Patterico's Pontifications

1/14/2010

Supreme Court Stays Broadcast of Gay Marriage Case

Filed under: General — Patterico @ 1:39 am



The Supreme Court, by a 5-4 vote, has stayed the broadcast of the big gay marriage trial taking place in San Francisco. The Court’s opinion starkly sets forth the thuggery that advocates of the proposition have faced in public, like:

Proposition 8 was passed by California voters in November 2008. It was a ballot proposition designed to overturn a ruling by the California Supreme Court that had given same-sex couples a right to marry. Proposition 8 was and is the subject of public debate throughout the State and, indeed, nationwide. Its advocates claim that they have been subject to harassment as a result of public disclosure of their support. . . . For example, donors to groups supporting Proposition 8 “have received death threats and envelopes containing a powdery white substance.” Stone, Prop 8 Donor Web Site Shows Disclosure is a 2-Edged Sword, N.Y. Times, Feb. 8, 2009. Some advocates claim that they have received confrontational phone calls and e-mail messages from opponents of Proposition 8, ibid., and others have been forced to resign their jobs after it became public that they had donated to groups supporting the amendment . . . Opponents of Proposition 8 also are alleged to have compiled “Internet blacklists” of pro-Proposition 8 businesses and urged others to boycott those businesses in retaliation for supporting the ballot measure. Carlton, Gay Activists Boycott Backers of Prop 8, Wall Street Journal, Dec. 27, 2008. And numerous instances of vandalism and physical violence have been reported against those who have been identified as Proposition 8 supporters.

This is disgusting.

Ultimately, the Court issued the stay based on a very technical issue: the rules were changed without an adequate period for public comment. Yet the split of Justices (the conservatives plus Kennedy voting for the stay, and the four liberals dissenting) indicates that there is something more going on than a mere technical issue of procedure. My guess is that Scalia & Co. think the case is nonsense, and don’t want the defendants to be harassed as described above.

I understand their thinking. I’m a Proposition 8 opponent, but I agree that this case is nonsense. Laws like this should not be invalidated by judges. And the law’s supporters should not be intimidated. When televised broadcasts lead to campaigns of intimidation, that’s not good for the process.

Yet I still tend to think the trial should be public.

I think Judge Kozinski’s letter to the Judicial Conference of the United States makes a nice case for the concept of opening up the process to public scrutiny.

Kozinski argues: “While the Judicial Conference has not formally considered this matter [since 1996], a great deal has happened in the world since then, notably the advent of affordable video systems and the proliferation of the internet. Technology has changed the way trials are conducted and reported. The public, too, demands far more transparency from its public institutions today than it did in 1996.” Kozinski notes that his Ninth Circuit makes digital audio recordings of oral arguments available, and video records and broadcasts a substantial number of arguments. “Even the Supreme Court is now releasing audio recordings — sometimes in near-realtime.”

I still remember watching the oral argument regarding the timing of the recall election in California, and I think broadcasting that proceeding contributed to the public’s understanding of the Ninth Circuit’s role in the process (in one of the few cases they got right). Broadcasting there was the right thing to do.

And my concerns go deeper than Kozinski’s general enthusiasm for openness. If a federal court is potentially going to invalidate laws against gay marriage based on a trial, don’t you think the trial should be open to public scrutiny? I felt the same way about an obscure trial in Nebraska that led to a ban on laws against partial-birth abortion. The sweeping powers that the federal judiciary have arrogated to itself demand scrutiny — and in the Internet age, we’re not content for the scrutiny to be filtered though the lens of a liberal media.

On balance, I vote for openness — and for coming down hard on those who use intimidation as a weapon. Which I guess sets me against my favorite Justices, and Justice Kennedy.

But it’s not an easy question to answer. I’m willing to be persuaded otherwise, if someone can make a compelling argument.

141 Responses to “Supreme Court Stays Broadcast of Gay Marriage Case”

  1. Can’t you just feel the love oozing from every pore of the Prop 8 opponents? Oh, and the irony! Here they are, arguing before the Nightmare Circus Clown Court that the backers of Prop 8 are haters, and it turns out that the real haters and death-threat levelers are to be found within their own “we just want everyone to be equal and free” ranks.

    Icy Texan (012080)

  2. Whether or not a person agrees with Proposition 8, supports or opposes homosexual marriage, the simple fact of the matter is that the people of California voted it into law. That’s WHY we have the referendum process, to prevent ourselves from being “governed on high” my imperial governors and such.

    Why this is now in court is incomprehensible…unless those opposed to it know that they can get an activist judge, or much more likely, the 9th Circuit Court, to overturn the law on some vague and whimsicial sense that it’s “unconstitutional.”

    States governing themselves by the will of the people, or the tyranny of the minority via legislation from the bench?’

    This is no longer about “gay rights,” but rather, about an egregious abuse of the legal system to furhter a politica aim.

    Steve B (5eacf6)

  3. i voted against Prop 8, although i can’t understand why “marriage” is a government function. to me any two or more consenting adults should be able to sign a contract in front of a judge, and marriage is a religious institution that government has no business being in to begin with.

    that being said, i was thoroughly pissed off by the intimidation campaign after the election results, and thus have no time for the Prop 8 supporters, now, or in the future.

    i have no time, nor truck, with terrorists, regardless of how altruistic their goals may claim to be.

    redc1c4 (fb8750)

  4. If you let the rabid mouthbreathers intimidate you into silence, then they win. Don’t negotiate with terrorists. Of course, that’s easy for me to say, as I don’t live in the Peoples Republic of California.

    I agree that people should be able to see what this travesty looks like. Maybe they’ll put it on C-SPAN, like the health care debate.

    Oh, wait.

    Steve B (5eacf6)

  5. A correction to your background on Prop 8. It was not put on the ballot to reverse the court decision. It was put on the ballot to prevent judicial mischief by making its provisions a constitutional amendment that could not be ruled unconstitutional by the court. (It’s provisions were already a law, created by Prop 22 in an election years ago.) However, the court decided to purposely complicate the situation by making their ruling before the election, knowing that Prop 8 was already on the ballot, and the case would be moot if Prop 8 passed.

    I think the court’s behavior was irresponsible and was contrary to well established previous practice where decisions are delayed until other circumstances play out (because the other circumstances might make the case before the court moot).

    I would favor impeaching every judge that supported issuing the decision before the election. I would take this position whether the case was gay marriage, a public utility issue, or any other issue where the court willfully created legal complications that were easily avoidable.

    Ken in Camarillo (aa2192)

  6. First, let me say that I am a trial lawyer. I feel that court hearings are turned into reality shows when they are broadcast (O. J. Simpson).
    The average person just doesn’t grasp the law when viewing bits and pieces of a trial (You Tube clips) or hearing inadmissable evidence that a jury does not hear. They assume that the law is an ass because they they only see part of the process.
    It also increases the problem of jury or witness intimidation as has happened in this case.

    jim in alabama (f43071)

  7. I am for openness generally, but…

    The Supremes made it clear that the court was violating its own rules to put this “show” on TV. And it makes you wonder what the agenda is, in doing that. i would go as far as to say that if i was defense counsel, i would seriously consider a motion to disqualify Judge Walker. He was so hellbent on airing it, it calls his impartiality wholly into question.

    A.W. (e7d72e)

  8. If our laws worked the way they should, I would say certainly broadcast the case. Coming from the wonderfully liberal state of MA, I can assure you that the video will be used for targeting the supporters of Prop. 8 and destroying their lives and the lives of their family and friends….this HAS happened in MA.
    And that a well-publicized case that people have heard about and been preparing for, for quite some time, suddenly on what, Dec 31, the judge decides to change the law and allow a tiny amount of time to contest him? We already know which way this trial will be run, why make the people involved targets?

    J (2946f2)

  9. I’m a Proposition 8 opponent, but I agree that this case is nonsense. – Patterico

    Intellectual integrity. I could respect the most liberal of liberals if they would have a little of it. This is one major thing that defines a thoughtful person like our host from the disengenious Barney Frank quoted in a near by thread.

    I have a question. What would people think of it being televised, but having faces blurred out and other identifying material edited out of the public version? The public could hear the reasoning and individual protection would be enhanced. While knowing who is arguing what adds somthing to the analysis and understanding of what is going on, I’m assuming that at the end of the day it is the arguments themselves that the judges are meant to decide on.

    MD in Philly (d4668b)

  10. Ken in Camarillo – I think you’ve got the timing wrong. The signatures were not returned to the Secretary of State for counting until after the California State Supreme Court had issued its ruling.

    Given the large number of petitions which are taken out and then fail to qualify for the ballot, you can’t reasonably expect the California Supreme Court to stay the release of every decision which might be affected by a circulating petition.

    [FWIW, when the post-prop-8 case went to the court, I was arguing that the anti-prop-8 position was absurd: even if prop 8 were a revision at the time that Prop 8 was voted on, it wasn’t when the petitions were taken out, and I object to changing the rules in mid-process.]

    aphrael (9e8ccd)

  11. I would add that the irreperable harm argument put forward by the defense in this case is absurd: the witness list is public, and includes not just the names but the addresses of the witnesses. Anyone seeking to intimidate the witnesses has all the information they need already.

    I think the real purpose of opposing televising the trial (not the reason the court ruled the way it did, but the reason the attorneys for the defense opposed it) is to prevent snippets of the trial from being used in ads promoting the repeal of proposition 8.

    aphrael (9e8ccd)

  12. The simple fact of the matter is that the people of California voted it into law.

    Sure. But that doesn’t mean the law complies with the US Constitution.

    I can respect the argument that the law does comply with the US Constitution, but you appear to be making the argument that, once the voters have voted for it, nobody even need ask about Constitutional compliance. That’s just wrong.

    aphrael (9e8ccd)

  13. Icy Texan: yesterday one of the exhibits entered into evidence was a video of the deposition of one of the guys whose name was on the ballot argument for proposition 8.

    The guy was saying, basically, that he opposes gay marriage because he dislikes the homosexual agenda and that once gays get gay marriage, they’re going to push for legalizing prostitution and for legalizing sex with children.

    I find it extremely difficult not to conclude that the guy hates gay people. And I find it highly offensive that he’s claiming – by asserting that all members of a group to which I belong – that I want to legalize sex with children.

    I think it’s clear that there are haters on both sides. I also think that it’s normal human behavior that gay activists focus on the hate on the conservative side while conservatives focus on the hate on the gay side: it’s much easier to criticize the enemies of our allies than it is to criticize our allies.

    aphrael (9e8ccd)

  14. We have two and half million people in prison or jail, and another five million under restricted liberty and legal disability, and this is the kind of crap that the Supreme Court has to waste its time on.

    nk (df76d4)

  15. Icy

    i will say that while gay rights proponents have not covered themselves in glory with prop 8, i think a little sympathy was in order.

    Are you married? what if the law told you for some reason you couldn’t be? Wouldn’t that upset you.

    Even as i lean against recognizing gay marriage, i recognize the very human impulses underlying the rage that followed the repeal. dare i add that part of the rage was fueled by the fact it was going backwards.

    But why did we go “forwards,” so to speak? because in a ludicrous ruling the Cali SC conjured gay marraige out out thin air.

    Its crap. and the sense of outrage should be correctly aimed at the judicial activism that started this whole roller coaster, and not the people who corrected this activism.

    A.W. (e7d72e)

  16. Broadcasting the proceedings was a setup with the intent to instill the very real fear of repercussions on those supporting prop. 8. With the likes of Holder in the Justice department airily dismissing voter intimidation charges against Black Panthers with no explanation it is not the time to get creative in dealing with a biased justice system. Speaking of creativity, Coakley as AG in Massachusetts looks the other way when confronted with assault and battery in front of her. She lies then recants when AP prints photos of her watching the entire sorry episode.

    We can broadcast later when sanity returns to hot button issues such as cameras in all courtrooms all the time. Until then, the rotten apples need to be removed from the political barrel.

    vet66 (9d1bb3)

  17. 3

    i voted against Prop 8, although i can’t understand why “marriage” is a government function. to me any two or more consenting adults should be able to sign a contract in front of a judge, and marriage is a religious institution that government has no business being in to begin with.

    that being said, i was thoroughly pissed off by the intimidation campaign after the election results, and thus have no time for the Prop 8 supporters, now, or in the future.

    i have no time, nor truck, with terrorists, regardless of how altruistic their goals may claim to be.

    Comment by redc1c4 — 1/14/2010 @ 2:30 am

    You have it backwards. The intimidation and terrorism is coming from those attempting to invalidate Prop. 8. That is, the opponents of the proposition.

    Sabba Hillel (153338)

  18. The best disinfectant is sunshine. Our courts belong to We the People – not the Supreme Court and judges. As stated in pertinent part in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978): “… The operations of the courts and the judicial conduct of judges are of the utmost public concern.” See also Huminski v. Corsones, 316 F.3d 53 (2nd Cir. 2005).

    Too often though, the courts pay only LIP SERVICE to their own words and duties, and instead run roughshod over people’s rights and engage in corruption. Impeachment of federal judges is as rare as Haley’s Comet (comes around once every 66 years) and misconduct complaints against federal judges have an almost 100% dismissal rate. See the 9th Circuit Judicial Council, Order No. 03-89037, dismissing (for the 3RD TIME) the misconduct complaint against USDC-Central District, CA Judge Manuel Real (where it was found that, without any legal authority, he intefered in a case), where in dissent Justice Alex Kozinski stated in part: “… It does not inspire confidence in the federal judiciary, when we treat our own so much better than everyone else.” See also Bracey v. Gramley, 520 U.S. 899 (1997), recounting the federal sting ‘Operation Greylord’, where 15 Cook County (Chicago) judges went to prison; learn about bagmen and bribes. Why aren’t there more Operation Greylords? More recently, there is the “Kids for Cash” judicial bribery scandal in Wilkes-Barre, PA, where two juvenile court judges (Ciavarella and Conahan) ordered minors into incarceration on simple/minor beefs, in exchange for cash; later 6,500 cases were overturned and vacted. And how many death penalty and rape cases have been overturned (after lengthy incarcerations) on DNA or whithheld evidence. See Pottowanamie County v. McGhee, recently argued in the US Supreme Court, but just settled for $12 Million (prior to the court issuing a decsion), resulting in DISMISSAL of the case.

    Judges have tremendous POWER. Our courts need WATCHING. We must demand auido & video recording in every courtroom to ensure the legal/judicial process is open, honest and has integrity. Afterall, such lesser endeavors as NFL and college football games (have a superabundance of cameras, with instant replays and appeals) and the Vegas casinos have countless eyes in the sky. When games & gambling take greater measures to ensure integrity and have more srutiny, than our courts – something very large is wrong with our society, our courts. What are our judges hiding? What are our judges afraid of?

    [note: fished from spam filter. –Stashiu]

    Gary L. Zerman (95eae9)

  19. Patterico, public scrutiny is easily accomplished by releasing a transcript, with sketches from sketch artists, and accounts from reporters who were there. Broadcasting nationwide is unnecessary, and would lead to selective use of snippets as fodder for partisan and superficial TV commentaries.

    Judge Kozinski says we have to change with the times. But TV has already been around for 75 years, without broadcasting federal trials. Photography has already been around for twice as long, and yet sketch artists have not become obsolete. Likewise, stadiums, stages, theatres, and auditoriums have been around for thousands of years, without using them for federal trials. There is no sudden need to use every available resource in order to turn a federal trial into a spectacle.

    If a federal trial is to be broadcast, it ought to be done with the consent of both sides, and not otherwise.

    Andrew (fee4ef)

  20. I’m “for openness” too, including, in due course, the public availability of video from trials. BUT,

    why have the first case in which that’s done be one in which there is a huge propensity for grandstanding? Did we learn nothing from the first OJ Simpson trial?

    I absolutely agree with the main point of the majority opinion: Walker cheated. The dissent, although it makes some good points, screws the pooch by opening with this misleading “But they were warned in September ’09 that it might be televised, and didn’t object to stationing cameras there.” The September exchange did NOT comply with the notice-and-comment rules; indeed, Walker still hasn’t complied.

    Mitch (890cbf)

  21. I haven’t read any of the comments yet (famous last words), but I will after I post my comment. I want my comment to be unaffected (raw, as it were) by what others say. And I want to keep my spongy-sieve-y thoughts.

    I’m sure I won’t be able to build a compelling case for shutting down public dissemination in the fashion desired, but I think I can build a partial case.

    Why do you need to see the people in the witness box?
    Is there any value-added reason to see what these people look like? Will it change your perspective on the case based on the appearances of the witnesses? I suggest the viewing will provide a target-rich environment for the violent cadre. And for this reason, it will squelch witness speech in the court. History shows that people on one side of this debate have been targets for violence and harrassment, among other things.

    Names have been changed to protect the innocent. (Dragnet TV series)
    What is wrong with public dissemination of the transcript with witness names redacted for their protection? All the case information can still be made available, including expert credentials which are sufficiently examined so as to not lead directly to specific people. You can then examine the information with a target-free environment. And the witness stand will be much less likely to be unjustly censored.

    The need to “face your accuser”, which I believe lacks relevancy in this sort of case, needs to be balanced by the need to “protect the accuser”, which, again, I believe lacks relevancy in this sort of case. Because this case doesn’t have an “accuser”.

    I’m all for openness with the caveat that such openness doesn’t naively subject a certain segment to likely illegal attack. And a properly redacted transcript will provide plenty of openness while maintaining plenty of protection and a “fair trial”.

    John Hitchcock (3fd153)

  22. On balance, I vote for openness

    I agree in principle. But this case should not be the one which begins the new era of openness.

    Subotai (6a1a20)

  23. It’s scary to think that Kozinski was once being mentioned as a possible SCOTUS pick.

    Even though I agree with his positions sometimes, I still regard the man as a loose cannon with little respect for the law.

    Subotai (6a1a20)

  24. Man, it has nothing to do with technology, adding to those examples above, how about the hanging in effigy of someone who just tangentially supported
    Proposition *. If the shoe was on the other foot, you know how quickly the rules would change

    ian cormac (dfb136)

  25. Comment by jim in alabama — 1/14/2010 @ 6:19 am

    You may be right;
    but, we – the great unwashed – might not perceive that the law is an ass if it wasn’t that much of what goes on in court comes across as a ‘review of the jackasses’!

    AD - RtR/OS! (aa3284)

  26. …and another thing:
    If repercussion against those who advocate for and against the mechanism of proposition/initiative/recall becomes institutionalized,
    then I shall install a pole at the end of the drive-way with one of those take-a-number dispensers right below the sign that states:
    Take a number for a body-bag!

    This $hit as got to end.

    AD - RtR/OS! (aa3284)

  27. …and another thing:
    If repercussion against those who advocate for and against the mechanism of proposition/initiative/recall becomes institutionalized,
    then I shall install a pole at the end of the drive-way with one of those take-a-number dispensers right below the sign that states:
    Take a number for a body-bag!

    This $hit has got to end.

    AD - RtR/OS! (aa3284)

  28. The behavior of a faction of the supporters has been so, well, Klanlike, that it has a chilling effect on public participation. To many it is just as fearful as testifying against a gang member.

    For the same reason that anti-SLAPP defenses exist, even though that interferes with some litigant’s access to the courts, court cases should not be televised if that action causes a reasonable fear to one side’s witnesses. That reasonable fear exists and the court should have ruled on that basis alone.

    Kevin Murphy (805c5b)

  29. The guy was saying, basically, that he opposes gay marriage because he dislikes the homosexual agenda and that once gays get gay marriage, they’re going to push for legalizing prostitution and for legalizing sex with children.

    I find it extremely difficult not to conclude that the guy hates gay people. And I find it highly offensive that he’s claiming – by asserting that all members of a group to which I belong – that I want to legalize sex with children.

    Comment by aphrael

    I have not seen the specific video that you mention, but I would like to discuss the idea in general.

    I would agree there are “haters” on both sides, and I agree that anyone who claims that all gay people want to legalize sex with children is wrong. I would also say that anyone who suggests that all gays want homosexual marriage to be recognized are wrong as well.

    But it is also true that the Man-Boy love group, whatever it is called, is the primary place one would find people who would like to see sex with younger aged children made legal, even if that would only be a small percentage of all gays. The legal defenders are basically of the same ACLU cloth, are they not? I have yet to see how one would argue that one can find a new consensus on sexual behavior that “everybody” would be happy with, and a new “line in the sand” could be made that would never be challenged.

    I realize (at some level) that to be part of a group that does not have the same rights and priviliges as others can make one feel “second class”. This can be more or less distressing and painful depending on the individual and what kind of fights and privileges one is denied.

    But I see no resolution to the dilemma of logic we have in the public square if homosexual marriage is given the same legal and social status as heterosexual marriage. Children in school will be told that their parents are wrong if they do not agree. What once was an issue of private morality has become an issue of legally permitted opinion. If that happens, then you are saying a minority group can impose its definitions of appropriate behavior on the majority. Then you have an oligarchy and not a representative anything.

    Does that mean that I am a “hater”? I hope not. Friends and patients whose lives I’ve saved would not say so. Does that mean I tolerate any kind of harrassment? No, I do not.

    MD in Philly (d4668b)

  30. An interesting corrolary…
    Judge Mukasey was being interviewed and one of the questions was whether or not he thought the proposed trial of KSM in an Art-III court in NYC was advisable.
    He brought up the point of jury intimidation by pointing out that even though the identity of the jurors in the trial of the Blind Sheikh (over which he presided) was not released, many of those jurors – after the verdict was read – found newsies on their doorsteps as they arrived home from the Courthouse.

    AD - RtR/OS! (aa3284)

  31. A question from a non-lawyer. Can’t a judge order a transcript altered or parts stricken? Does this not reduce accountability?

    I don’t like the spectacle and playing to the cameras of TV trials but I think it is immunity and not power that corrupts. Tragically we have seen that we can not trust judges to rule their own political instincts and greed or to reign in their ambition for unchecked power. How can we achieve the accountability without the problems the TV cameras pose?

    I remember watching the televised hearings in the legislature on Ruby Ridge and Waco. Seeing the disgraceful actions of the legislators during the day and the distorted propaganda aired on the networks at night made me aware that the press no longer served the function our founders intended. Some of the hearings about Clinton’s crimes showed the same thing.

    Is it possible to have an undoctored transcript outside the judge’s control?

    Machinist (9780ec)

  32. The guy was saying, basically, that he opposes gay marriage because he dislikes the homosexual agenda

    There’s a shocker.

    I find it extremely difficult not to conclude that the guy hates gay people.

    Well, he dislikes them at any rate. But we’re allowed to dislike people in this country. Or should the results of the last election be set aside because Howard Dean told us that he “hates Republicans and everything they stand for”?

    Subotai (6a1a20)

  33. Subotai,

    Per Anthony Kennedy, lawmakers are not allowed to pass laws because they hate gays.

    Interesting question whether it should matter whether the originators of the law had such hate, given that the law was passed by the People of the State of California. I’d say no. I don’t know that Judge Vaughn would agree …

    Patterico (83d019)

  34. Per Anthony Kennedy, lawmakers are not allowed to pass laws because they hate gays.

    So, if 5% of the Prop 8 supporters “hate gays”, and that was more than the margin of victory, then what? Do we now weight the vote based on the estimated portion of thought criminals voting?

    Kevin Murphy (805c5b)

  35. “Do we now weight the vote based on the estimated portion of thought criminals voting?”

    /head explodes

    Dustin (b54cdc)

  36. Like this.

    Dustin (b54cdc)

  37. You say you were opposed to Prop. 8. Why? (or did I miss your posting on that?)

    Bystander (c90db5)

  38. Bystander:
    http://patterico.com/2008/11/01/no-on-proposition-8-allow-gay-marriage-in-california/

    The downside of banning gay marriage is that homosexuals are made to feel that they are second-class citizens. I don’t know whether being gay is genetic, a learned behavior, or some combination of the two — but I am confident that it is something that people do not consciously choose. I certainly did not consciously choose to be sexually attracted to women; that is hard-wired into me somehow. I can’t imagine it’s different for gay men.

    Since gays do not consciously choose their sexual orientation, refusing to give them access to an institution available to heterosexuals is discrimination. The policy question is whether this discrimination is justified on a societal level.

    Dustin (b54cdc)

  39. Building on Patterico’s point: if the intent of a law is to discriminate against a class of people, then the law is automatically more problematic than if that were not the intent. If the plaintiff in this case can demonstrate discriminatory intent, then that’s a big step towards their argument.

    That said, Patterico’s point is a good one. Ultimately, the intent of the people matters more than the intent of the proponents. My guess is that they are trying to show that the advertising and rhetoric that the proponents used was designed to appeal to fear/dislike/hatred of gays and that it is circumstancial evidence that the voters were motivated by that fear/dislike/hatred – that they were passing a law specifically to hurt gays as gays rather than adopting some beneficial public policy designed to help with some public good.

    It’s hard for me to assess that because I haven’t seen all of the evidence.

    aphrael (a6bb82)

  40. Our judicial system is not a reality show. The purpose of an open court system is to provide transparency not secrecy. That is for the most part adequately handled by the current system.

    Broadcasting courtroom proceedings will inevitably lead to officers of the court playing to the cameras rather than focusing on the rule of law. We don’t want a seperate appeals process that revolves around youtube.

    Amused Observer (d07a68)

  41. Would that not mean that had Obama lost then a judge could overturn the election because people voted against him because the hated black people?

    Could a judge claim McCain lost because so many people obviously hated Sarah Palin?

    Machinist (9780ec)

  42. I am very uncomfortable with the idea of a judge overturning a legal vote because of his opinion of the motives of the authors of the law or the voters.

    Why bother with elections anymore.

    Machinist (9780ec)

  43. Machinist, exactly. This kind of analysis Aphrael (accurately) reports is simply not a rational legal system.

    Guessing people’s intents? There’s no evidence that could get us truth, and we need to avoid this thoughtcrime crap. Intent is not relevant. The US Constitution was passed with 3/5th comprimise and probably racist intent somewhere along the line. Same applies in millions of cases.

    Who is to say that a gangbanging statute wasn’t passed by someone with an irrational fear of being raped by Estonians?

    Patterico’s point doesn’t get here. He just says ‘hey this class is being treated different. That’s the EFFECT’. That’s a healthier way to look at laws. Trying to divine the secrets of mental processes is not healthy at all. And it’s obviously a one way street.

    The CRA was racist too. We all know how.

    Dustin (b54cdc)

  44. Per Anthony Kennedy, lawmakers are not allowed to pass laws because they hate gays.

    No doubt. But I’m basing my own opinions on the US Constitution.

    It occurs to me that the situation these days vis-a-vis the Constitution and the courts is very similar to what existed in Europe vis-a-vis the Church and the Bible prior to the Reformation.

    We are all supposed to bow down and kiss the hem of Anthony Kennedy’s gown and ignore the fact that what he says clearly has nothing whatsoever to do with the actual written Constitution of the United States.

    One of these days some latter-day Martin Luther is going to nail his 95 Theses to the SCOTUS door.

    PS – I thought SDO authored the “no animus allowed” opionion.

    Subotai (e80679)

  45. Dustin: the problem is, when you have a law which has an effect which is obviously racially discriminatory without having it explicitly demand racial discrimination, you need some way to tell.

    The canonical case is one wherein SF, in the late nineteenth century, required that you had to have a permit in order to operate a laundry. It just so happened that only white people ever got permits; Chinese people didn’t. It was obvious that this facially neutral law was being used to discriminate, but without looking at the intent of the people doing it, how can you demonstrate that?

    Either you have to play a numbers game – and even that’s hard because how do you know that your numbers compare similarly situated people? – or you have to look at intent, or you have to say to the Chinese minority, tough luck, but the law isn’t discriminatory.

    The last one is an obvious loser, in my mind at least … and it’s not intuitively clear to me that either of the other two options are any better.

    ——-

    Note that a fair percentage of criminal law requires demonstrating intent; there’s nothing novel about looking for intent in this context.

    aphrael (a6bb82)

  46. Damn, well said, Subotai.

    Dustin (b54cdc)

  47. if the intent of a law is to discriminate against a class of people, then the law is automatically more problematic than if that were not the intent

    Right. That’s why Prohibition was overturned by the courts – because it was motivated by animus against people who drink. It’s all coming back to me now.

    You won’t find the phrase “class of people” anywhere in the US Constitution.

    Subotai (e80679)

  48. Subotai: what approach would you use to determining whether or not a law deprives a group of equal protection of the law?

    aphrael (a6bb82)

  49. Note that a fair percentage of criminal law requires demonstrating intent; there’s nothing novel about looking for intent in this context.

    Comment by aphrael

    In this context? I disagree.

    In a criminal proceeding about someone intending to premeditation or intending a result or whatever is pretty different from saying, at the legislative level, I divine the legislator’s intent.

    Again we very much are coming at this from different understandings.

    Dustin (b54cdc)

  50. Not that we don’t look to legislative intent all the time!

    Of course we have to do that. I just don’t think we do it like this at all. This is doing what Aphrael is describing, looking for some ‘illegal’ intent thoughcrime as legislative intent that makes a law invalid. We’re not trying to make the law work, we’re trying to make the law not work.

    Dustin (b54cdc)

  51. what approach would you use to determining whether or not a law deprives a group of equal protection of the law?

    I don’t believe that a “group” has the equal protection of the law. I know of no Constitutional justification for that concept.

    Subotai (e80679)

  52. Triple Post Alert

    the judges are sitting like a jury, trying to determine if the legislators are guilty of the thought crime of making a law while hating.

    That’s not typical legislative intent, and thought it resembles a criminal proceeding’s fact finding jury, this is a different context altogether.

    As I said earlier, this is not something we can apply. Subject social justice laws to this analysis, for example. Or Welfare laws. Or laws meant to curb gang crimes or certain drug crimes. Somewhere, along the lines, plenty of good laws had a jackass in there who hates a protected class.

    The truth is this is a political issue. This is what is meant by that distinction, and why a heavy line was drawn that judges aren’t supposed to cross. This is a shortcut that will not be impartially applied to all statutes.

    Dustin (b54cdc)

  53. Subotai: ok, i’ll rephrase. What approach would you use to determine whether a law deprives an individual of equal protection of the law?

    I’m doing a mediocre-at-best job of explaining the approach the courts seem to be using. You don’t like that approach. So my question back is: how would you do it?

    The fourteenth amendment says the states can’t deprive citizens of equal protection of the laws. How do you know if a state is doing that?

    aphrael (a6bb82)

  54. aphrael ,
    In the example you use you clearly show the discrimination was in the issuing of permits, not the requirement for a permit. That is where the discrimination should be attacked. What modern city or county does not require a business license today? Would all these be illegal laws if some jurisdiction was corrupt or discriminatory in how they issued them?

    The problem with what you say about determining motive is the difference between judging premeditation and judging hate crimes. Hate crimes are thought and emotion control and are so far from the Constitutional concept of liberty the founders would not even conceive of such.

    Machinist (9780ec)

  55. Dustin, it’s something the courts have been doing to some degree or another for more than 100 years.

    Going back to my example: how do you tell whether the exclusion of the Chinese laundries is denying Chinese-Americans the equal protection of the law, without looking at the intent of the people denying the permits?

    aphrael (a6bb82)

  56. Machinist: so you want to distinguish between discriminatory application and legislative intent, and say that the law is fine but it must be applied in a non-discriminatory fashion. That’s fine for as far as it goes.

    But what if you have a law which was passed with the full knowledge that it would be applied in a discriminatory fashion? Or, worse, if the legislature passes a law which can only be applied in a discriminatory fashion?

    aphrael (a6bb82)

  57. “Dustin, it’s something the courts have been doing to some degree or another for more than 100 years.”

    to some degree or another being the operative words.

    If the law is clearly discriminatory, that example doesn’t count. If the court is trying to find out what the legislature intended, so to follow that intent, that doesn’t count. If a jury is determining if someone intended to commit a crime, that doesn’t count.

    Dustin (b54cdc)

  58. But what if you have a law which was passed with the full knowledge that it would be applied in a discriminatory fashion? Or, worse, if the legislature passes a law which can only be applied in a discriminatory fashion?

    The former is difficult to show, and there wouldn’t be a fair trial. The latter doesn’t require this sort of bizarre analysis. It’s discriminatory without the thoughtcrime police being involved.

    Dustin (b54cdc)

  59. Dustin: sure. this conversation presupposes that we’re not dealing with explicit facial discrimination; we’re looking at statutes which have discriminatory effect.

    what the courts seem to have said pretty consistently for several decades is that: if it has discriminatory effect and that effect was intended for the purpose of discriminating, it’s not equal protection.

    the burden is on the people alleging that it’s discriminatory to prove this, and it’s a relatively tough thing to prove; while it can be done, such cases lose much more often than they win.

    aphrael (a6bb82)

  60. “But what if you have a law which was passed with the full knowledge that it would be applied in a discriminatory fashion?”

    Like lets say right after slavery ends there’s a law that says you can only vote if your grandfather could vote, or if you can pass some difficult test. It’s racially neutral on its face, but obviously racially exclusive in application.

    Give us your analysis here.

    imdw (490521)

  61. If a law is constitutional and is applied equally to all, what does the intent of the people passing it matter? How do we divine and establish intent of voters? Should we not also do so in allowing votes for elected office? Why one and not the other?

    Machinist (9780ec)

  62. Yet I still tend to think the trial should be public.

    If the trial is still open to the public via gallery and media/transcript reports on events of the day in court then not being broadcast ‘live’ on radio, television or the web doesn’t deny public access. Still, it would be a lucrative gift to broadcasters to carry any and all court procedures as the O.J. trial demonstrated. A good start would be televising procedures in the Supreme Court itself… but Scalia opposes that as well – [source- http://www.answers.com/topic/antonin-scalia and Brian Lamb’s C-SPAN has requested permossion to televised the Supreme Court for quite a while.

    DCSCA (9d1bb3)

  63. Many state , local, and Federal laws ban inexpensive guns in favor of expensive ones. These laws are intended to keep guns out of the hands of poor people. The people passing the laws can afford expensive guns and criminals steal theirs or buy stolen guns. Only law abiding peasants are effected and left helpless against crime and tyranny. Why are these not illegal under this principle?

    Machinist (9780ec)

  64. Machinist: the fourteenth amendment says that a state may not deny any individual the equal protection of the laws.

    This is a pretty slippery term; the more I look at it, the less sure I am what it means. It clearly can’t mean that any law which treats person X differently from person Y is invalid — otherwise all criminal laws would be invalid. The best meaning I can come up with is that any law which treats person X differently from person Y because of improper criterion Z is invalid.

    But it can’t even mean that, because if we went on pure effect or application, then all sorts of things which are applied racially would be unconstitutional. As an example: there’s a rule which says that police can stop drivers, basically, on suspicion. It turns out that statistically members of certain minority groups are stopped substantially more often. There’s a clear discriminatory effect; the law isn’t applied equally to all. But most people would say it’s nonetheless constitutional. Why? Because there is no intent to discriminate based on race.

    Well, what if there were intent to discriminate based on race?

    aphrael (a6bb82)

  65. I think we should redefine beef as a vegetable, so vegtarians can eat cheeseburgers.

    JD (dc4402)

  66. Machinist, re: 63 – that’s a good question. Some liberal activists would say that such laws are illegal, that laws which have the effect of discriminating based upon wealth and which can be demonstrated to have been intended to be based on wealth, are clearly unconstitutional. I suspect that Justice Douglas would have signed on to that argument.

    But the consensus seems to be that ‘equal protection’ doesn’t apply in the same way to wealth as it does to race, and that there’s some set of criteria which must be met in order for the basis of a legal discrimination to be suspect.

    That is to say: using race as the basis for a legal discrimination is clearly not allowed. There’s some other set of things which are like discriminating based on race which are also not allowed [obviously i’m speaking in shorthand here; it’s not that they’re not allowed, but that the state must meet a higher burden in order for them to be allowed]. But discrimination based on other criteria are.

    So then the question is, hey, how do we decide what those criteria are? One answer is: the history of the fourteenth amendment means it’s just race. But it turns out that that view has no significant support: even the justices who are most conservative on the subject of equal protection would agree that discriminating on the basis of national origin (say), or religious belief, is close enough to race.

    Unfortunately, the Supreme Court hasn’t bothered to explain how it decides what classifications are suspect. The California Supreme Court tried to explain how it thought this worked, and concluded that sexual orientation was a suspect classification; the Supreme Court has very carefully not done that.

    aphrael (a6bb82)

  67. ISince gays do not consciously choose their sexual orientation, refusing to give them access to an institution available to heterosexuals is discrimination. The policy question is whether this discrimination is justified on a societal level.

    It depends on the scope of the discrimination.

    Using different words for different things is a great deal of magnitude less than requiring different classes of people to sit on different sides of a bus.

    Who is to say that a gangbanging statute wasn’t passed by someone with an irrational fear of being raped by Estonians?

    Gun control laws were enacted because of animus towards black people.

    Anti-bigamy laws were enacted because of animus towards Mormons.

    It just so happened that only white people ever got permits; Chinese people didn’t. It was obvious that this facially neutral law was being used to discriminate, but without looking at the intent of the people doing it, how can you demonstrate that?

    Why go far back?

    Chicago requires handguns to be registered, and it just so happens that only rich, white people with connections to the Daley junta can register handguns.

    Michael Ejercito (b0a575)

  68. How do we divine and establish intent of voters? Should we not also do so in allowing votes for elected office?

    I think that’s one of the problems with this case. It’s difficult, but I think in the end still possible, to divine the intent of the legislature when passing the law. Divining the intent of the voters in passing an initiative seems much, much more difficult.

    aphrael (a6bb82)

  69. Chicago requires handguns to be registered, and it just so happens that only rich, white people with connections to the Daley junta can register handguns.

    Sounds like someone should sue Chicago with an as-applied equal protection challenge.

    aphrael (a6bb82)

  70. It just so happened that only white people ever got permits; Chinese people didn’t. It was obvious that this facially neutral law was being used to discriminate, but without looking at the intent of the people doing it, how can you demonstrate that?

    If the Supreme Court rules for McDonald in McDonald v. Chicago , it will be a moot point.

    Michael Ejercito (b0a575)

  71. Michael – for what it’s worth, I hope they do. While my social preferenes are largely anti-gun (I don’t like them and don’t want them around me), I don’t see any principled way to treat the second amendment differently than the first: both are absolute commandments; Congress may not pass such laws – and thanks to incorporation, neither may the states.

    The pragmatist in me says that laws banning private possession of armed warheads for ICBMs are probably a good thing. The legal formalist in me wants a constitutional amendment to that extent (although not badly enough to think it’s worth fighting over).

    aphrael (a6bb82)

  72. “Some liberal activists would say that such laws are illegal, that laws which have the effect of discriminating based upon wealth and which can be demonstrated to have been intended to be based on wealth, are clearly unconstitutional.”

    Which liberal activists say this? I ask because progressive taxes “dicriminate based on wealth” and I’m unaware of liberal activists that would be against progressive taxation.

    imdw (de7003)

  73. The pragmatist in me says that laws banning private possession of armed warheads for ICBMs are probably a good thing. The legal formalist in me wants a constitutional amendment to that extent (although not badly enough to think it’s worth fighting over).

    An ICBM can not be borne in the same manner like a sawed-off shotgun.

    It goes into the definition of “arm”, like Perry and Bonilla are about the definition of marriage.

    Michael Ejercito (b0a575)

  74. The pragmatist in me says that laws banning private possession of armed warheads for ICBMs are probably a good thing. The legal formalist in me wants a constitutional amendment to that extent (although not badly enough to think it’s worth fighting over).

    An ICBM can not be borne in the same manner like a sawed-off shotgun.

    It goes into the definition of “arm”, like Perry and Bonilla are about the definition of marriage.

    Michael Ejercito (b0a575)

  75. I hear what you’re saying, but I suspect that the definition of ‘arms’ would have encompassed cannon, and missile launchers, even ICBMs, are fundamentally just really advanced cannons.

    But more to the point: to be consistent I have to want ‘arm’ to be interpreted just as broadly as I want ‘press’ and ‘speech’ to be interpreted; I think that saying that a web page is protected by freedom of the press is much like saying that nukes are protected by the right to bear arms (both are concepts which couldn’t have been predicted at the time but which neatly analogize to things which were understood and were clearly covered).

    aphrael (a6bb82)

  76. IMDW, I can’t name names, unfortunately. Where i’ve seen the argument put forward has generally been either by friends of mine who don’t like laws which have the effect of discriminating in favor of the rich (most of whom I think are fine with laws that discriminate in favor of the poor), or in political polemics (mostly from the 1970s) aimed at similar effects.

    I think you could get around the progressive income tax question by arguing that the progressive income tax is trying to tax utility, not income, and that straight up flat income taxes are themselves actually discriminatory because they place a higher relative burden on the poor. Or, alternately, you could just say the amendment authorizing them trumps the fourteenth amendment, so what do we care?

    aphrael (a6bb82)

  77. I don’t understand how income tax is not slavery with the state as the master. If the state owns my work, time, and creativity and may rent me out to my employer and give me a stipend from what I earn, how is this different from owning me? Especially if they can control what thoughts or desires I am allowed to have.

    Machinist (9780ec)

  78. “I don’t understand how income tax is not slavery with the state as the master.”

    Quite profound. Maybe Palin can run on this?

    imdw (795ee1)

  79. The fourteenth amendment says the states can’t deprive citizens of equal protection of the laws. How do you know if a state is doing that?

    I’d look at what the people who wrote and passed the 14th Amdt thought “equal protection of the laws” meant. I think it is clear without going into details that they did not think it meant “homosexual people have every right to marry one another”.

    Let me throw the question back at you. Is there anything which you think that judges CANNOT do under the rubic of “interpreting” the law?

    Subotai (26d46d)

  80. the consensus seems to be that ‘equal protection’ doesn’t apply in the same way to wealth as it does to race, and that there’s some set of criteria which must be met in order for the basis of a legal discrimination to be suspect.

    But that’s just a roundabout way of saying “the Supreme Court has said one thing but not the other”.

    What “rational basis”, to use a phrase the justices like to throw around, exists for the various whims of the court? What “rational basis” exists to assume that the court is not as motivated by animus as anyone else? What “rational basis” is there to believe that the court can or should be the judge of other peoples emotional state?

    Subotai (26d46d)

  81. Subotai: I doubt very much that you could find any writings by the authors of the fourteenth amendment which addressed the subject of homosexuality at all.

    And you’ve dodged the question. You say: look at what the authors thought. OK, fine. What rules do you think they would have used to determine what ‘equal protection of the law’ meant?

    I’m not asking about outcomes. I’m asking about rules of reason.

    As for the other: sure. I think almost all of the court’s substantial due process jurisprudence – Lochner, Roe, Lawrence – is questionable at best. I think that a court ruling that the first amendment required government censorship would be illegitimate. But … it’s not clear to me where the line between wrong and illegitimate abuse of power is. It’s much easier for me to see where that line is for the executive and the legislature.

    aphrael (a6bb82)

  82. this conversation presupposes that we’re not dealing with explicit facial discrimination; we’re looking at statutes which have discriminatory effect.

    All laws have discriminatory effect. Laws against speeding discriminate between people who speed and people who don’t.

    Subotai (26d46d)

  83. Subotai: right! so clearly equal protection doesn’t require that laws have no discriminatory effect.

    So what does it mean?

    aphrael (a6bb82)

  84. This has nothing to do with equal protection. It is all about redefining marriage and forcing acceptance. Were it anything else, civil unions would have been sufficient.

    JD (5e6d25)

  85. I doubt very much that you could find any writings by the authors of the fourteenth amendment which addressed the subject of homosexuality at all.

    I agree. But I don’t think that helps your position. It helps mine. They did not write about homosexuality because the Amdt was not written to cover it. It was written to give “equal protection” to the former slaves.

    And you’ve dodged the question. You say: look at what the authors thought

    I’m not sure why you think that is dodging the question.

    What rules do you think they would have used to determine what ‘equal protection of the law’ meant?

    I think their rule was “you have to treat blacks the same as whites”.

    I’m not asking about outcomes. I’m asking about rules of reason

    Unfortunately the 14the Amdt was not written to facilitate rules of reason. It was written to try to arrive at a particular outcome. And that particular outcome had nothing to do with gay marriage. I think you’d have to agree with this if pressed.

    Subotai (26d46d)

  86. It means the law is applied blindly, or equally to all. The law says marriage is between one man and one woman. If a gay man was prevented from marrying a woman that would be discrimination. If two straight men were allowed to marry each other, this would be discrimination. The law applies to all.

    Machinist (9780ec)

  87. Subotai: ok. fair enough. You think it’s only about race. So you’re perfectly happy to say that government can construct rules which treat Irish-Americans differently from Chinese-Americans, jews differently from mormons, and men differently from women?

    If you do believe the government can do that, then ok: you’re being internally consistent. I think you’re wrong, but at least you’re consistent.

    If you *don’t* believe the government can do that, than I would say to you: clearly you think the fourteenth amendment is about more than race. So what rule do you think the framers of the amendment would have endorsed which encompassed these other things as well as race?

    aphrael (a6bb82)

  88. “…there’s a rule which says that police can stop drivers, basically, on suspicion…”

    aphrael, didn’t you forget to include the word “reasonable”?

    AD - RtR/OS! (aa3284)

  89. Subotai: right! so clearly equal protection doesn’t require that laws have no discriminatory effect.

    So what does it mean?

    As the people who wrote it understood it, it seems to have meant that you cannot deny people habeas corpus on account of their race. And very little more. Even most of the law built over the past fifty years relating to equal protection as equal opportunity (measured by race) does not really comport with any rational understanding of the 14th Amdt.

    Subotai (26d46d)

  90. Also, the gun-control laws in the former states of the Confederacy passed during Reconstruction to dis-arm freed slaves was a driving force in passing the 14th-A.

    AD - RtR/OS! (aa3284)

  91. So you’re perfectly happy to say that government can construct rules which treat Irish-Americans differently from Chinese-Americans, jews differently from mormons, and men differently from women?

    What I am “perfectly happy to say” and what I think the Constitution says are not the same thing. And I’d be worried if they were. I’d start to think “maybe I’m just projecting my own hopes and fears onto the Constitution and wishing it said what I want it to say”.

    That aside, it never seemed to occur to anybody in America that the 14th Amdt gave women the vote, a position which your view of it would mandate. At least, the passage of the 19th Amdt was superfluous if your interpretation of the 14th is correct.

    From which I conclude that your interpretation of the 14th is a fairly recent novelty.

    Subotai (26d46d)

  92. “It was written to give “equal protection” to the former slaves.”

    Except that the text of the law says that it applies to “any person” not just former slaves. And not just citizens either!

    imdw (533406)

  93. Women’s Suffrage…
    Many jurisdictions, at the time of ratification of the 14th-A, allowed women the right to vote, though it was not all encompassing in all areas that allowed it.
    For instance: “The old Province Charter of Massachusetts colony gave women property holders voting rights from 1691 to 1780. After Massachussets adopted a state constitution, these women could vote for all officers except governor and members of the legislature…” The State of New Jersey granted women the right to vote, but withdrew the privilege in 1907.
    The 15th-A’s direct reference to all men being allowed to vote, is what really kick-started the Women’s Suffrage Movement.
    I’m sure there are other instances that could be cited, but the only reference work that I have handy is an old encyclopedia from 1958, that could be a little bit more inclusive.

    AD - RtR/OS! (aa3284)

  94. Oops…re NJ….withdrew the privilege in 1807

    AD - RtR/OS! (aa3284)

  95. The 15th-A’s direct reference to all men being allowed to vote

    Actually the 15th makes no direct reference to men.

    “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.”

    Subotai (26d46d)

  96. Except that the text of the law says that it applies to “any person” not just former slaves. And not just citizens either!

    Can you point me to all the instances in the Constitution in which “person” is used to mean something other than “citizen”? It should not take you long.

    As I mentioned to aphrael, if your position re the 14th Amdt was the corect one, then the 19th Amdt need never have been passed. But it never seemed to occur to anybody that the 14th applied to women.

    Subotai (26d46d)

  97. “Can you point me to all the instances in the Constitution in which “person” is used to mean something other than “citizen”? It should not take you long.”

    How about just the obvious one: In the 14th amendment, they use the word citizen and in the same paragraph use the word person. They are not used to mean the same thing there.

    imdw (e66d8d)

  98. “But it never seemed to occur to anybody that the 14th applied to women.”

    I think the issue is not that people thought it didn’t apply to women, but that people thought it didn’t apply to voting. Now of course we do apply it to voting, see, for example, Bush v. Gore.

    imdw (017d51)

  99. Answering the challenge to my recitation of the sequence of events of Prop 8:

    4-24-08: Over 1.1M signatures (less than 700K needed) were submitted.
    5-15-08: Supreme Court decision that gay marriage is a Constitutional right.
    6-2-08: Official qualification of Prop 8.
    6-4-08: Supreme Court denies request that decision be stayed until after the election.
    6-16-08: Supreme Court decision takes effect.

    Clearly it was known to the court before issuing their decision that Prop 8 most likely had qualified for the ballot.

    On June 4, 2008, knowing that Prop 8 had officially qualified for the ballot, the court still refused to put a stay on their decision until after the election.

    My point is still valid that the court willfully created legal complications when a very standard and customary legal approach would have avoided the complications.

    Ken in Camarillo (aa2192)

  100. (making a comment more on topic)
    I favor openness, but I think a significant change like this should be phased in during uncontroversial times when “routine” cases would be the first to be broadcast. Initiating it on a controversial case seems to be an effort by one side to gain an advantage in influencing the public opinion and/or outcome of the case.
    I think many have made a good point about identification of participants who would likely be harassed for their participation.

    Ken in Camarillo (aa2192)

  101. In the 14th amendment, they use the word citizen and in the same paragraph use the word person. They are not used to mean the same thing there.

    The 14th Amdt makes it clear that the persons are also citizens. See the citizenship clause.

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States”

    There is no rule of the English language under which “persons” here are anything other than “citizens”.

    The same “persons” are mentioned throughout the Amendment. But those persons are clearly citizens.

    The idea that “person” means one thing in the first sentence and something completely different in the second is flat out illogical.

    Subotai (ca386c)

  102. I think the issue is not that people thought it didn’t apply to women, but that people thought it didn’t apply to voting.

    Voting is covered under both “due process” and “equal protection”. Right? And the laws against women extended far beyond voting in any case.

    No, the reason the 14th was never applied to women was because everybody understood it the way I’ve described – as extending habeas corpus to blacks and not as extending some abstract “equal protection” to all human beings.

    Subotai (ca386c)

  103. “The same “persons” are mentioned throughout the Amendment. But those persons are clearly citizens.”

    Only the ones born or naturalized in the United States. As the Amendment clearly says, those are citizens. But all persons, wherever born, are entitled to equal protection.

    “The idea that “person” means one thing in the first sentence and something completely different in the second is flat out illogical.”

    “Person” means the same thing throughout. You’re confusing that in the first instance, it is qualified by “born or naturalized in the united states.” This doesn’t make every “person” born or naturalized in the united states. Rather it shows that the authors have a clear separation between persons and citizens, and that they are not the same.

    “No, the reason the 14th was never applied to women was because everybody understood it the way I’ve described – as extending habeas corpus to blacks and not as extending some abstract “equal protection” to all human beings.”

    Except for people who read the language.

    imdw (470503)

  104. Voting is covered under both “due process” and “equal protection”

    Clearly not. Otherwise what would be the point of the fifteenth amendment?

    That is to say: if guaranteeing due process of law and equal protection of the law prohibited voting restrictions, then there would be no need for the fifteenth amendment. Since the very same people voted on both the 14th and 15th amendments, it seems extremely unlikely that the 14th amendment incorporates the 15th amendment.

    I favor openness, but I think a significant change like this should be phased in during uncontroversial times when “routine” cases would be the first to be broadcast.

    I quite agree. I’m much more sympathetic to the court’s decision on this than most of my compatriots who are in favor of gay marriage — the court is generally conservative about cameras in the courtroom, and a high profile case is not the best place to start experimenting.

    I think the concerns of the anti-gay-marriage side in the case about witness intimidation, etc, are hysterical: anyone who wants to intimidate their witnesses has all the information they need to do so in easily available documents (the witness list, for example, is public, and includes names and addresses) — but I’m sympathetic to the procedural claim (about the lack of sufficient comment period) and the general reluctance to start experimentation with a case like this.

    aphrael (e0cdc9)

  105. What I am “perfectly happy to say” and what I think the Constitution says are not the same thing. And I’d be worried if they were.

    Fair enough.

    Do you believe that it would be constitutional for the state of California to pass laws which discriminated between Irish-Americans and German-Americans?

    aphrael (e0cdc9)

  106. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States”

    There is no rule of the English language under which “persons” here are anything other than “citizens”.

    I disagree.

    The attachment of the modifier born or naturalized in the United States, and subject to the jurisdiction thereof clearly contemplates that there are persons who were not subject to the modifier, and therefore that citizens is a proper subset of persons.

    aphrael (e0cdc9)

  107. > “No, the reason the 14th was never applied to women was because everybody understood it the way I’ve described – as extending habeas corpus to blacks and not as extending some abstract “equal protection” to all human beings.”

    Actually a few comments on the original meaning of the 14th A Equal Protection Clause.

    Originally it was two clauses. One that said specifically said no racial discrimination allowed and then a second one declaring that there would be the equal application of the laws. Clearly the original “equal application” clause was meant to cover much more than “just” racial discrimination. Further, Thad Stevens whom is often referred to as the father of the 14th A, said specifically that he anticipated that women would be protected under the 14th A. So I think at the very least women have to be protected.

    But if imdw is trying to stretch that language to include gay people, you have a problem. Stevens once explained his dream under the 14th A was that “no distinction would be tolerated in this purified republic but what arose from merit and conduct.” Now if we apply this test, then gay sex fails pretty fast: it is clearly a form of conduct. And I would submit that it is more than a little ridiculous to pretend that the framers of the 14th wouldn’t have been utterly appalled at the idea that it not only legalized gay sex but also demanded that gay people be allowed to marry each other.

    In Dartmouth College v. Woodward, the court articulated a test for constitutional inclusion. It was cited, for instance, when arguing that a corporation is a person within the meaning of the 14th A, and the worst you could say is that it still gives courts too much latitude. It goes like this:

    > It is not enough to say, that this particular case was not in the mind of the convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go further, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction, so obviously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an exception.

    If anyone in 1868 seriously believed that the 14th A could be interpreted to require gay marriage, I think it is safe to say they would have rewritten this amendment to prevent that outcome. Therefore it is fundamentally dishonest to extend gay rights under this amendment.

    And I say some of that even disagreeing with the policy. I mean, I don’t want gay people locked up for gay sex if only because frankly the cops have bigger fish to fry. But the test of a good constitutional interpretation is whether you are willing to reach a conclusion that you disagree with.

    A.W. (e7d72e)

  108. Is there any of the 57 states that ban gay marriage? Is there any state that forbids a gay man to marry a straight woman, a straight man to marry a gay woman, or a gay man to marry a gay woman? This is not discrimination. It is a matter of changing the definition of a fundamental concept, that marriage is a union of one man and one woman.

    To make such a change to bring same sex unions under Constitutional protection is like a group of Muslims who find themselves in a local majority passing a law that honor killings are freedom of religion so that laws against it violate the First Amendment.

    If the very meaning of the words can be perverted then how does this not mean a man and two women, a woman and two men, or any other combination is not included and protected. I am just not willing to give up the Constitution and the vary meaning of law and language over this issue. There is just too much lost if we do.

    Machinist (9780ec)

  109. Do you believe that it would be constitutional for the state of California to pass laws which discriminated between Irish-Americans and German-Americans?

    Depending on the specific discrimination in question, it might well be constitutional.

    I repeat, there is nothing in the actual Constitution (as opposed to Supreme Court decisions) which says that a law cannot have the net effect of “discriminating” against some group of people.

    Subotai (ca386c)

  110. sub

    Seriously, dude, what the hell are you talking about? Discrimination based on racial groups was front and center on the purpose of the 14th a, and yes, back then the word “race” was used roughly the way we use the word “ethnicity.”

    Of course if anyone suggested to the founders that this would allow two men to marry, they would have thought your were mad or joking. the notion that the 14th can be properly interpreted to protect gay people is ahistorical claptrap. but so is what you are saying.

    A.W. (e7d72e)

  111. Only the ones born or naturalized in the United States. As the Amendment clearly says, those are citizens. But all persons, wherever born, are entitled to equal protection.

    That is not a sensible reading of the language in question. It certainly does not say that specifically, and it’s clear that this was not the intent of the passage.

    Look at the following passage, also from the 14th Amdt.

    when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

    What the heck is that all about?

    Why not just say “any of the male citizens of the state”? What is with this “inhabitants” stuff?

    if you read the passage in isolation from historical events, it makes no sense.

    If you know that the intent of the passage was to protect the former slaves and ensure that they had the right to vote, it makes perfect sense.

    The concern (later proved correct by events) was that people in certain states would say “Of course citizens have the right to vote and the protection of the laws. But those black people are not citizens in that sense”.

    Hence the odd phrasing in the 1th Amdt about “all male inhabitants” who are also citizens. And the “persons” in sentence no. 2 who are clearly meant to be interchangable with the “citizens”. The purpose of using all these different terms to mean the same thing was to say “you can’t claim that these black people are not covered by this”.

    Subotai (ca386c)

  112. “1th Amdt” should have been “14th Amdt” above.

    Subotai (ca386c)

  113. if guaranteeing due process of law and equal protection of the law prohibited voting restrictions, then there would be no need for the fifteenth amendment. Since the very same people voted on both the 14th and 15th amendments, it seems extremely unlikely that the 14th amendment incorporates the 15th amendment.

    The 14th Amdt covers a lot more ground than merely “due process”, it sets who who is a citizen.

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

    Using the expansive defintion of “person” and “due process” which you favor, this clearly means that women are citizens and cannot be denied the right to vote without “due process”.

    In other words you’re making my point for me, that the 14th was not intended to be viewed in the expansive fashion that it is today. If it was, neither the 15th nor the 19th would have been neccessary.

    The logic of all this is that it would require a constitutional amendment to get to gay marriage and not merely the waving about of the magic words “person” and “due process”.

    The 14th Amdt notwithstanding, it required constitutional amendments to give women and blacks the vote. And that’s a much more fundamental right than marriage.

    Subotai (ca386c)

  114. The attachment of the modifier born or naturalized in the United States, and subject to the jurisdiction thereof clearly contemplates that there are persons who were not subject to the modifier, and therefore that citizens is a proper subset of persons.

    No. That’s correct grammer and logic. Of course the set of “persons” is greater than the set of “US citizens”.

    But it’s not correct law or history. The reality at the time was that the set of Americans (people born and living in America) was greater than the set of American citizens.

    “Persons” in this context refers to “persons who are Americans but who have not previously been granted the rights, privileges or immunities of citizens of the United States because of the institution of slavery”. That is the way in which “persons” (and “inhabitants”) is used in the 14th Amdt.

    Nowhere else* in the US Constitution is “person” used to describe “somebody who happens to be present on US soil”. Why would it be used that way here?

    *(The once exception is the now defunct clause about “three fifths of all other Persons”. But the “other Persons” formulation shows that they are different in some respect from regular Persons)

    Subotai (ca386c)

  115. Subotai – If citizens is a subset of persons, how do you define the set of persons? The word is clearly not defined in the document itself.

    I would say that the natural way to interpret the word is by its normally accepted meaning: ‘all persons’ means ‘every individual human being’. Unless there is some explicit evidence that the people who wrote it and voted for it used it to mean something else (which there isn’t).

    In the particular case of the fourteenth amendment, it’s nonsensical to say that ‘person’ was used to mean one thing (the set, some subset of which are defined as citizens) and a little bit later to mean something else (the subset who were defined as citizens). if they meant just the members of the citizen-set later on, they would have just said ‘citizen’.

    but they didn’t.

    so the second use of ‘person’ clearly incorporates those people who were defined not to be citizens.

    aphrael (e0cdc9)

  116. Voting is covered under both “due process” and “equal protection”

    When I said this I was describing the expansive definition of the 14th Amdt favored by many people (including the modern court) and not stating my own beliefs. It was unclear, I admit.

    Subotai (ca386c)

  117. If citizens is a subset of persons, how do you define the set of persons? The word is clearly not defined in the document itself.

    Very few words are described in the document itself. You have t look at the context in which they are used. And if you do that, looking through the Constitution for instances of “person” and “persons”, it becomes very clear that the terms do not mean “non-American persons”.

    For example:

    “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”

    The context makes it clear that the “Person” mentioned must be an American citizen.

    I would say that the natural way to interpret the word is by its normally accepted meaning: ‘all persons’ means ‘every individual human being’.

    That is not the fashion in which the word “person” is used in the Constitution. If you really insist I can go through each and every instance of the word in that document and compel you to admit that the word clearly does not mean “every individual human being” in the vast majority of cases. And that it is baseless speculation to say that is does mean that in the remaining one.

    if they meant just the members of the citizen-set later on, they would have just said ‘citizen’.

    I have already pointed out that a little later they used “inhabitants” to mean “citizens” and explained why they did so. You are oddly unresponsive on that score.

    Subotai (ca386c)

  118. Sub

    I’m not sure what you are trying to accomplish with your argument, but you are getting some big things very wrong.

    > The concern (later proved correct by events) was that people in certain states would say “Of course citizens have the right to vote and the protection of the laws. But those black people are not citizens in that sense”.

    Well, citizenship doesn’t necessarily imply the right to vote, anyway. My cousin who is 9 years old is a natural born citizen of America, but she can’t vote. And there are felons, too. they can’t vote, but they are still citizens. You have to be a citizen to vote, but not all citizens vote.

    > And the “persons” in sentence no. 2 who are clearly meant to be interchangable with the “citizens”.

    Oh no, you have this 100% wrong. You have to understand how lawyers write and read. Lawyers know in writing contracts and statutes, if you mean the same thing, you say the same thing in the same words. And if you don’t say the same thing, it is implied that you mean something different. Yes, even if it means that the writing sounds repetitive as a result.

    And this makes some sense. Look, suppose an alien landed and somehow it amazingly knew English (a ridiculous scenario, but work with me). So you say to the alien, “I am a blue eyed human.” Well, wouldn’t you assume that the alien would implicitly understand that there are other humans who are not blue eyed?

    Applied equally to the 14th A, the citizenship clause says that “all persons” born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States. Clearly the founders thought it was possible to be a person who was not born or naturalized in the United States and subject to the jurisdiction thereof. That in term gives you an insight into their understanding of the definitions of both the word “person” and “citizen,” although Roe v. Wade suggested that the founders could have been clearer on the subject.

    So then when you get to the due process clause, any competent lawyer knows that if you say person and not citizen, then you are implying that it includes persons who are not citizens. And context makes that make sense, too. When those slaves rebelled on the Amistad, and ended up in Federal Court on charges of piracy, they were not citizens. But nonetheless, they were persons and entitled to the due process of law under the 5th A. By your logic, we can jail and even execute any foreigner without any trial. That is not how the constitution has ever been understood.

    And this is a little inaccurate, too:

    > If you know that the intent of the passage was to protect the former slaves and ensure that they had the right to vote, it makes perfect sense

    I think you know this, but to be precise it is designed to prevent a state from denying black men the right to vote, and still nonetheless counting them for representation. A state doesn’t violate this section if they deny black men the right to vote; they merely trigger the penalty which is their option. All of which was mooted, at least in theory, by the 15th A. my understanding is that section 2 of the 14th A was literally never invoked.

    At the same time, it is correct to say that women were not guaranteed the right to vote by this amendment. That was the 19th, if memory serves. Indeed as I mentioned above, no one was guaranteed the right to vote; but there were penalties in excluding black men.

    But at the same time the insertion of the word male does imply that when the term person is used without gender specific adjectives, that the understanding is that a person can be a man or a woman. Thus a woman born in the United States is a citizen. Thus she is equally entitled to due process.

    So the reason why equal protection doesn’t add up to a right for women to vote is really that equal protection doesn’t apply to voting, period. Which yes, makes more than a few supreme court decisions wrong, but oh well.

    As for due process, I would say its only arguable application to the franchise is that once granted the right to vote cannot be lost except by due process. Which doesn’t grant a right to vote, obviously, but just says that the state have to follow proper procedures if they are going to take it away from you.

    I hope that clears things up a little.

    A.W. (e7d72e)

  119. the second use of ‘person’ clearly incorporates those people who were defined not to be citizens

    Repeating your statements does not constitute argument, and putting “clearly” in them does not improve things.

    Subotai (ca386c)

  120. subotai

    He is right on that point. jeez, crack open a book on legal writing. if you mean the same thing, you say the same thing. if you mean something different, you say something different.

    A.W. (e7d72e)

  121. “And if you do that, looking through the Constitution for instances of “person” and “persons”, it becomes very clear that the terms do not mean “non-American persons”.”

    It just means “persons.”

    “Why not just say “any of the male citizens of the state”? What is with this “inhabitants” stuff?”

    Because I can be a citizen of one state that inhabits another.

    imdw (e6339b)

  122. It’a a political issue that one side has decided to reframe, while reframing many other aspects of the constitution, to make an absolute requirement of our justice system…

    This is, at root, silly. Sure, you can redefine this term and that term and the other term. Mke it illegal to keep felons from voting because, once you redefine enough things, it’s racist. Or laws allowing anyone to marry the opposite mating pairing discriminatory.

    The line won’t end there, or anywhere. This analysis of the constitution simply doesn’t stabilize.

    I don’t even agree with Prop 8. That’s irrelevant though… it’s a political matter to be left to the states. This strained analysis to ban it proves it’s a 10th amendment power reserved to the states. Let the people of California discuss this, and eventually arrive at a better law.

    Like I said, you can strain virtually any meaning out of the EPC if you refuse to accept the meaning the words and laws have had for hundreds of years. That’s not an argument. Certainly, straining to the point it’s been here goes far beyond what would ban a progressive tax, dependent deductions, the selective service act’s requirement of only men, many other sex based government factors, … I could go on all day.

    Dustin (b54cdc)

  123. I’m not sure what you are trying to accomplish with your argument, but you are getting some big things very wrong.

    I’m pointing out there there is no “due process” or “equal protection” right to gay marriage. I’m pointing out that much modern SCOTUS law based on the 14th Amdt is a travesty. And I’m pointing out that “person” in the US Constitution means “American person” and basically “citizen”.

    Oh no, you have this 100% wrong. You have to understand how lawyers write and read. Lawyers know in writing contracts and statutes, if you mean the same thing, you say the same thing in the same words.

    The 14th Amdt was not written and voted on by lawyers. And the rest of us are under no compulsion to allow lawyers to define words as they see fit.

    Clearly the founders thought it was possible to be a person who was not born or naturalized in the United States

    Golly, you think?

    when you get to the due process clause, any competent lawyer knows that if you say person and not citizen, then you are implying that it includes persons who are not citizens.

    Then clearly the US Constitution was not written by “competent lawyers”, because it is littered with references to “persons” where it is crystal clear that was is meant is “citizens”. I’ve already pointed out one instance. If people here wish to be stubborn, I can go through every last instance of “person” in the Constitution. It does not mean “including people who are not citizens”.

    Subotai (ca386c)

  124. jeez, crack open a book on legal writing.

    Comedy gold.

    Subotai (ca386c)

  125. At the same time, it is correct to say that women were not guaranteed the right to vote by this amendment. That was the 19th, if memory serves.

    Yes, I did point that out to you not too long ago. I’m glad your memory of things which happened yesterday is working well.

    Subotai (ca386c)

  126. Well, I will say, sub, that the constitution is a law and has to be interpreted using a legal method. It never is, so when the ‘living’ constitution people attempt to do this they are being incoherent to some extent, but I Would love it if they would stipulate that basic norms of analyzing legal writing applied to the constitution.

    This would mean a terribly massive amount of supreme court rulings were incorrect. Expressio Unis (I realize I am spelling that wrong) is the doctrine these guys are mentioning. IF you use a broader category than citizen, you shouldn’t interpret that as the narrow category. But if we rely on these basic and reasonable methods ALL THE TIME, then there’s no ‘implicit to the concept of ordered liberty’ amendment, there is no ‘this EPC and DPC apply to all these situations we didn’t mention in this narrow amendment’, there is no ridiculously broad commerce clause power because of the tenth amendment.

    But the court wants it both ways. When they use sloppy living interpretations, that’s only OK in one direction.

    Dustin (b54cdc)

  127. the constitution is a law and has to be interpreted using a legal method.

    I think people who say this mean “the Constitution whould be interpreted in a rational and consistent fashion”.

    It should be, of course. But interpreting it in a legal fashion is not that. Law is not science and rarely pretends to be anything other than biased and subjective. The bulk of Supreme Court made con-law does not even bother to pretend to be based on the Constitution.

    Subotai (ca386c)

  128. Sub

    > I’m pointing out there there is no “due process” or “equal protection” right to gay marriage. I’m pointing out that much modern SCOTUS law based on the 14th Amdt is a travesty. And I’m pointing out that “person” in the US Constitution means “American person” and basically “citizen”.

    Look, I agree with your bottom line, but you are wrong in how you get there. I mean wtf does the citizenship clause have to do with it? if you are gay you stop being a citizen or something?

    > The 14th Amdt was not written … by lawyers.

    Actually, yes it was.

    > Then clearly the US Constitution was not written by “competent lawyers”, because it is littered with references to “persons” where it is crystal clear that was is meant is “citizens”. I’ve already pointed out one instance.

    Yeah, due process. According to you it doesn’t apply to non-citizens. So I suppose then we can just take a foreigner and shoot him without a trial for suspicion of stealing bread. In case you missed it, outside of the context of war, all persons have a right to due process, including a trial before criminal punishment is meted out.

    > I can go through every last instance of “person” in the Constitution. It does not mean “including people who are not citizens”.

    Let me:

    > No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

    Clearly there are persons who are not citizens there. It says something similar for senators, which I won’t bother to quote.

    > Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

    Again, apportionment has always been determined according to residents, not just citizens.

    > The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

    You can be a non-citizen and still serve in a position eligible for impeachment.

    > no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

    Well, there you REALLY don’t want to say citizen because it creates an obvious loophole.

    > But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.

    Well, there we have persons who are serving in the house. Thus those persons are implictly citizens, but that is indicated by the fact they serve in the house, not by the fact the word person means “citizen.” We will see something similar with people running for president.

    > The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

    If you are entering the United States for the first time, you are generally not a citizen.

    > And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

    You don’t have to be a citizen to hold office in the United States; although some positions require it, others do not.

    > but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

    Its simply repeating the term form the last quote.

    > The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves.

    Discussing the election of the president and veep. By definition you can’t be eligible for president if you are not a citizen, therefore it is not necessary to use the word citizen there. And there are several more in the same paragraph with pretty much the same context.

    > No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

    Well, that is an easy one.

    > No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    A person doesn’t have to be a citizen of the United States to commit treason and indeed the modern statute only requires that the person is one “owing allegiance to the United States.” So for instance, if a noncitizen becomes a soldier in the United States military (which happens a lot) and then decides to betray his fellow soldiers, that is treason. The next occurrence of person is also in the context of treason.

    > A Person charged in any State with Treason, Felony, or other Crime…

    You can be convicted of a crime without being a citizen.

    > No Person held to Service or Labour in one State

    Referring of course to slaves, who might not be citizens.

    > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Now here is where it gets interesting. The Supreme Court has interpreted “the people” to mean the body politic, aka, the collective of citizens. Then the first instance of persons clearly indicates their bodies. Then the second reference to person, actually still could be referring to noncitizens. And you say, “um how? If the right only belongs to the citizens of the United States, how can that second persons be referring to citizens?” Well, because you forget that there were citizens who owned other persons, and of course the 4th amendment applied as much to the siezure of a slave as the siezure of a horse, a carriage or what have you.

    > No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury

    For well over 200 years we have never said that foreign citizens were exempt from this, except in the context of war.

    Then amendment 12 revises how the president is elected, but we already talked about that issue.

    And then we get to the 14th A which we are fighting about.

    And then there is the term limits on the president, which presents issues we talked about.

    So will you point out to me the case where they were clearly talking about citizens only, when mentioning persons without any modification to indicate that they were citizens?

    Now back to your comments:

    > It should be, of course. But interpreting it in a legal fashion is not that. Law is not science and rarely pretends to be anything other than biased and subjective. The bulk of Supreme Court made con-law does not even bother to pretend to be based on the Constitution.

    You are way off on this, too. Of course the modern supreme court talks about bulls— like the living constitution. But that is a relatively recent phenomenon. When it started, the Supreme Court made a very credible effort to interpret it as written, not by their own whims. Some people claim that they were full of it when they did that, but certainly they at least “pretended” that it was unbiased and objective. And frankly I think that Marshall’s conclusions were pretty defensible so I give him the benefit of the doubt.

    Bluntly the founding father would have been absolutely appalled at some of the crap the modern supreme court has pulled. I frankly blame FDR, but that is a long discussion.

    A.W. (e7d72e)

  129. I agree with your bottom line, but you are wrong in how you get there. I mean wtf does the citizenship clause have to do with it? if you are gay you stop being a citizen or something?

    They are separate issues. The “person” debate has nothing to do with the gay marriage one. Other than in the loose sense that they hinge on judicial interpretation of words.

    A person doesn’t have to be a citizen of the United States to commit treason

    Treason is defined as ” the offense of attempting to overthrow the government of one’s country or of assisting its enemies in war”.

    You do have to be a citizen to be guilty of treason. A Chinese illegal immigrant cannot be guilty of treason against the United States, whatever he does.

    You can be a non-citizen and still serve in a position eligible for impeachment.

    For instance? It’s impeachment by the Senate of senior officers of the United States, in case you’ve forgotten.

    > The 14th Amdt was not written … by lawyers.

    Actually, yes it was.

    Is your real name Maureen Dowd? That’s a fine example of Dowdfication of a quote.

    I’ll get to the rest later.

    Subotai (ca386c)

  130. You are way off on this, too. Of course the modern supreme court talks about bulls— like the living constitution ….
    Bluntly the founding father would have been absolutely appalled at some of the crap the modern supreme court has pulled

    You have this odd habit of agreeing with what I say while telling me that I’m “way off”.

    Subotai (ca386c)

  131. Look, it doesn’t matter how you parse what you want the US Constitution to say or not say.

    Let’s look at actions. Show me any law that allows same sex marriage in this country shortly after the adoption of the constitution or any of its amendments, and you will see that the writers’ did NOT include same sex marriage in their thought processes.

    So therefore, nothing in the constitution as written can construe in any form or fashion that same sex marriage is authorized and/or a constitutional right.

    Marriage has always been defined as occurring only between a man and woman, no ifs, ands, or butts!

    peedoffamerican (0a190a)

  132. the constitution is a law and has to be interpreted using a legal method.

    I think people who say this mean “the Constitution whould be interpreted in a rational and consistent fashion”.

    Comment by Subotai

    All due respect, but no, that’s not what I mean. I mean, when push comes to shove, the constitution is going to be interpreted during adjudication using legal process.

    Don’t get me wrong, lawyers are not God of the Constitution, but it is the basis of our legal system… it constrains laws and legal matters. It would be nice if it were interpreted in a consistent method, regardless of the result, without expanding the meaning materially without amending the document, and to do so would rely on some kind of consistent rule… this rule would be legal interpretation no matter what the rule looked like.

    Of course, Marbury V Madison started off a chain of problems.

    Dustin (b54cdc)

  133. Subotai: I’m sorry; I think you’re guilty of simply repeating a bizarre assertion without being able to back it up, every bit as much as you think I am.

    The following seems to me to be an elementary statement about the interpretation of language:

    If someone says “Those X who are Y are Z”, and then uses the word “X”, the word “X” is not a synonym for “Z” in that second usage.

    I can’t back that up with anything other than the assertion because it’s an axiom; it’s a basic rule of interpretation.

    aphrael (e0cdc9)

  134. I’m sorry; I think you’re guilty of simply repeating a bizarre assertion without being able to back it up, every bit as much as you think I am.

    I’m not the one who is simply saying “My position is clearly right”. You are.

    If someone says “Those X who are Y are Z”, and then uses the word “X”, the word “X” is not a synonym for “Z” in that second usage.

    I’ve already addressed this in comments which you have yet to respond to, so I see no reason to do so again.

    Setting aside the meaning of “person” for a while, what do you think of the argument that the 14th Amdt does not confer a right to gay marriage for the reasons I’ve laid out??

    Subotai (34e1b4)

  135. “If someone says “Those X who are Y are Z”, and then uses the word “X”, the word “X” is not a synonym for “Z” in that second usage. ”

    Yup. That’s axiomatic. And then there’s the common sense that in the second usage of Z, you know they didn’t mean X because they just told you the difference.

    imdw (017d51)

  136. Oops that was backwards. Should be:

    “. And then there’s the common sense that in the second usage of X, you know they didn’t mean Z because they just told you the difference.”

    So they’re aware of the difference.

    imdw (017d51)

  137. “…Oops that was backwards…”

    That is just hysterical; truth in supposed errors. Sort of like use of the word “axiomatic” from Percy.

    Eric Blair (ddbceb)

  138. In the particular case of the fourteenth amendment, it’s nonsensical to say that ‘person’ was used to mean one thing (the set, some subset of which are defined as citizens) and a little bit later to mean something else (the subset who were defined as citizens). if they meant just the members of the citizen-set later on, they would have just said ‘citizen’.

    Going back to this, let me point out that a great many people who were physically in the United States were never understood to have 14th Amdt protections. Geronimo and his Apaches, for instance. Or the German POW’s detained here during WWII. Or the various migrant workers rounded up during Operation Wetback.

    Subotai (34e1b4)

  139. apportionment has always been determined according to residents, not just citizens.

    And that’s a relic of slavery, as I’d hope everybody knows.

    Subotai (34e1b4)

  140. > They are separate issues.

    Then why are you dragging citizenship into this? What possible relevance does it have whether the “persons” in the Equal Protection Clause or Due Process Clause are citizens or not?

    > You do have to be a citizen to be guilty of treason

    Wrong. You have to merely owe an allegiance to the United States. For instance, many non-citizens serve in the United States military. I know. That’s how many in my wife’s family became citizens—they served as foreign nationals with the promise that they would become citizens at the end. If those non-citizen soldiers shoot their fellow soldiers, its still treason.

    > For instance? It’s impeachment by the Senate of senior officers of the United States

    Yes, for instance, impeachment is used to remove federal judges. Check the constitution: do you have to be a citizen to be a judge?

    > Is your real name Maureen Dowd? That’s a fine example of Dowdfication of a quote.

    No, its called an ellipses, allowing me to dispute only part of your statement. It is an open signal that I have cut out part of your statement. And it is done all the time. But thank you for the gratuitous attack on my honesty.

    You know, because I am an evil man who points out that all persons are entitled to due process, not just citizens.

    > You have this odd habit of agreeing with what I say while telling me that I’m “way off”.

    Because that is not what you said. But I will grant that perhaps that is what you MEANT and you are too imprecise in your writing to have said what you actually meant.

    > Going back to this, let me point out that a great many people who were physically in the United States were never understood to have 14th Amdt protections. Geronimo and his Apaches, for instance.

    Geronimo was probably declared to be at war with the United States.

    > Or the German POW’s detained here during WWII.

    War is traditionally an exception to things like trial rights. The way to understand it actually is a much reduced concept of what process is due. And that has been the understanding of the law from literally before we even won our independence.

    > Or the various migrant workers rounded up during Operation Wetback.

    Really? Can you cite the case where the Supreme Court said they were not entitled to any due process?

    Peedoffamerican

    Agree, 100%. The short version is that it is implausible that it has been unconstitutional all of this time and we have only recently discovered it.

    To be very blunt, to the extent that the founders of the Fourteenth Amendment even cared about homosexuality it was to condemn it as a crime against nature. If you are gay, feel free to be offended by that, but that is what the founders felt.

    Dustin

    > Of course, Marbury V Madison started off a chain of problems.

    I am curious what you mean by that. I am of the Borkian attitude that Marbury was absolutely correct but annoyed that it hasn’t been actually followed.

    A.W. (f97997)

  141. Sub

    Missed this line.

    > [me] apportionment has always been determined according to residents, not just citizens.

    > [you And that’s a relic of slavery, as I’d hope everybody knows.

    First, that is a nonsequitor. We are debating what the word “person” means in the constitution.

    Second, actually, you are wrong. It is a reflection of the attitude that the greater the population of a state the more representation they should have. The 3/5 clause is the relic of slavery you were thinking of, but the founders of the 14th A affirmatively demonstrated they had no problem with counting only “people” in representation, reaffirming that “[r]epresentatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed” and only penalizing for excuding people who were 1) male, 2) residents, 3) aged 21 and over, and 4) citizens.

    A.W. (e7d72e)


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