional interpretation in Platonic space somewhere that we’re slowly approaching, as older, prejudiced and shoddy reasoning is replaced by newer, unprejudiced and unshoddy reasoning? Because it appears to me that some recent Supreme Court decisions are much shoddier, for pretty much any definition of that word, than those in the past.

Also, too, I didn’t mean to imply that all current decisions are sound. Some are clearly quite shoddy. I’m wondering what the Roberts court will do with the Obamacare subsidy / Moops argument…

TM at 182:

In the US, marriages are actually performed – almost always – by religious ministers. Given the common perception of marriage as a religious construct, it is weird that this has become a constitutional battle – it would seem that leaving it to the discretion of the churches would have been the “American” thing to do. And of course there would have been enough churches willing to wed same-sex partners.

“Leaving it to the churches” doesn’t work for a number of reasons. When ministers perform marriages, they are acting on behalf of the state — the civil aspect of marriage remains civil, not religious. And when a secular justice of the peace marries people, she’s not acting on behalf of a church. The religious element is merely coupled to marriage, it doesn’t subsume it.

Secondly, the whole issue is about people’s opinions on the legality of marriage in general. “Leaving it to the churches” is more-or-less synonymous with legalization, given the existence of churches and individuals entirely willing to do it, as you point out. It’s precisely what opponents are against — they don’t think a Universalist church should have the right or ability to make two men legally wed. Opponents are not just saying “Not in my church”, although many of them will emphasize that as if it were the core of their argument because it has a certain sense to it, even though it’s extremely easy to craft the law without infringing on a church’s right to refuse to wed people. They’re saying “Not in my neighborhood.”

Leftists don’t hate originalism. It’s impossible to hate something that doesn’t exist.

What we hate is transparent lying that treats people as if they’re stupid.

Scalia has said, over and over, he follows the text and the original meaning, unless it’s nuts. For Scalia, “nuts” means, “inconsistent with conservative orthodoxy, corporate interests, or Republican partisan advantage.” It’s a consistent interpretive strategy, I’ll give originalists that, but it’s not worthy of any particular respect.

An interpretive strategy that says that, in spite of more than 200 years of precedent, gun ownership is a right like freedom of religion, that corporations as such have free speech and religious freedom rights and that noticing racial disparities in education is “the real racism” is neither originalist nor coherent.

What it is is conservative (sometimes libertarian, unless the liberty pertains to women) ideology, cloaked in specious universalism.

I still want Switzerland’s gun laws. What about you?

Harold 222: Hilarious link.
” a moderately low birth rate – a little below two children per woman – can actually boost a country’s overall standard of living.”

“Shocked researchers find that Germany and Japan have higher living standards than Nigeria and Pakistan, despite low birth rates.”

What will economists discover next?

“There is no evidence that “originalism” is popular, or that people see it in the same way you do.”

On the former point, the minority in Heller didn’t pretend to be doing originalism for yucks. On the latter, perhaps.

TM, just offhand, there’s the 3/5ths clause, and there’s the temporary ban on laws prohibiting importation of slaves. And that’s about it. I’d have to do a word count, but that’s what, a few percent?

#234 BB

“But looking back, it’s clear that what we actually got was slave patrols and we failed to get swiss militias.”

Yeah, the left hates the Constitution, and hates even more originalism, and then runs up against both being popular.

I’m not on the left. I’m in front. You keep missing that.

Here’s how I see it. The constitutional convention included 55 men total, and produced the Constitution in less than 4 months. We have since had 230 years of exegesis as millions of smart people have searched their hearts for ways to interpret the document to mean what they want. A large fraction of those interpretations get called “originalist” because their authors wrongly claim they see into the hearts of the Founding Fathers and know what they would want.

It’s a lot like religious fundamentalists who believe there is one single right way to understand the Bible, a way that is so obviously correct that it is not an interpretation at all.

The modern revisionists of all sorts have put far, far more work into it than the original authors could possibly have put into the Constitution. Most days there were no more than 40 committee members present, and sometimes they waited for subcommittees to actually write the thing. The total effort was certainly less than 15 labor-years.

Above there’s somebody who wants to claim deep meaning in subtle differences in phrasing between different amendments! I am reasonably sure that the authors of the amendments did not put nearly as much thought into the exact wording of the amendments, as any one of the ten most vociferous later interpreters.

And yet I can see value in reverence for the Constitution. By following it slavishly we avoid various problems. If we didn’t follow the Constitution we might get into foreign wars that Congress never declares. We might do unreasonable searches and seizures. We might legally discriminate against some of our citizens. (Or illegally, for that matter.) We might let the IRS decide what the tax law is, mostly independent of the legislature. There are a whole lot of bad things that our reverence for the Constitution prevents us from doing.

The constitution is not an ad hoc document dreamed up 55 buddies in 4 months but is based on two millennia of evolving legal and political thinking.

249: thank you, that encapsulates my inchoate thoughts about R.P.’s comments in general.

#248 Harold

The constitution is not an ad hoc document dreamed up 55 buddies in 4 months but is based on two millennia of evolving legal and political thinking.

OK! In that case we don’t need to figure out just what the Founding Fathers meant. We need to figure out which part of 2000 years of evolving thinking we should go with today.

Certainly no liberals ever just get mad at insults to their tribe, and reflexively support what their tribe does whether it makes consistent sense or not. Your comment here doesn’t support that in any way, and I don’t know what I was thinking.

“How is this distinguishable from what I’ve referred to as inventing new rights? Earlier Supreme Courts looked at the Constitution and said “This person is making a political speech about how people should resist the draft, it is perfectly fine to put him in jail.” Later Supreme Courts looked at the same facts and the same text and said “No, actually people have a right to do this.” A future Supreme Court in the same situation can just as easily decide to throw some future political speaker in jail again. But at every stage they give lip service to the pious fiction that this was the logic of the law all along.”

If that’s your complaint, and if it is a complaint, then I think you’re just railing against human nature and its innate ability to wreck any mechanism. Justices are people, subject to the vagaries suffered by people, and they sometimes get it wrong. Other times they get it right. And nothing prevents them from getting it wrong again later. Suggest another mechanism free of that flaw, and I’m all ears.

“With a few key stokes it can be fit to nearly any argument ever held between a liberal and a conservative and in all readings neither side wins.”

Yes yes Both Sides Do It (TM).

It had to make an appearance here at some point I guess.

Layman: “Justices are people, subject to the vagaries suffered by people, and they sometimes get it wrong. Other times they get it right. And nothing prevents them from getting it wrong again later. Suggest another mechanism free of that flaw, and I’m all ears.”

I think that it’s perfectly reasonable to say that people make mistakes. What I’m criticizing is the idea that there is in our system some kind of historically continuous, abstract mechanism which judges can get either right or wrong. Or, to return to the original post, that “they have a new moral framework in which old abstractions about rights and equality carry fresh implications.” That posits “a new moral framework” — I’m fine with that part — but it joins it to “old abstractions […] that carry fresh implications.” And I think that part is just propaganda. Those old abstractions were the ones that we carefully picked out of a mixed document that contains all sorts of possible abstractions.

CaptFamous expressed the idea, up in #163, that legal protections were like computer code and we’re just plugging gay people in as a new value of a variable into the code, so that the output might be very different, but the code itself wasn’t really changing. This is what, when JH expressed something similar, I called “Assuming a Spherical Gay Person”.

I don’t think that it works this way or ever has. There’s a whole new system of morality that’s taking over. It uses propaganda bits from the old morality just in those places where they can be made to fit. The conservatives who say that we’re changing the law in some kind of way that is not really implied by the document are wrong about what kind of morality we should have, but they’re basically right about what we’re doing.

Someone remind me, has this thread yet come to a consensus on why changing interpretations of laws are or are not deeply mysterious philosophical problems?

I don’t think that it works this way or ever has. There’s a whole new system of morality that’s taking over. It uses propaganda bits from the old morality just in those places where they can be made to fit. The conservatives who say that we’re changing the law in some kind of way that is not really implied by the document are wrong about what kind of morality we should have, but they’re basically right about what we’re doing.

Ok, so, who cares? Turns out that throwing out the whole thing every time you want some kind of change isn’t actually a practical way to run a modern nation-state. Oh noes. So what now? How does this matter in any practical or even theoretical sense?

“How does this matter in any practical or even theoretical sense?”

I think it’s a good idea to not fool ourselves about what we’re doing. Or to rely on arguments that don’t work on anyone but us. (Where “us” equals liberals plus other people who are vaguely on the left: people who basically agree with Enlightenment values about the equality of people).

Above there’s somebody who wants to claim deep meaning in subtle differences in phrasing between different amendments! I am reasonably sure that the authors of the amendments did not put nearly as much thought into the exact wording of the amendments, as any one of the ten most vociferous later interpreters.

Btw, the distinction I’m pointing out — definite vs indefinite noun phrases — is linguistically about as clear as the distinction between past and present tense verbs. It’s not something you have to think about to do: it’s essentially on a level with, “if they wrote ‘will’ it means they were talking about something that hadn’t at that point happened”.

I am not a lawyer or a historian, but I don’t think it is all that difficult to find out what the founding fathers meant from context and a study of constitutional tradition available in books and historic documents. We know the books and authors they consulted, and we have their letters and other documents. Every high school student has access to this information.It is pretty clear that they favored well prepared citizen armies, for example, as opposed both standing and mercenary armies, and this was grounded in English and republican historical (not only Swiss) tradition, both ancient and modern.

“I am not a lawyer or a historian, but I don’t think it is all that difficult to find out what the founding fathers meant from context and a study of constitutional tradition available in books and historic documents. ”

Excellent. How did they intend tax laws to apply to electronic transactions where the buyer is in one jurisdiction, the supplier is in a second, and the actual seller is in multiple jurisdictions and which one processed the sale can’t readily be determined? Can the answer be found in Locke?

Volunteer citizen militias proved to be a will-o’the-wisp (and had ever since Machiavelli tried to organize one in the republic of Florence). The militias that fought in the war of 1812 were neither trained nor prepared (contrary to their own self-estimate), but that is neither here nor there.

It was very much there. The USA got its ass kicked.

Nevertheless, have a pretty good idea of what the founders envisioned.

If they envisioned something that does not work, the public will refuse to do it that way when they see it does not work. For citizen militias, that was 1812.

For states rights, it was 1861.

For small government, it was 1929.

For allowing citizens personal privacy, they maybe decided it does not work in 2001. I hope they’ll reconsider and give privacy another chance; there may be a way we can make it work.

I have to agree with you there, J Thomas.

“For citizen militias, that was 1812.”

1812 was, IMO, an example of the militia system working. One of its virtues was, after all, supposed to be that it would discourage the government from engaging in foreign wars of aggression. In 1812, we were invading Canada. Many states took the position, correct, I think, that the Constitution’s militia clause did not authorize foreign wars using the militia, and refused to cooperate.

But, I will agree that in practice the militia system didn’t work out, and not just because it was designed solely for defense, and the federal government wanted an army it could use for aggression. Militia systems only seem to be sustainable in the case of small countries subject to external threat, where it is clear to everybody that survival depends on everybody being armed. Thus it worked in Switzerland, and not in the US, which has the Atlantic and Pacific for moats, and comparatively short borders, (Very short borders compared to it’s land area and population, which is the relevant criterion.)

None of which amends the Constitution, of course.

… the war of 1812 demonstrated that the militia system worked, because it was a war of foreign aggression, precisely like those the militia was introduced to discourage?

I know this reasoning is hard for you to follow, but I got it.

The militia system discouraged us from starting wars of foreign aggression by getting our butts kicked when we tried to do that. If we had the sense to realize that we couldn’t do wars of foreign aggression and were smart enough not to try, it would work even better.

Unfortunately, it also failed to provide defense when foreign nations aggressed against us (in retaliation or for whatever reason). So the US public gradually rejected it, and by the time of the Mexican war we had a small standing army and the means to train a larger professional army at need, and by today we have the strongest professional army in the world which costs us 4% of GDP to maintain and an additional 2% of GDP to wage wars and occupations against insignificant nations halfway around the world.

It is not clear that militia actually “work” for Switzerland, except that they do have such a system, and it is relatively cheap, and it is not clear that a more expensive professional army would do them any good. There was a time when they had military techniques that were quite effective, and their mercenaries brought in considerable revenue. Those times are long gone. Now, if anybody chose to invade their lownlands (like for example if the Nazis had done that) they would be utterly unable to defend their cities and would have to fall back to the mountains where they would likely be unable to manage much resupply. It would be a disaster for them. But for a very long time their neighbors have preferred to use the swiss lowlands as neutral trade routes than try to directly control them. And the Swiss sold the Nazis essential war materials so that the Nazis would lose more by invading than by not invading, until the threat was much reduced.The Swiss approach has been to be more useful to potential conquerors left free than defeated. They might not even need their militia for that, but it does no harm and it might be useful and it is after all pretty cheap.

Imagine that the USA could do that. Say we switched to a military that cost only 1% of GDP, and imagine that we lost nothing by it. If we had an extra 3% of GDP to invest and grow the economy — if that investment grew at compound interest, so we grew an extra 3% each year, in less than 25 years we would double GDP from that cause alone. Then if we had another WWII-style crisis and we needed to mobilize a big army, we’d have twice the GDP to do it with.

This is of course wildly oversimplified in all respects, but I hope it suggests the possibilities.

But instead we have taken on the role of Superman, the nation that rights wrongs everywhere in the world by smashing the bad guys. And if we didn’t do it, who would we trust to replace us?

#280

… so I’m not seeing any wars _prevented_ by militia’s inability to exercise wars of aggression.

You do have a point. In Brett’s defense, though, I point out that there may have been some that were prevented, that you don’t hear about because in fact they *were* successfully prevented. It’s mostly the failures-to-prevent that turn into history.

Also, the central standing armies helped give us the impression that we could win foreign wars, and we did win some. If we had had the political will to avoid that sort of thing and lose every war we got involved in, then Brett’s idea might have worked. And then well-run militia would indeed be necessary, and the Second Amendment would have an originalist meaning today.

> In Brett’s defense

Post 279. “The militia system discouraged us from starting wars of foreign aggression”

Your post, your claim.

#283

Post 279. “The militia system discouraged us from starting wars of foreign aggression”

Your post, your claim.

OK, and I stand by it some. But unfortunately, while the militia system discouraged us from starting wars of foreign aggression it was even more effective at discouraging us from depending on the militia system. So it was kind of self-limiting.

The founders were right about one thing. Mercenary armies and foreign wars are undesirable.