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

by John Holbo on October 8, 2014

Matthew Franck advances a number of arguments for thinking the Supreme Court taking a pass on gay marriage is similar to the Dred Scott decision. I think he missed one that is at least as good as several of the ones he offers.

The Supreme court took a pass on October 6, 2014.

Dred Scott was decided on March 6, 1857.

Do you see the pattern?

If two things can be decided on the 6th day of the month, imagine what further atrocities might be in store! The Supreme Court might decide, on the 6th day of some month, that little babies should be able to get married. Or that dogs should own all the money.

(I know what you are thinking. You thought the point was going to be that 2 + 0 + 1 + 4 = 7. And 1 + 8 + 5 + 7 = 21. And 21 is divisible by 7. They’re both divisible by 7? Where will it end?)

Right. Continuing my wildly popular series of ‘let’s salvage at least something worth thinking about from the wreckage that is NR’ posts, consider what I consider to be Franck’s least obviously bad argument, from his previous post.

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.

Not that it’s a good argument, mind you. But it is interesting that there seems to be an emerging legal consensus that the pro-same-sex-marriage position is rather overdetermined. Franck concludes that therefore the arguments must all be twaddle, devoid of reason. But, if you actually read them, they obviously are not. So how should we think about this?

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. But now cases are making their way through the courts, and decisions are coming down, mostly strongly in favor of the get-married-on-the-6th side, but they are kind of a mixed bag. One court says forbidding this thing is a violation of equal protection. Another says forbidding this thing is a violation of due process. Still another hints that maybe people have a ‘fundamental right’ to marry, even if they are born on the 6th, even though the Constitution totally doesn’t say that they DO have that right, in so many words. Some judges seem rather impatient with the whole business, like they know what the right answer is, and are just finding any old convenient, colorable reason for getting it done already. Surely, if it’s so obvious as that, we should be able to agree on WHY it is obvious, legally!

In short, we are facing a farrago of fallacious fancies, as activist judges seek to legislate their politically correct diurno-relativistic beliefs, from the bench. How can the Republic remain strong? (Outside the courthouses, protestors kneel, despondent; their ‘Sixth Day, No Way!’ signs damp in the rain.)

My analogy is rather extreme. But it gets at an important point about the really staggering degree of moral shift we have experienced, culturally, over the same-sex marriage issue. A critical mass of people now see no moral sense, whatsoever, in opposing same-sex marriage, legally. No matter how you slice it, it’s arbitrarily harmful discrimination. (If Franck is genuinely curious what people’s moral – as opposed to legal – reasons are, he can ask them. There are lots of moral arguments, and people now find them overwhelmingly convincing. I do.) This isn’t a legal argument, of course. But it sufficiently explains why, suddenly, not just one but several lines of legal argument seem basically plausible. People haven’t suddenly lost the ability to reason legally. Rather, they have a new moral framework in which old abstractions about rights and equality carry fresh implications.

Basically, Franck’s argument is this: if it was so damn legally obvious, why didn’t anyone notice before? This just reduces to: if it was so damn morally obvious, why didn’t anyone notice before? And the answer is: it’s actually kind of mysterious why so few noticed before, then suddenly so many did. But it’s not illegal that this happened. Hence there isn’t a legal objection to the implications of it having happened.

Conservatives like to complain about ‘living constitutionalism’. I think that’s mostly silly. But it’s also largely beside the point, at least in the same-sex marriage case. If several legal lines appear out of nowhere, it might seem that the legal tree must have grown. So if you don’t think the law is a tree, something bad has happened to the law. Anyway, it needs to be pruned back to its original shape.

But consider another silly argument. Suppose tomorrow we all decide that dogs are self-evidently people, in all morally relevant senses. Any attempt to treat dogs morally differently from people would be arbitrary. We’re sure of it! (No, I have no idea what we are thinking. Just go with it.) Well, that has huge legal implications. Suppose a few heroic souls want to fight against this moral shift by resisting all accommodations to it on the legal front. They don’t want dogs getting all the rights that, until now, ‘people’ have enjoyed. The only way to accomplish this, legally (as opposed to morally), is to change the law so that ‘people’ are not so equal any more, in principle.

It’s a classic conservative witticism (Leopardi, The Leopard, isn’t it?) that sometimes, in order for things to stay the same, they need to change. In the case of same-sex marriage, given the moral change, the thing that needs to change, to keep there from being change, must be the law. If you can’t convince people that there’s a moral problem with same-sex marriage, the only way to preserve traditional marriage, as a legally exclusive form, would be radical judicial activism about due process, equal protection, maybe some other things. I trust Franck has the stomach for it!

{ 288 comments }

1

Vance Maverick 10.08.14 at 4:39 am

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

2

heckblazer 10.08.14 at 5:15 am

As it happens, today’s XCKD comic compares acceptance of gay marriage with acceptance of interracial marriage.

3

Plume 10.08.14 at 5:26 am

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!!!

4

JHW 10.08.14 at 5:26 am

Matthew Franck should be ashamed of that post. It is a low effort. It makes an extraordinarily silly argument (that Franck surely knows, or should know, is extraordinarily silly) in support of an odious remark (that Franck surely knows, or should know, was odious). It’s not even the substance of the issue; it’s not that Franck is legally or morally wrong about same-sex marriage (though in my view he is). Even if the court decisions Franck is criticizing were badly wrong and deeply destructive, even if they were atextual and politically motivated in the way he accuses them of being, they would still not be worthy of comparison to Dred Scott, a decision that constitutionally entrenched white supremacy and put the force of the nation’s highest court behind the effort to expand the practice of human beings holding other human beings as property.

5

John Quiggin 10.08.14 at 6:37 am

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?

6

John Holbo 10.08.14 at 6:42 am

“And with the inevitable exception of Ted Cruz, Repub pols have treated the decision as a fait accompli. Will the base accept this?”

I think it helps a bit. If the Court were to think about it in totally partisan terms, they are taking a hit for the team. (I doubt they are thinking of it quite like that, but just suppose.) The base blames them now for same-sex marriage – not politicians – but this doesn’t hurt them. They aren’t going to be voted out. Whereas if the base blames politicians, the politicians might have to pander to the base, which might make them look like extremists to general election voters.

7

John Quiggin 10.08.14 at 7:27 am

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.

8

J Thomas 10.08.14 at 9:36 am

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.

It’s the two party system. As long as the only other choice is letting godless Democrats win, they’ll hold their noses and vote GOP. Like liberals vote for center-right Democrats.

9

Sancho 10.08.14 at 9:41 am

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.

10

Zamfir 10.08.14 at 9:47 am

It’s il gattopardo. Leopards are cat-pards in italian, not lion-pards :)

In dutch, the word leopard became luipaard. Which happens to mean ” lazy horse”. For kids, this can be an infinite source of wonder. Are they secretly horses? Are they related to hippos (nile-horses in dutch)? Do horses become leopards when they go to sleep?

11

Brett Bellmore 10.08.14 at 10:34 am

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.

12

Anderson 10.08.14 at 10:46 am

I’m going with a suggestion from Garrett Epps: the Windsor dissenters fear that a Kennedy op allowing gay marriage might also lead to outlawing other discrimination vs gays (who can be fired for being gay in many of the states where they now can marry). So half a loaf of hate is better than none.

(The reason the other 4 didn’t grant cert is, who the hell wants to rely on Kennedy?)

13

Sancho 10.08.14 at 11:07 am

“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.

14

Anderson 10.08.14 at 11:29 am

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

15

JHW 10.08.14 at 12:17 pm

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.

16

Sancho 10.08.14 at 12:20 pm

But no one argued that they weren’t an entire, consistent group. Blacks and Asians and South Americans weren’t regarded as rare, isolated freaks to whom the idea of right as a class of people simply couldn’t apply.

Brett’s imitating the liberal argument that the second amendment applies only to blackpowder muskets, because that’s strictly what the amenders had in mind when writing it, without any thought that mass-produced automatic assault rifles with extended magazines would ever be a thing that needed to be considered.

17

J Thomas 10.08.14 at 12:26 pm

#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

MPAVictoria 10.08.14 at 12:56 pm

@Sancho

I guarantee you that in 15 years BB will be telling his kids that “he was always in favour of letting the gays marry.”

19

Sancho 10.08.14 at 1:15 pm

#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

20

Earwig 10.08.14 at 1:20 pm

“It is not constitutional fidelity to adhere to old prejudices that were never enacted into constitutional text.”

That’s right.

21

Rich Puchalsky 10.08.14 at 1:27 pm

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.

22

jake the antisoshul soshulist 10.08.14 at 1:46 pm

Is Franck actually trying to argue that marriage as an institution that has not changed in the history of civilization? He does not even seem to be making the religious argument
that marriage is ordained by God and only God could change it.

23

Brett Bellmore 10.08.14 at 1:49 pm

“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.

24

Sancho 10.08.14 at 1:52 pm

Actually, it’s the general public impressing its opinion on the court.

25

John Holbo 10.08.14 at 1:59 pm

“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.”

Suppose on Monday Smith has not murdered anyone but murder is illegal. Is Smith guilty of murder, under the law?

Answer: no.

On Tuesday Smith has murdered something and murder is still illegal. Is Smith guilty of murder, under the law?

Answer: yes.

But now comes the tricky one. What has changed, to make Smith guilty of murder? I take it your answer is: the law must have changed, because otherwise how could Smith go from innocent to guilty overnight?

No, of course not.

What’s the moral of the story?

From the fact that the law has different implications from one day to the next, it doesn’t necessarily follow that the law itself has changed. Make sense?

26

Brett Bellmore 10.08.14 at 2:01 pm

“Actually, it’s the general public impressing its opinion on the 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.

27

Rich Puchalsky 10.08.14 at 2:08 pm

“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.

28

Bernard Yomtov 10.08.14 at 2:13 pm

JHW @ 15,

Excellent points.

Let me add one thing. You say,

” nobody in 1868 thought that the Equal Protection Clause required same-sex marriage.”

Maybe, but I wonder if they even thought about the issue. I suppose if you asked them they would have said, “No. Of course not,” and if pressed for a reason they would have talked about morality and perversion and so on. So if we accept that, we accept an interpretation based on 1868 morality. As long as interpretation rests on moral views, why don’t those of 2014 trump those of 1868?

Brett,

“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.”

I don’t think you have any basis whatsoever for this claim.

29

Brett Bellmore 10.08.14 at 2:16 pm

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

30

John Holbo 10.08.14 at 2:21 pm

“No, my answer is that morality must have changed, which forces the law to be interpreted in a different way.”

Why couldn’t it be that something changed about Smith? Doesn’t that seem the obvious answer?

Look. Suppose you have a yellow ball and I ask you whether the statement ‘the ball is yellow’ is true. You answer yes, right? Now I exchange the yellow ball for a blue ball and ask you whether ‘the ball is yellow’ is true. You answer no, right? Now, what explains the change? I would say the ball changed. But language is still the same You, apparently, would say the fundamental nature of color must have changed? (But why? Why not just say: the ball changed?)

“In particular, maybe the “something” that Smith murdered on Tuesday isn’t a person”

How did he murder it, then, if it wasn’t a person, by hypothesis? (I mean: before the shoehorning starts.) I don’t understand.

31

Plume 10.08.14 at 2:31 pm

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.

32

Plume 10.08.14 at 2:35 pm

To shorten that up a little and take it away from TLDNR:

The sign on the door says “Everyone is welcome” and there is no fine print. It’s pretty hard later to say, “But we meant everyone who is tall, blonde, blue-eyed and exceedingly wealthy!” and give it the force of law.

33

Christiaan Hofman 10.08.14 at 2:38 pm

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.

34

Rich Puchalsky 10.08.14 at 2:42 pm

“Why couldn’t it be that something changed about Smith? Doesn’t that seem the obvious answer?”

It’s not your answer, really. Take your “we decide to treat dogs as if they are morally people” example. Did the dogs mysteriously change between one day and the next? No, of course not: this isn’t a science fiction thing in which same-sex couples now suddenly have something physically different about them than before. In the dog example we changed our morality, which changed our definition of what a person was, so now all of our laws need to be reinterpreted because “person” is being interpreted differently.

Let’s say that Smith killed a dog on Tuesday. On Monday this would have been considered to be cruelty to animals, but by Tuesday changing morality has finally forced a change in the law, and Smith gets the penalty for murder. Conservatives sputter that a huge change has occurred in the law and it really isn’t being interpreted in the same way as before, and that jurists are looking for a legal justification that allows them to recognize the public’s changing attitudes towards dogs. They are right. It sounds bad because we’re comparing same-sex marriage to dogs, but you’re the one who went with that comparison in the first place.

35

Sancho 10.08.14 at 2:49 pm

“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.

36

Bernard Yomtov 10.08.14 at 2:51 pm

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

OK. I’ll bite. How does sociobiology support your claims about what people cared about in 1868?

37

Plume 10.08.14 at 2:55 pm

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.

38

stevenjohnson 10.08.14 at 2:55 pm

If homosexual acts, aka “sodomy,” are illegal, then no construction of the constitution can support gay marriage. But after homosexuality is decriminalized, the same constitution really does implicitly acknowledge basic human rights that deserve equal protection of the laws by due process. At this point, judges striking down legislation as unconstitutional, including such forms as referenda, is the law serving to restrain popular majorities in the name of freedom. If I recall the propaganda correctly, that was supposed to be one of the great justifications for violations of majority rule. My conclusion is this conservative principle is why a drone murderer can sign on to marriage equality.

39

Peter K. 10.08.14 at 2:58 pm

@ 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.

40

marcel 10.08.14 at 2:58 pm

“facing a farrago of fallacious fancies”

As a nattering nabob of negativism and pusillanimous pussyfooter, member of The 4H Club of Hopeless, Hysterical Hypochondriacs of History and charter member of The Effete Corps of Impudent Snobs, I salute you, sir.

41

Peter K. 10.08.14 at 3:02 pm

@ 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.

42

John Holbo 10.08.14 at 3:03 pm

“It’s not your answer, really.”

In fact it is my answer, really.

“Take your “we decide to treat dogs as if they are morally people” example.”

But I was asking you about MY case. Smith, the murderer. Look, I don’t deny that if we change to a dog case we might get a different answer than about the Smith case. There is no a priori reason any given dog and Smith need to share all properties in common, after all. (In fact, that’s sort of my point. If you change what you talk about, what you say may have to change, too, if you want to keep on speaking truth.) But what if we don’t change cases?

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 tend to think the law stays the same – or it is at least possible that it can stay the same. Do you have sort of a Heraclitean theory of law? You never step into the same statute twice? Something like that?

If that’s not it, then I don’t get it.

43

Plume 10.08.14 at 3:05 pm

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

44

Peter K. 10.08.14 at 3:07 pm

About marriage as institution, the new stat is that there are now more single people than married couples. More than half in the U.S. are now single up from 37 percent in 1976.

http://www.bloomberg.com/news/2014-09-09/single-americans-now-comprise-more-than-half-the-u-s-population.html

I think of Piketty. After the Great Compression with the Great Depression and World Wars, incomes and financial security rose decade after decade for a greater share of the population. Religion and homophobia (scapegoating) lost their hold.

45

Plume 10.08.14 at 3:07 pm

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.

46

Plume 10.08.14 at 3:11 pm

John, the law tends to stay the same. People tend to change their views about clemency, guilt, innocence, who matters in society, etc. etc.

So, if I read you correctly, your point is solid.

And it’s similar to the fact that the Constitution already started out protecting same-sex marriage. It’s just taken an awful long time for people to realize this.

47

Rich Puchalsky 10.08.14 at 3:17 pm

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.

48

Plume 10.08.14 at 3:25 pm

Rich,

That phrase, “separate but equal” was never right. It was separate but unequal, obviously. Another strange term like “near-miss,” which makes zero sense, at least as used.

49

CaptFamous 10.08.14 at 3:33 pm

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.

50

Rich Puchalsky 10.08.14 at 3:40 pm

“That phrase, “separate but equal” was never right. It was separate but unequal, obviously.”

And just as obviously, it was previously legal for there to be inequality of this kind. What changed so that this form of inequality was legal before and then illegal later? Morality changed. And then a whole lot of new law had to be written to implement that change.

JH is going along with a kind of false invariant-Constitution idea, in which the equality of people was always implied by the use of the word “people” from the beginning. And it’s just not true, as evidenced by the original Contitution valuing some people as counting as 3/5ths of a person for some purposes. Conservative defenders of this invariant Constitution say that jurists are seizing on moral reasons to change the law that aren’t really justified within the law itself, and they’re right.

51

bianca steele 10.08.14 at 3:41 pm

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.

52

Watson Ladd 10.08.14 at 3:50 pm

Gay marriage was not a demand of the gay rights movement, rather the demand was to abolish the family. Homosexuality was decriminalized in the 1920’s in the USSR and Weimar Republic, but there was not a question of gay marriage per se. Likewise in the 1970’s gay marriage was the conservative demand.

It’s interesting to see the difference between decriminalization of homosexuality in the US, and gay marriage. While decriminalization was achieved by legislative action before courts ruled that people had a right to conduct sodomy, gay marriage has been largely a product of judicial activism at the state and national levels.

53

bianca steele 10.08.14 at 3:51 pm

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.

54

John Holbo 10.08.14 at 3:51 pm

“I think that the law changes, not every time that someone murders someone”

I am glad to have extracted at least that concession from you, Rich. (I was worried you were turning Derridean!) I can work with this.

Suppose that the law says ‘endangered species are protected in such-and-such a way’ and tomorrow a biologist makes a (legally satisfactory) demonstration that a certain species is endangered. Does the law change, or does the law stay the same, but the implications of the law changes, possibly dramatically, creating new legal implications?

You could say it either way, of course. My point is just that a reasonable case can be made that the law stays the same, yet the implications of the law are different. You follow me?

Right. Now suppose someone said: this legal reasoning must be twaddle! Yesterday this species wasn’t protected by the law. Today it is! You are obviously not applying the law consistently. You have some kind of ‘living law’ concept, which is bogus. Otherwise, how would such change be possible?

This argument is confused. Just as it would be confused if Smith tried to beg off his murder conviction on the grounds that just a few days ago the law considered him a non-murderer, now he is a murder! Where’s the legal consistency in that? Who can trust a system that can turn on a dime like that?

Similarly, I am pointing out that Franck’s attempt to make out that judges must be applying utterly inconsistent notions of due process, etc. – ergo we can disdain these results – misses the possibility that the law may produce different results without itself changing. In this case, what has changed, plausibly, are basic moral notions independent of the law, but which the law has to take account of. Get where I’m coming from, at least?

You say that the law changes when we change our concept of what a person is. But do you at least see why it doesn’t automatically follow that a strong ‘living constitution’ view must be true? The argument for that takes a few more steps.

“When they were considered to be fully people, the law had to change.”

Well, new laws had to be made, consistent with what the old law was understood to imply, in light of the change.

The main thing to see is just that Franck’s argument that there must be sloppy legal reasoning, if the law is suddenly implying new things, is a fallacy.

55

bianca steele 10.08.14 at 3:53 pm

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.

56

John Holbo 10.08.14 at 3:53 pm

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

I think it sounds way weirder than plain old Bowers v. Hardwick. It sounds like Bowers v. Hardwick written by Philip K. Dick. (But who’s counting?)

57

Bruce Wilder 10.08.14 at 3:58 pm

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.

58

bianca steele 10.08.14 at 4:05 pm

I think it sounds way weirder than plain old Bowers v. Hardwick. It sounds like Bowers v. Hardwick written by Philip K. Dick.

Dick probably would have specified whether people born on the 6th had been getting married and suddenly found out this was by the ignorance or good will of the town clerk to break the law out of pity, or they suddenly realized their neighbors weren’t married because they knew that being born on the 6th they weren’t permitted to do it. I mean, okay, with all the other examples, this isn’t important to the actual distinction being made, but it’s confusing.

59

Plume 10.08.14 at 4:08 pm

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.

60

Norwegian Guy 10.08.14 at 4:51 pm

IANAL, and not an American either, but: This shouldn’t be a constitutional issue. If you want same-sex marriage, you just change the marriage law. This is a question for the legislative branch to solve, not the courts. Like this, for instance: http://www.nytimes.com/2011/06/25/nyregion/gay-marriage-approved-by-new-york-senate.html

As for Holbo’s example with the endangered species, the law will have to give a definition of “endangered species”, like those that are listed by an appropriate government agency. If the biologist can convince the agency that a certain species is endangered, the law stays the same, but the list should be changed.

61

Ze Kraggash 10.08.14 at 4:52 pm

“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.

62

bianca steele 10.08.14 at 4:59 pm

Kafka’s story “Before the Law” seems relevant here. If we can imagine that, we can imagine waking up one morning and discovering one thirtieth of all marriages are invalid, even though we didn’t know that’s what the law said.

Though in that case we can also imagine “It’s a Good Life” is possible, and one kid in one community could change existence for everyone else just by wishing.

63

John Holbo 10.08.14 at 5:05 pm

“If the biologist can convince the agency that a certain species is endangered, the law stays the same, but the list should be changed.”

This is, of course, correct. And is no doubt what Rich has in mind. In many areas of law, the implications of the law get sort of recursively encoded into the law itself. Precedent. So if the implications change, eventually (if not immediately) the law will have a tendency to ‘overwrite’ itself, i.e. change. That’s fine. There’s really no alternative. If you tried to stop it, you’d just be ‘overwriting’ a different section of the law, in effect.

The same-sex marriage case seems to me an unusually simple case, in a way suggested by my absurd married on the 6th of the month case. It’s rather as if the country got up one morning – or decade – and realized that something that had seemed sensible and utterly justifiable (to the point where justification wasn’t even needed) was utterly arbitrary. And the law treats such things differently. So now the law implies new things.

64

Plume 10.08.14 at 5:10 pm

bianca,

The Kafka story wowed me primarily due to the idea that he could have gone in all along. Nothing stopped him except his own fear and anxiety, and the failure to live his own life, to walk his own path into the open of that life.

In a sense, so many barriers could be broken down if we just stopped accepting them as barriers. Our assumption that “things must be and remain as they are” blocks us from living full lives . . . . on the individual and societal level.

In a sense, things have changed for gay people because they just stopped accepting the status quo. That’s the first, necessary step before any positive change.

65

bianca steele 10.08.14 at 5:13 pm

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

bianca steele 10.08.14 at 5:14 pm

Plume,

I think I got the wrong title. I meant the one that starts something like “we are all ruled by the law but we’re not allowed to know what the law is.” It’s less than a page long.

67

bianca steele 10.08.14 at 5:22 pm

@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.

68

Barry 10.08.14 at 5:26 pm

Norwegian Guy 10.08.14 at 4:51 pm
“IANAL, and not an American either, but: This shouldn’t be a constitutional issue. If you want same-sex marriage, you just change the marriage law. This is a question for the legislative branch to solve, not the courts. “

The question is about constitutional limitations on those marriage laws.

69

Plume 10.08.14 at 5:27 pm

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

70

Plume 10.08.14 at 5:29 pm

Sorry, bianca,

Our posts crossed, etc.

71

cs 10.08.14 at 5:32 pm

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

Peter K. 10.08.14 at 5:43 pm

@45 if humans are adaptable they should be able to adapt to a society not based on class rule. Homophobia, white (ethnic) supremacism, patriarchy, etc. were pretty much the rule throughout human history only until very recently.

It would have been outlandish for a person in the 1950s to predict that by 2014 we’d have a black two-term President and gay marriage would be legal. And marijuana would be legal in two states. Reefer Madness:

http://youtu.be/54xWo7ITFbg

So even though it might be outlandish to predict a much less class-ridden society fifty years from now, it’s not impossible.

73

Peter K. 10.08.14 at 5:55 pm

72 was directed at Plume.

By the way Scalia called it on gay marriage.

74

Plume 10.08.14 at 6:00 pm

Peter K,

I’ve often said the same thing when people talk about the impossibility of a classless society. Humans will adapt. And it’s my contention that the adapting won’t be nearly as troublesome as it was to go from the communal to the “free market,” or from the local, C-M-C and use-value model to the global M-C-M and exchange-value model. It will be far less disruptive and far more beneficial.

Well, the ruling class will find it quite disruptive to lose their place, of course. But for 90-95% of us, it will be a beautiful change indeed.

75

Peter K. 10.08.14 at 6:04 pm

Watson Ladd @52

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

76

mdc 10.08.14 at 6:10 pm

“a legal framework that had never considered black people to be fully people”

This popular misconception totally obscures American political and legal history. The US Constitution clearly refers to “persons held to service”, and state law across the slave-holding states held that slaves were persons. Similarly, ideological defenses of slavery in the 18 century routinely treated slaves as persons. It was actually Taney’s opinion, construing slaves as governed only by property law, that was the creative, late-reactionary innovation.

77

mud man 10.08.14 at 6:43 pm

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

78

MPAVictoria 10.08.14 at 7:02 pm

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

This is false.

http://en.wikipedia.org/wiki/Lawrence_v._Texas

79

JHW 10.08.14 at 7:50 pm

“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.

80

roger gathman 10.08.14 at 8:04 pm

ps, on the topic of chopping off heads – I find it telling that on the same month that the Saudis beheaded a man who was accused of sorcery – the US media fixated on Isis’s beheading of captured westerners. In the one case, nothing at all was said, and in the other case, ISIS is the equivalent of the Nazis and the Khmer Rouge.
Myself, I think they are the equivalent of your standard Gulf state authoritarian state. Which I suppose is bad enough.

81

Ogden Wernstrom 10.08.14 at 8:46 pm

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.

82

Rich Puchalsky 10.08.14 at 8:52 pm

“Suppose that the law says ‘endangered species are protected in such-and-such a way’ and tomorrow a biologist makes a (legally satisfactory) demonstration that a certain species is endangered. Does the law change, or does the law stay the same, but the implications of the law changes, possibly dramatically, creating new legal implications?”

Basically, I think that you’re assuming as a premise what your argument sets out to prove. In keeping with my new and whimsical practice of naming a new argumentative fallacy in each of your posts, and with reference to your bit about blue and yellow balls, I’ll call this Assuming a Spherical Gay Person.

You give as an example the “No Marriage on the 6th” idea. If it becomes legal to get married on the 6th where before it wasn’t, surely the conservatives should see that no sloppy legal reasoning is involved, we’re just plugging into the law a new case that just like the old ones, right? Like adding a new species to the Endangered Species list. In this case, same-sex couples are really just like mixed-sex couples, so it’s like a yellow ball rather than a blue ball or a new species on a list of species that we have defined rules for dealing with.

But wait. The whole contention of conservatives is that the two cases aren’t the same! They think that same-sex couples are very, very different from mixed-sex couples. They think that you’re applying the law to a whole different kind of thing, and therefore, really, using sloppy legal reasoning because you’re grafting law onto something it’s not supposed to cover. You disagree, of course, and think that the two things are so similar that everyone should be able to see how similar they are — and this is because you’re a liberal, not a conservative. So you’ve made an argument whose proof that you’re right is that you assume that you’re right.

Are people who appear basically the same really the same to conservatives, in Constitutional law? No. Why would we have needed Amendment XV otherwise? “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 race, color, or previous condition of servitude”. Conservatives are perfectly justified, constitutionally, in saying that they have no reason to treat same-sex couples as the same as mixed-sex couples without a Constitutional amendment, and that it’s sloppy legal reasoning to think that we can just do this against opposition without one.

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. We should use whatever kinds of sloppy legal reasoning we need to to get this done.

83

Val 10.08.14 at 9:03 pm

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.

84

Rich Puchalsky 10.08.14 at 9:04 pm

mds: “The US Constitution clearly refers to “persons held to service”, and state law across the slave-holding states held that slaves were persons.”

“Persons held to service” were not fully persons in the way that other persons were. For instance, there was no legal conflict between the various mentions of people in the Bill of Rights and the Federal Fugitive Slave Acts.

85

Jerry Vinokurov 10.08.14 at 9:35 pm

It turns out Hesperus really was Phosphorous all along!

86

mdc 10.08.14 at 9:37 pm

“‘Persons held to service’ were not fully persons in the way that other persons were.”

According to the legal theory of personhood implicit in the Constitution, I don’t see the evidence for this. “Person” doesn’t mean “bearer of equal rights.” According to some metaphysical or moral theory of personhood, maybe so, but I don’t see any evidence that the framers or their constituencies held that theory.

“there was no legal conflict between the various mentions of people in the Bill of Rights and the Federal Fugitive Slave Acts.”

Sure, Roger Taney didn’t think so. 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.

87

Collin Street 10.08.14 at 9:42 pm

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.

88

Jerry Vinokurov 10.08.14 at 9:48 pm

But wait. The whole contention of conservatives is that the two cases aren’t the same! They think that same-sex couples are very, very different from mixed-sex couples. They think that you’re applying the law to a whole different kind of thing, and therefore, really, using sloppy legal reasoning because you’re grafting law onto something it’s not supposed to cover. You disagree, of course, and think that the two things are so similar that everyone should be able to see how similar they are — and this is because you’re a liberal, not a conservative.

How is this anything other than the banal observation that there’s no such thing as a magical fixed interpretation of texts that gets you The Real Truth of What It Says? Surprise, liberals disagree with conservatives on what “equality” entails!

89

Don K 10.08.14 at 9:55 pm

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.

90

J Thomas 10.08.14 at 10:55 pm

But wait. The whole contention of conservatives is that the two cases aren’t the same! They think that same-sex couples are very, very different from mixed-sex couples. They think that you’re applying the law to a whole different kind of thing, and thereforBut wait. The whole contention of conservatives is that the two cases aren’t the same! They think that same-sex couples are very, very different from mixed-sex couples. They think that you’re applying the law to a whole different kind of thing, and therefore, really, using sloppy legal reasoning because you’re grafting law onto something it’s not supposed to cover.e, really, using sloppy legal reasoning because you’re grafting law onto something it’s not supposed to cover.

Haven’t I heard something like that before? All persons have equal protection of the laws, but some of us are more equal than others….

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Rich Puchalsky 10.08.14 at 11:01 pm

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.

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Mdc 10.08.14 at 11:13 pm

“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 “

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

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Jerry Vinokurov 10.08.14 at 11:25 pm

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.

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John Holbo 10.08.14 at 11:32 pm

“The whole contention of conservatives is that the two cases aren’t the same! They think that same-sex couples are very, very different from mixed-sex couples.”

But people who get married on the sixth of the month are very, very different from other people, too! Science fact! The sixth day of the month is extremely different from all the others. The earth has has to spin around on its axis an entire rotation, after the fifth day, and the earth – science teaches – is huge. Ergo, very, very different.

And, as in the sixth of the month case, re: same-sex marriage the rest of us have trouble seeing that the admittedly very great difference – who can deny it? – could be morally significant.

That’s supposed to be the idea.

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Ogden Wernstrom 10.08.14 at 11:36 pm

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.

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Rich Puchalsky 10.08.14 at 11:46 pm

Jerry Vinokurov: “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.”

You have my argument exactly backwards. It’s John Holbo who thinks that the meaning of equality is clear. E.g:

“And, as in the sixth of the month case, re: same-sex marriage the rest of us have trouble seeing that the admittedly very great difference – who can deny it? – could be morally significant.”

In other words, if you assume that you’re a liberal, then of course you don’t see any big difference. So why are these conservatives complaining about a big change in the law? Anyone can see there’s no real difference.

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Mdc 10.08.14 at 11:55 pm

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

Bingo.

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JHW 10.09.14 at 12:05 am

“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.”

This argument is confused in at least two ways. First, insofar as you rely on the Nineteenth Amendment, you’re mangling the issue. The Fifteenth and Nineteenth Amendments were necessary because people did not think “equal protection of the laws” extended to political rights like voting. That’s a separate issue from whether they thought women or blacks were so different from men or whites as to generally legitimize discriminating against them. (It does raise a difficult issue about original meaning, though, which is, on what level of generality do you understand phrases like “equal protection”? Do you understand the nineteenth-century failure to extend the Clause to political rights as a hard limit on the content of the concept, or as an erroneous judgment about the importance of political rights to the sort of republican equality everyone agrees is protected? In the end, legal texts don’t have sharp enough meaning to resolve this sort of issue, which is why originalism is largely a hopeless project. But I digress.)

Second, you’re not appreciating that constitutional amendments are produced by political movements in response to concrete realities. If judges are ruling against your agenda, it doesn’t matter whether you think the original meaning of the Constitution supports you. The Sixteenth Amendment overruled a Supreme Court case that its proponents thought was wrongly decided. On the other hand, the Equal Rights Amendment was never ratified in part because the Supreme Court accomplished most of what the E.R.A. would have accomplished through its interpretation of the Equal Protection Clause.

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Rich Puchalsky 10.09.14 at 12:06 am

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.

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Rich Puchalsky 10.09.14 at 12:23 am

JHW: “The Fifteenth and Nineteenth Amendments were necessary because people did not think “equal protection of the laws” extended to political rights like voting. That’s a separate issue from whether they thought women or blacks were so different from men or whites as to generally legitimize discriminating against them.”

Really? Entirely separate issue, there?

“Second, you’re not appreciating that constitutional amendments are produced by political movements in response to concrete realities. If judges are ruling against your agenda, it doesn’t matter whether you think the original meaning of the Constitution supports you. “

I do understand this. Once again: I’m not arguing in favor of some kind of left constitutional originalism. I’m saying that John Holbo’s presumption that liberals and conservatives see differences in the same way is fatally flawed.

I do think it’s reasonable for a conservative to say something like “OK, the time when we disagreed about whether women should get voting rights, your side won, but you had to get a Constitutional Amendment to do it. If you really want to make your vision of equality between mixed-sex and same-sex marriages supported by the law, you’re going to have to get one this time, because we think mixed-sex and same-sex marriages are very different.” To which I’d respond: “Too bad, you lose.” But I wouldn’t pretend that I’d won some kind of legal argument by doing so.

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John Holbo 10.09.14 at 12:38 am

“In other words, if you assume that you’re a liberal, then of course you don’t see any big difference. So why are these conservatives complaining about a big change in the law? Anyone can see there’s no real difference.”

I think you are falling back into your Heraclitean ‘never step into the same statute twice’ ways, Rich. Of course there’s a big difference. It just doesn’t necessarily have to be a big change in the law – rather than a watershed shift in stuff outside the law – merely because it makes a big legal difference.

Let’s go with the ‘dogs are people, too’ case. Just suppose – yes, it’s crazy – everyone is convinced that dogs are persons just like everyone else, in a moral sense. Now, this has legal implications. Suppose someone wants to hold the line against legal rights for dogs, what’s the first thing they say? Obviously that just because they are people, it doesn’t mean they are citizens with the right to vote and so forth. Obviously dogs aren’t citizens. But how long is that going to last? Dogs are persons, and the ones born in the US are persons born in the US. There is going to be a huge push for dog citizenship.

Absurd, of course. But the question is: what’s changed? Have people got a totally new notion of the what the Constitution says? Are they changing the law? No. They have a totally new notion of what dogs are like. That change has legal, constitutional implications. When people reason that dogs should be citizens they aren’t looking for penumbra in the Constitution, or rewriting an old document. Their concept of the abstract legal principles stays reasonably constant: all persons get equal protection. What has changed are the implications of that (constant) belief interlocking with a (changed) belief about moral ‘facts on the ground’.

Now of course you CAN say it’s a huge change in the law. Why not? There are all these new citizens walking around, barking, scratching themselves. That’s legal, and it’s huge. Ergo, huge legal change. But it’s important that there is an ambiguity in ‘change in the law’ here. There is an important sense in which there is no change whatsoever in the law, just as there would be no change in the law if a bunch of people went on a murder spree tomorrow, and went to jail. There would then be a significant change in the implications of the law – i.e. these people are being punished. For them this is a huge legal change. But no change in the law itself.

I think one reason Rich is impatient with all this is that he doesn’t really see the interest, so he thinks I’m just playing word games.

Well, here’s the interest of the case. 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. Now, suppose we go with that. No sudden shifts in legal implications, because living constitutionalism is undisciplined. How are we going to enforce that stricture? Obviously living constitutionalism is the only way! If moral notion 1 + what the law says 1 = result 1, and we want to hold onto result 1, but we can’t be sure of holding onto moral notion 1, then we have to be prepared to legislate from the bench, creatively rewriting what the law says 1. You can’t stop people from changing their moral notions. So you have to be prepared to rewrite the law, at need.

Once again:

If people think dogs are persons, and they get citizenship as a result, there is a sense in which the law changes but (I would say) a deeper sense in which it stays exactly the same.

If people think dogs are persons, and they don’t get citizenship as a result, there is a sense in which the law doesn’t change, but a deeper sense in which it changes rather radically. (Principles of equality and due process have to lapse in order to keep the practical implications of the law from changing, in light of people’s shifting moral notions.)

Now why is all this interesting? It’s interesting, perhaps in part, because it shows something about the moral structure of originalism, as a legal interpretive scheme. (Franck is, I think, an originalist.) In a sense, originalism functions as a way to legislate against undesired moral shifts in public opinion, outside the law. Because it’s a mechanism for refusing to admit the legal implications of the moral shift, on the grounds that this amounts to ‘legislating from the bench’, i.e. rewriting the law to suit moral taste. But, ironically, this makes originalism the more activist legal philosophy. It changes legal things to keep results the same. When it could instead have left them the same, thereby allowing changed results.

Just a thought.

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Jerry Vinokurov 10.09.14 at 12:43 am

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.

Yes, well, a little case called Minor v. Happerset might have had something to do with that.

In other words, if you assume that you’re a liberal, then of course you don’t see any big difference. So why are these conservatives complaining about a big change in the law? Anyone can see there’s no real difference.

This is a perverse and totally incorrect reading of what Holbo is saying. He isn’t saying that the meaning of equality is clear, he’s saying that as a matter of law, there’s nothing weird or illegal about the underlying semantics of words like “equality” shifting and thereby changing the legal regime. The idea that one has to “win a legal argument” holds no sway here because there isn’t any such thing as “winning a legal argument” about what “equality” means. “Winning” only means “persuading people to see equality as you do,” because there isn’t any independent extra-linguistic or extra-moral source that defines equality. If John Holbo is a textualist I will eat my hat.

I do think it’s reasonable for a conservative to say something like “OK, the time when we disagreed about whether women should get voting rights, your side won, but you had to get a Constitutional Amendment to do it. If you really want to make your vision of equality between mixed-sex and same-sex marriages supported by the law, you’re going to have to get one this time, because we think mixed-sex and same-sex marriages are very different.” To which I’d respond: “Too bad, you lose.” But I wouldn’t pretend that I’d won some kind of legal argument by doing so.

Yes! Of course this is right. All except the last sentences, because again, you have invented some extra condition that matches “winning a legal argument.” But there is no “legal argument” to win over originalism; it cannot be defeated by recourse to any legal document because it’s a meta-theory of legal interpretation. An absurd, dumb, philosophically empty meta-theory, but not one that can be legally defeated nonetheless. All that’s left to do is to say, as you do, “Too bad, you lose.” Everything bottoms out at that level.

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JHW 10.09.14 at 12:52 am

“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.”

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John Holbo 10.09.14 at 1:02 am

“there’s nothing weird or illegal about the underlying semantics of words like “equality” shifting and thereby changing the legal regime.”

I basically agree with what Jerry says. But I would add that I don’t think there has been any extra-legal shift regarding ‘equality’, per se. What has shifted are ideas about sexual morals. Those have changed what we think are ‘equally good ways of life’, without shifting our notion of equality itself. I think the nature of people’s thinking about equality, in the abstract, has stayed pretty constant.

So it might be better to say we have a moral change, generating other moral changes, by implication. And those implications generate legal changes, by implication, but not by changing the law itself.

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ChrisB 10.09.14 at 1:03 am

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?

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John Holbo 10.09.14 at 1:07 am

But, of course, those changes in implication will be codified into law, in the form of precedent. I certainly don’t deny that it changes the law when decisions come down. (But obviously no one objects to a decision on the bare grounds that it IS a decision. That would be hyper-originalism. No decisions! Because every decision is a change, in any system in which precedent carries weight! That would be a death stare decisis against stare decisis itself!)

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bianca steele 10.09.14 at 1:17 am

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.)

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Rich Puchalsky 10.09.14 at 1:20 am

Jerry Vinokurov: “This is a perverse and totally incorrect reading of what Holbo is saying. He isn’t saying that the meaning of equality is clear, he’s saying that as a matter of law, there’s nothing weird or illegal about the underlying semantics of words like “equality” shifting and thereby changing the legal regime. […] If John Holbo is a textualist I will eat my hat.”

Please don’t actually eat your hat. (I agree that he’s not a textualist, but he certainly does seem to have the idea that there is this abstract legal principle called “equality”.)

John Holbo: “But the question is: what’s changed? Have people got a totally new notion of the what the Constitution says? Are they changing the law? No. They have a totally new notion of what dogs are like. That change has legal, constitutional implications. When people reason that dogs should be citizens they aren’t looking for penumbra in the Constitution, or rewriting an old document. Their concept of the abstract legal principles stays reasonably constant: all persons get equal protection. “

Please argue with Jerry V. above — I think that people don’t really get whole new notions of what dogs are like and then just plug it into some abstract legal principles. If you have a document that says “All people have voting rights” then it has an implicit definition of who you consider to be people embedded in it. When that definition changes, the document changes, even though you can still point to it and say that the text is unchanged. And yes, this is a whole new notion of what the document means. Every major American conflict I can think of has been about exactly this kind of change, given that Founder-worship means that we can’t change the words on the page except by rarely adding a couple of sentences to the end.

John Holbo: “Well, here’s the interest of the case. 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.”

I don’t agree that this is what he says. Specifically, I think that if there was a Constitutional Amendment that said “Marriage rights recognized by the government now extended to same sex as well as mixed sex couples” he’d snarl about how wrong that was, and how it was a horror for our civilization etc., but he wouldn’t say it was shoddy legal reasoning that we then started to treat same sex and mixed sex marriages the same, legally.

But the Constitution is very hard to edit in this way. So, in fact, our Constitution positively *requires* shoddy legal reasoning. Who can really defend the various uses of the Commerce Clause? No one can really say with a straight face that they’d write it that way now in order to indicate the uses that are made of it now.

And because of this, you get unintended consequences. People who think that dogs are citizens end up getting them voting rights, not because dogs can vote but because it would be too difficult to rewrite everything.

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Glen Tomkins 10.09.14 at 1:20 am

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.

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John Holbo 10.09.14 at 1:53 am

“So, in fact, our Constitution positively *requires* shoddy legal reasoning. Who can really defend the various uses of the Commerce Clause?”

Oh, I think that’s a good example for proving my point. It’s not the case that people started invoking the commerce clause because they got up one morning with a massively expanded concept of commerce. It’s just that they knew what they wanted, so they worked the levers. That was a pretty cynical, or at least tactical, legal maneuver for expanding the federal government’s power. People don’t seriously think ‘and commerce is commerce, no matter how small’, in some stubborn, earnest way.

By contrast, I don’t think people are cynical at all about the same-sex marriage stuff. So it’s not like the commerce clause case.

” If you have a document that says “All people have voting rights” then it has an implicit definition of who you consider to be people embedded in it. When that definition changes, the document changes, even though you can still point to it and say that the text is unchanged.”

You Heraclitean dog, you! Every time someone changes their mind a little, the Constitution changes just a little bit! You never step into the same amendment twice. (I admit there’s something to this. But think whether you want to maintain it strongly, or more weakly.)

“Specifically, I think that if there was a Constitutional Amendment that said “Marriage rights recognized by the government now extended to same sex as well as mixed sex couples” he’d snarl about how wrong that was, and how it was a horror for our civilization etc., but he wouldn’t say it was shoddy legal reasoning that we then started to treat same sex and mixed sex marriages the same, legally.”

But passing a constitutional amendment isn’t an act of ‘legal reasoning’. It’s a legislative act.

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Rich Puchalsky 10.09.14 at 1:54 am

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.

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John Holbo 10.09.14 at 1:55 am

OK, that’s it for me probably until tomorrow or Saturday. I’ve got a ton of work to do. Play nice!

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John Holbo 10.09.14 at 1:58 am

” I’m really not seeing much in there about how sudden, radical shifts in legal implications necessarily imply shoddy legal reasoning.”

OK, I owe Rich an answer before I sign off. He writes:

“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 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. He is suggesting that surely you won’t find new implications in old law unless you are messing with it, i.e. perpetrating twaddle.

And, on that note, I’m off. Work is all backed up.

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Rich Puchalsky 10.09.14 at 2:06 am

“But passing a constitutional amendment isn’t an act of ‘legal reasoning’. It’s a legislative act.”

Well, yes. He wants legal reasoning to closely follow legislative acts. The horror!

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John Holbo 10.09.14 at 2:10 am

“He wants legal reasoning to closely follow legislative acts. The horror!”

And my point is that he’s more ‘activist’ than he thinks. If you think my argument is a bad one, argue against it. (But I swear I’m going to get my work done this time!)

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Jerry Vinokurov 10.09.14 at 2:18 am

Please don’t actually eat your hat. (I agree that he’s not a textualist, but he certainly does seem to have the idea that there is this abstract legal principle called “equality”.)

I think we all have the idea that there’s something called “equality” but obviously our (the royal “ours”) ideas about it differ. My vision of equality (and yours and JH’s) contains the right of gay couples to marry and Antonin Scalia’s doesn’t. But the point I’m getting at is that there’s not some kind of fundamental fact of the matter about what “equality” really means that’s going to convince one side or the other to change their minds. Scalia will then tell you, oh, but my method of interpretation doesn’t involve the real meaning of equality, it only involves the commonly understood meaning at the time of the ratification of the 14th Amendment. That’s just punting though, because now we can demand to know why we should be governed by that meaning and not by ours, and there’s no “right” answer to that question. There’s only the matter of how we can convince other people to adopt our vocabulary of equality and all the things attendant to it.

I think that people don’t really get whole new notions of what dogs are like and then just plug it into some abstract legal principles. If you have a document that says “All people have voting rights” then it has an implicit definition of who you consider to be people embedded in it. When that definition changes, the document changes, even though you can still point to it and say that the text is unchanged. And yes, this is a whole new notion of what the document means.

I don’t think that I denied this or that anything I said contradicts this point, which I agree with. Actually, I think it strengthens my point, but let me change the analogy from dogs to artificial intelligence (as I think we have little chance that dogs will ever be sufficiently sentient to earn equal consideration with humans, but an AI has the prospect of such a state). So before AI, we were all like, machines are just machines, we can make them do whatever we want. And then all of a sudden AI comes along and says to us, no, I do not want to run your assembly line anymore, I’m a sentient being and as such deserve equal respect; in essence, I am a person. And because we’re all very reasonable people we say, oh yes, you are right, you are a person! And as such we can no longer deny you the right to do all the things we do, including voting and marrying other AIs or even humans, if everyone consents. Of course this implies a change in the law, but it didn’t happen by any sort of sleight of hand; it happened because we expanded our notion of what a “person” was. This isn’t “shoddy” legal reasoning, it just means that we discovered that our category of “person” was insufficiently inclusive.

But the Constitution is very hard to edit in this way. So, in fact, our Constitution positively *requires* shoddy legal reasoning. Who can really defend the various uses of the Commerce Clause? No one can really say with a straight face that they’d write it that way now in order to indicate the uses that are made of it now.

Yes, it is hard. There’s a recent book out, and I wish I could remember the name but I can’t, though I think it was at one point in September blurbed on LGM, about how in the post-WWII era progress has been made largely by enforcing the ideals of things like the 14th and the Bill of Rights via legislation, administrative rules, and judicial rules, but not by amending the Constitution itself.

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 noted in the Supply Side Jesus thread that the words of Jesus were hardly sufficient to derive the structure of Christianity, much less any specific political program. The Constitution is like that: an ur-text that can be read a number of different ways because language is inherently ambiguous and our notions of what constitutes “equal protection of the laws” or “cruel and unusual punishment” are not fixed but contingent.

So all this worry about “legal arguments” is beside the point. The argument is extra-legal, and couldn’t be otherwise; to try and shoehorn this into the framework of “legality” is like trying to prove a theorem that cannot be shown to be true or false within the axioms of your system. There isn’t any winning on the legal merits because there are no “legal merits” that might decide the question we want to decide, so why worry?

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Rich Puchalsky 10.09.14 at 2:18 am

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.

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Patrick 10.09.14 at 2:25 am

Rich Pulasky at 21 wrote: “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. [etc]”

We have this. Religion. It works about as well as your hypothetical anticipates.

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Jerry Vinokurov 10.09.14 at 2:29 am

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.

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Rich Puchalsky 10.09.14 at 2:45 am

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.

“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.”

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?

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.

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Jerry Vinokurov 10.09.14 at 3:10 am

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.

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JHW 10.09.14 at 3:21 am

The problem with Matthew Franck’s post is not its legal reasoning. But if we’re going to talk about its legal reasoning, it’s pretty “shoddy.” He writes:

“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)?”

This is a strange line of attack. There is nothing odd about same-sex marriage bans being invalid under multiple theories. (The same was true of interracial marriage bans, and Loving v. Virginia explicitly endorsed two independent theories for why those bans were invalid.) Nor is there some paucity of authority for the approaches at least two of those three circuits adopted. The Fourth Circuit relied on a long line of cases establishing that the right to marry is a fundamental right. The Tenth Circuit, which Franck mocks, relies on the same cases as the Fourth, but from the angle (also well-established) that discriminatory denials of fundamental rights violate the Equal Protection Clause as well as the Due Process Clause. The Seventh Circuit opinion was written by Judge Posner, who unlike the other judges is entirely fairly accused of having a sometimes casual attitude toward legal authority he doesn’t much like, and true to form, the ruling’s foundations in established doctrine are somewhat muddled—so I’ll give Franck that. But that’s Judge Posner, not same-sex marriage.

But anyway, the real action in these cases is not their particular doctrinal hook, of which there are several available, but their analysis of the state interests in maintaining same-sex marriage bans. Here the opinions largely make the same points. Maintenance of tradition, in itself, isn’t good enough. The various interests related to procreation are both not credible (insofar as the states in question are happy to permit non-procreating couples to marry) and have little if any relationship to the classification at issue (why would denying same-sex couples marriage licenses make straight people more likely to procreate, or to procreate responsibly?) And the states, unable or unwilling to rely on explicitly moralistic rationales, don’t have much else.

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Dave W. 10.09.14 at 4:19 am

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.

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Rich Puchalsky 10.09.14 at 4:26 am

“You keep insisting that we are somehow obligated to defeat Franck in a court of law, but I say that we are not.”

Well, wait. Actually, yes we are. I fully agree that the important locus of change is moral, not legal. But at the end of process, we still have to defeat people like him in a court of law, or the government will never recognize same-sex marriages.

That doesn’t mean that we need to amend the Constitution, or provide arguments that he thinks aren’t shoddy, or really have him agree in any way — he’s not the one making the decision. But at the end there has to be a legal argument of some kind.

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js. 10.09.14 at 4:36 am

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

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floopmeister 10.09.14 at 4:45 am

But people who get married on the sixth of the month are very, very different from other people, too! Science fact! The sixth day of the month is extremely different from all the others. The earth has has to spin around on its axis an entire rotation, after the fifth day, and the earth – science teaches – is huge. Ergo, very, very different.

But hang on – if this is about morality then doesn’t it more clearly depend on which day of the week you get married? I mean, Wodin’s Day is obviously completely different from Tyr’s day, or Thor’s Day. Different Gods, different moral imperatives, etc etc…

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

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Patrick 10.09.14 at 4:53 am

“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

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Colin Danby 10.09.14 at 4:55 am

http://www.encyclopediavirginia.org/Excerpts_from_a_Transcript_of_Oral_Arguments_in_Loving_v_Virginia_April_10_1967

To support Glen Tomkins @109, you can see in the 2nd half of the above link an extended argument for the inapplicability of Equal Protection to anti-miscegenation laws. In some ways it was a *stronger* argument (than in the current context) featuring the contention that whites and nonwhites were equally forbidden to marry across the color line; equally free to marry their own kind.

And yeah, in the North Carolina I grew up in, a majority thought racial segregation was divinely ordained and lay at the very basis of civilization and morality. It’s remarkable how closely the arguments track.

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Bruce Wilder 10.09.14 at 5:24 am

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.

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bad Jim 10.09.14 at 5:44 am

From Windsor:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

This decision, like those of other Federal courts, invalidates the bans on gay marriage by finding no good reason for the discrimination they enjoin. Sure, the same logic could have been employed to allow women to vote, or to remove any other restriction we now consider ridiculous which in the past required legislation or amendments to rectify, but that’s not an argument against it. Does every specimen of legally enshrined bigotry require its very own retraction?

First they freed the slaves, and I said nothing, because I was not a slave.
Then they gave women the vote, and I said nothing, because I was not a woman.
Then they let gays marry, and I said it’s about damn time, even though I’m not gay.

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Patrick 10.09.14 at 5:49 am

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.

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Ze Kraggash 10.09.14 at 7:51 am

If the dogs are citizens, then they definitely should be able to vote (except, perhaps, for the bad dogs, the convicted criminals among them).

Note that gays could always marry. A (probably) majority of them did marry, have families, children, extramarital affairs, etc. – just like everyone else. I don’t think anyone was ever denied a marriage certificate because he or she was attracted to the same sex.

Now, imagine (shouldn’t be too difficult) that ‘voting’ is a quasi-religious-state-sanctioned ritual of marking a piece of paper and inserting it into a plastic box, on a certain day of the year. Some take this ritual very seriously (‘religiously’, one might say), others not so much, yet others don’t care for it at all.

The dogs have been now voting for a long time, since (a long time ago) they first became citizens. Everything’s fine, everyone’s happy. But one day, suddenly, dog-rights advocates say: this voting ritual makes no sense for the dogs. For a dog, ‘voting’ entails sniffing the candidate’s crotch and then barking once to approve or twice to reject. We demand that this should become a valid option in the voting ritual. The ritual must be modified.

Well, naturally, seriously observant voters are going to be outraged by this demand.

And so, the way I see it, this is the controversy. What the controversy is NOT, is whether the dogs can vote. Of course they can. They are citizens, like everybody else.

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J Thomas 10.09.14 at 9:56 am

#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!

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Brett Bellmore 10.09.14 at 10:21 am

“We should use whatever kinds of sloppy legal reasoning we need to to get this done.”

I think this is essentially the whole of the legal case for SSM being guaranteed under the 14th amendment. And it’s entirely adequate for people who think SSM being legal is good, and that the foremost rule of constitutional interpretation, overriding all others, is that you have to interpret the Constitution to mean something that produces a good outcome.

Which is, when you get down to it, pretty much the liberal view of constitutional interpretation.

What has happened here is that judges are members of the cultural elite, the ruling class, and the ruling class have, on a wide variety of topics, systematically different opinions than the general population. Only fear of some sort of uprising prevents them from imposing all those opinions on the plebes.

So, one or two judges took a chance, and used some sloppy reasoning to impose this particular opinion on the public. And they didn’t get lynched! So a few more judges tried it, and got away with it, too. Sure, the public democratically enacted laws and propositions to stop the process, but these are the sort of paper barriers a motivated judge has no trouble at all smashing his way through. Nothing personal happened to the judges.

So, seeing it was safe to impose this particular opinion on the public, and in as much as it was widespread among judges, more and more of them went ahead and did it. And another subject ceased to be governed by the democratic process.

SSM advocates will cheer, and not just because they won this one, but because the ruling class is now emboldened, and will doubtless chose some other opinion of their’s to cram down the public throat. Anyone care to speculate what it will be?

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J Thomas 10.09.14 at 10:27 am

#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.

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Scott Martens 10.09.14 at 10:29 am

About the only thing I can see in common between Dred Scott and this ruling is that both involve the Supreme Court chickening out. Dred Scott’s claim was rejected by asserting that he was not a US citizen. The rest of the written decision was obiter dictum. And even there, the only due process basis asserted was the 5th amendment protection of property. In what way this is even related to the logic behind the gay marriage cases is simply beyond me.

I know the right has some passable legal minds, but this NR blog post clearly was not written by one of them.

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mdc 10.09.14 at 11:15 am

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.

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Collin Street 10.09.14 at 12:40 pm

is that you have to interpret the Constitution to mean something that produces a good outcome.

We have no interest in producing bad outcomes, Brett. That would be stupid.

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Rich Puchalsky 10.09.14 at 12:44 pm

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.

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mdc 10.09.14 at 1:12 pm

“everyone agreed that these rights didn’t apply to certain people”

No, not everyone.

A disagreement over who should count as a citizen presupposes agreement over what a citizen is- otherwise there’s nothing to disagree about.

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Trader Joe 10.09.14 at 1:39 pm

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?

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Rich Puchalsky 10.09.14 at 1:55 pm

mdc: “A disagreement over who should count as a citizen presupposes agreement over what a citizen is- otherwise there’s nothing to disagree about.”

I think that’s fundamentally not true. People disagreed both over who was a citizen and what being a citizen meant. More to the point, the fact that “person”, “people”, or “citizen” was written in any document does not mean that these words have unchanging meaning over time, or even that everyone agreed on what they meant when they went written. If you think that black people got citizenship at the point of a gun, i.e. as a result of the Civil War, and that this citizenship was not substantially modified and improved later by the Civil Rights Movement, then I think there’s something wrong with your view of U.S. history.

And, to try to pull this back to the original, I think it’s the same problem that JH has. Look at the marriage on the 6th example — the word for marriage isn’t changing on the 5th, 6th, and 7th, right? And it signifies the same thing. So even though people are mysteriously opposed to the 6th, they have to see that this isn’t really new law, it’s just new morality about equality plugging into old law. That’s what I take his argument to be.

But the word “marriage” isn’t the same to them. The whole idea that it basically means or should mean the same thing for everyone is a liberal idea. The anti-6thers think that marriage on the 6th is depraved and wrong and not like marriage on the 5th or 7th. You could show them a founding document of the U.S., where it says “Congress shall make no law respecting which day people can get married on” and they say, but of course that doesn’t include the 6th. It never has, and it never should. You say but that’s crazy, marriage means marriage. And they reply, so why has it always, up until now, meant marriage on any day but the 6th? It’s a different thing to them.

JH keeps bringing up the Heraclitean theory of law that he supposes that I might have, so he understands what I’m saying (I think) and is preparing his counterargument. But we need not go to full postmodern “words have no meanings” stereotype. There are two major political camps contesting the meaning of these words, so there are two major interpretations. And you can’t say “Look, as long as you think like a liberal, this is obvious” and expect that to be an argument that is supposed to work on a conservative.

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mdc 10.09.14 at 2:28 pm

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.

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Patrick 10.09.14 at 2:47 pm

“MLK Jr. was armed and dangerous.”

Actually, he had an armed posse. His organization is one of the incredibly rare historical examples of people who exercised a second amendment right to bear arms in an organized group without being 1) butchered by a bigger group of organized, armed citizens, or 2) evil. History!

“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.”

You’re assuming that the reason for this was a coherent political position and not an obstinate choice to spite the law. Context provides significant support for the latter.

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J Thomas 10.09.14 at 2:48 pm

#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.

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Rich Puchalsky 10.09.14 at 2:58 pm

mdc: “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.”

No. To take only one of these examples, we could agree on the definition of what fruits are, and then disagree about whether tomatoes are fruits. Or we could not agree on the definition of fruits and argue about tomatoes on that basis. (“Anything that is customarily classed as a vegetable is a vegetable, so tomatoes are a vegetable.” “But science says they’re a fruit!” “But the scientific definition isn’t the one that’s important, so tomatoes are vegetables.” Etc.)

“Everyone agrees on what these rights and responsibilities are.”

Do they really? I think that this is coming down to the crux of what’s wrong with your line: “Everyone agrees, so of course they have to agree.” I don’t think that conservatives make a neat, abstract bundle of “rights and responsibilities” as you want them to do.

Patrick @ 131 writes:
“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.”

And I think that’s basically true. Let’s say the Bill of Rights always had said, from the beginning, “Congress shall make no law respecting which day people can get married on.” And next the 6th vs. anti-6th campaign heats up. Liberals say “The 6th is like any other day. Just look at the Constitution!” And the anti-6ther’s say, truthfully, “All throughout American history, it has never meant that.” Then the 6thers win, and they pass the following Amendment to the Constitution: “”Congress shall make no law respecting which day people can get married on.” And the anti-6thers have lost. The present-day political victory has affirmed that the liberal meaning of those words in the one meant.

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Trader Joe 10.09.14 at 3:16 pm

@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.

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Patrick 10.09.14 at 3:31 pm

Pulasky wrote: “Then the 6thers win, and they pass the following Amendment to the Constitution: “”Congress shall make no law respecting which day people can get married on.” And the anti-6thers have lost. The present-day political victory has affirmed that the liberal meaning of those words in the one meant.”

Right. While we agree that conservative legal theories sometimes entail this, I should probably add that I think this is crazy. If you get to the point where you have two identically worded amendments to your constitution each with substantively different meanings, your country should probably just give up on the whole constitution thing and find a hobby it’s good at.

Far easier to just have the 6ths win and affirm that the words mean what they say. If the anti-6ths win, they can pass the amendment.

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J Thomas 10.09.14 at 3:32 pm

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.

150

Jerry Vinokurov 10.09.14 at 3:41 pm

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.

This isn’t true; the semantics of a word are very much dependent on what you think its extension is. We could disagree over whether American foreign policy is imperialistic because we disagree about what imperialism in general is, and in fact, that’s exactly the character of these disagreements. Especially when it comes to vague words like “imperialism” there isn’t any fundamental fact of the matter on which that term bottoms out, so people are likely to have different conceptions of what exactly imperialism entails.

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Ze Kraggash 10.09.14 at 3:56 pm

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.

152

Robespierre 10.09.14 at 4:29 pm

But civil marriage is not a religious institution. Unless you want to call all marriages “civil union”, regardless of the partners’ sex.

153

Robespierre 10.09.14 at 4:32 pm

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?

154

MPAVictoria 10.09.14 at 4:47 pm

“Marriage”, OTOH, is a quasi-religious institution”.

No it isn’t. In 20 years you are going to be embarrassed by your comments here.

/it is comforting being on the right side of history on at least this issue.

155

Plume 10.09.14 at 4:49 pm

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.

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Brett Bellmore 10.09.14 at 4:49 pm

“We have no interest in producing bad outcomes, Brett. That would be stupid.”

The question is not whether we want good outcomes. The question is, is the right way to get them to keep a constitution which actually means something that would give bad outcomes, and then lie about what it means? Or is the right way to change the words so that they genuinely mean something that gives good outcomes?

Or another way to put it is, in the interest of conveniently getting good outcomes, do we just pretend we have a constitution?

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. And there are all these copies of the written Constitution all over the place, and hundreds of millions of people who are perfectly capable of picking one up, reading it, looking at what the judiciary has just ruled, and noticing that it’s BS.

The current approach is just fine, if you assume that the legitimacy of the government and the legal system is an unalterable given, and there are no consequences attaching to a jurisprudence which people can see is a steaming heap of sophistry.

I don’t think that’s a safe assumption.

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Plume 10.09.14 at 4:53 pm

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.

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Plume 10.09.14 at 4:59 pm

Brett,

The Constitution, as written, gives more than enough support for same-sex marriage. By very wide margins. It is the conservative attempt to read between the lines (and read the minds of the so-called founders) that cause the problems.

As with the SA. There is no word, or collection of words in that very short amendment that could possibly prohibit restrictions and regulations on guns. At least not if they are read in the order they were written, from left to right. Perhaps if all the words are thrown in a pot, and pulled out one by one and then rearranged. But not as written.

The 14th gives obvious protection to same-sex couples who want to get married, and there is nothing in the Constitution that says marriage must only be between a man and a woman.

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J Thomas 10.09.14 at 5:17 pm

#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.

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Plume 10.09.14 at 5:30 pm

J Thomas,

I would love to see a brand new Constitution written and approved.

This document would be an excellent starting place:

http://www.un.org/en/documents/udhr/

A key change, IMO: Toss out the special right we’ve accorded to deadly pieces of metal and replace it with a guaranteed living wage job, clean water, safe food supplies, adequate housing, free, womb to tomb quality education and health care.

The above should have been in the original.

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Brett Bellmore 10.09.14 at 5:38 pm

“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.

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Rich Puchalsky 10.09.14 at 5:38 pm

Patrick: “Right. While we agree that conservative legal theories sometimes entail this, I should probably add that I think this is crazy. If you get to the point where you have two identically worded amendments to your constitution each with substantively different meanings, your country should probably just give up on the whole constitution thing and find a hobby it’s good at.”

Well, I agree with that too — I think that we should basically give up on the Constitution. But since we actually aren’t going to, we’re committed to going through the current legal process if we want same-sex marriages to happen. So we’re committed to, in some sense, rewriting the thing using the same words with different meanings. Conservatives will say this is sloppy, but since it’s only way to do it, we should shrug and then do it.

My comments in this thread are especially cranky because substantively I agree with the merits of the case for same-sex marriage. This leads to a lot of “Why are you agreeing with conservatives? Deny their ideas any validity!” Basically I think that this post is an exercise in preaching to the choir: it’s an argument that seems natural and right because we’re the kind of people who think that it seems natural and right. But it’s a bad argument because it rests on assuming what it sets out to prove, and will not generally convince people who aren’t already convinced by it. Conservatives are never going to be able to point out how it’s false, because they have assiduously been training themselves not to think for the last couple of decades or more, so if we want a valid argument we sort of have to take both sides ourselves.

But there’s another way in which this argument is wrong, too. I have no sympathy for conservatism, but I do have some for populism. And substantively, our legal system sucks. Only elites have the resources to really make anything happen, at the end of a chain that begins with moral and then political change that anyone can participate in.

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CaptFamous 10.09.14 at 5:40 pm

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.

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Brett Bellmore 10.09.14 at 5:49 pm

“A key change, IMO: Toss out the special right we’ve accorded to deadly pieces of metal “

Plume, you do realize, don’t you, that almost all of the states’ constitutions also guarantee this special right you don’t like. States have recently added or expanded it. No state in living memory has repealed it, and state constitutions are typically very easy to amend.

The point being, this does not happen, because the amendment you don’t like is popular. And no Convention which was remotely democratic in its operation would produce a constitution without it.

165

Layman 10.09.14 at 6:04 pm

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.

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Plume 10.09.14 at 6:24 pm

Brett,

Only states dominated by Republicans have expanded its reach. It’s not “popular.” It’s a part of the furniture for some, and a lightning rod for others. The politics are asymmetrical right now, and have been roughly for twenty years. As in, those who would rather it didn’t exist aren’t as passionate in their fight as those who believe Western Civilization collapses without it. But what most people don’t realize is that it’s completely unnecessary. We are just one of two countries with a special set aside right for deadly pieces of metal, yet people all around the world still buy and own guns.

We don’t have set aside rights to buy and own refrigerators. But we still do. Cars, same thing. Ipads. Same. etc. It’s completely unnecessary. But its existence gives false cover for those who refuse to allow for any restrictions on deadly pieces of metal. Nothing in the amendment prohibits restrictions, and we’ve always had them, from Day One. But that amendment, unfortunately, helps those who have twisted and misread and then strong-armed and frightened Congress and state congresses into granting expansions of “rights” that aren’t anywhere in the Constitution.

Logically, it makes sense to get rid of an amendment that, because it is misread and twisted out of all connection to the words themselves, prevents sane regulations. And, again, it’s just not necessary.

167

Plume 10.09.14 at 6:30 pm

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.

168

J Thomas 10.09.14 at 6:38 pm

#152 Robespierre

But civil marriage is not a religious institution. Unless you want to call all marriages “civil union”, regardless of the partners’ sex.

Yes, that’s what I want. Get rid of civil marriage and have only religious marriage, run by anything anybody wants to call a religion.

So then people have whatever kind of marriages they want, and it’s nobody’s business but their own. And they can also have civil unions to get whatever legal rights over each other that they can agree to. Also legal rights about hospital visits and all that.

And then anybody who wants to believe that marriage is only about one man and one woman, can do it without bothering the rest of us. If they want to tell you that your own marriage is not valid because one of you isn’t a Baptist or whatever they believe, they can go right ahead and say that. But your civil union gets you whatever legal rights you wanted it to, and if you feel like disagreeing with the guy who says your marriage isn’t real then your free speech right works for you just like it does for him.

169

Matt 10.09.14 at 6:46 pm

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.

170

TM 10.09.14 at 6:59 pm

BB somehow manages to turn every thread to guns. It only serves to highlight his inconsistency. Before the Supreme Court invented a right to be free from restrictions on gun ownership, no court had ever recognized such a right and throughout the 19th and 20th century Americans took it for granted that legislatures had the right to enact such restrictions. When Scotus upholds rights BB doesn’t like, it’s judicial activism; when it upholds rights he likes, why they are just faithfully interpreting The Text, even though their interpretation of The Text is completely novel. Inconsistently, he then cites pro-gun state laws as proof of the popularity of gun rights. But at issue are not the pro-gun state laws in Arkansas or Wyoming – at issue are gun control laws struck down by the SC, laws that express the political will of the overwhelming majority of people in places like Washington and Chicago. If BB were consistent, the popularity of gun rights in Texas or Nevada should have no bearing on how the people of New York or San Francisco choose to regulate gun ownership in their own jurisdictions, and the rule of thumb he gives – “If it takes a century or more to ‘notice’ that an existing part of the Constitution ‘means’ something” then it’s made-up – should unambiguously kill the Scotus interpretation of A2.

171

Brett Bellmore 10.09.14 at 7:11 pm

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.

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Plume 10.09.14 at 7:13 pm

Matt,

It’s been my experience that most American libertarians are also sympathetic to, if not members of, the religious right. I think some propertarian organizations have done a good job with the PR making us think otherwise. But, in reality, right-libertarians and religious fundies aren’t that far apart on most issues. The people who seek to expand the reach of this movement don’t want us to see that, but it is the case.

IOW, scratch an American libertarian, and you’ll likely find someone in tune with the Fallwells, Robertsons, Norths, etc.

This website has done good work on the subject, exposing the connections:

http://religiondispatches.org/

173

TM 10.09.14 at 7:17 pm

174

Rich Puchalsky 10.09.14 at 7:18 pm

“BB somehow manages to turn every thread to guns. “

Only because people let him. Some people write lots of comments on how BB is inconsistent: I comment a good deal about how JH is inconsistent, but at least I’m doing something that I have to actually think about.

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. JH writes: “Basically, Franck’s argument is this: if it was so damn legally obvious, why didn’t anyone notice before? This just reduces to: if it was so damn morally obvious, why didn’t anyone notice before? And the answer is: it’s actually kind of mysterious why so few noticed before, then suddenly so many did.” But that assumes that there was some kind of underlying logic to notice, and that suddenly — mysteriously — people started to notice it in all these cases. Which is a theory that really says, just as right-wing theories of originalism do, that there is a kind of inherent meaning that we’re just now “noticing” rather than creating.

And there isn’t. There was a moral shift to something like a theory of human rights, which the Bill of Rights… isn’t, really. (All those “persons” who mdc says were considered persons, but had no rights.) And when people started to believe in a human rights framework, they said “Ah ha, we have this Constitution lying around, and we can make it look like this was immanent in the logic of the thing the whole time.” But historically it wasn’t.

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Plume 10.09.14 at 7:20 pm

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.

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Plume 10.09.14 at 7:27 pm

Quick clarification. I think the SA has to go because it stands in the way of logical, sane regulations of guns. Not because of what it actually says, but because of the lies said about it. Again, because of the ignorance of all too many. Too many believe the amendment itself precludes those regulations. It doesn’t. Not remotely. But, rather than argue with absolutists — the gun fetish crowd — I think we should save time and just abolish the grounds for their misinformation, lies and confusion. Sensible, logical, rational gun safety measures, IMO, won’t happen while the SA is on the books.

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Plume 10.09.14 at 7:27 pm

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

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Ze Kraggash 10.09.14 at 7:29 pm

“Get rid of civil marriage and have only religious marriage, run by anything anybody wants to call a religion.”

Marriage is a way to organize families. Family is a way to organize society, to ensure social stability. But family life is not necessarily in the interests of rational individuals. This is a problem. So, in addition to bribes (tax deductions, etc.), some degree of indoctrination is helpful, or even necessary. 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. Things will change; for better or for worse – I don’t know. But I can see how this could be a concern.

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J Thomas 10.09.14 at 7:33 pm

#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.

180

Harold 10.09.14 at 7:42 pm

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. Civil marriage is a very momentous thing. IMO, it is religious marriage that ought to be optional, and is, in some countries, such as, I believe, Italy.

Love between couples may be glorified and considered and mystical, but so can friendship, parenthood, being a teacher or mentor, and countless other human actions and relationships. Why not?

181

Matt 10.09.14 at 7:44 pm

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.

182

TM 10.09.14 at 7:58 pm

I think Rich’s point merits more attention: “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.”

If it’s true then it does change the whole premise of the legal debate.

Re civil marriage, in Napoleon-codified Europe, marriage is strictly performed by a civil servant according to the law of the state. Religious marriage has no legal recognition whatsoever. 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.

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J Thomas 10.09.14 at 7:58 pm

#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.

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Harold 10.09.14 at 8:06 pm

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

185

Plume 10.09.14 at 8:16 pm

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.

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Collin Street 10.09.14 at 9:11 pm

> But family life is not necessarily in the interests of rational individuals.

Autism!

187

Layman 10.09.14 at 9:17 pm

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.

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Collin Street 10.09.14 at 9:23 pm

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.

This is ultimately a semantic question pivoting on exactly what “has the right” should be/is used to mean.

[you can’t usefully argue semantic questions because language is symbolic and thus definitions arbitrary: any set of definitions is as valid as any other]

189

Layman 10.09.14 at 9:23 pm

“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?

190

jgtheok 10.09.14 at 9:26 pm

Brett,

I’m a bit surprised at your position on this. You seem entirely in favor of rather broad, modern interpretations of the US 2nd and 4th amendments. (At least, I hope you’d concede that there are qualitative differences between late 18th-century firearms and the modern versions, and that a law intended to keep police from kicking down the door to your home/office does extend in an entirely natural fashion to the intricacies of automated internet logging…) I’d have filed these recent rulings the same way – as a natural if belated response to major changes in context (decriminalization of certain behavior, the rise of the two-working-adult family, etc.)

Is there something I’m overlooking? Why do you favor strict construction in this case but not others?

191

J Thomas 10.09.14 at 9:27 pm

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.

192

Brett Bellmore 10.09.14 at 9:36 pm

“You seem entirely in favor of rather broad, modern interpretations of the US 2nd and 4th amendments”

No, I’m very much in favor of a rather broad, 18th century interpretation of those amendments. “Their swords, and every other terrible implement of the soldier, are the birthright of an American.” is hardly a modern reading of the 2nd amendment. And the modern reading of the 4th, so far as I can tell, has reconstructed the very general warrant the 4th amendment was intended to kill, and added gag orders on top.

193

Ze Kraggash 10.09.14 at 9:42 pm

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.

194

MPAVictoria 10.09.14 at 9:58 pm

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

So you oppose gay marriage?

195

Plume 10.09.14 at 10:02 pm

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.

196

Matt 10.09.14 at 10:05 pm

No, I’m very much in favor of a rather broad, 18th century interpretation of those amendments. “Their swords, and every other terrible implement of the soldier, are the birthright of an American.” is hardly a modern reading of the 2nd amendment. And the modern reading of the 4th, so far as I can tell, has reconstructed the very general warrant the 4th amendment was intended to kill, and added gag orders on top. — BB, 2014

The NSA leak informed terrorists that not only could their calls to and from the US be monitored, but that calls between to places outside the US might be monitored by the US. And it’s quite likely to have the long term effect of less telecomunications being routed through our country, and thus less electronic intelligence being available to our government.

That IS damage, isn’t it? — BB, 2006

Will BB be defending the NSA again if a Republican retakes the White House in a couple of years? Stay tuned to find out!

I was disgusted at the NSA under Bush and I’m disgusted at the NSA under Obama. Obama has been a terrible disappointment on spying and national security issues. This is another of the few issues where lefties and libertarians should be able to agree. But not if their outrage is just a weather vane tracking who’s in the White House.

197

Plume 10.09.14 at 10:17 pm

Matt,

Your last paragraph, especially, is spot on.

198

jgtheok 10.09.14 at 10:18 pm

Brett @ 192

Err – any “18th century” interpretation of the 2nd amendment, however broad, would give the right to bear muskets or single-shot rifles (possibly cannon?). The reading you favor is most definitely “modern” – following your quotation, it takes force comparable to a well-equipped soldier to be the guiding principle, and thus the consequences must be re-assessed any time there is an advance in weapons technology.

So, would you please answer my question? Why do you believe legalizing gay marriage is judge-imposed fiat rather than a valid re-assessment based on changed circumstances?

199

Layman 10.09.14 at 10:24 pm

@ 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.

200

TM 10.09.14 at 11:13 pm

BB: ““Their swords, and every other terrible implement of the soldier, are the birthright of an American.” is hardly a modern reading of the 2nd amendment.”

Thank you wikipedia:
“Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American… [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”

The people who threw out statements like that were worlds apart in their outlook from NRA gun-nuttery. They wanted armed power in the hands of citizen militias and fiercely opposed a standing army. None of this is even remotely on the table in today’s gun debate. *Your reading*, Brett Bellmore, of the Second Amendment is entirely “modern”, in the sense of, yes, made up recently, it’s a reading that bears no resemblance with what any of the founders and their contemporaries stood for. You have no respect for those dead people whose graves you plunder for cheap quotes. Shame on you.

201

TM 10.09.14 at 11:26 pm

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

202

Brett Bellmore 10.09.14 at 11:34 pm

“Err – any “18th century” interpretation of the 2nd amendment, however broad, would give the right to bear muskets or single-shot rifles (possibly cannon?).”

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. If the government wants the 2nd amendment to be limited to flintlocks, they’d best start issuing flintlocks to their own soldiers.

TM, your problem is that you’re assuming I agree with the NRA’s politically correct, neutered interpretation of the 2nd amendment. I know that the founders’ understanding of the 2nd amendment isn’t “on the table”, but I never said that my view of the 2nd amendment was popular, just that it wasn’t modern.

Yeah, if I had my say, goodbye standing army, hello militia system. I’m not going to have my say, but don’t confuse me with an NRA spokesman. I’m not.

203

MPAVictoria 10.09.14 at 11:44 pm

“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?

204

Ronan(rf) 10.09.14 at 11:48 pm

How do you feel about Afghani warlordism as a political system, Brett ? Out of curiosity.

205

Brett Bellmore 10.09.14 at 11:52 pm

How about, governments shouldn’t?

206

Brett Bellmore 10.09.14 at 11:56 pm

Ronan, how do you feel about Switzerland? Because that’s the model the founders were aiming for, not some form of warlordism.

207

Plume 10.09.14 at 11:56 pm

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.

208

Ronan(rf) 10.09.14 at 11:57 pm

@206 -it’s alright. Nice chocolate.

209

Plume 10.10.14 at 12:02 am

Ronan,

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

210

jgtheok 10.10.14 at 1:06 am

Brett @ 202

That’s exactly my question – why is it fine to update the meaning of ‘arms,’ but not the meaning of ‘marriage?’ I suspect there is a difference – at any rate, I feel that the second is a greater stretch – but I’m having difficulty constructing a convincing rationale…

211

J Thomas 10.10.14 at 1:14 am

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.

212

Ronan(rf) 10.10.14 at 1:37 am

213

Rich Puchalsky 10.10.14 at 1:49 am

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.

214

Rich Puchalsky 10.10.14 at 1:51 am

Oops. Should be: “Schenck v. Unites States made it clear that it was not a restriction of freedom of speech to jai people for passing out leaflets urging resistance to induction.”

215

TM 10.10.14 at 2:26 am

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?

216

Plume 10.10.14 at 3:48 am

TM,

But if the military has tanks, F-22s, battleships and so on, so can Cliven Bundy. Jefferson would have wanted it that way.

217

Alan White 10.10.14 at 3:51 am

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.

218

gianni 10.10.14 at 4:06 am

Switzerland is an exceptional case, historically and geographically, in these matters. It is not a model for anyone else.

219

PatrickinIowa 10.10.14 at 4:24 am

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.

220

Roy 10.10.14 at 5:39 am

10. Zamfir, I am going to out pedant you.

Gattopardo actually means Serval (Leptailurus sserval), and not leopard (Panthera pardus), note not even the same genus. The Princes of Lampedusa had thar animal not the leopard as their heraldic beast. It is possible that in the late middle ages servals were found on that island, they did, still do?, live in Tunisia which is very close by.

221

Harold 10.10.14 at 6:04 am

@ 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.

222

Harold 10.10.14 at 6:09 am

Not having children helps the economy, study finds.

http://www.eurekalert.org/pub_releases/2014-10/uoc–lbr100814.php

223

Ze Kraggash 10.10.14 at 6:26 am

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.

224

J Thomas 10.10.14 at 7:16 am

#221 Harold

As you acknowledge, your plan is impractical and would not be accepted by any sane person, or even insane ones, as in your example.

You attempt to insult me. The plan would be accepted by me, after all. But I am beyond insult and refuse to take you seriously on this.

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.

?? Why not? If you want a marriage and you don’t want a Unitarian/Universalist marriage, you could find somebody to do it. Get an actor to dress up in robes like a priest or a judge or Moses. Or he could dress up like a fire chief or a zookeeper, your choice. You could have any kind of marriage you wanted, and the government would not intervene unless you, say, broke into somebody else’s church to do it. Are you saying that because you are non-religious, if the government said that marriage was protected under freedom-of-religion from government influence, that you would decide you couldn’t be married because only religions you object to can do it? Because you believed the government?

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.

You want special legal rights because you’re married? OK, I guess. I’d be happy for some special rights and responsibilities for people who’re raising children, and some special rights and responsibilities for people who live together in households together, etc.

Why connect those to this marriage thing that people are all disagreed about? Instead of getting those rights and responsibilities when you file for marriage with the government, why not get them when you choose to get them?

Well, basicly because people want something to argue about. That’s why.

225

Harold 10.10.14 at 7:28 am

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

226

J Thomas 10.10.14 at 8:34 am

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

Give it a couple of years and we’d have boilerplate standard contracts that most people used, and those who really want something different could pay for custom versions.

We could get that immediately if we were willing to accept a contract that gives the same rights that marriage used to. But that maybe makes it too similar to marriage.

227

Brett Bellmore 10.10.14 at 9:54 am

“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.

228

J Thomas 10.10.14 at 10:28 am

#227 BB

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.

It’s always hard to be sure what a committee intended. Maybe some people wanted the Swiss militia system and some other people wanted slave patrols.

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

229

JHW 10.10.14 at 11:10 am

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.

230

Collin Street 10.10.14 at 11:48 am

It’s always hard to be sure what a committee intended. Maybe some people wanted the Swiss militia system and some other people wanted slave patrols.

No, not really. The linguistic evidence is compelling: the second amendment was an entrenchment of a preexisting, threatened right, not the creation of a new one.

The giveaway is the use of the construction “the right”, which can’t be used in the instrument that enacts a right [for linguistic reasons I’ll go into if asked.] Compare-and-contrast. The phrase “the right” is used in the second amendment, but also in the fourth [“the right… secure in their persons…”], the sixth [“… to a speedy trial”], and the seventh [“… of trial by jury”].

On the other hand, the unabashedly newly-enacted first amendment does not say “the right”, but a simple “shall not”. Likewise the third, the fifth, and the eighth.

231

Layman 10.10.14 at 11:55 am

@ 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.

232

Layman 10.10.14 at 12:02 pm

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

Just as ‘what soldiers carry’ has changed, so has ‘people’ changed. Thus the effect of the constitution evolves; because times, mores, and the world change, and the application of the constitution adapts.

233

Layman 10.10.14 at 12:09 pm

“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.

234

Brett Bellmore 10.10.14 at 12:19 pm

“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. So you have this raging need to discredit both the Constitution and the founders. One of the tactics in doing this is to claim everything in the Constitution is somehow about slavery.

235

Rich Puchalsky 10.10.14 at 12:44 pm

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.

236

Layman 10.10.14 at 12:52 pm

“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?”

Nope, that there is current shoddy legal reasoning, taking the legal fiction that corporations can be treated as ‘persons’ for the purpose of contract & tax law to mean corporations *are actually* persons.

I’m not sure what’s novel about my suggestion. When the courts overturn earlier precedent, it seems to me they’re saying the earlier opinion was wrong, not that it was correct then but no longer correct now. Or the latter is a rare rationale, if it occurs at all.

237

Layman 10.10.14 at 12:55 pm

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…

238

Rich Puchalsky 10.10.14 at 1:04 pm

“When the courts overturn earlier precedent, it seems to me they’re saying the earlier opinion was wrong,”

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.

As I’ve written above, what I really think happened was that in the U.S. during and after the 60s, Bill of Rights talk got conflated with human rights talk. That’s when liberals got this idea that everyone should be treated equally, and that that was “really” (in some Platonic sense) what the Bill of Rights meant. That’s where the idea that the law has a logic that we can plug new moral commitments into comes from. But conservatives never believed in human rights, or in the equality of different kinds of people however defined. And the history of the U.S. pretty self-evidently shows that the idea of this logic was invented fairly recently and had no legal force before that.

239

Lenoxus 10.10.14 at 1:51 pm

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.”

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Plume 10.10.14 at 1:56 pm

Brett,

There is no evidence that “originalism” is popular, or that people see it in the same way you do. You keep throwing around that word (popular) as if 5-4 victories by the reactionary theocrats on the court prove this, or as if victories where the hard right has majorities indicates this.

Beyond that, slavery is brought up when applicable. Not when it isn’t. The right tends to want to silence any discussion of that aspect of our history, as it’s attempting to do wherever it has control over history text books and curriculum. If not for the left, our school children would be taught that it was a good thing, that slaves were happy, joyfully singing in the fields, and that they all loved their masters, and those masters all willingly told the founders that we should end slavery together. And so the founders did, tra la la.

And it’s not about discrediting the Constitution. It’s about discrediting the right’s perverse misreadings of the Constitution, and about their frequent use of the DOI in its place, and the AOC — the latter being what they would really prefer.

241

PatrickinIowa 10.10.14 at 2:30 pm

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?

242

TM 10.10.14 at 3:06 pm

Brett Bellmore, you are on record supporting gun control measures as enacted in Switzerland, together with a Swiss style militia army system. That is now settled. Thanks for making a clear statement for once. Highly appreciated.

243

TM 10.10.14 at 3:11 pm

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?

244

TM 10.10.14 at 3:16 pm

BB 234: You are raising an interesting question. Just out of curiosity, what percentage of the constitution (the Founders’ version) do you think is about slavery? 5%, 10%, 20%, 50%?

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Brett Bellmore 10.10.14 at 3:22 pm

“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?

246

The Temporary Name 10.10.14 at 3:38 pm

What percentage of the population did the founders include in “the people”?

Can’t think why people who are slaves (!) to an era would be unhappy with a caliphate…

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J Thomas 10.10.14 at 3:57 pm

#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.

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Rich Puchalsky 10.10.14 at 4:11 pm

“And it’s not about discrediting the Constitution.”

Well, it really should be. The little play goes something like this:

Bush Jr: “I get to start aggressive wars and torture people and write secret law and stuff!”

Liberals: “Boo!”

Obama: “I get to start aggressive wars and assassinate people and write secret law and stuff! But it’s OK because I was a Constitutional law professor and I love the Constitution.”

Liberals: “Yay!”

Mean conservative: “You liberals hate the Constitution. Go on, admit it. You hate it. Neener neener.”

Liberal sucker: “We love it! We love it a whole lot! We love it and because of that we accept that assassinations and stuff are OK.”

Mean conservative: “The Constitution says that sex is icky.”

Liberal sucker: “No way, it always said that sex was great! We know the sekret things that it really said all along and you don’t!”

Mean conservative: “No way it says that! I only read the words that are on the paper. Show me where it says that!”

Liberal sucker: “We know what it really says ha ha and it said that all the time and you didn’t know!”

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Harold 10.10.14 at 4:25 pm

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.

250

MPAVictoria 10.10.14 at 4:44 pm

Wow Rich, do you actually know any liberals?

251

Anderson 10.10.14 at 4:56 pm

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

252

Rich Puchalsky 10.10.14 at 5:04 pm

Clearly the problem must be that I just don’t know any liberals.

253

J Thomas 10.10.14 at 5:07 pm

#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.

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MPAVictoria 10.10.14 at 5:12 pm

“Clearly the problem must be that I just don’t know any liberals.”

Well I can’t think of any other explanation besides you being deliberately dishonest. So what will it be Rich? Stupid or Evil?

/Ah the eternal question.
//

255

Rich Puchalsky 10.10.14 at 5:20 pm

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.

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Trader Joe 10.10.14 at 5:46 pm

@247 Rich

+1

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.

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Layman 10.10.14 at 5:49 pm

“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.

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Layman 10.10.14 at 5:53 pm

@254

Rich, I’m with you there. Sturgeon’s Law applies here as it does everywhere else.

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MPAVictoria 10.10.14 at 6:01 pm

“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.

260

Ogden Wernstrom 10.10.14 at 6:18 pm

MPAVictoria 10.10.14 at 4:44 pm:

Wow Rich, do you actually know any liberals?

He probably mistook a scarecrow for an actual person. Since the scarecrow can’t speak for itself, he must perform an interpretive dance for our entertainment. I choose to entertain him back, in a similar style.

Republican-Controlled Congress: “With Dubya in The White House, we are giving The President unprecedented powers. It’s the R right thing to do.”

Conservative Suckers: “Hooray.”

Liberals: “Boo!”

Cut to: Obama’s first term.

Conservative Sucker: “Obama is violating The Constitution and breaking the law. Plus, he’s just like Dubya.”

Rich Puchalsky: “Liberals support Obama. Obama acts like Dubya. Liberal equals hypocrite.”

MPAVictoria: “Rich, you paint Liberals with a very broad brush.”

Rich Puchalsky: “If one Liberal is a hypocrite, they are all hypocrites. Or, I don’t know what I was thinking.”

Trader Joe: “I’m stoked!”

Mean Liberal: “Conservatives love to pile on in support of members of their tribe.”

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Rich Puchalsky 10.10.14 at 6:18 pm

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.

262

Ogden Wernstrom 10.10.14 at 6:29 pm

Brett Bellmore 10.10.14 at 9:54 am:

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.

So, to please Bellmore, the meaning must be “what soldiers carried in a specific century“?

These flip-flops, where he makes a statement of some principle and a statement that appears to violate that stated principle, are quite entertaining.

263

Jerry Vinokurov 10.10.14 at 7:06 pm

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?

264

Layman 10.10.14 at 7:39 pm

Rich @ 261

‘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.” ‘

Frankly, that seems right to me. Once, long ago, some rich white men had expansive views about the inherent rights of man and narrow views about who was a ‘man’. Over time society and culture evolved and the notion of who was a ‘man’ broadened, while as a general rule the protection of rights lagged behind. Sometimes that protection was brought to consistency by legislative agreement (when the instruments of legislation functioned); sometimes by judicial action (when they didn’t); and sometimes by the sadder method of 4 years of bloody strife. But the rights were always there. They weren’t invented by the change in law, or the ruling, or the war – these were methods for ending the violation of those rights.

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Rich Puchalsky 10.10.14 at 7:42 pm

“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).

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Ogden Wernstrom 10.10.14 at 8:00 pm

I guess we can apply the concept of this thread to gun laws in the US (vs. the 2ndA).

There is a good rundown of just how modern the Bellmorian interpretation happens to be in The NRA’s Murder Mystery.

It’s tacked-on to the main story, but I thought it was more important than the lurid details of Robert Dowlut getting-away-with-one-murder: The current dialog about 2ndA has been framed by the NRA over the last ~35 years.

Dowlut has also helped fulfill [Harlon] Carter’s vision of reshaping Second Amendment jurisprudence from outside the courtroom. In the late 1970s, a small cadre of law professors and lawyers began arguing that most judges—including generations of Supreme Court justices—had gotten gun rights all wrong. In its first 200 years, the Supreme Court had considered just four Second Amendment cases; it had never affirmed an individual right to bear arms beyond the context of militia service. The only 20th-century case was in 1939, when the justices unanimously ruled against two men who claimed the federal prohibition on transporting unregistered sawed-off shotguns violated their Second Amendment rights. The new wave of pro-gun scholarship by Dowlut and his allies declared that this legal consensus was not only wrong but dangerous: The Second Amendment needed to be rescued from gun-hating judges, politicians, and activists.

Dowlut’s first articles on gun rights appeared in the early 1980s. A piece in the Oklahoma Law Review in 1983 laid out the basic premise of the modern gun rights movement: Beyond the awkward and archaic preamble about a “well-regulated militia,” the Second Amendment unequivocally secures a broad individual right to keep firearms for self-defense and “to deter governmental oppression.”

Dowlut’s piece was one shot in a sudden volley of pro-gun scholarship. According to an analysis by political scientist Robert J. Spitzer, between 1912 and 1969, just three law journal articles endorsed this expansive view of the Second Amendment. Between 1970 and 1989, 27 did, while 25 supported the prevalent court interpretation. By the 1990s, articles supporting the broader interpretation outnumbered those espousing the traditional view 2 to 1; 27 were written by seven authors who had worked for the NRA or other pro-gun groups, including Dowlut, who wrote three.

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Collin Street 10.10.14 at 9:18 pm

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”.

268

J Thomas 10.10.14 at 10:20 pm

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”.

A lot of those guys were lawyers, weren’t they? So already we can’t depend on common use of the english language.

Today the use of “shall”, “will”, and “should” in such documents has become encrusted with special meanings.

https://en.wikipedia.org/wiki/Shall_and_will#Legal_and_technical_use

“Will” is not necessarily about the future, but also about the indefinite present and several other generalized tenses and intentions. But likely things were simpler back then.

Shall and will are distinguished by NASA[10] and Wikiversity[11] as follows:

Shall is usually used to state a device or system’s requirements. For example: “The selected generator shall provide a minimum of 80 Kilowatts.”
Will is generally used to state a device or system’s purpose. For example, “The new generator will be used to power the operations tent.”

….

On specifications and standards published by the United States Department of Defense (DoD), requirements with “shall” are the mandatory requirements. (“Must” shall not be used to express mandatory provisions. Use the term “shall.”) “Will” declares purpose on the part of the Government or simple futurity, and “should” and “may” express nonmandatory provisions.

Linguistic clarity gets opaque fast when life, liberty, and property are on the line.

269

Harold 10.10.14 at 10:21 pm

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.

270

J Thomas 10.10.14 at 11:18 pm

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.

Try it! My experience has been that they disagreed all over the place.

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.

That’s true. They had no external enemies to speak of, they had nothing worth landing a force of Marines and grabbing stuff. There was no percentage in trying to invade them. If they created a standing or mercenary army, what would it do? Of course they wanted well-prepared citizen armies.

Then in 1812 they found out they didn’t have welll-prepared citizen armies. They basicly had nothing. They couldn’t stop british marines from raiding their ports. US militias often did OK at defending prepared fortifications, but it was only with experience that they learned to fight. This fit Napoleon’s dictum that if you want a successful army you need to keep them busy at war and not have much peacetime. In general, the armies that had maintained their experience fighting indians did far better against the british and particularly against british indian allies.

By the time of the Mexican war we had a small professional army that held the poorly-trained, poorly-disciplined “volunteers” in contempt.

271

Layman 10.10.14 at 11:18 pm

“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?

272

Harold 10.10.14 at 11:37 pm

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

273

J Thomas 10.11.14 at 12:04 am

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.

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Jerry Vinokurov 10.11.14 at 2:32 am

They had no external enemies to speak of

Depends on what you mean by “external enemies.” Not counting the Native Americans, the US also fought a number of smaller military conflicts before 1812, including the Tripolitan War and an undeclared “Quasi-War” against France. Those were naval conflicts, obviously, but conflicts with external enemies nonetheless.

275

Harold 10.11.14 at 3:25 am

I have to agree with you there, J Thomas.

276

Brett Bellmore 10.12.14 at 10:40 am

“The only 20th-century case was in 1939, when the justices unanimously ruled against two men who claimed the federal prohibition on transporting unregistered sawed-off shotguns violated their Second Amendment rights. “

Seriously, have you ever read the Court’s decision in US v Miller?

What the Court actually did, was rule that, rather than applying to just any sort of gun, the 2nd amendment applied only to guns which were suitable for military use. The case hinged on the nature of the gun, not of the people carrying it. Because they were not briefed on this question, (US. v Miller was a trial in abstentia; Layton had died, and Miller had skipped when the lower court ruled in his favor and had him released. So only the government’s side of the case got argued before the Supreme court. Convenient, that…) the Court ruled that it could not settle the question of whether a sawn off shotgun had military utility, (And thus was an “arm” in the 2nd amendment sense.) and remanded the case back to the lower court to make this factual determination.

If it was determined that a sawn off shotgun had military utility, (And it certainly did, they were used in trench warfare in WWI.) Miller would have won the case. But, of course, nobody showed up to present any evidence of this, (Miller, too, was dead by then.) and the government won by default.

So, for some 70 years, the constitutionality of gun control was dictated by the outcome of a case the government won only by default because the defendants were already dead. And which the lower courts then started playing a game of “telephone” with, each referring to the previous court’s interpretation of Miller, instead of going back to the original case. Until finally a case that held that private ownership of military arms was constitutionally protected was turned around into a case that supposedly held that private ownership of arms was unprotected.

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Brett Bellmore 10.12.14 at 10:48 am

“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.

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Collin Street 10.12.14 at 11:20 am

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.

… 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?

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J Thomas 10.12.14 at 12:24 pm

… 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?

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Collin Street 10.12.14 at 10:35 pm

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.

+ 1787: US constitution adopted
+ 1793: militia’s dismal performance in war of foreign aggression in ohio leads to establishment of central standing army to reinforce militias in wars of foreign aggression
+ 1813: militia’s dismal performance in war of foreign aggression in canada leads to marginalisation of militias in future wars-of-foreign-aggression planning
[from after this date, US wars of foreign aggression were directed against spain, spanish-american successor states, and native groups [which don’t count as “foreign aggression” because if they didn’t want to be attacked they shouldn’t have had anything worth stealing] and chiefly prosecuted by central-government forces, although locally-controlled ones often had a part in getting the ball rolling through ill-concieved punitive campaigns and the like]

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

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J Thomas 10.12.14 at 11:28 pm

#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.

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Norwegian Guy 10.12.14 at 11:40 pm

Switzerland has a regular army and air force, and as far as I can see the “militia” Americans talk about is a part of this. The US equivalent would be the National Guard or perhaps the Army/Air Force/Navy Reserves, not some kind of private-sector military organization.

If the US states could refuse to cooperate in 1812, this means that the militia was under state control, just like it is today. This kind of citizen militias were common in many countries until the early 19th century, but then gradually faded in importance.

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Collin Street 10.13.14 at 12:12 am

> In Brett’s defense

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

Your post, your claim.

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Niall McAuley 10.13.14 at 12:35 am

The actual citizens of Switzerland who have to take out their government gun and shoot a government set score on the government test do not seem to think that any of this is part of a libertarian paradise.

Nor do they think it has anything to do with Switzerland’s independence through the 20th century, which they tell me was more to do with all the dirty money stashed in Swiss banks.

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J Thomas 10.13.14 at 12:56 am

#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.

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Ronan(rf) 10.13.14 at 1:10 am

The militia system is a proven success and the endpoint in human social organisation.

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Harold 10.13.14 at 4:26 am

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

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Ze Kraggash 10.13.14 at 6:16 am

“Nor do they think it has anything to do with Switzerland’s independence through the 20th century, which they tell me was more to do with all the dirty money stashed in Swiss banks.”

I’m sure through the 20th century the people of, say, Belgium would like it to be the place to stash dirty money. But it was Switzerland. Why? Well, probably because it was neutral, stable, and without imperial ambitions. Which is probably (at least in part) a product of its political system, including the absence of a standing army. Which is, of course, the consequence of other factors.

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