Patterico's Pontifications

8/9/2010

Ted Olson Compares Gay Marriage Right to First Amendment

Filed under: General — Patterico @ 8:20 am

Ted Olson said to Chris Wallace this weekend:

Well, would you like your right to free speech? Would you like Fox’s right to free press put up to a vote and say well, if five states approved it, let’s wait till the other 45 states do? These are fundamental constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law, is a violation of our fundamental rights.

It’s a cute, simplistic argument, but it misses the mark. To those who applaud the decision, I say: would you like your favorite legislative victory to be scrutinized for its rationality by a federal judge? Let’s say you like ObamaCare. Would you like the future of ObamaCare to be decided by a federal judge analyzing whether, in his opinion, there is a rational basis for this government takeover of a huge segment of the economy? Would you like for that judge to be someone who gains a personal benefit from ruling against ObamaCare? Would you like the named litigants on your side to be people who would like to see ObamaCare overturned?

OK then.

152 Responses to “Ted Olson Compares Gay Marriage Right to First Amendment”

  1. Begging the question certainly has an old and illustrious pedigree.

    SPQR (26be8b)

  2. I want to know why intentionally throwing the case, by the Cali AG is not grounds for disbarment. Intentional failure to represent the People is serious.

    Jeff S. (b15751)

  3. Reading that quip, is the moment i completely lost respect for olson.

    This is what i wrote over at Althouse:

    I am sick and tired of morons like Olson equating what is not reasonably in the constitution with what is obviously in the constitution. Olson has made a great argument for amending the constitution, not making crap up in it. The reason why the first amendment is not up for a simple majority vote is BECAUSE someone has put it in the constitution. The claim that excluding gay people from marriage is unconstitutional doesn’t pass the laugh test.

    Aaron Worthing (A.W.) (e7d72e)

  4. I just wish Congress would use its Wickard v. Filburn Obamacare power to make same sex marriage legal across the country. Then, after a 100,000 weddings, 80,000 between women, the country can say “What was all that fuss all about?”

    nk (db4a41)

  5. Maybe I don’t get around as much as I should, but I have never known more than one gay couple at any one time. This issue is so de minimis that’s it’s embarassing.

    nk (db4a41)

  6. NK

    A wickard approach would say that gay persons non participation in the hetereosexual dating market is a justification for banning gay marriage.

    Yeah, I am being a little facetious, but wickard is a perfect example of the contradictions here. Liberals want totalitarianism by the majority in most subjects, but turn into libertarians on sex.

    Aaron Worthing (A.W.) (e7d72e)

  7. You’re right. DOMA.

    nk (db4a41)

  8. I daresay that most of the vociferous anti prop 8 crowd are exhibitionists trying to make the rest of us voyeurs. Otherwise, why do they continue to force us to “peek” into their private lives with such gay abandon?

    U’m sure there were gays back in colonial America. I doubt it was an oversight that the Founding Fathers saw fit to not write in a paragraph or two specifically advocating for gay rights as a sub-group for future entitlement. It might get lonely on the prairie in Jeffersonian agrarian Republican life. What happened on the prairie stayed on the prairie and the buffalo are not talking.

    vet66 (9d1bb3)

  9. His argument is perfect for eliminating any restriction to marriage. Such as the restrictions on those who want to marry more than one person at a time. The number two can be as old fashioned as gender. If there is no rational basis for diverse gender unions, there is no rational basis for limiting the institution to two people.

    Marriage was never freeing. It was always exclusive and restricting. It was more a strictly private conversation than free speech. I couldn’t legally marry whoever I wanted to because I am already married.

    It’s not just that the definition has now changed. The change is based on a denial of the very nature of the institution itself. It must now be as inclusive as any other constitutional right.

    They have to destroy marriage in order to save it.

    Amphipolis (b120ce)

  10. These are fundamental constitutional rights.

    If gay marriage is a “fundamental constitutional right”, perhaps Olson can explain why it was never a “fundamental constitutional right” up until now, and why it is still not a “fundamental constitutional right” at present.

    Seems to me that a basic prerequisite to something being a “fundamental constitutional right” is that someone, somewhere along the line, should have said that it is. And by someone I don’t mean Ted.

    Subotai (acf3e5)

  11. The only solution to this mess is to get the government out of the marriage business altogether.

    That’s a damn shame, because the nuclear family is something worth encouraging as much as possible. I realize the tired point that some marriages don’t or can’t bear children, but even they contribute to a culture of honoring a two parent household. This is very valuable to society.

    But let churches sanctify marriages, completely free of government involvement. We can have some kind of partnership contract for those who want the legal ramifications of legal marriage. But don’t even call it marriage.

    Dustin (b54cdc)

  12. The concepts of Rights and privileges have been stood on their ears. Things that are explicitly in the Constitution are privileges, while ideas that are in no way enumerated are talked about as Rights.

    JD (5375e6)

  13. JD, that’s so true.

    Every time I read a story about gun possession being banned in some place or circumstance, there are dozens of comments saying ‘why did they need a gun anyway?’ as if this isn’t about the power to void our actual rights.

    And every time I read a story about gay marriage or abortion or even ending affirmative action, the roar I read is that the evil rethuglicans want to oppress and destroy the most sacred pillars of civilization (That we happened to only recently even discover).

    Dustin (b54cdc)

  14. Hey, Pat, I’m fine with your supposition. Conservatives have already taken to the Courts to defeat the healthcare bill. Somewhere some judge who hears it will be an appointee of Reagan, Bush I, or Bush II and be fundamentally opposed to helping poor people at the expense of rich people. Heck, maybe he/she will even own stock in an insurance company.

    And, the Courts will find it constitutional…so, I’ll take your deal, especially if it means conservatives are going to interpret healthcare as fundamental right, you know like Courts do for marriage.

    I despise Ted Olson’s other work in his life, but he’s right: no one gets to vote on anyone else’s fundamental right (see Loving v Virginia, Romer or Lawrence) without a societal rational reason (of course, I would grant marriage intermediate scrutiny and not rational basis, but that’s just me).

    PS Did anybody read the comments at Newt.org when he “demagogue’d” on this issue. Lines like “Which one of your three marriages is most sacred to you, Newt” just made my day. Gingrich is such a jerkface, he would rob his own sister of her right to determine her life just for the money and accolades he receives by being on the Islamic fundamentalist side…..oops, also the Christian fundamentalist side.

    timb (449046)

  15. Erecting and taking a flamethrower to strawmen is quite a skill.

    JD (5375e6)

  16. I like this ruling. Also,I would lover to see a lot of legislation evaluated for “rational basis”.

    Other than “gay people are icky” what’s the argument for prohibiting SSM? Who does it hurt?

    time123 (bec298)

  17. The lie peddled by the homosexualists (which Olson buys into) is that this about “rights”.

    It’s about definitions.

    Homosexuals have never been prohibited from marrying. A marriage is a union of a man with a woman. This is the definition of marriage which has been applied in every human society in all of recorded history.

    Homosexualists want to change that definition. That’s drastic enough – but what is really appalling is the claim that this redefinition is required by the Constitution, by language which has nothing to with it.

    What’s next? Redefining slavery to include ownership of animals, therefore banned under the 13th Amendment?

    Or perhaps declaring that a “year” may be anything from 30 days to 3000 days?

    Rich Rostrom (f7aeae)

  18. This is an excellent column on the over-reach of this decision …

    http://reason.com/archives/2010/08/09/overreaching-on-gay-marriage

    JD (5375e6)

  19. Also,I would lover to see a lot of legislation evaluated for “rational basis”.

    What rational basis exists for the court-created doctrine of “rational basis”? What part of the Constitution gives judges the power to decide what is and what is not “rational”?

    Subotai (acf3e5)

  20. I wish someone would ask Ted: If marriage between 2 men or two women is constitutional, is marriage between two men and 3 women (or any other multiple) also constitutional?

    tmac (5559f7)

  21. To those who applaud the decision, I say: would you like your favorite legislative victory to be scrutinized for its rationality by a federal judge? Let’s say you like ObamaCare. Would you like the future of ObamaCare to be decided by a federal judge analyzing whether, in his opinion, there is a rational basis for this government takeover of a huge segment of the economy? Would you like for that judge to be someone who gains a personal benefit from ruling against ObamaCare? Would you like the named litigants on your side to be people who would like to see ObamaCare overturned?

    OK then.

    I don’t “applaud” the “decision” (though I like the result, I think the methodology is highly problematical), but the answer is yes, I would be thrilled if all legislation and all regulation were scrutinized in such a hostile manner. Most of my “favorite legislative victories” are defeats of bills, not passage of bills.

    But let’s not put it all on the judges. Let’s have a House of Repeal!

    Ken (2e87a6)

  22. There is more litigation pending.

    Even as I write this, the Texas Fifth Court of Appeals is hearing an appeal of In the Matter of the Marriage of J.B. and H.B. .

    The lower court ruled that the Texas state constitutional amendment that prohibits same-sex “marriage” violates the 14th Amendment’s equal protection clause, meaning that the couple could get a divorce.

    The appeals court could rule in the following ways.

    1. Full affirmation of the lower court ruling.

    2. Partial affirmation, affirming the divorce on the grounds that the laws of Texas do not prevent the courts from granting a divorce, and vacating the ruling that the Texas DOMA is unconstitutional on the basis that it does not prevent the state of Texas from granting the divorce.

    3. Partial overturn, ruling that the Texas DOMA is constitutional, and does not prohibit the state from granting the divorce, so the court has the authority to grant a divorce.

    4. A full overturn of the lower court ruling, ruling that the Texas DOMA is constitutional and that it prevents the couple from getting a divorce.

    Would you like Fox’s right to free press put up to a vote and say well, if five states approved it, let’s wait till the other 45 states do

    That is exactly what happened when the First Amendment was ratified.

    I am sick and tired of morons like Olson equating what is not reasonably in the constitution with what is obviously in the constitution. Olson has made a great argument for amending the constitution, not making crap up in it. The reason why the first amendment is not up for a simple majority vote is BECAUSE someone has put it in the constitution. The claim that excluding gay people from marriage is unconstitutional doesn’t pass the laugh test.

    It did not pass Thurgood Marshall’s laugh test when the issue came before him and the other justices in Baker v. Nelson, 409 U.S. 810.

    Marshall interpreted equal protection more broadly than the others did (he dissented in Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, and Crawford v. Board of Education of City of Los Angeles, 458 U.S. 527)

    I would surmise that a good rule of thumb would be if Marshall did not find an equal protection violation, it did not exist.

    Michael Ejercito (249c90)

  23. To Mr. Olson et al:

    Penumbras, emanations and same-sex marriage aren’t SPELLED OUT IN THE BILL OF RIGHTS, dumbass!

    Respectfully,

    jakee308

    jakee308 (e1996a)

  24. Michael

    Re: the texas case.

    I think if it’s a simple divorce as in “you are officially not married anymore, goodbye” I think one judge had a sensible answer. “Well, the state of texas doesn’t like gay marriage, so of course we don’t want you two to be legally married.” But when you alimony, child custody, etc. I think Texas can say, “no, sorry, you were never married as far as we are concerned. Work it out yourselves.”

    Aaron Worthing (A.W.) (f97997)

  25. Even a non-lawyer like I, knows marriage is not a right, it is a State License. Like a plumber’s license … So the feds can grant those as well.

    And isn’t there an enumerated list of powers the federal government has? And granting made up rights is not among them.

    You would think a lawyer like Olsen would know this … It’s time we get back to adhering to the Constitution before it’s too late. I mean what is their oath for?

    tarpon (541ea9)

  26. I wish Chris Wallace had asked a couple of more sophisticated questions, such as, “Do churches have an obligation to perform such marriages if asked ?” or “Do you agree that a person who recounts the Bible’s opinion of homosexuality should be punished, as is done in Canada and the UK ?”

    I am convinced that this is a war on religion and religion’s prohibition on homosexuality. If not, why does marriage matter so much ? Why not civil unions with all the trimmings ?

    Mike K (d6b02c)

  27. The real question is how complicit the State AG was in not defending the People’ Wishes…..

    HeavenSent (ff0596)

  28. From JD’s link:
    They might believe our understanding of the possible repercussions is so limited that we shouldn’t tinker with an age-old institution in this way.

    The possible repercussions or consequences of putting SSM on an equal legal footing with “traditional ” marriage (as it has been defined for thousands of years) is something I have explored several times, most recently here:
    http://patterico.com/2010/08/06/the-illogic-of-the-decision-striking-down-prop-8/#comment-685335
    and here
    http://patterico.com/2010/08/06/the-illogic-of-the-decision-striking-down-prop-8/#comment-685630

    Those posts give my answer to the question, Who does it hurt? (Comment by time123 at #16).

    Here is a (very) shortened version:

    The question is, when a moral position is codified into law, what are the consequences? Suddenly there is an official state-enforced standard of right belief as well as of right behavior.

    When the public school teacher insists that SSM is a full legal and moral equivalent of heterosexual marriage, what is the child from a family that disagrees to do? What is the teacher to do when a student publically objects in class?

    It seems to me there is an unavoidable logical conflict/inconsistency to be faced. One either believes that a SS couple in a legally sanctioned partnership is the equivalent to a heterosexual couple in a similarly sanctioned partnership, or one does not. There is no legal argument concerning equal protection that will ever change that. Any attempt to change the definition of marriage is just that, to say that “marriage” means something different than it has for thousands of years is to make a new definition, to claim a new truth.

    A few have commented on this and I thank them. I would like those who are in favor of same-sex marriage, such as Patterico, Beldar, and nk to address my concern.

    There may be those who think the child in the scenario gets suspended from school for such a view, as some schools would do, or at least try to do, if the student said, “The white race is superior and only whites should be allowed to vote and hold public office”. I think that is a logically defensible view, depending on the basic propositions that are assumed.

    MD in Philly (5a98ff)

  29. what’s the argument for prohibiting SSM? Who does it hurt?

    What’s the argument for allowing it? Who does it help?

    Subotai (acf3e5)

  30. MD – Asking “who does it hurt” is a patently silly and childish defense, about as deep as the prior “I like this ruling”. Though you endeavor to answer that, it matters not.

    What is the argument for redefining the word marriage to force a word to mean something it has never meant in oh, about 2000 years or so?

    JD (3dc31c)

  31. Is it really same sex marriage you’re against, or homosexuality?

    Alan Kellogg (9fb1c3)

  32. JD,

    I agree with you and Subotai that the burden of proof lies with those who want to make such a monumental change. But the case has not been made and society is moving in that direction anyway.

    I think as a whole most people like to be “nice”, which on the whole is a pretty weak concept meaning “don’t bother anybody”. This is why the vast majority of people are content to let a gay couple do what they want and want a gay individual to be treated with respect as any other person (both of which I think are “right”, not “just nice”). It is not a big step, when looked from that angle, for people to say, “Ok, they can have marriage too”, when a vocal minority makes a fuss about it.

    While the question may be a superficial one, nonetheless for the majority of the population it seems to be a profound one and a conversation stopper. So, as you say, I attempt to challenge the assumption that the answer is “nobody” because the debate has been framed in the public eye that way. Whether my efforts may matter less than spit into the ocean is a good question, but for the moment I’ll do it anyway.

    MD in Philly (5a98ff)

  33. MD – I wasn’t saying you were patently silly, just the thingie upthread that used that unserious question as a defense of what they would like to see done.

    Alan – One can be against SSM, and not be homophobic.

    JD (3dc31c)

  34. I am not even really against same sex “marriage”, I am really just against a Judge single-handedly over-ruling the proscribed Constitutional process, in the process, redefining the word marriage to mean something it has never meant throughout history.

    JD (3dc31c)

  35. Yeah, this is more about federalism for me, too.

    If Californians wanted marriage to be something like what this judge wants, that would be fine. That’s a political question they have answered via their votes.

    That the judge is even demanding their reasoning (impossible to query, of course) says it all. this is a political question.

    Dustin (b54cdc)

  36. Comment by Alan Kellogg

    This was raised in the previous thread by aphreal.

    There are many, many people, the majority by far, I believe, who do not believe homosexual attraction and activity is “just as normal as” heterosexual attraction and activity. That said, they see no reason to go out of their way to show disrespect to people who are homosexual/live a homosexual lifestyle.

    If you want to call that being “against” homosexuality, or being a “heterosexist”, you could, even though there is no action “against” homosexuals. The majority of people who believe this way are content with the situation under the idea of personal freedom. But if you ask, even demand, that they grant full equal and equivalent affirmation of homosexuality in the form of SSM, you are then impinging on their freedom to believe and act as they choose.

    Now, some may think this is OK, because such “heterosexism” is evil anyway. But the overall situation is not one of making equality, but of overturning the prevailing sentiment of society. For those of us who believe this way, the question is if the change in law holds up, will we be treated with respect as those who disagree on this issue, or will we be treated with contempt. As I’ve said before, it is logically reasonable for people to treat us with contempt, depending on what basic assumptions they make. I just like truth in advertising.

    BTW, much of my medical career has been spent taking care of folks with AIDS to the best of my ability with respect, and I know my patients would tell you so. I completely disapprove of any kind of insulting behavior, not to mention being against any form of violence.

    MD in Philly (5a98ff)

  37. JD- Thanks for clarifying, I knew you weren’t calling me silly. I guess I did word things so that it could have seemed I thought that way.

    An addendum to my note to Alan.-
    I would not be against civil partnerships, at least not necessarily, but I too think it is a place for legislation.

    As said previously, “marriage” is not a right that must be granted, but it is a traditional relationship that historically society has been dependent upon and that society has given a priority to supporting.

    MD in Philly (5a98ff)

  38. “Whom does it hurt”

    It’s been pointed out that same-sex marriage provides a nifty way to get around the estate tax, as a spouse possesses complete joint ownership and simply takes possession upon death. Thus, someone who has some foreknowledge of his demise due to age or sickness or merely preparation can ‘marry’ the person of his or her choice in lieu of making a behest, and in this way, large estates can pass from hand to hand tax-free.

    I’m certain Obama will be coming down hard on this like a ton of bricks.

    luagha (5cbe06)

  39. The extensive list of rights (and powers) reserved to the States and/or the People are enumerated in the 9th and 10th Amendments, although only a few cranks like me seem to have ever read those two Amendments.

    htom (412a17)

  40. The extensive list of rights (and powers) reserved to the States and/or the People are enumerated in the 9th and 10th Amendments

    a) There is no “extensive list” actually “enumerated”, is there?

    b) You are here arguing against the rights of the state of California and its people and in favor of the power of the Federal government to tell them what to do! Why, of all things to mention, mention the 9th and 10th Amendments? Your position flies in the face of both those amendments.

    Subotai (acf3e5)

  41. subotai, I don’t see where htom is arguing against anyone’s rights.

    I thought he was saying that the Constitution provides for state’s rights, but these protections are not enforced or even popularly recognized.

    Dustin (b54cdc)

  42. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.

    It takes a twisted mind to read this and conclude “Hey, this means the Feds get to tell all the states and all their people what to do!”

    Unless you want to try to argue that the Constitution actually delegates to the Federal government the power to define “marriage”.

    Subotai (acf3e5)

  43. Subotai, are you replying to something specific?

    It doesn’t seem like you’re replying to htom’s actual views.

    Dustin (b54cdc)

  44. Snipping from Wikipedia, the election results:

    52.24% yes ====== 7,001,084
    47.76% no ======= 6,401,482
    97.52% valid === 13,402,566
    2.48% invalid === 340,611
    100.0% total ====13,743,177
    turnout percentage = 79.42

    Indeed, a simple majority of those voting on the issue, with a 79% turnout. That means ~17,304,428 eligible, which means that “yes” was ~40.46% of those registered to vote, “no” was 36.99%.

    Doesn’t look like such an overwhelming majority — it is a majority, I’ll grant.

    Is there any interest in criminal convictions with 5 (`42%) of the 12 jurors? No? (Maybe I shouldn’t give them ideas, someone says.) You’re content to deprive an entire class of folk of a legal marriage with less than half of what it would take to do so on an individual basis?

    Good demonstration of the tyranny of the simple majority of those voting. And people wonder why I have so little faith in “democracy”.

    htom (412a17)

  45. My bad, Subotai.

    which means that “yes” was ~40.46% of those registered to vote,

    I think this is a terrible way to analyze the mandate. The process for amending the constitution was followed, fairly. This deprivation of marriage rights occurs in many ways to many classes and has for thousands of years. It’s a legit political question.

    The correct response was to argue your point to the California voters and holding an additional vote. We all know that is exactly what would have happened.

    Dustin (b54cdc)

  46. At what % is it bad for a subset of people to dictate to the rest ?

    JD (3dc31c)

  47. Michael

    Re: the texas case.

    I think if it’s a simple divorce as in “you are officially not married anymore, goodbye” I think one judge had a sensible answer. “Well, the state of texas doesn’t like gay marriage, so of course we don’t want you two to be legally married.” But when you alimony, child custody, etc. I think Texas can say, “no, sorry, you were never married as far as we are concerned. Work it out yourselves.”

    The state of Texas offered voidance as a remedy. Voidance is a remedy for eliminating any legal and social responsibilities for a marriage not recognized by Texas. The attorney general’s brief claimed that a woman married to another woman had used voidance to dissolve her union.

    The argument by the state is that they have no legal authority to grant a divorce, and that the Texas DOMA is constitutional (citing Baker v. Nelson)

    But the case has not been made and society is moving in that direction anyway.

    Not necessarily.

    Tolerance for defining marriage regardless of gender does not mean opposition to using a different word for same-sex couples.

    And of course, people back in the 60’s and 70’s thought we would have an Equal Rights Amendment by now.

    I am really just against a Judge single-handedly over-ruling the proscribed Constitutional process, in the process, redefining the word marriage to mean something it has never meant throughout history.

    From State Oil Co. v. Khan:

    The Court of Appeals was correct in applying that principle despite disagreement with Albrecht, for it is this Court’s prerogative alone to overrule one of its precedents.

    Judge Walker was bound by Baker.

    And I will reiterate that if Thurgood Marshall found no equal protection violation in Baker, then there was not one.

    Michael Ejercito (249c90)

  48. #

    At what % is it bad for a subset of people to dictate to the rest ?

    Comment by JD — 8/9/2010 @ 1:26 pm

    If they disagree with me, 0-100%.

    I probably sound like a broken record, but that’s why my issue with this is how it violates federalism. These kinds of issues need not be mandated the this massive and diverse nation. It would not be the end of the world if Massachusetts had one rule and Oklahoma had another.

    On all but the most central civil rights, such as a right to a trial, political speech, and guns, we shouldn’t let sympathies to yet another aggrieved class with a desire for something supposedly mandatory yet novel, control against the will of 50 states.

    If they had simply held another petition and then amendment proposition, that would have been democracy. And in some issues, democracy is the best way to handle an issue.

    Dustin (b54cdc)

  49. And people wonder why I have so little faith in “democracy”.

    There’s no mystery about why totalitarian thugs dislike democracy.

    Is there any interest in criminal convictions with 5 (`42%) of the 12 jurors?

    Luckily for the homosexual population of California, they have not been convicted of anything. Criminal or otherwise. So what was your “point” there again?

    Good demonstration of the tyranny of the simple majority of those voting

    Why do I believe that your position is not even slightly dependent on the size of the majority in question? From an anti-majoritarian perspective, a 65% majority does not magically transfrom from bad to good if it get’s an extra two percent.

    Subotai (acf3e5)

  50. Gay people have always had the right, guaranteed them by the 1st Amendment, to declare that they are married.

    Icy Texan (6090ec)

  51. Let’s talk about majorities and super-majorities.

    For some reason, there are people who believe that the action of a super-majority are anti-majoritarian. Let’s take a hypothetical Constitutional amendment as an example.

    There is an amendment to outlaw progressive income taxes. Ninety percent of the states support it. (Hey, it’s a hypothetical, remember?) Polls show that ninety percent of the people support it. It passes and becomes law.

    To me that’s a great example of majoritarianism in action. But some people watch the ninety percent impose their will on ten percent and go, “Hooray! What a defeat for the majoritarians! The will of the majority has been thwarted!”

    Which is just silly.

    Subotai (acf3e5)

  52. It appears that, from the majoritarian perspective, evil becomes good if it gets more than 50 percent of the valid votes cast on the issue, and contrary wise. I am inclined to think that good and evil are such regardless of their popularity.

    htom (412a17)

  53. Levi is like a Criminal Informant: a scum sucker who tells the truth about other scum suckers.

    libarbarian (90bd00)

  54. It appears that, from the majoritarian perspective, evil becomes good if it gets more than 50 percent of the valid votes cast

    Good? Evil? What sort of libertarian are you? Libertarianism has long been beyond good and evil.

    I am inclined to think that good and evil are such regardless of their popularity.

    So you think that your own moral judgments should hold sway over everyone else, even if they all disagree with you? You sound a lot like some Iranian mullah.

    Personally, I’d also like it if everyone in the world just did what I wanted. But I grew out of thinking it would or should happen around my ninth birthday.

    Subotai (acf3e5)

  55. From the anti-majoriarian (and anti-Founders) perspective, who should decide about questions of good and evil?

    Priests and other holy men? Psychiatrists? Government bureaucrats? Tarot readers? You’ve already eliminated the wicked “majority”, so who or what provides your yardstick?

    Subotai (acf3e5)

  56. Libertarian? Who said I was that? I’ve pretty much become a Rational Anarchist. Make what laws you like; if following them means that I do the good, I’ll do that (and you’ll think I obey your laws.) When they would that I would do evil, I’ll refuse, and attempt to do good. It’s obvious that what you see as good and evil can be different than what I see; I’m not trying to impose my choices on you, but I am refusing to do what I see as evil, even if you declare that evil to be good.

    “Do not seek to follow in the footsteps of the wise. Seek what they sought.” — Matsuo Basho

    htom (412a17)

  57. Libertarian? Who said I was that? I’ve pretty much become a Rational Anarchist.

    And I called you a libertarian. Boy, am I blushing! Of course, you’re a “Rational Anarchist”!

    Make what laws you like; if following them means that I do the good

    Yes, yes. You never answered my question though. How do you know what “good” and “evil” are?

    It’s obvious that what you see as good and evil can be different than what I see; I’m not trying to impose my choices on you

    Well, yeah, you sorta ARE trying to impose your choices on me. That’s what your support for that jackass in robes amounts to, after all. To the question I posed, “who decides?”, your response is “judges decide”. So I was hoping you would elaborate on the “Rational Anarchist” justification for judges deciding.

    Subotai (acf3e5)

  58. You should google “autarchism”, perhaps. I first encountered Rational Anarchism in Heinlein’s The Moon is a Harsh Mistress.

    htom (412a17)

  59. I’m familiar with the term. Hence my amusement at the “I’m not a libertarian” stuff.

    But I’m asking you to describe for the people reading here what the “Rational Anarchist” position is on who gets to decide on good and evil. You can tell them what “good” and “evil” mean in RA-land as well if you like.

    It’s a curious feature of libertarians that their “canon” of books is made up of novels. The only comparable thing I can think of are the scientologists and L Ron Hubbard.

    Subotai (acf3e5)

  60. The only comparable thing I can think of are the scientologists and L Ron Hubbard.

    I’d add the Earthseeders to the list.

    aphrael (e0cdc9)

  61. “These are fundamental constitutional rights.”

    No, they aren’t.

    “The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak.”

    No, it doesn’t.

    “It’s in the constitution.”

    No, it isn’t.

    It’s not a simplistic argument. It’s simply wrong all the way through.

    There is no right to free speech or free press in the Constitution. Those might be rights (not so, IMO), but they aren’t enumerated anywhere in the Constitution…vivid fantasies of some folks notwithstanding.

    Dave Surls (9ec737)

  62. Some people would say the wrong Olson was on Flight-77.

    [Back when Stashiu was monitoring the comments, a comment like that never would have seen the light of day. But I didn’t see it until now, when it has been read by, and commented on by, several others. At this point I don’t think I can delete the comment without throwing the thread out of whack. So I will simply register my extreme disapproval, and say that you should know better. We don’t wish death on people here. Sheesh. — P]

    AD - RtR/OS! (780d5b)

  63. Orin Kerr has a penetrating question:

    I asked readers who think that the Constitution requires states to recognize same-sex marriage to say when the Constitution began to require it. Slightly more than half the readers who answered that poll answered that the requirement began before the year 1900.

    Here’s a follow-up question, specifically address to readers who did or would answer the poll that way. Here’s the question: What conduct or statuses have not yet been recognized as protected by the Constitution; are in fact presently protected by the Constitution; and would trigger widespread shock among a wide range of the public today if they knew the Constitution protected it?

    SPQR (26be8b)

  64. AD, I think Ted Olson is wrong, but I’d never say that.

    SPQR (26be8b)

  65. Well, I think he’s wrong, dangerously so.

    AD - RtR/OS! (780d5b)

  66. Some people would say the wrong Olson was on Flight-77.

    Wow.

    That’s a rather contemptible thing to say.

    aphrael (73ebe9)

  67. Not least because of what a bright light Barbara Olson was.

    SPQR (26be8b)

  68. Well, I’m feeling particularly contemptable at the moment.
    If I had to choose, I would take Barbara over Ted – and that’s the fact, Jack!

    AD - RtR/OS! (780d5b)

  69. AD,

    Just how hot has it gotten down where you’re at? If your airconditioning has run out, run yourself a cool bath.

    nk (db4a41)

  70. Hey, everybody else seems to go off on flights of fancy, I thought it might be my turn.
    Hell, it’s just another “Boring Day In Paradise” here in the land of Million-Dollar city managers, and other corrupt a..holes.
    What’s not to be happy about?

    AD - RtR/OS! (780d5b)

  71. @ Dave Surls:
    There is no right to free speech or free press in the Constitution. Those might be rights (not so, IMO), but they aren’t enumerated anywhere in the Constitution…vivid fantasies of some folks notwithstanding.

    Huh?

    Article the third …… Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Triumph (0692b1)

  72. Like I said…there is no right to free speech or free press in the Constitution.

    Dave Surls (fc46f5)

  73. I don’t get it.

    Triumph (0692b1)

  74. I reject the premise that a law defining marriage as the union of one man and one woman denies equal access under the law. Every man and every woman still has access to marriage. You just can’t define it on your terms.

    This law does not single out homosexuals as opponents claim. A married man or woman cannot take on another partner.

    Am I denied “equal access” when I can’t get a New York driver’s license even though I don’t live in that state? They are truly singling out non-New Yorkers.

    George (d57b1d)

  75. > Some people would say the wrong Olson was on Flight-77

    Is it wrong to say that i wish the olson twins were on that flight instead?

    Seriously, that statement equating the made up right of gay marriage to free speech was idiotic, and as a result i have lost alot of respect. but saying he should have died on 9-11 is a bit much.

    Aaron Worthing (A.W.) (e7d72e)

  76. More than a bit much.

    AD really should know better.

    Patterico (c218bd)

  77. Well, it all boils down to whether you believe that marriage is a fundamental right. If you do, then equating with other fundamental rights (like the First Amendment) isn’t preposterous at all.

    Kman (d25c82)

  78. Patterico:

    To those who applaud the decision, I say: would you like your favorite legislative victory to be scrutinized for its rationality by a federal judge?

    Your counter-example doesn’t work. The federal judge in the same-sex marriage case didn’t conclude that the ban against same-sex marriage were irrational. He didn’t conclude it was rational either.

    The legal test was whether the ban was rationally related to a legitimate state interest. The main problem was the first prong: the state didn’t articulate a legitimate state interest. And even (the judge continued) if you “buy” the state’s interest (encouraging procreation), the ban on same sex marriage isn’t “rationally related” to it.

    Kman (d25c82)

  79. Once a mendoucheous sophist, always a mendoucheous sophist.

    JD (e587fa)

  80. Comment by Patterico — 8/10/2010 @ 6:53 am

    Yes, I do know better!
    But, my contempt for this lawyer knows few bounds.
    His actions, like the actions of many of his contemporaries, are leading this Republic down into a Hell-hole of Anarchy,
    where the only Rights that anyone will have are those he can take by brute force.
    The Marxist/Leninist/Maoist will have finally attained their dream, if they can survive it.

    AD - RtR/OS! (a1bed2)

  81. Well, won’t agree on death fantasies, but here’s some irony.

    Olson also defended the government in McConnell v. the FEC. That would be the facial challenge to pretty much the same mccain fiengold provision found unconstitutional later in Citizen’s united.

    So unlike Kagan, who tried and failed to defend the law in Citizens united, olson is an EFFECTIVE advocate for for occassionally bad causes. i mean at least kagan sucked at defending censorship.

    http://www.oyez.org/cases/2000-2009/2003/2003_02_1674

    Which makes his whole comparison to the first amendment even more facetuous. He tries to justify a ruling not supported by the constitution by citing a principle in the constitution that he personally worked to subvert.

    Aaron Worthing (A.W.) (e7d72e)

  82. Comment by Aaron Worthing (A.W.) — 8/10/2010 @ 5:51 am

    Thread winner.

    SPQR (26be8b)

  83. btw, i turned that and some earlier remarks into a blog post, here: http://allergic2bull.blogspot.com/2010/08/calling-bullshit-on-ted-olson.html

    um, yeah, and language warning.

    Aaron Worthing (A.W.) (b1db52)

  84. “Well, it all boils down to whether you believe that marriage is a fundamental right.”

    If that’s what people want, then why not amend the Constitution and add it to the enumerated rights?

    Example:

    The right of the people to enter into marriage contracts shall not be abridged.

    There you go. Now it’s an enumerated right and neither the government nor anyone else can legally tell someone they can’t get married. Might want to put a condition or two in there, so guys can’t marry their pet sheep, or whatever, but at least it’s a start.

    Right now there is no such thing as a constitutional right to marry, to say whatever you want, or to have an abortion, despite what a lot of nitwits say…but, we can make those things constitutional rights if we want to.

    Dave Surls (6634d6)

  85. Amending this constitution when you want to change its effect?

    Dave Surls is a madman.

    Dustin (b54cdc)

  86. Dave

    i am mostly with you, but what exactly do you think the first amendment means, then?

    Aaron Worthing (A.W.) (e7d72e)

  87. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    I don’t know fellas, it’s not that hard to understand.

    Congress (only) can’t pass laws respecting an establishment of religion, can’t pass laws restricting religious practices, can’t pass laws that abridge the FREEDOM of speech, FREEDOM of the press, or the RIGHT of people to assemble, nonviolently, for the purpose of petitioning government for a redress of whatever grievances they have…which are usually numerous.

    It doesn’t get much more straightforward than that. I don’t know why people have so much trouble understanding it.

    Btw, the words I capitalized are highlighted for a reason.

    There is no RIGHT to free speech enumerated in the Constitution…yet.

    “Dave Surls is a madman.”

    A lot of people think so, no doubt about that.

    Dave Surls (6634d6)

  88. Dave, you are being obtuse and for no particular reason that I can decipher.

    SPQR (26be8b)

  89. abridging the freedom of speech

    They use this language because the right to free speech exists with or without the Constitution. The Constitution simply forces the government not to abridge this right.

    This discussion has been very hard for me to follow. Probably just my own limitations. I do think major changes in how our constitution would function must require an amendment. This should simply be another rule of legal interpretation… anything that wasn’t in practice already should require the amendment process.

    Dustin (b54cdc)

  90. Dave,

    Well, that is all well and good, but in the founding of the republic, most things were not done without a statute behind them. there was no federal common law of crimes, for instance, and you can’t very well round a person up for sedition unless congress passes a law banning sedition, and if the law in question offends freedom of expression its invalidity robs any executive action based on it of its validity.

    All powers not granted to the federal government is denied. and the 9th and 10th amendments, if they mean anything, states that you should not apply expressio unius to the constitution which is in a real way what you are doing. There may not be a generalized provision stating that we have freedom of speech against presidential and court based restrictions, but i don’t see where either branch is authorized to limit speech rights, except in very narrow mostly content neutral circumstances (i.e. to keep order in the court, or to prevent confusion on the battlefield). They are prohibited from limiting speech largely because they are not authorized to do it.

    For instance, imho, there is no positive right to engage in gay sex. And i think the states can ban it, if their constitutions allow it. But there is no federal power to ban gay sex (except maybe in the territories), because the government is not granted power in this area at all.

    As Madison said when discussing the bill of rights, they are supposed to be superfluous. He believed that if none of them were written, all of those rights would nonetheless be implied and he feared that by writing some restrictions on federal power down, he would imply others didn’t exist. when introducing the bill of rights, he voiced that exact concern and argued that the 9th amendment and the 10th would negate that concern.

    imho your reading of the constitution vis-a-vis freedom of expression is too narrow.

    Of course we are talking about constitutional principles long since abandoned by the Sup. Ct.–neither one of our approaches is fully adopted by them. but fwiw.

    Aaron Worthing (A.W.) (e7d72e)

  91. Dave:

    “Well, it all boils down to whether you believe that marriage is a fundamental right.”

    If that’s what people want, then why not amend the Constitution and add it to the enumerated rights?

    The Constitution protects unenumerated rights. That’s what the Ninth Amendment is about.

    Most people err in thinking that if it isn’t spelled out specifically in the Constitution, it ain’t a right. Of course, the Framers knew that to be bullhockey, and their only concern about listing some fundamental rights was that future generations would come along and think that was intended to be a complete inclusive list of all fundamental rights. Or as Madison said:

    It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

    That last part refers to the Ninth Amendment.

    The original Constitution was an expression of limited federal government viz-a-viz individual rights (both enumerated and un-enumerated). The 14th Amendment expanded that, and limited state governments as well viz-a-viz individual rights.

    So, getting back to the right to marry someone of one’s choosing, that is a fundamental right. There’s no need to amend the Constitution to specifically establish the right to marry as a protected right because, as I said, unenumerated rights are already protected.

    In the present issue, the relevant question is if that right to marry extends to gay couples. And that’s like asking if the right to free speech extends to gays. The answer (to me) is a no-brainer: Of course.

    Kman (d25c82)

  92. So, getting back to the right to marry someone of one’s choosing, that is a fundamental right.

    Because he said so. So the rest of you hating homophobic bigots just STFU

    JD (abc2eb)

  93. if the right to marry was a fundamental right, then the states would be REQUIRED to recognize marriages.

    They are not, so it is not a fundamental right.

    besides i have yet to hear any satisfactory explanation for why the right to marry a person of your choice doesn’t apply to two brothers who want to marry, or two people related solely by adoption, or a step brother and step sister, when consenting adults.

    Its hogwash, from start to finish. these decisions are about the judges imposing their morality on the rest of us, not about the role of morality in the law.

    Aaron Worthing (A.W.) (e7d72e)

  94. Kman:

    So, getting back to the right to marry someone of one’s choosing, that is a fundamental right. There’s no need to amend the Constitution to specifically establish the right to marry as a protected right because, as I said, unenumerated rights are already protected.

    In the present issue, the relevant question is if that right to marry extends to gay couples. And that’s like asking if the right to free speech extends to gays. The answer (to me) is a no-brainer: Of course.

    If homosexual marriage is a fundamental right, then why was it okay to have anti-sodomy laws when the Constitution was written? It doesn’t appear to me that the founders who wrote the Constitution found homosexual marriage a fundamental right.

    Why do we have the 15th and 19th amendments if the 14th amendment is all we need?

    Why change the fundamental meaning of the word marriage to something other than what over 5,000 years of history has defined what marriage means?

    Please understand, I’m not an attorney and only have a layman’s understanding of con-law.

    Tanny O'Haley (12193c)

  95. Because … STFU, hater.

    JD (abc2eb)

  96. If homosexual marriage is a fundamental right, then why was it okay to have anti-sodomy laws when the Constitution was written? It doesn’t appear to me that the founders who wrote the Constitution found homosexual marriage a fundamental right.

    First of all, marriage is a fundamental right. Homosexual marriage is just one kind of marriage.

    Secondly, there were no federal anti-sodomy laws when the Constitution was written. States had them, but at the time the Constitution was written, the Constitution didn’t restrict states the way it would in years to come.

    Why do we have the 15th and 19th amendments if the 14th amendment is all we need?

    Because the right to vote isn’t, or wasn’t at the time, considered a fundamental right at the time.

    Why change the fundamental meaning of the word marriage to something other than what over 5,000 years of history has defined what marriage means?

    The meaning of marriage hasn’t changed. The ruling merely allows gay people to have marriages just like heterosexual people. The things that make a marriage a “marriage” are the same.

    It’s like the Supreme Court ruling in the 1960’s which allowed interracial marriage. The “meaning” of marriages didn’t change, and nobody’s marriage (whatever it meant to them) changed. It just opened the door to WHO could marry.

    Kman (d25c82)

  97. It is nothing like the miscegeny, unless you equate race and sexual preference. Quit stalking AW, freak.

    JD (abc2eb)

  98. if the right to marry was a fundamental right, then the states would be REQUIRED to recognize marriages.

    They are not, so it is not a fundamental right.

    Well, not yet…..

    these decisions are about the judges imposing their morality on the rest of us, not about the role of morality in the law

    I can only speak for myself, but I don’t think gay marriage is moral or immoral any more than heterosexual marriage is moral or immoral, any more than I think being single is moral or immoral. I can’t understand how you think a judge, even a biased gay one, thinks he is imposing HIS morality on others.

    Kman (d25c82)

  99. JD

    Equating this case to Loving v. Virginia (striking down laws against interracial marriage) is another thing that makes me want to throw something at the screen.

    First it is undeniable that the 14th Amendment is meant to strike at racial discrimination. It is silly to claim that the 14th Amendment was meant to strike at anti-gay laws.

    So are laws like the one in Loving racial discrimination? Yes. So this literally falls within the meaning of the amendment, and the Dartmouth College reasoning applies:

    > 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.

    Dartmouth College v. Woodward was on the books long before the 14th Amendment. Thaddeus Stevens, the father of the 14th Amendment and the man who wrote the original draft of the equal protection cause, was an alumni. The definition of due process given in Webster’s argument in that case was one of the most quoted in America. It is reasonable to assume that Stevens and the other founders knew of the case, and expected this new constitutional amendment to be read the same way. that’s point one.

    Point two, Stevens himself was very likely in an interracial relationship himself. He was really a hard core egalitarian, even being buried in a desegregated cemetery. And in his will he gave money to found an orphanage desegregated along lines of race and religion, even mentioning islam and the hindu faith by name.

    Point three. During the debate over the 14th Amendment one common theme cropped up in the racist demagoguery. Over and over again the opponents claimed that this amendment would REQUIRE white women to marry black men.

    If the amendment was not meant to apply to marriage, that would have been the time to mention it. they could say, “that’s ridiculous, a white woman would not be able to marry a black man if she wanted to” or something to that effect.

    Instead they simply said that no one is going to be forced to marry anyone. That’s called a pregnant negative.

    So back to the Dartmouth rule. It was in fact on the mind of the framers, enough so that you could believe that if they didn’t want to allow interracial marriage, they might have added something to make it explicit on this point. Instead they left in language that meant, in effect, no discrimination based on race and let natural implications hang in the air. We are fully justified in believing they intended to allow interracial marriage.

    By comparison sodomy was banned in every state at the time of the framing and no one even thought it was wrong. Indeed Stevens formulation of the meaning of equality—that “no distinction would be tolerated in this purified republic but what arose from merit and conduct”—would clearly allow for discrimination against being gay as conduct.

    And I say that not wanting to see gay people going to jail. I don’t object at all to the policy of Lawrence, but to the violence it does to our constitutional system.

    Aaron Worthing (A.W.) (e7d72e)

  100. “First of all, marriage is a fundamental right. Homosexual marriage is just one kind of marriage.

    Begging the question is a classic logical fallacy. One that seems to be being beaten to death in these threads.

    “Secondly, there were no federal anti-sodomy laws when the Constitution was written. States had them, but at the time the Constitution was written, the Constitution didn’t restrict states the way it would in years to come.

    Which does not rebut the point that was made. That neither the Constitution nor the latter 14th Amendment was drafted with any intention of affecting the rights claimed by you to be a part of it.

    SPQR (26be8b)

  101. “First of all, marriage is a fundamental right.”

    You say it is, I say it isn’t.

    The way to resolve the problem is to take a vote on the issue and then enumerate the right in the Constitution, if we decide it is.

    That way I’m not subject to what your arbitrary definition of rights are.

    Same thing for free speech. If you want to make that a constitutional right, then amend the Constitution and SAY what you mean.

    I’m willing to be guided by the proceedures laid out in our federal Constitution in both of these cases. If we decide those things are rights, according to those proceedures, I’ll respect the decision. What I won’t respect is people (like Ted Olson or federal judges, for example) arbitrarily deciding what our rights are, or more importantly, aren’t, especially when they mistate the case, as Olson did.

    “The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the constitution.”

    Baloney. It doesn’t say any such thing.

    Dave Surls (6634d6)

  102. You keep running that cute line, Dave. And yet you refuse to explain your interpretation of the First Amendment.

    It is not amusing.

    SPQR (26be8b)

  103. He tries to justify a ruling not supported by the constitution by citing a principle in the constitution that he personally worked to subvert.

    Very good point.

    There you go. Now it’s an enumerated right and neither the government nor anyone else can legally tell someone they can’t get married

    But courts might find acceptable infringements on that right, such allowing gender and numerical restrictions.

    After all, they already excluded perjury from First Amendment protection.

    Maybe the constitutional amendment should be reworded specifically to forbid sex or gender classifications on the definition of marriage, and that states may not deny recognition or the legal benefits and incidents, nor impose different qualifications and duties, based on the gender of the partners. (This would mean that age restrictions, etc., would still be upheld.)

    Michael Ejercito (249c90)

  104. “And yet you refuse to explain your interpretation of the First Amendment.”

    It doesn’t say there’s a right to free speech in the Constitution…so, there isn’t a right to free speech in the Constitution.

    If you want there to be a right to free speech, than you need to say it’s a right.

    I can’t explain it any better than that. At least, I don’t think I can.

    “But courts might find acceptable infringements on that right…”

    No kidding! They usually do just that when there’s a conflict between a government power they want used, and an individual right they don’t care to respect. See Schenk v United States for one of about a zillion examples. According to a lot of folks, it isn’t the government’s job to secure our rights, it’s our job to toss our rights away in order to secure the government’s powers.

    But, that’s a totally separate issue.

    Dave Surls (f312db)

  105. The original Constitution was an expression of limited federal government viz-a-viz individual rights (both enumerated and un-enumerated). The 14th Amendment expanded that, and limited state governments as well viz-a-viz individual rights.

    That’s the left-wing theory at any rate. It’s odd that the writers of the 14th wasted all those words when all they meant to say, according to you, was that the 9th Amendment was now binding on the states. And its odd that their own actions, soon after writing the 14th, contravened your theory of what they were about.

    But as anyone who has read the Founders words (all six of us!) knows, the original Constitution was an expression of limited federal government viz-a-viz the individual states. Not individual people. The Founders seem to have had no conception of “the individual” as we understand that term today.

    Subotai (c0d294)

  106. Dave – i’m lost.

    What does it mean, in your world, for something to be a right?

    I think most of us are willing to say that if government is forbidden from restricting the freedom of [x], that is the same thing as you having the right to [x].

    If you aren’t willing to say that, and it seems that you aren’t, then what is the distinction between the two? Is it just one of semantics, or is there some meaning involved?

    aphrael (e0cdc9)

  107. “What does it mean, in your world, for something to be a right?”

    In my world for something to be a constitutional right it has to be so defined in the Constitution.

    Silly of me, I know…but, there it is. I like my laws written and precise.

    Dave Surls (f312db)

  108. Its your act that’s silly, Dave Surls.

    SPQR (26be8b)

  109. Dave, you didn’t answer the question. what does it mean for something to be a right in the USA?

    Are you suggesting that something isn’t a right if it’s not a Constitutional Right, under your ‘enumerated specifically’ concept?

    James Madison, (author of the 1st Amendment) didn’t even think that amendment was necessary. he figured it was so obvious that our rights didn’t need to be enumerated that he was perhaps implying that what’s not listed in the bill of rights would be trampled on. AW notes, this is why he made the anti-expressio-unius (if it’s not there, it wasn’t meant) amendments, 9 and 10. In fact, those two amendments seem to seriously contradict your idea of how the law functions.

    Here’s number 9 for you:

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

    How does that work in your world?

    Dustin (b54cdc)

  110. Oh, and yes, the 1st amendment is an enumeration (the number is 1, btw) of some right to political speech. It’s not done in the way I would have done it, but that’s what it was meant to do, and that’s the power it holds over our nation, too.

    Is it perfect or absolute? Nope.

    Dustin (b54cdc)

  111. I think Dave has explained his interpretation of the first amendment. I just don’t agree with him on that point. The failure to tell the government it can’t ban something is not the same as granting it the right to do it. But Dave disagrees with me, and that is fine.

    > I like my laws written and precise.

    But if that is the case, then Obamacare is constitutional. After all, the constitution doesn’t say that the government can’t force you to buy health insurance. So herefore it says it can.

    That fundamentally misunderstands our constitutional system. The Federal Government is one of limited powers. It can only do what is granted to it. So the first question you ask in a case like Obamacare is “where does the Federal Government get the right to do that?” If you can’t point to something that can be read to grant that right, then the Federal Government loses and the citizen wins

    So why can’t the president throw in jail everyone who disagrees with him? Because the constitution grants him no such power. And you can shorten that to say we positively have freedom of speech.

    Now, and here is where it gets confusing, is that in most states, if not all, that presumption is flipped. States can do whatever they want so long as their state constitutions don’t restrict them, it doesn’t conflict with the federal constitution or a valid exercise of federal law or the treaty making power. That is why it is wrongheaded to compare forcing a person to buy car insurance with forcing a person to buy health insurance, because you are comparing state action to federal action, apples to oranges. A state probably could enact its own version of Obamacare and unless their constitution surprises me in some way, it is probably constitutional. But at the same time Obamacare is probably unconstitutional on the federal level.

    I am willing to concede that on the federal level that the government has no right to outlaw sodomy or even abortion, with the possible exception of the territories. The issue however is the states, which makes talking about federal sodomy laws irrelevant. I mean did we even have a murder statute on the federal level outside of the territories around the founding? At most there might have been a rule against murdering federal officials, and maybe not even that. So saying there was no federal law on the subject is irrelevant.

    The fact is sodomy was almost universally illegal in America at the founding. And as America became more evangelical, the disdain for homosexuality increased. There is no way in hell the framers of the Fourteenth Amended would have consciously opened the door to gay marriage. It is frankly an abuse of the language to say it. It would be like claiming the guarantee clause, which says that the FG must guarantee to each state a republican government, means that the republican party must be ascendant in each state. Yeah the words can be twisted to that, but who really thinks that it what they meant?

    Aaron Worthing (A.W.) (f97997)

  112. AW, that massive work of interpreting millions of results out of our somewhat imperfect Constitution is why the judicial branch has such a heavy responsibility. It’s so outrageous what kind of person we elevate to the Court.

    Or the discourse surrounding such people. I spoke with someone today who said Scalia can’t be a good catholic if his rulings don’t promote social justice. As if that’s what a judge’s job is… to insert their morality when the law is the law and the facts are the facts.

    But this responsibility would be easy if we didn’t try to read meaning and sense into the constitution. That’s the caricature of Justice Thomas (my favorite Justice by far, and a brilliant man). You can’t just say ‘Oh, it says Congress shall make no law, so I guess you can broadcast porn into your neighbor’s house!’.

    It’s a very tough job that just isn’t taken seriously enough by the political branches. Alito and Roberts were extremely lucky breaks, IMO.

    We need honest interpreters. Interpretation actually does need to occur. In my opinion, a major change to an interpretation should warrant an amendment, even if the new interpretation is plausible without one.

    Dustin (b54cdc)

  113. “How does that work in your world?”

    The 9A works fine in my world.

    I haven’t said that there is no right to free speech because the right isn’t enumerated in the United States Constitution. I just said there is no constitutional right to free speech (that’s because there isn’t).

    How does it work in your world?

    Dave Surls (f312db)

  114. Every single unenumerated right is enumerated by the 9th amendment.

    Dustin (b54cdc)

  115. Still not finished with your silly game, Surls?

    SPQR (26be8b)

  116. And our government, the entire concept of the United States of America, IS the Constitution. Any discussion of what rights we have against our government, legally, is a discussion of our rights according to the Constitution.

    The government has a limitation on abridging speech, interpreted usually as political speech and some additional speech. That’s constitutional interpretation. None of our ‘enumerated’ rights are our rights simply because they were written down, though. All of them are our rights regardless.

    The Constitution protects your right to speech. We can parse the different structure of the language, but even if no bill of rights had been added, we would still have a Constitutional right to political expression.

    Dustin (b54cdc)

  117. Dave: i’m sorry, I still don’t understand you.

    What is the difference in meaning between the statement “Congress shall make no law abridging the freedom of speech” and “The people have the right to free speech”?

    I acknowledge that one answer to this is that the former binds only Congress while the second binds the states, but that does not appear to me to be the argument you are making.

    So: what’s the difference? Is it entirely a semantic difference? If not, then what is the substantive difference?

    aphrael (73ebe9)

  118. If I read Mr Surls correctly, and in no way do I presume to speak for him, he seems to contend that since the Bill of Rights refers to FREEDOM of speech, and not the RIGHT to free speech, it is not technically an enumerated RIGHT.

    JD (abc2eb)

  119. Every single unenumerated right is enumerated by the 9th amendment.

    This seems kind of silly, as it leaves open the idea that Supreme Courts of the future can just continue to add Rights without actually going through the process of amending the Constitution.

    JD (abc2eb)

  120. JD: that seems to be a meaningless semantic distinction, sort of like claiming that when I hand you an apple I haven’t handed you a fruit because I handed you an apple, not a fruit.

    aphrael (73ebe9)

  121. aphrael – I was just adding a voice. It is a distinction without a difference to me.

    JD (abc2eb)

  122. I said that clumsily, JD. And as I said before, I’ve always thought that when the Court or society want the (little c) constitution of our country to change in a serious way, they should amend the Constitution to do it, even if they can wiggle around that by reinterpretation.

    Still, if I could edit that comment, I would change “unenumerated” in that quote to “Constitutional”. That’s the truth. And JD identifies the immense power the Courts have to abuse because of this. That’s why we tried to have an independent and honest judiciary. We’re failing in that regard, to a serious degree.

    Dustin (b54cdc)

  123. Oh, they are plenty independent, Dustin. They answer to nobody.

    JD (abc2eb)

  124. ‘What is the difference in meaning between the statement “Congress shall make no law abridging the freedom of speech” and “The people have the right to free speech”?’

    Well, they don’t mean the same thing.

    If you say “Congress shall make no law abridging the freedom to kill”, it doesn’t follow that people now have a right to kill. If we did pass a law like that we would probably be reserving the power to make laws regarding killing to the states or something (same thing for the 1A), and not trying to say that folks have a right to kill.

    But, if we say that “The people have the right to kill”…then it IS a right (or at least, according to our judgement it is), and if we say it in the Constitution, then it’s a constitutional right.

    Just because we put a limit on the power of the federal government, it doesn’t follow that you now have a right to do any particular thing.

    “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    Now, THAT’s a right, because we say it’s a right, and it’s a constitutional right, because it’s enumerated in the Constitution. It also OUGHT to be a right, because the exercise of that can’t possibly cause any damage, and it could do a whole lot of good.

    “Congress shall make no law…abridging the freedom of speech”

    The ability to speak (the truth, a lie, gossip, slander…and all the rest of it) might be a right, but we haven’t defined it as a right yet, so we’re not really sure. It’s definitely not a constitutional right…because it isn’t defined as a right in the Constitution.

    “I acknowledge that one answer to this is that the former binds only Congress while the second binds the states, but that does not appear to me to be the argument you are making.”

    That’s EXACTLY part of what I was saying. Barring the federal government from passing laws abridging freedom of speech doesn’t protect your alleged right to free speech from state or local laws, and no matter how much the courts lie about the 1A, it does NOT prohibit states from passing laws that abridge the freedom of speech.

    “The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak.”

    And, that’s partly why the above statement is a bunch of baloney.

    Of course, even if the Constitution said what Olson thinks it says, it would still be baloney, because the Feds pass laws telling people what they can or can’t say all the damned time…but, that too is a separate issue.

    “If I read Mr Surls correctly, and in no way do I presume to speak for him, he seems to contend that since the Bill of Rights refers to FREEDOM of speech, and not the RIGHT to free speech, it is not technically an enumerated RIGHT.”

    Feel free to presume, because that’s pretty much the gist of what I’m saying.

    I don’t know why people are getting so upset about it, or having trouble grasping what I’m saying.

    Dave Surls (f312db)

  125. Dustin

    > It’s so outrageous what kind of person we elevate to the Court.

    Well especially the most recent one. She is either stupid, or stupid like a fox. Here’s a hint, lefties, if you can’t admit what you are doing to the American people, it means you are doing something wrong. It is exceedingly rare that the majority of the American people can not only be wrong, but are incapable of being convinced they are wrong.

    > I spoke with someone today who said Scalia can’t be a good catholic if his rulings don’t promote social justice. As if that’s what a judge’s job is… to insert their morality when the law is the law and the facts are the facts.

    The correct retort to that is that if that is the case, “then you would support the end of Roe v. Wade, right?” For that matter there are a whole slew of policies I would like to see made into constitutional commands if that is how we are going to do things. For starters, congress should be forbidden to run a deficit, unless a dire need presents itself (and needing pork to get reelected doesn’t count).

    > We need honest interpreters. Interpretation actually does need to occur. In my opinion, a major change to an interpretation should warrant an amendment, even if the new interpretation is plausible without one.

    Well, that is where you lose me a bit. I mean in about 200 years the 2nd amendment had been treated as a constitutional nullity. The nicest thing you could say, I guess, is that congress generally respected its limits on that subject until fairly recently (the last 30 or so years). So its kind of hard not to argue that this is a “new interpretation” of the 2nd amendment. And Brown v. Board of Ed. seems kind of new, too.

    I won’t completely close off the doors to new rights, but as an exercise of raw judicial power it should be reserved for only very serious situations. It should have to be a major unanticipated threat to democracy itself, or maybe a serious atrocity that is nonetheless not prevented by the current constitution.

    For instance, suppose tomorrow someone came up with the ability to hack your brain and command you to do whatever they want. Now if the Federal Government asserted the right to do so, the fact it isn’t positively granted that power is probably enough to prohibit it. But what about the states? I suppose you could term that a “seizure” within the meaning of the 4th Amendment, but its really kind of hard to pretend the constitution addresses that at all. So if the courts made up a right to be free from that, I won’t complain much because to allow it would be the end of democracy and free will.

    As for the idea of an atrocity that is nonetheless constitutional, to be blunt, I can’t think of a good example.

    But before you do so you have to explain why it is that you feel the founders would have left it out. And it can’t be “because their values are different than mine.” The mind hack technology is a good example of that, because I think its safe to say the idea was inconceivable around 1789, indeed I doubt anyone even considered the concept until 1980 at the earliest. But you know, gay people and gay sex did exist in 1789 and more importantly in 1868, and the founders passed judgment on the subject. I mean there was no gay rights movement to speak of until the 1960’s.

    That is why the Dartmouth College test is actually really pretty well termed. For instance, do you have a right to have a homemade nuke? Well, in theory you could say that a nuke is an “arm” and if you have a right to bear arms, that includes nukes. But I think the test gives us a rational limit on that:

    > 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.

    So you first might very reasonably debate whether the founders would have rewritten the 2nd amendment to exclude nukes if they had any idea that they were coming. But that is a little bit of a difficult argument to make because the founders surely understood that we were going to make deadlier and deadlier weapons as time went on. You’re basically saying that the founders didn’t know there was such a thing as innovation. But then you fall back to it being so absurd and mischievous that the courts are justified in making it an exception.

    Aaron Worthing (A.W.) (e7d72e)

  126. Dave

    Let me ask a few simple questions.

    If the president of the united states decided to round up and imprison every person who disagreed with him, would he have the lawful power to do so?

    Or suppose the president declared that from now on the laws on tax evasion would only be applied to registered republicans. Would he have the lawful power to do that?

    And if either answer is no, why not?

    Aaron Worthing (A.W.) (e7d72e)

  127. “If the president of the united states decided to round up and imprison every person who disagreed with him, would he have the lawful power to do so?”

    No, for several reasons. For one thing. we haven’t delegated that power to the federal government.

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    That would also be a violation of the 4th, 5th and 8th amendments, not to mention the fact that the DOI says we have a God-given right to freedom, and that government exists to secure that right (among others), not to arbitrarily take it away.

    “Or suppose the president declared that from now on the laws on tax evasion would only be applied to registered republicans. Would he have the lawful power to do that?”

    Not really. The president is supposed to…

    “…take Care that the Laws be faithfully executed”

    per Article II Section 3 of the Constitution. He can’t lawfully refuse to prosecute people because of their party affiliation.

    I don’t know what that has to do with the subject at hand, but those are my answer to your questions.

    Dave Surls (8f52ea)

  128. dave

    Well, as long as the answers are no and no, then the rest is semantics.

    Aaron Worthing (A.W.) (e7d72e)

  129. First of all, marriage is a fundamental right. Homosexual marriage is just one kind of marriage.

    But that right was not defined that way in 1789.

    Michael Ejercito (249c90)

  130. michael you are over thinking this.

    ask yourself a simple question: is the state required to be in the marriage business at all. i say no, and if you agree with me, then no, marriage is not a fundamental right.

    as for whether it is just one kind of marriage, well, that is actually what this case decided. until about fairly recently, gay marriage was a contradiction in terms. like “non-lethal nuclear weapons.” or “elected king.” or “sane lunatic.” marriage was defined in a way that excluded categorically gay unions.

    And really I have come to think of a metaphor for what is wrong with this that finally gay marriage advocates might understand. Okay let’s say that the supreme court says that there is no right to gay marriage, right? So then gay advocates run a decades long campaign the amend the constitution. And they do it. They get an amendment that reads simply, “the right of gay persons to get married shall not be infringed on account of being gay.” So the court then looks at it and says, “well, of course gay people can marry. They can marry people of the opposite sex!”

    If that happened, every person who worked so hard to pass that amendment would cry foul. And they would be right. It would be playing word games to frustrate the goal that they clearly intended to complete.

    Well, it’s the same thing reading the 14th amendment that way. Guess what, the founders didn’t like gay people. call them homophobes if you want, but that is how it is. The words they wrote were not supposed to be interpreted that way. and its wrong to pretend otherwise.

    Aaron Worthing (A.W.) (e7d72e)

  131. First of all, marriage is a fundamental right. Homosexual marriage is just one kind of marriage.

    Michael Ejercito:

    But that right was not defined that way in 1789.

    Well, the same could be said of interracial marriage.

    And the right to bear arms in 1789 didn’t contemplate that “arms” would include “automatic weapons” either.

    And the right to free speech/press in 1789 didn’t apply to the Internet.

    I could go on and on….

    The Founders didn’t intend future generations of Americans to live exactly as they lived. Instead, they set forth standards and protections. What those standards and protections apply to grow over time because of technological and societal changes.

    Kman (d25c82)

  132. “Why do we have the 15th and 19th amendments if the 14th amendment is all we need?”

    Because the right to vote isn’t, or wasn’t at the time, considered a fundamental right at the time

    So, what you are telling me is that the 14th Amendment was not considered “at the time” to be a magic hat from which magicians judges could extract “fundamental rights”.

    Fine.

    Now, can you tell me in what way the 14th Amendment has changed over time so that now, judges can rummage around inside it and produce bunny rabbits and “gay marriage rights”?

    If the right to vote was not considered to be covered by the 14th, its impossible to imagine how the right to gay marriage can be.

    Subotai (20be2e)

  133. Barring the federal government from passing laws abridging freedom of speech doesn’t protect your alleged right to free speech from state or local laws, and no matter how much the courts lie about the 1A, it does NOT prohibit states from passing laws that abridge the freedom of speech.

    OK. That’s a fair point.

    However, most constitutional scholars now accept that the fourteenth amendment (either through the due process clause as the Supreme Court held, or through the privileges and immunities clause as various conservative scholars argue was the original intent) incorporates that restriction against the states.

    aphrael (e0cdc9)

  134. aphrael

    re: incorporation.

    i say it has to be privileges and immunities, btw. look if you read the debates, it was exceedingly clear they thought it was there somewhere. but due process makes absolutely no f—ing sense. if due process included the bill of rights, then why was there a 1st, 2nd, 4th, 6th, 7th and 8th amendments at all? They could have just written “due process” and called it a day.

    Due process plainly means something distinct from all of the above.

    Aaron Worthing (A.W.) (e7d72e)

  135. i would tend to agree, but that’s not the way that it got interpreted in the 20s and 30s, and so that’s not the way our jurisprudence works.

    aphrael (e0cdc9)

  136. As an aside, Judge Walker denied the motion for a stay but stayed his order until Aug. 18 at 5pm.

    One of the key points in his argument is that defendant-intervenors do not have standing to appeal if the actual defendant declines to.

    aphrael (e0cdc9)

  137. aph

    thanks for the link. That is officially fubar. basically the people pushed a constitutional amendment to the cali constitution that ahnold and brown hates. because they hate it they can block any appeal? So the people can pass whatever constitutional provision they want but they only get to see it enforced if and only if the governor and atty general wish to enforce it. This is officially starting to get crazy, procedurally.

    If the proponents of the law could run the defense of the law, why do they have no say in the appeal?

    Aaron Worthing (A.W.) (e7d72e)

  138. Aaron – i’m not familiar with the case law involving standing for intervenors. It’s a somewhat esoteric area.

    aphrael (e0cdc9)

  139. ed whelan suggests that proponents do have standing, because state statutes give them a right to do so.

    i wouldn’t know.

    but i would seriously question at this point whether we can call this a genuine case or controversy, as required by article III. if not, the courts could vacate it on that ground. So then ahbold and brown just refuse to enforce their own constitution but there is no decision on the books.

    Aaron Worthing (A.W.) (e7d72e)

  140. Rule 24 deals with intervention. you have a right to it if you claim…

    > an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

    i mean there is other stuff in the statute but that is what is relevant here. now the interest element is read very broadly so i think you have a pretty credible claim at an interest in seeing that their proposition gets enacted. i mean its kind of logical. they put alot of work into it, shouldn’t they have standing to make sure it doesn’t all go to waste? And the other two elements are met pretty easily. i mean there is no question that the state is not adequately representing them, for instance.

    i have to say i am really getting annoyed with this judge and his bullsh–.

    Like look i am handicapped. if a case came up to me on ruling on the constitutionality ADA i would probably have to step out if only because i have very publicly expressed an opinion on the subject in a law journal.

    But if i had the balls to ignore those issues and rule on the matter, you bet your a– when i ruled i would be extra careful so that my conduct was unimpeachable.

    Aaron Worthing (A.W.) (e7d72e)

  141. Btw, you can read rule 24, here:

    http://www.law.cornell.edu/rules/frcp/Rule24.htm

    Aaron Worthing (A.W.) (e7d72e)

  142. That doesn’t address the question, though.

    It means that they had a right to intervene in the original case.

    It doesn’t mean they have standing to appeal.

    aphrael (e0cdc9)

  143. mmm, i can’t find something specifically on point, but i will say this.

    The entire purpose of a referendum or an initiative is to get past state officials. therefore to say that the only people who can protect an initiative is the state officials is basically to leave the chicken coop guarded by the foxes. it is the people’s direct sovereignty that is as stake, possibly at odds with the state officials, when you challenge something that was popularly voted on.

    Aaron Worthing (A.W.) (e7d72e)

  144. He continues to be irresponsible; he denied a stay. ( PDF format )

    This would be like a federal judge “finding” a constitutional right to use marijuana, and dismissing an indictment and enjoining enforcement of state laws against marijuana use without staying the order pending appellate review.

    What if the appeals court overrules the district court? People who smoked marijuana during the time enforcement was enjoined could find themselves subject to prosecution. This is why stays are issued in cases like this, to ensure an orderly transition as the case winds up the appeals process.

    Michael Ejercito (249c90)

  145. Michael – his theory seems to be that the named defendants aren’t appealing and the intervenors don’t have standing to.

    The reason this theory is interesting is that the 9th and the SCOTUS could use it to duck the case entirely.

    aphrael (e0cdc9)

  146. aphrael – If that happens, this will become a rallying point against the judiciary.

    JD (3dc31c)

  147. JD: if the 9th and SCOTUS duck the case leaving it binding on California only, I doubt it will become a rallying point outside of California.

    aphrael (e0cdc9)

  148. You don’t think that a Judge giving the finger to a Constitutional Amendment and not giving standing to people to appeal and not staying his findings until the potential appeals have been heard might not resonate just a bit with people already inclined to believe that the judiciary is being used to further legislative goals that they could not win?

    JD (3dc31c)

  149. Oh btw, small point. There is direct case law to the contrary. Yniguez v. State of Ariz., 939 F.2d 727 (C.A.9 (Ariz.), 1991)

    In that case proponents of an Arizona initiative were given standing for purposes of appeal because the state was no longer willing to defend the case. In short, it was JUST LIKE THE CURRENT CASE.

    Now, the SC got ahold of it, they cast serious doubt on the viability of this standing claims but didn’t actually overrule them because the found the case was in fact mooted based on other reasons.

    http://www.law.cornell.edu/supct/html/95-974.ZO.html

    Shouldn’t that precedent, right on point, at least been discussed–if only to dismiss the issue?

    Btw, it took me about 30 minutes total, using a combination of google and fastcase, to find it.
    you think the judge had no idea this precedent existed? or do you think he just didn’t want to deal with it, because he already made up his mind.

    Aaron Worthing (A.W.) (f97997)

  150. Ah sorry for the double post. please some op delete one.

    Aaron Worthing (A.W.) (f97997)

  151. I have further thoughts to Perry v. Schwarzenegger.

    Also read about the Louisiana and Texas cases.

    JD: if the 9th and SCOTUS duck the case leaving it binding on California only, I doubt it will become a rallying point outside of California.

    The Texas and Louisiana cases are still coming up through the courts.

    Michael Ejercito (249c90)

  152. The fact is, we expect judges to exercise intelligent discretion.

    This judge is biased in his personal interest, pushing his morality, and avoiding the administration of justice. It’s transparent. I think you’d have to have a great stake in this case not to see the obvious problem with this kind of system.

    This judge should be impeached by the GOP House. Not over the gay marriage issue, of course. I would feel the same way if he was ruling on any other issue, relying on these ridiculous ‘theories’.

    They had standing before. They have standing now. The reason they had standing before was that the people supposedly with standing are politicians refusing to do their duty. It’s easy to play games with administration. That’s why we must do a better job selecting judges, and remove these mistake judges as quickly as possible.

    Retrial without prejudice. That’s the only way.

    Dustin (b54cdc)


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