Patterico's Pontifications

7/2/2014

Why Does It Matter Whether Judges Twist the Constitution to Uphold Gay Marriage?

Filed under: General — Patterico @ 7:49 am

As I mentioned last night, yesterday another federal court decision threw out yet another same sex marriage ban. I would like to take a moment to explain why I think it’s important for such moves to be made legislatively and not by judicial fiat. I will do so with the aid of a long-time commenter.

The key thing, for me, is the rule of law.

The Constitution simply doesn’t say anything about same sex marriage. If one adheres to the concept that words must be interpreted according to the original understanding of those words, as I believe one must, then it is plain that the people who passed the 14th Amendment in 1868 were not thinking of same sex marriage when they used the words “equal protection.” Now were they thinking of abortion (looking at you, Ruth Bader Ginsburg) or anything else having to do with gender. As Raoul Berger has shown in his extensive scholarship, “equal protection” provided all races with access to the courts, the right to own property, and the right to engage in contracts. It didn’t even address the right of blacks to vote, which is why a Fifteenth Amendment was thought necessary — and it certainly didn’t deal with the right of women to vote, which is why a Nineteenth Amendment was thought necessary.

Why does this matter? Let me provide an edited quotation from longtime reader Simon Jester on the matter. He is responding to another commenter named “happyfeet” who takes the position that the words “equal protection” mean gays have a constitutional right to marry. As I have said many times, I believe gays should be allowed to marry, but I don’t think it’s a federal constitutional right for the reasons I just stated, and I said so to happyfeet. Simon Jester said:

I had to sadly laugh a little as I watched Patterico and Mr. Feet duke it out upthread. Their differences of opinion really do showcase the battle at the core of our nation, in a microcosm. The true Culture War we aren’t talking about, that is taking place right now, everywhere.

Patterico (and yours truly, for what that is worth, though I am not a lawyer or “Constitutional Scholar,” the latter of which seeming to be quite flexible in definition) think that the Constitution should be strictly interpreted, and not at the whim of culture fashion. If changes are necessary, then it is time for everyone to agree, figuratively, via amendments to that Constitution. And even that approach makes mistakes from time to time; no system is perfect. . . .

What we have now are cultural whims being imposed on people by judges. Mr. Feet loves it now, because those decisions agree with his world views and current political fashion-sense. The ghost of Robespierre would urgently point out that the rules approved of when they benefit one’s world view can also be used to toss that same world view away. There is a strange narcissism among progressives and the Left that not following the law is okay so long as the results are pleasing (there are a number of cultural quotations about that, involving omelettes and eggs, and even one about Stalin knowing when to halt his advances during WWII). But what is happening now is all according to cultural fashion. And those fashions can change, and rather quickly. Precedents, once set, are dangerous.

The Democrats love the “nuclear option” now. They won’t later. As I have tiresomely repeated, the best rule or law is one you do not mind in the hands of your bitterest enemies. Does anyone think that the MSM and the Left (though I repeat myself) would be silent about the NSA and IRS’s excesses . . . with a Republican in the Oval Office? Many folks seem to be okay with hypocrisy, and that works fine on network news, but not so much in the legal structure of our nation.

Look at Patterico’s very relevant comments about “emanations and penumbras” of the Constitution. Douglas used that phrase in Griswold v. Connecticut to justify a result he wished to see (and if you haven’t read about Griswold v. Connecticut, it is worth your time). Now me, I love privacy. But I am a strict constructionist when it comes to the Constitution. And claiming that the Constitution could have squishy definitions to support my wishes, even if I like those wishes and want to seem them come to pass, is . . . dangerous.

As several people have pointed out, if SSM is an equal protection issue, why isn’t polygamy? And the discussion of it is interesting. People who are very, very defensive of SSM, and call opponents bigots or worse, usually seem just fine making sneering comments about polygamy. After all, picking on different Christian faiths is an acceptable bigotry to many. And why not? They seldom saw off your head in response. . . .

I think that judicial fiat is very, very dangerous. In some ways, it is most dangerous when that fiat agrees with what you would like to see. I hope that Mr. Feet would be equally happy with judges deciding to do things he does not like, and foisting it upon the public.

Fashions change. Laws can and perhaps should be flexible, but they should not become spineless, to reflect what people believe or think at a given time.

(I differ with Simon only to quibble with terminology; what he calls “strict construction” I call “original understanding” which need not be “strict” but can be flexible — but whose touchstone is always what the words reasonably meant when written.)

An appeal to original understanding is the only method of interpretation that gives force to the text. Any other method gives the power to the judge who wants to make the words mean whatever he wants them to mean.

Judges, of course, have always been the ones entrusted with making the call about what Constitutional provisions mean. The difference is whether they should consider themselves constrained in that effort by a rule that says they must try to discern what the words meant when written — or whether they are entitled to make those words means whatever they think they ought to mean. Simon’s comment eloquently makes the case why the latter approach is a bad one.

Anyone who defends twisting the Constitution to obtain a result they like today has no basis to complain about Obama’s power grabs. The same idea applies: the end seems good, maybe not to you, but to many . . . so who cares if some old document purports to restrain him?

282 Responses to “Why Does It Matter Whether Judges Twist the Constitution to Uphold Gay Marriage?”

  1. Thanks to Simon. I hope he didn’t mind my appropriating his comment for my post.

    Patterico (9c670f)

  2. the 14th Amendment…didn’t even address the right of blacks to vote, which is why a Fifteenth Amendment was thought necessary

    It actually did address this, but in a different, non-absolute, way. A satte that did not allow some U.S. citizens to vote was to lose representation in Congress in proportion to the people not allowed to vote. This provision has never been enforced, partly because the deprivation of tghe right to vote in the south was later done mostly unofficially.

    http://constitutionus.com/

    Article (Amendment) XIV, section 2:

    Representatives 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. But 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. Male inhabitants over 21 who are U.S. citizens and not criminals is a little bit out of date now.

    Sammy Finkelman (95e288)

  3. I think “original understanding” is almost always the way to go – even when it comes to the original understanding of what Mohammed said, because al Qaeda isn’t following that, a point that is sometimes lost.

    There’s a natural limit in anything that has endured. If Islam had been as bad as some people say, it wouldn’t be around any more. And there was a limit at one time to what can be imposed.

    Originalism handicaps innovators, and there is a value in conservatism.

    Baghdadi in Iraq had to declare himself a caliph in order to make his jihad legitimate, and he has to be very much against the king of Jordan, who probably has the best claim of anyone to be a caliph, and has made a point of noting that jihad requires a caliph.

    He still hasn’t made murder of prisoners legitimate, or attacks against civilians.

    Sammy Finkelman (95e288)

  4. Marriage is a fundamental right. But the definition of what marriage is has changed.

    Traditionally, marriage was between one woman and one man. Men and women are different. Therefore a diverse couple is inherently different from a single-sex couple. Thus the Great Unifying Institution existed to bring the two together, with fertility and childrearing understood as the usual fruit of this unique union.

    But with feminism’s conception of women as men, modern homosexuality’s view that the genders are identical, and modern contraception technology rendering fertility a far less significant factor, the uniqueness of the traditional arrangement is less apparent.

    But where do we stop redefining traditional, age-old definitions? Aren’t constitutional government, traditional conceptions of law and order, national borders, etc. just other traditional values that can be supplanted when it’s convenient to do so? What is the basis of our values, and if there is none, do we have any idea where we are headed?

    We do – the Abolition of Man.

    Amphipolis (d3e04f)

  5. A dogmatic belief in objective values is necessary to the very idea of a rule which is not tyranny or an obedience which is not slavery.

    C. S. Lewis, The Abolition of Man

    Amphipolis (d3e04f)

  6. Patterico, I don’t mind.

    I tend to take things too seriously, and really have issues with faux-cutesy flippancy. But most people are responding seriously, and that is the important point. I mean, I keep getting irritable over the “gay marriage is a basic human right” but “polygamy is weird and crazy” silliness (if you want government out of adult non-related human interactions, then keep them out). One’s person’s fairness is another person’s bigotry, it seems. Hypocrisy is the common theme in our world these days, after all.

    Sigh.

    I do think Amphipolis above put it best. Reading C.S. Lewis is always a good use of one’s time. And if you don’t have time, at least read this:

    http://en.wikipedia.org/wiki/The_Abolition_of_Man

    There is a war on culture taking place right now. And the most important weapon in that battle is a weird form of amnesia—just ask Hillary and BIll Clinton about DOMA.

    Also Orwell knew the score.

    Simon Jester (dac42a)

  7. Gay “marriage”I believe is a fad brought on by the AIDS epidemic and is an effort to change the behavior of gay men. Promiscuity was the real cause of the epidemic and, as a physician practicing in a community with a high proportion of gays (Laguna Beach), I was very much exposed to the consequences. Two good friends and physicians died as a result. One of them, the second to die, was, even as he was blind and partially demented, boasting about all the good times they had. “Good times” being defined as unlimited sex with other men, one of whom was Patient Zero.

    I had the very unpleasant duty to break the news to a nuclear engineer that he had AIDS after he was worked up for colitis. He told me “It can’t be. I’ve been in a committed relationship for ten years.” I have never forgotten him. In addition to delivering a death sentence, which AIDS was at the time, I was telling him his partner was cheating. This, I believe, is what is behind most of the drive. The other reason for pushing this innovation in human history, is to force the majority to accept and celebrate the gay lifestyle. If that were not the purpose, why sue bakers and photographers ?

    I do not care about the issue and, as I have long since left the Catholic Church, am not that concerned about the coming attack from the gays who will try to end the tax exemption of religious institutions that decline to bow to the new reality. Until AIDS, there was never in recorded history such a drive for the symbols of heterosexual family life.

    Mike K (b5c01a)

  8. Nice post, and excellent contribution from Simon.

    The comparison I always make is not to polyamory, but to incestuous marriages between consenting adults, say a 45-year-old man with his 21-year-old daughter, or a 33-year-old man with his 30-year-old sister. It seems to me that there have traditionally been two major reasons why we have outlawed incestuous marriages: (1) we were concerned about genetic abnormalities that would result with the offspring and (2) we found these sorts of relationships to be extremely creepy. But in rushing to impose gay marriage by judicial fiat, we have in essence ruled that childbearing is no longer central to the concept of marriage, so what do we do now if an older man declares that he has had a vasectomy and is thus not a threat to conceive a child with his adult daughter? How can we continue to ban incestuous relationships on the grounds that they are creepy, when only a generation or two ago homosexual relationships were also widely considered to be creepy?

    Like Patterico, I am mostly in favor of gay marriage, though I do think that society has every right to make limitations in defining exactly who is eligible to be married. I regret that in choosing to bypass the democratic legislative method and instead choose the authoritarian judicial method for approval, advocates for gay marriage have a created a mess that we will be sorting out for years to come.

    JVW (feb406)

  9. From my perspective, it’s frustrating that this conversation is happening on a day when I’m otherwise really busy. :{

    I agree that it is plain that the people who passed the 14th amendment in 1868 were not thinking of same-sex marriage when they used the words ‘equal protection’.

    But they *deliberately chose* to use words that had a much broader plain meaning than the cases they were imagining it to cover. If it’s true that they meant access to courts, owning property, and contract rights, why did they not delimit it? To me, to ask the question is to answer it: they didn’t delimit it because they knew there might be cases that should be covered that they weren’t coming up with, because they knew that a list would imply anything not on the list was excluded, and because they saw the examples as instances of a general principle that the state should treat similarly situated people equally.

    They chose words with a broader meaning than the list they had explicitly considered *because* of that broader meaning.

    So it seems wrong to me to limit the broader meaning by the list they had explicitly considered.

    And, if you don’t limit the broader meaning to the explicitly considered list, you’re left with a very broad meaning: the government has to treat people who are similarly situated equally. That encompasses gay marriage, as long as gay couples and straight couples are similarly situated for whatever the purposes of marriage law are. It includes the progressive income tax, which I think is vulnerable to an equal protection challenge. It includes all sorts of things which the authors of the amendment didn’t specifically envision – but that’s the whole point; they used those words *so that it would cover things they didn’t specifically envision*.

    aphrael (e777bc)

  10. Agreed – nice post and excellent contribution from Simon.

    Thank you both.

    ThOR (130453)

  11. What I am supposed to believe:

    Marriage between two gay men – immoral to oppose;

    Marriage between three gay men – immoral to support.

    Also, my new-age, liberal friends, some of whom own their own incorporated small businesses, don’t seem to have a clue about how Hobby Lobby protects them.

    ThOR (130453)

  12. Excellent promotion of a comment to a post. Thank you to both.

    However.

    Traditionally, neither the government nor the church had anything to do with creating a marriage. There’s a brief history here: http://en.wikipedia.org/wiki/Marriage_license

    As usual, once either had requirements to meet, paperwork to issue, and fees to collect, the practice of licensing marriage grew. Or at least the business grew. Or was more imposed.

    Long ago, when a person’s word was worth something … that was all you needed. Today records are more important than words, and the value of marriage is depreciating even faster than the value of someone’s word.

    htom (412a17)

  13. The concept of a Living Constitution has been the most destructive wedge applied to the American Experiment. It has reduced us from a Republic enshrining the Rule of Law, to a Thugocracy where all law is ad hoc, with only a brief passing glance at Democracy – which in the end has always been destructive to the Freedoms and Liberties of individuals, delivering them into a system of servitude to an authoritarian state.

    askeptic (efcf22)

  14. Perhaps it should be emphasized that the approach in some respect depends on the self-perceptions of the judges about their role in society. If you believe that you were appointed (or elected) as a judge to apply the law to each case brought before you and arrive at “equal justice under law” you will necessarily have an originalist view. It happens to also be a humble approach. However, if you believe that your position as a judge is to achieve “equal justice”, the law is merely a tool in your quiver to arrive at that justice which you seek. It is for that reason that the law becomes expansive, whether emanating, penumbraing, or internationaling to achieve the desired ends of the judge.

    NewEnglandDevil (820235)

  15. aphrael @ #9,

    “But they *deliberately chose* to use words that had a much broader plain meaning than the cases they were imagining it to cover.”

    But you don’t actually *know* that was the case, do you? You don’t e.g., have any notes etc. from the amendment debates that would support your view. Contrary to your hypothesis, perhaps they framed it the way they did because they thought the language was perfectly clear and to the point. Indeed, by your logic, the 14th could be construed as covering blacks or women voting, but as has been pointed out, that took other amendments. For that matter, your logic would have the 14th guaranteeing a right to almost anything not explicitly excluded in the text.

    In any case, if a constitutional provision is ambiguous regarding an issue, it ought to be left up to the states and the people to decide, as provided by the 10th amd., not decided by judges.

    DKN (efe899)

  16. “Gay marriage” is an intrusion. Marriage is a ritual invented by heterosexuals, for heterosexuals that defines our people and has defined them for 5,000 years. What right does the government have to hijack it and change it so that a sick 2% of the population can pretend to be normal?

    CrustyB (69f730)

  17. another commenter named “happyfeet” who takes the position that the words “equal protection” mean gays have a constitutional right to marry

    It’s not really me taking that position.

    Here’s a look at the [first] 13 federal court decisions that have, in some significant way, ruled against state same-sex marriage bans since [Windsor].

    I have no idea what that number is up to now, but it’s definitely more higher.

    This is a real thing.

    And Republican whining doesn’t seem to have any affect on the momentum of this thing.

    Not on judicial opinion.

    Not on public opinion.

    Mr. Jester that it’s a dangerous precedent for these courts to say hey you can’t pass laws what discriminate against minorities.

    Well me I think it’s a great precedent, a really top-shelf top-notch top-o-the-morning-to-you-ma’am precedent.

    Equal protection under the law!

    It’s such a great idea it should be in the Constitution I think.

    happyfeet (8ce051)

  18. Mr. Jester *says* that it’s a dangerous precedent i mean

    happyfeet (8ce051)

  19. The 14th Amendment specifically didn’t demand that blacks be allowed to vote; but it did up date the 3/5 Compromise which, after all, was part of the Constitution. The South would no longer be able to receive the advantage of people with no rights adding to their Congressional representation – which was one of the reasons the South had held so much power in the Union.

    Mike Giles (930031)

  20. But, Mike, remember that the 3/5′s Rule was a compromise between the New England position of not counting slaves at all, and the South’s stand that they be counted 1/1.
    At least when it came to reapportionment, slave-owners considered their property as people, while those in New England (some of whom also held slaves – and more trafficked in them) did not.

    askeptic (efcf22)

  21. 21…”slave-owners in the South”

    askeptic (efcf22)


  22. As several people have pointed out, if SSM is an equal protection issue, why isn’t polygamy? And the discussion of it is interesting. People who are very, very defensive of SSM, and call opponents bigots or worse, usually seem just fine making sneering comments about polygamy. After all, picking on different Christian faiths is an acceptable bigotry to many. And why not? They seldom saw off your head in response. . . .

    Indeed. Click here to watch Margaret Cho turn both tricks at once in 2008 at an anti-Prop 8 rally in Cincinnati trashing Mormons (in part for their past practicing of polygamy).

    L.N. Smithee (e750c1)

  23. 8.Nice post, and excellent contribution from Simon.

    The comparison I always make is not to polyamory, but to incestuous marriages between consenting adults, . . .
    How can we continue to ban incestuous relationships on the grounds that they are creepy, when only a generation or two ago homosexual relationships were also widely considered to be creepy?
    . . .
    JVW

    By separating the procreative aspect from the contractual aspect.
    In that context, we can continue to ban not merely incestuous relationships (and you didn’t even address what actually constitutes incest – cousins? half-relatives? relatives-by-law? 1 degree? 2 degrees? 3+ degrees?), but also polyamorous relationships, as well as child marriage and non-human marriages.

    Let us say we do what some, including myself, have proposed and remove government from marriage entirely.
    Government will only sanction civil unions, and those only for limited terms, while religions, including atheists, are free to marry whoever they want, however they want, for whatever term they want.
    Would anyone expect that means it would be legal to have sex with a 12-year old just because your religious authority said you were married? I would hope that remains illegal because of issues of consent.
    Likewise if the First Church of PETA allows you to marry a llama a la South Park. Again, no consent, no legal nookie.
    What then for incest? Simply, the potential for coercion, especially economic coercion, is so great as to make it impossible to legally sanction. This can easily be demonstrated by the history of such unions being predicated on maintaining accumulated wealth. Add in the coercive potential of an ancestor over a descendant and the evidence becomes insurmountable against granting legal status to such marriages.
    How does that apply to polyamory? Again, by the preponderance of evidence of coercion being used to secure such arrangements, as well as the preponderance of evidence supporting significantly biased assignment of family assets. It becomes almost the default to expect that any such arrangements wind up as contracts of adhesion for one or more parties involved.

    So then, your religion marries you to your sister-poodle and her five littermates plus their owners. Mazel tov. Knock yourself out.
    The government recognizes a civil union, and consequent legal privilege, medical access, community property, sexual consent, and so forth with precisely one adult, period, end of legal standing.
    You cannot get in to see your co-husband’s third poodle-wife at the veterinarian; you don’t have a claim to the estate of said poodle-wife’s puppy’s beta-husband’s alpha daughter-wife who is also your wife by extension; the government can put you in prison for having a threesome with the new child-husband and his primary assigned guard-dog-wife; and your registered civil union spouse can sue you for adultery if you do engage in said threesome.
    Religions get to function without government limitation.
    Government gets to keep cohabitation contracts and consent intact, and everyone but the egregiously (and disturbingly) paraphilic is happy.

    Sam (e8f1ad)

  24. Sam, I think we’re basically on the same page on this matter.
    As for the rest of the mob…..

    askeptic (efcf22)

  25. FWIW,
    I read The Abolition of Man in college in a common English lit textbook (more recent editions of the same book no longer contain it) in a class at Univ. of Wisconsin, before I was a Christian.
    I thought, and think, it is a profoundly important work.
    Whether one looks at humans controlling humans by behavioral psychology (Skinner, as discussed in the piece), or genetic engineering, or legal attempts at Utopia, it is bound to fail.

    If there is no objective reality and no God, do as you please. Even the Apostle Paul said this was the reasonable thing to do.
    If there is an objective reality, especially with a personal God, then maybe our decisions and actions have consequences.

    MD in Philly (f9371b)

  26. Why? Well, it’s a damn slippery slope… first gay marriage, next totally gay cheeseburgers…

    http://www.usatoday.com/story/money/business/2014/07/01/burger-king-gay-pride-burger-parade-fast-food-gay-rights/11903861/

    Colonel Haiku (4a65e2)

  27. Col, I just don’t want to know what’s been slipped between those buns.

    askeptic (efcf22)

  28. I will have no luck with this, and the profoundly unserious Mr. Feet will likely expose his odd bigotry once again. Sadly.

    ….hey you can’t pass laws what discriminate against minorities…

    Why don’t polygamists count? Or transsexuals (of whom Mr. Feet was most recently cracking wise)?

    Where do you stop? After all, Asians are clearly discriminated against in the University of California admissions system, compared to Latinos and African Americans.

    What are the limits? Or do they change with the times?

    These are important questions, and they merit serious discussion—not free verse and flippancies and snap judgments from the gut. They shouldn’t be up to whim. Again, look at the “evolution” of how politicians considered SSM. Why, the likely next President of the United States (and our current one) were once very opposed to SSM.

    But they “evolved.”

    Which takes us back to C.S. Lewis’ book, friends.

    Simon Jester (c8876d)

  29. And as for Mr. Feet’s exhortation…

    “…Equal protection under the law!…”

    I would simply add this:

    https://thepatriotperspective.files.wordpress.com/2011/11/all_animals_are_equal_but_some_animals_are_more_equal_than_others.jpg

    Simon Jester (c8876d)

  30. Gays fought and died in revolutionary war as in every war since as have african-americans who were considered 3/5 of a person. Equal protection homophobes! Same arguments were used against inter-racial marriage racists. I was around back then I know. Just as the babtists kicked the southern babtists out for supporting slavery!

    vota (fe6f21)

  31. Take your meds, votaperry

    Colonel Haiku (0a4fb8)

  32. You can have it your way, askeptic! Hold teh secret sauce, please!

    Colonel Haiku (0a4fb8)

  33. as have african-americans who were considered 3/5 of a person

    Patently false. Slaves of any race were counted as 3/5 of a person by the census. Free people of any race were counted as a full person.

    Chuck Bartowski (11fb31)

  34. Votaperry,

    Listen to the Colonel.
    You should also listen to your doctor, who says that when you miss a lithium dosage, you start to behave in an agitated fashion.
    Speaking of 3/5ths of a person, Votaperry, it sounds like you’re 3/5ths of a sane person.
    In other words, you’re 2/5ths crazy.
    Or something.

    Elephant Stone (6a6f37)

  35. how many more super serious discussions about the gay marriage do we need exactly Mr. Jester?

    we have a consensus in the federal judiciary already

    gay marriage is one of them things like flat screen tvs and cell phones and k-cup machines and armpit vagina photo clickbait

    they here and they not going nowheres whether we like em or not

    now where that leaves the trannies and the asians and the polywogs I can’t tell you

    I wish them well.

    Except for maybe the trannies.

    And the polywogs.

    happyfeet (8ce051)

  36. Now, see, this is why I don’t like posting most of the time around here. Please quit trying to score “quip points” and smirking at your own self-appointed cleverness. Lots of people don’t like me, but I don’t post very much. But you do have your fan club, so what do I know? Still, independent of that, this is an important topic.

    Fact is, you are not engaging any of the issue that was brought up—which is not actually SSM. This is not a surprise. I’m told you are a smart fellow by people I respect. Why not try losing the silly persona when you write and actually discuss what you believe in a serious fashion…and how your philosophy works in the long run.

    Let me repeat the whole point under discussion: if laws reflect social whim or fashion, what happens in the long term? Is it okay for judges to decide by themselves what is legal and not legal? When do the rights of the governed superceded by the governors…and more to the point, if you like the latter, what do you do when the governors believe in ways you don’t care for?

    Heck, I saw it put very well on Twitter recently. Someone compared how the Left responded when the SCOTUS made a decision the writer agreed with (“Constitutional, bitches!”) versus that same person when SCOTUS made a decision they didn’t like (“Because of these idiots, women will no longer have birth control!”).

    You like this particular judge’s decision. But hey, you used to disagree with any number of politicians on the Left about this—including our current President, and the person who will probably follow him (particularly if more people sit out elections as you did last time).

    Now the judge agrees with you. What if the judge does not? Or what if your views “evolve”?

    Is it that all law is malleable and reflects whatever Jon Stewart thinks is cool? Or Rush Limbaugh?

    “We have always been at war with Eastasia.”

    I don’t like how I am feeling today, which has little to do with this topic. So I need to cultivate a more positive attitude. But this is serious, serious business. What worries me is how easily you and others think it is fine….because you agree with this particular judge at this particular time.

    What about the next time, and the next judge?

    Or is the law whatever our betters in the media want it to be?

    Simon Jester (c8876d)

  37. Great thread – reminds of this site’s glory days. Really powerful comment from Mike K.

    To my mind, the real stumbling block in all of this is the frustration with the idea that we moved from a mechanical, textual interpretation of the Constitution in the good old days to some freewheeling wild west interpretation of the Constitution in the present. Have things really changed so much in such a (historically) brief window? I don’t see any evidence of that. The Constitution has always been politically interpreted (as early as Marbury v. Madison, and even before), and in service of real-world objectives rather than interpretive principles, and in service of powerful people and/or movements.

    So why do we pretend otherwise? Because it is terrifying to think that we are at the mercy of powers increasingly brought to bear on us by our own leaders. As a people, we were raised to think that our salvation from our leaders rested in the courts. So, as the power of our leaders grows (in the hands of increasingly brazen Executives) we cling tighter and tighter to the thing that we were taught was invented to protect us from them: the judiciary. And then, placing (by seeming necessity) so much faith in the courts to adhere to principle, we become frantic with fear in recognition of the increasingly undeniable reality that the Judiciary is only relevant to the extent that it facilitates Executive abuse. The courts can’t stop the determined exercise of gunbarrel power – ask Andrew Jackson. But if they realize that their only path to relevance is collaboration, they can make the Executive’s life a whole lot easier by ruling if favor of the inevitable winning side.

    We’re past a tipping point; the State has self-awareness, now, and exists only to feed itself. Our fault is in failing to see that we have nothing left to rely on but each other, in whatever internally organized communities we can muster for self-defense – be that in militias or terrorist cells or town hall meetings or book clubs or blogs or simple, loyal family units. But it’s a mistake to think that the Constitution was ever anything but a beautiful mask placed over the face of Power, which is the only thing that has ever or will ever decide what can or cannot happen in human life.

    Leviticus (1aca67)

  38. Sam (e8f1ad) — 7/2/2014 @ 11:02 am

    Sam, that’s an interesting response, and I am with you in terms of believing that government should get out of the marriage business altogether and only focus on domestic partnerships, which can exist and be defined irrespective of sexual attraction. This was the late William F. Buckley’s position on the matter too.

    But with respect to incest, isn’t it still actually illegal in most if not all states? That being the case, given the advances in methods of contraception and given our acceptance of formerly taboo same-sex relationships, can we still make a case that incest should continue to be a crime without seeming to be hypocritical?

    JVW (feb406)

  39. I’m overstating it a bit, because it’s hard to articulate urgency in a measured tone. But we have got to stop pretending this country ever really recognized a currency besides power, in government or anywhere else.

    Leviticus (1aca67)

  40. Leviticus,

    And that is exactly the brilliance of the Founders, as well as their document, The United States Constitution.
    They recognized that human beings are inherently flawed and that inside many human beings exists a thirst to accrue power, so they sought to limit the accruement of power.
    That is why being a political conservative is such an easy call to make.

    It’s the left wingers who favor the accruement of power.

    Elephant Stone (6a6f37)

  41. Likewise if the First Church of PETA allows you to marry a llama a la South Park. Again, no consent, no legal nookie.

    The problem is that we’re redefining consent, e.g.—college campuses.

    Hadoop (f7d5ba)

  42. 40. James Madison was a terrible president. Of course he was older, then.

    Sammy Finkelman (95e288)

  43. There are those who consider homosexuality a normal human condition, few bother to research the etymology of the modern day movement for same sex marriage. But the beginnings are important, if you want to understand what is happening today.

    The term “homosexual” was never used until the late 1800′s in Germany. Karl Heinrich Ulrichs, a sexologist and homosexual himself, first wrote about same sex activities. His purpose was to normalize it and to force the elimination of laws that made homosexuality illegal. Four years later, another German, Karoly Maria Kertbeny, coined the phrase “homosexuality” in letters to Ulrichs. Yet, homosexuality was still considered a clinical disorder, with the best hope being the elimination of judicial prosecution for those activies.

    Add to that the Italian Marxist, Antonio Gramsci, who, a devotee of Karl Marx who had his finger on the pulse of movements in Germany, believed that Marxism could be achieved through non-violent means by changing the culture. Part of those changes included the destruction of the family unit and the normalization of abnormal sexual behavior. Gramsci concluded this could be achieved by first destroying the Church, secondly destroying the family unit, third destroying any belief in morals. Once this was achieved, human nation being what it is and humans wanting something to believe in, would turn to the government for all their needs. Gramsci also believed that children would have to be indoctrinated (in public school settings) before the age of 12 because after the age of 12, children were forming their own opinions and would not totally accept Marxism.

    Jump to the days of Harvey Milk and the Gay Liberation Front. Perhaps Mr. Happyfeet can tell us when, ever in the history of medical progress, a mental disorder ceased to be a mental disorder simply because some said it no longer existed. Because that is exactly what happened when psychiatrists from the APA were threatened, intimidated, and had death threats lobbed at them from the California Gay Liberation Front. The Gay Liberation Movement adopted the tactics of Marx, knowing that fear (of retaliation) would prove to be greater than a person’s personal, or even professional, opinions. Hence, the threats against the psychiatrists during their San Francisco convention.

    But the claim back then was simply that homosexuals merely wanted the rights of “privacy” and used Lawrence v. Texas to push that goal (the truth be known, Lawrence was the result of a gay lovers spat). Once that was achieved, the movement then turned to same sex marriage, although early homosexual activists have subsequently admitted that same sex marriage was never the goal. The goal is to be declared a “privileged” group. Tolerance is not what this is all about. It is about forced acceptance. By any means possible.

    One other thing: Mr. Happyfeet links to a Wikipedia article about marriage licenses. It leaves a lot to be desired. Marriage licenses were first granted in the colonies for one reason; the Common Law protection of a child’s right to inheritance as we became a propertied society. It was to avoid litigation when a man had more than one family. I suggest Mr. Happyfeet find a more reliable source than Wikipedia.

    retire05 (163c58)

  44. Sammy,

    How was James Madison a ‘terrible’ President ?

    Elephant Stone (6a6f37)

  45. Leviticus (1aca67) — 7/2/2014 @ 1:29 pm

    Leviticus, that was well-written and profound. Indeed, this has been one of the better Patterico threads in recent memory.

    At the risk of injecting my own political preferences, I think one thing that we can do to reduce the “powers increasingly brought to bear on us by our own leaders” is to have a healthy respect for Federalism and start to devolve more state power down to local levels. Yes, it means that two different states — or two different cities, or even two different neighborhoods for that matter — might have vastly different levels of tolerance for issues like minority concerns, gun rights, sexual mores, and economic policies, but it would also help undo this frustration that both the left and right feel where an unaccountable elite conspire to enforce their will on the rest of us.

    Just as a city like Seattle can unilaterally choose to raise their minimum wage to $15/hour, so too should a rural area with high levels of unemployment be allowed to experiment with having no set minimum wage. A state like Vermont can try out a single payer health plan, but a state like Wyoming ought to be able to test a system of personalized health spending accounts and fee for service. If Arizona wants to deny all benefits to illegal immigrants they should be allowed to do so, while if California wants to give them driver’s licenses and work permits then they ought to be able to do that too. If you don’t like the situation where you live, you should be encouraged to head somewhere that is more friendly to your world view. I really think this would go a long way towards healing the rift that seems to be developing among our citizens.

    JVW (feb406)

  46. #38 Sam:

    B

    ut with respect to incest, isn’t it still actually illegal in most if not all states? That being the case, given the advances in methods of contraception and given our acceptance of formerly taboo same-sex relationships, can we still make a case that incest should continue to be a crime without seeming to be hypocritical?

    If homosexuality is to be considered part of the normal human condition (a person being sexually attracted to a someone of the same sex) how can we not accept incest, and beastiality, also part of the normal human condition?

    retire05 (163c58)

  47. Elephant Stone (6a6f37) — 7/2/2014 @ 1:49 pm

    How was James Madison a ‘terrible’ President

    He let himself be argued into supporting the War of 1812.

    Sammy Finkelman (95e288)

  48. 43 retire05 — since I’m the one who linked to Wikipedia, I’ll just say “Citation Required”. Marriage licenses were used (not always required) long before this continent was discovered by Europeans.

    htom (412a17)

  49. Leviticus: But it’s a mistake to think that the Constitution was ever anything but a beautiful mask placed over the face of Power, which is the only thing that has ever or will ever decide what can or cannot happen in human life.

    I respectfully disagree. It’s easy for those today who have no understanding of what Lewis called objective values to see history, and all others, that way. There is no other reality to such a one.

    But for those who do have some conception of objective value, there is more than power. There is value elsewhere which is (or was) potent enough to affect even the behavior of government.

    The current administration views constitutional government as just another traditional value to be put aside or as Lewis would say debunked. This is new, or to a new and unprecedented degree. Which proves my point.

    Amphipolis (d3e04f)

  50. If homosexuality is to be considered part of the normal human condition (a person being sexually attracted to a someone of the same sex) how can we not accept incest, and beastiality, also part of the normal human condition?

    Well, we can still ban beastiality on the same principle by which we ban pedophilia: the lack of the ability to properly consent on the part of one of the parties. But where you have two consenting adults, I wonder how you can continue to argue for a prohibition on incest.

    JVW (feb406)

  51. He let the Bank of the United States expire, only to sign a bill establishing another one about 5 years later.

    Sammy Finkelman (95e288)

  52. “They recognized that human beings are inherently flawed and that inside many human beings exists a thirst to accrue power, so they sought to limit the accruement of power.
    That is why being a political conservative is such an easy call to make.”

    - Elephant Stone

    They failed. That’s why being a political conservative or a political liberal kinda doesn’t matter.

    Leviticus (1aca67)

  53. Where was James Madisons’s understanding of people and public issues?

    Sammy Finkelman (95e288)

  54. “Perhaps Mr. Happyfeet can tell us when, ever in the history of medical progress, a mental disorder ceased to be a mental disorder simply because some said it no longer existed.”

    - retire05

    Female Hysteria?

    Leviticus (1aca67)

  55. Leviticus,

    If you believe that politicians/government which attempt to accrue power is not a good thing, then you should support those who wish to limit that power.
    Conservatives seek to limit that power.
    Whereas left wingers seek to expand the power of government.

    And nihilists tend to believe that nothin’ matters, and blah, blah, blah.

    Elephant Stone (6a6f37)


  56. Where do you stop? After all, Asians are clearly discriminated against in the University of California admissions system, compared to Latinos and African Americans.

    That’s right. As I noted in 1998 in a fevered reply to Nobel Laureate Toni Morrison’s pre-Obama assertion that Bill Clinton was “blacker than any actual black person who could ever be elected in our children’s lifetime,” Asians were at one time persecuted as “the other,” legislated against, and exploited as cheap labor. Nevertheless, they conquered the stereotypes cast upon them so effectively that now, they are often openly referenced as superior to Caucasians. And along with that distinction comes a new kind of persecution: The notion that Asians are doing well at the expense of other racial/ethnic groups, and should be cut down to size — just like white people.

    L.N. Smithee (e750c1)

  57. Sammy,

    Why are you asking me rhetorical questions about James Madison’s presidency ?
    You made the initial statement that he was a bad President, so I’m asking you to tell me how he was a bad President.

    Elephant Stone (6a6f37)

  58. Look at what happened. Both the decision to go war in 1812 and the conduct of that war was not very brilliant.

    Here’s a record of Madisons’s presidency. You tell me if it is good.

    http://www.san.beck.org/13-9-Madison.html

    Washington was burned, and he almost got New England to secede, too.

    Sammy Finkelman (95e288)

  59. #54, Mr. Happyfeet, check your own source which says:

    During the early 20th century, the number of women diagnosed with female hysteria declined sharply. Many reasons have been attributed to this decline. Many medical authors claim that the decline was due to laypeople gaining a greater understanding of the psychology behind conversion disorders such as hysteria.[6]

    It was a gradual reduction in diagnosis. Not just removed, over night, from the DSM as homosexuality was. If doctors get together and claim that TB is no longer a disease, does that make it true if there was no cure found to eradicate TB? Because that is exactly what happened in the DSM.

    retire05 (163c58)

  60. Sammy,

    So if you believe that Madison was not a good President, how does that pertain to this thread ? Does it invalidate his work as a “founding Father” ? Does it invalidate the Constitution somehow ? Why did you choose to bring up Madison ? I’m afraid I’m not following you on this one.

    Elephant Stone (6a6f37)

  61. “Conservatives seek to limit that power.”

    - Elephant Stone

    The ones in power don’t. Conservatives have done as much as liberals for the expansion of Executive power over the past 15 years or so.

    Leviticus (1aca67)

  62. JVW#46—I like that idea: each state as a Petri dish for different types of governance. It would be the death of Federalism, but so long as there are open borders among the member states, why not?

    Of course, the system in place is all about “one ring to rule them all.”

    Simon Jester (c8876d)

  63. Completely off topic, but everyone — especially happyfeet — will surely be pleased to learn that the emperor penguins are not endangered after all. Like the caribou last year, they haven’t been dying off, they’ve just moved.

    Milhouse (b95258)

  64. The ones in power don’t. Conservatives have done as much as liberals for the expansion of Executive power over the past 15 years or so.
    Leviticus (1aca67) — 7/2/2014 @ 2:44 pm

    Which proves that they have deliberately mislabeled themselves to perpetrate a fraud upon their constituents.

    askeptic (efcf22)

  65. Well, you can excuse any sect’s misconduct by relabeling its miscreants.

    Leviticus (1aca67)

  66. the emperor penguins are not endangered after all

    Al Gore last seen in a corner, clutching his wallet, crying uncontrollably.

    retire05 (163c58)

  67. Simon Jester (c8876d) — 7/2/2014 @ 2:51 pm

    No!
    That is the essence of Federalism, each state is a “laboratory of democracy” finding out what works, and what doesn’t…
    Laboratories of democracy is a phrase popularized by U.S. Supreme Court Justice Louis Brandeis in New State Ice Co. v. Liebmann to describe how a “state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

    askeptic (efcf22)

  68. There are very few actual “conservatives” within the Beltway…most everyone there would be considered ‘card carrying’ members of what Angelo Codevilla describes as “The Ruling Class”, whether of a “D” or “R” persuasion.

    askeptic (efcf22)

  69. The ones in power don’t. Conservatives have done as much as liberals for the expansion of Executive power over the past 15 years or so.
    Leviticus (1aca67) — 7/2/2014 @ 2:44 pm

    Oh, I think Obama makes ‘em all look rather unserious in that respect. In the expansion of the Executive, Hell, The State, he’s a Playah… The Mack.

    Colonel Haiku (73e7c0)

  70. Obama writes and enacts legislation on his own, all to further his far left policies and vision… his much vaunted fundamental transformation of this nation into something nearly unrecognizable.

    Colonel Haiku (73e7c0)

  71. Elephant Stone (6a6f37) — 7/2/2014 @ 2:34 pm

    So if you believe that Madison was not a good President, how does that pertain to this thread ? Does it invalidate his work as a “founding Father” ? Does it invalidate the Constitution somehow ? Why did you choose to bring up Madison ? I’m afraid I’m not following you on this one. ?

    If he wasn’t so good at practice, maybe he wasn’t so good at theory.

    The dangers he guarded against maybe weren’t so great, but there were other more practical dangers he didn’t guard against, like incompetence or compromising to get a bad result.

    Sammy Finkelman (d22d64)

  72. Askeptic, sorry if I misused the terminology. I think you mean “New Federalism” while I am still thinking of Revolution-era labels. But the overarching hand of central government will prevent any such “laboratory of democracy” these days.

    Simon Jester (c8876d)

  73. > In the expansion of the Executive

    The power of the executive seems to have been continuously expanding ever since the late 1970s. There was an attempt by Congress, after Watergate, to rein it in … and since the immediate post-Watergate years, that effort has been abandoned, and executive power has simply grown.

    aphrael (e777bc)

  74. Simon Jester (c8876d) — 7/2/2014 @ 3:29 pm

    Only if the Congress, and Courts, allow it to.

    askeptic (efcf22)

  75. It has, aphrael. What is interesting to me, is how many conservatives didn’t like it when GWB expanded powers, and how many progressives are either silent or pleased when BHO does it. It’s worrying, I can promise you that the future does not ONLY have progressive friendly executives.

    It’s a strange sort of short-sightedness, mixed with historical blinders, that allow that kind of hypocrisy to prosper.

    Now, some people would love it if our First Aristocrat makes a decision unilaterally that they approve of…but the next First Aristocrat may make a decision that they really, really don’t like.

    I suspect progressives see politics as a ratchet that only moves in one direction.

    Less government, more freedom.

    Simon Jester (c8876d)

  76. If there is no objective reality and no God, do as you please.

    If there is no God, there can be no objective reality. Everything is just slam-banging around the universe and our lives then have no meaning, no purpose, and are to no end. It becomes nose, nose, anything goes, both in the individual and collective lives. Why wouldn’t it? And if that is the prevailing view, the Constitution conveniently is little more than a document that exists in a state of malleable flux. It can be shaped and molded into anything a cause needs it to be. And causes come and go and change with the tides. If there is no longer an anchor to maintain balance, to steady the turmoil enough to render reason and intent, then what is left? Chaos. Unfortunately, the chaos isn’t recognized for what it is, rather it is courted, embraced and welcomed as progress. Because of the inherent compelling need for power in man, which the Founders understood, it blinds to the truth of what is happening.

    I am reminded of Ecclesiastes, wherein Solomon is so wearied by the futility of man indulging his fallen self, laments:

    A generation goes, and a generation comes,
    but the earth remains forever.

    The sun rises, and the sun goes down,
    and hastens to the place where it rises.

    The wind blows to the south
    and goes around to the north;
    around and around goes the wind,
    and on its circuits the wind returns.

    All streams run to the sea,
    but the sea is not full;
    to the place where the streams flow,
    there they flow again.

    All things are full of weariness;
    a man cannot utter it;
    the eye is not satisfied with seeing,
    nor the ear filled with hearing.

    What has been is what will be,
    and what has been done is what will be done,
    and there is nothing new under the sun.

    Is there a thing of which it is said,
    “See, this is new”?
    It has been already
    in the ages before us.

    There is no remembrance of former things,
    nor will there be any remembrance
    of later things yet to be among those who come after.

    It can be so distressing to see where we are now (and yes, the changes are there), it’s good to keep the big picture in mind and hold the long view while reminding oneself that this all a temporal state.

    Dana (4dbf62)

  77. 74-…more…
    The concept of “Federalism” that I adhere to is what Mr. Madison expressed in his drafting of the Constitution, where the Federal Government has a small number of strictly enumerated powers, with the greater overall power being held by the Several States.
    In the last 100-yrs we have gotten away from that system – just when did Progressivism come onto the scene BTW?
    The “New Federalism” is an attempt to return to that original relationship between the States and their creation, the Federal Government. Repealing Prohibition was a start (plus the Feds, and everyone else, needed the money that the whiskey-tax provided), an even better continuation of it would be the repeal of the 16th and 17th Amendments, and the reining in of the Federal Reserve – all Progressive ‘improvements’ to ‘our Democracy’, but which have and continue to destroy the Republic.

    askeptic (efcf22)

  78. Completely off topic, but everyone — especially happyfeet — will surely be pleased to learn that the emperor penguins are not endangered after all. Like the caribou last year, they haven’t been dying off, they’ve just moved.

    Better find some other adorable yet allegedly endangered animals for Hollywood to exploit tout suite.

    JVW (feb406)

  79. @ Simon Jester,

    What is interesting to me, is how many conservatives didn’t like it when GWB expanded powers, and how many progressives are either silent or pleased when BHO does it. It’s worrying, I can promise you that the future does not ONLY have progressive friendly executives.

    It’s a strange sort of short-sightedness, mixed with historical blinders, that allow that kind of hypocrisy to prosper.

    It’s interesting you mention this as today I listened to an interview on NPR where an assistant law prof from Texas and a fellah from the American Enterprise Institute discussed Boehner’s pending suit against Obama re his executive actions. While the AEI guy agreed that Obama has overreached, he was quick to point out that Bush was far more guilty of this. It was easier to focus on this, I guess. The law prof agreed, however he countered that he was more inclined to discuss the actual impact their individual executive actions have had on the nation…

    Dana (4dbf62)

  80. The Obama Years…
    2009-2010: No compromise
    2011- 2013: “Republicans are The Enemy”
    2014-2016: Republicans are The Enemy, “I don’t care and I’m going golfing”

    Colonel Haiku (4a65e2)

  81. It has, aphrael. What is interesting to me, is how many conservatives didn’t like it when GWB expanded powers, and how many progressives are either silent or pleased when BHO does it. It’s worrying, I can promise you that the future does not ONLY have progressive friendly executives.

    That’s why all of the hang-wringing on the left over the Hobby Lobby decision amazes me. Don’t they realize that a Republican-appointed HHS Secretary could come in and undo the contraceptive mandate with one stroke of the pen? Free birth control was not something codified in ObamaCare, it was one of those groovy “the HHS shall determine and decide. . .” clauses.

    Seriously, is the HCA the single worst piece of legislation ever passed through Congress, apart from maybe the Aliens & Sedition Acts and the Fugitive Slaves Act? The HCA makes all of the New Deal and Great Society legislation seem almost rational.

    JVW (feb406)

  82. Dana, I have a friend at another institution who is all atwitter about POTUS, calling him “The finest President of my lifetime.” Mind you, this person has spanned Eisenhower (saving the West from Nazis…doesn’t count), JFK (doesn’t count), LBJ (the very architect of the Great Society my friend is in love with…doesn’t count), and so on.

    I don’t argue politics with my friends—I don’t have so many I can afford to lose any of them—but I wonder what it is that makes this person so important to people like my friend.

    I think it is narcissism. How they feel about themselves, supporting him. Because by objective standards, this is has not been a successful Presidency.

    But…everything bad is GWB’s fault. Everything good is BHO’s.

    Bring on the Victory Gin.

    Simon Jester (c8876d)

  83. Again, Obama writes/re-writes/enacts laws (e.g., ObamaCare, Immigration)… Bush and Clinton wrote more (both having served two full terms) but help me understand where either of them did anything that compared to what TFG is trying to pull.

    Colonel Haiku (4a65e2)

  84. JVW, my “ratchet theory” is the only explanation. They don’t think that anyone with a “non-D” after their names can do any of these things. Bizarre as that sounds.

    Simon Jester (c8876d)

  85. Wrote more EOs…

    Colonel Haiku (4a65e2)

  86. Heck, Colonel, I remember reading how terrible playing golf was for Presidents. Until now.

    http://1.bp.blogspot.com/-jbMCuiFh0lE/Ui3_bJcVHdI/AAAAAAAACGI/J_vFUu6kX9A/s1600/Hippie+Girl.jpg

    We fought so hard to move away from aristocracy. But we seem to crave it.

    Simon Jester (c8876d)

  87. From https://www.worldwildlife.org/species/directory?direction=desc&sort=extinction_status , I’ll suggest the Yangtze Finless Porpoise, https://www.worldwildlife.org/species/yangtze-finless-porpoise ; your suggestion may vary. I was tempted by the leopard.

    htom (412a17)

  88. “What is interesting to me, is how many conservatives didn’t like it when GWB expanded powers, and how many progressives are either silent or pleased when BHO does it.”

    - Simon Jester

    Please. Huge portions of conservatives fell all over themselves to laud GWB’s expansion of executive powers.

    Leviticus (1aca67)

  89. Obama has gone further. But let’s not forget the complicity of the conservative electorate providing Obama with the precedent that served as his jumping-off point.

    Leviticus (1aca67)

  90. While the AEI guy agreed that Obama has overreached, he was quick to point out that Bush was far more guilty of this

    But he wasn’t. The record speaks for itself.

    Milhouse (b95258)

  91. Please. Huge portions of conservatives fell all over themselves to laud GWB’s expansion of executive powers.

    In what way did he expand them?

    Milhouse (b95258)

  92. Obama has gone further. But let’s not forget the complicity of the conservative electorate providing Obama with the precedent that served as his jumping-off point.

    Examples, please.

    Milhouse (b95258)

  93. #86… true that, Simon!

    Colonel Haiku (2d77cf)

  94. I don’t argue politics with my friends—I don’t have so many I can afford to lose any of them—but I wonder what it is that makes this person so important to people like my friend.

    I have this theory that conservatives tend to see the President has someone you hire to do a job. It’s all good and well if you like and admire the person, but you don’t feel the need to be devoted to him. I’m a bit too young for Nixon, but I think my parents thought he was largely an intelligent and capable man who had served his country in time of war and had values similar to their own, but I know that they never swooned over Nixon or found themselves really really wishing that they could hang out with him and become buddy-buddy.

    But liberals seem to want something else in their President. Think of JFK, Clinton, and Obama, who were really cultural touchstones as much as they were men who signed a four-year contract for an executive position. Liberals (and especially young liberals) seem to have this impulsive need to worship their President like Bobby-Soxers worshiped Sinatra and Beatlemaniacs worshiped the Beatles. It’s not enough that the object of their affection be bright, capable, honest, and hardworking, he also (and even more importantly) has to be handsome, cool, hip, and fashionable. It’s as if they are seeking an older brother or best friend instead of a Chief Executive. It’s true that some conservatives — Reagan is an obvious choice here — end up being pop culture fixtures too, but by and large I think that sort of sentiment is more pronounced among liberals. And because they invest so much emotionally in a candidate, they feel the need to defend them to the bitter end no matter what.

    JVW (feb406)

  95. Leviticus seems to suffer from selective amnesia in not remembering all of the criticism leveled against Bush, Hastert, DeLay in the first 6-yrs of the GWB administration within these pages.

    askeptic (efcf22)

  96. JVW@4:37–that is a great observation. I don’t think I ever looked at it in quite that way before, but as I think about it I believe you are on to something. With so much of the left’s narratives and pet causes based purely on feelings, and emotional responses, and group bonding, why wouldn’t they form a strangely inappropriate emotional celebrity-like attachment to their presidents, too? You know those current web ads that say “click here to sign the petition and tell Barack you have his back”? (And he’s not even running for anything?) I can’t imagine ever seeing something like that on a right leaning blog begging for attaboys for a sitting Conservative president, can you?

    elissa (1f8a0a)

  97. Had to go to work. :)

    But with respect to incest, isn’t it still actually illegal in most if not all states? That being the case, given the advances in methods of contraception and given our acceptance of formerly taboo same-sex relationships, can we still make a case that incest should continue to be a crime without seeming to be hypocritical?
    JVW (feb406)

    Well, as I noted, I see the incest issue consisting of two critically separate and distinct elements:
    1. The definition
    2. The power differential and economic factor

    Beyond birth control, basic genetic screening can handle most reproductive issues at this point.
    That doesn’t address anything in regards to whether the encounter is actually consensual.
    Look at “Woody Allen incest”:
    Not only isn’t that his daughter;
    Not only isn’t that his step-daughter;
    But that isn’t even his formerly non-cohabiting mistress’s biological daughter.
    In terms of genetics, they are about as utterly unrelated as you can get.
    But people freak out because he “raised” her and that she might have been underaged when he started.
    That’s about on the level of calling it “incest” if you marry the girl next door because your older sister would baby-sit the two of you together.

    That’s why I say in order to forestall any complaints about hypocrisy in regards to reproductive potential, just skip to outlawing it on the presumption of coerced contract and leave it at that.

    I would also note that in conventional parlance, incest tends to wind up being an aggravating classification of child sexual abuse/rape rather than a particularly pursued offense in and of itself.
    That’s a peeve of mind in regards to the standard accepted circumstances for abortion – rape, incest, or the life of the mother. Do two “consenting” adults need a particular exception because they want to “keep it in the family”?
    And then there is the question as to whether rape is “better” or “worse” when it is done by a family member as opposed to a non-family member.
    So again, skip the parsing and just focus on the actual crime and leave it at that.

    Sam (e8f1ad)

  98. the 14th Amendment…didn’t even address the right of blacks to vote, which is why a Fifteenth Amendment was thought necessary

    It actually did address this, but in a different, non-absolute, way. A satte that did not allow some U.S. citizens to vote was to lose representation in Congress in proportion to the people not allowed to vote. This provision has never been enforced, partly because the deprivation of tghe right to vote in the south was later done mostly unofficially.

    If you take out your misleading ellipsis, Sammy, and read the post again, you’ll see that the thing that didn’t address the right of blacks to vote was “equal protection.”

    Patterico (9c670f)

  99. Great thread – reminds of this site’s glory days.

    I . . . thought the site still was in its glory days.

    :)

    Patterico (9c670f)

  100. But they *deliberately chose* to use words that had a much broader plain meaning than the cases they were imagining it to cover. If it’s true that they meant access to courts, owning property, and contract rights, why did they not delimit it? To me, to ask the question is to answer it: they didn’t delimit it because they knew there might be cases that should be covered that they weren’t coming up with, because they knew that a list would imply anything not on the list was excluded, and because they saw the examples as instances of a general principle that the state should treat similarly situated people equally.

    Equal protection simply means that the law has to apply equally. Anti-SSM laws apply equally to everyone because everyone is equally prohibited from SSM. This is not like a law that, for example,l recognizes SSM only among couples where both partners are 16 years or older, or where SSM is only recognized for white couples. In this case there is no recognition for anyone, period.

    Michael Ejercito (becea5)

  101. Hey Sam:

    From your earlier response regarding power differential and economic factor:

    What then for incest? Simply, the potential for coercion, especially economic coercion, is so great as to make it impossible to legally sanction. This can easily be demonstrated by the history of such unions being predicated on maintaining accumulated wealth. Add in the coercive potential of an ancestor over a descendant and the evidence becomes insurmountable against granting legal status to such marriages.

    I fear that economic coercion might be too thin a reed upon which to float an incest ban. What if the younger party in the relationship is already independently wealthy? And if society starts to worry about economic coercion as a basis for marriage, should the state then step in and block the union next time some 60-year-old billionaire tries to marry a 22-year-old Playboy Playmate? Beyond economic issues and just to the point of coercion in general, should any potential Svengali-like relationships be banned? A tenured professor can never marry a research assistant or a symphony conductor can never marry a violinist? It would be pretty hard to chart a path where you can limit the coercion clause to only cases of incest.

    JVW (feb406)

  102. My state has different categories for incest and for exploitation/abuse/assault of vulnerable persons. Different rules as well, regarding consaguinity and affinity, for adult consensual sex outside marriage and for marriage. Most jurisdictions are moving in that direction, and away from the monolithic application of the ecclesiestical, common law and civil law rules.

    nk (dbc370)

  103. To my mind, the real stumbling block in all of this is the frustration with the idea that we moved from a mechanical, textual interpretation of the Constitution in the good old days to some freewheeling wild west interpretation of the Constitution in the present. Have things really changed so much in such a (historically) brief window? I don’t see any evidence of that. The Constitution has always been politically interpreted (as early as Marbury v. Madison, and even before), and in service of real-world objectives rather than interpretive principles, and in service of powerful people and/or movements.

    Absolutely so. Whenever I hear people talk about modern-day excesses as unprecedented, I conclude that they don’t know much history. There have been horrible abuses of power from almost the beginning of the country. Look at the Sedition Act of 1798, for example, or just about any major decision John Marshall issued.

    So why do we pretend otherwise? Because it is terrifying to think that we are at the mercy of powers increasingly brought to bear on us by our own leaders. As a people, we were raised to think that our salvation from our leaders rested in the courts. So, as the power of our leaders grows (in the hands of increasingly brazen Executives) we cling tighter and tighter to the thing that we were taught was invented to protect us from them: the judiciary. And then, placing (by seeming necessity) so much faith in the courts to adhere to principle, we become frantic with fear in recognition of the increasingly undeniable reality that the Judiciary is only relevant to the extent that it facilitates Executive abuse. The courts can’t stop the determined exercise of gunbarrel power – ask Andrew Jackson. But if they realize that their only path to relevance is collaboration, they can make the Executive’s life a whole lot easier by ruling if favor of the inevitable winning side.

    We’re past a tipping point; the State has self-awareness, now, and exists only to feed itself. Our fault is in failing to see that we have nothing left to rely on but each other, in whatever internally organized communities we can muster for self-defense – be that in militias or terrorist cells or town hall meetings or book clubs or blogs or simple, loyal family units. But it’s a mistake to think that the Constitution was ever anything but a beautiful mask placed over the face of Power, which is the only thing that has ever or will ever decide what can or cannot happen in human life.

    I understand where you’re coming from . . . but.

    I think you’re right to be suspicious of government power, and there are those who argue that there is no such thing as the rule of law. That said, our written Constitution actually has restrained many people in the past, whether through self-restraint out of respect for its provisions (rare), or though one branch restraining the excesses of another.

    I don’t know that I believe in the ability of an anarchical society to keep order and provide for the common defense. I think the Constitution was a flawed but fairly admirable attempt to set up a limited government that would provide the minimal authority necessary. Unfortunately, the warnings of those who feared the effects of centralization were not heeded, and everything they predicted has come to pass, and then some.

    What to do? As I have said, the Constitution is dead. But maybe it could some day rise again. We can give up, I suppose. Or we could try to fix the problem.

    One of the best ways would be to convince a majority of the American people that it actually matters whether judges adhere to the provisions of the Constitution. With little posts like this one, I’m trying to do my little part.

    To me, getting government out of our lives, and making it smaller and less centralized, is a cause worth fighting for.

    Patterico (9c670f)

  104. “Conservatives seek to limit that power.”

    - Elephant Stone

    The ones in power don’t. Conservatives have done as much as liberals for the expansion of Executive power over the past 15 years or so.

    Indeed. askeptic claims that means they have mislabeled themselves, and perhaps some have. But only people who truly seek to limit government power deserve our support.

    I have always willing to concede a little on the tactics, in deference to realism. But I am less patient these days, as we continue to rush headlong into fiscal oblivion. And I have no patience with those like Cochran, who court votes by using rhetoric appealing to dependence. Always, always the goal must be to foster independence among the citizenry. If you boast of how you prop up your district with federal dollars, you should be tossed out on your ass. If that means tossing out every single Congressman and Senator on his or her ass, then that’s what it means.

    Again: I am losing patience. And somehow, I sense that I am not alone in doing so.

    Patterico (9c670f)

  105. @ JVW,It’s not enough that the object of their affection be bright, capable, honest, and hardworking, he also (and even more importantly) has to be handsome, cool, hip, and fashionable. It’s as if they are seeking an older brother or best friend instead of a Chief Executive.

    I blame Rolling Stone. It’s so incredibly telling they *need* an object of affection in the first place. Generalizing here, but it’s a touchy-feely group, and that’s what makes it so difficult to actually thoughtfully debate an issue with one. Their default response to most issues is emotional and defensive.

    If you look at Obama’s responses to situations, he uses emotional responses to get people to go to his side and his way of thinking on the matter, or uses it to guilt them into it… Example: the recent influx of immigrants is framed as a “humanitarian crisis”. It’s emotional – *we feel badly for the people involved, we want to help, etc. Because of his skillful transfer and manipulation of that emotion to the public, he is then able to have his way. It’s a very dishonest way of negotiating. Unfortunately, as was evidenced by his winning two elections, it’s a method that works.

    Generic “we”…

    Dana (4dbf62)

  106. @ Simon Jester,I don’t argue politics with my friends—I don’t have so many I can afford to lose any of them—but I wonder what it is that makes this person so important to people like my friend.

    I think it is narcissism. How they feel about themselves, supporting him. Because by objective standards, this is has not been a successful Presidency.

    I just don’t think it profits much to argue politics with friends who have differing views. If they bring up issues, I’ll certainly speak up *but* not with any intent to offend or belittle. I value friendship more than having my views agreed with. However, there is a certain line of moral belief and principle that they have (otherwise I wouldn’t be friends with them)that frequently is the doorway to discussing issues (abortion, SSM, Monday’s ruling, etc). Those are the the “organic” opportunities that naturally unfold and conversation is then profitable.

    People always like to believe they are on “the right side of history”. It confirms that they are right, smarter than the other group, have a deeper insight and whatnot. It’s along the lines of Mark Morford at SFGate who understood and tried to get us to understand,too, if not for our limited vision, that Obama is not fully human, but a lightworker. They are precious in their own eyes.

    Dana (4dbf62)

  107. Dana, thank you. I suspect people need a deity of some form. I question their narcissistic choice. Thanks for the comment.

    Simon Jester (ad5df4)

  108. Leviticus, and Patterico,

    Please stop equating “conservatives” with “Republicans.”
    Especially, you, Patterico, should know better.
    Leviticus…I honestly don’t expect him to make such a delineation.

    Whether or not “Republicans” have successfully stemmed the tide of left wing idiocy, conservatives who still advocate for limited powers and smaller government are attempting to, well, by definition, stem the tide of left wing idiocy.
    Whether ELECTED “conservatives” are “successful” at that or not, is an entirely different question.

    Left wingers however, do advocate for (and have been successful at) the expansion of government, and thus, the expansion of power within the hands of elected representatives and bureaucrats.

    It comes down to bare bones, and it is an academic question (goose bumps for Leviticus !!!!)…do you side with people who want to limit the power of government ? Or do you side with the people who wise to incur further intrusion ?

    If a doctor attempts to tell his patients they need to eat fewer calories and exercise more, isn’t he still virtuous with his attempt to persuade them, even if his patients don’t “abide” ?
    Of course, he is.
    Jesus Christ, people.

    Elephant Stone (6a6f37)

  109. Elephant Stone,

    Thad Cochran appealed to voters by arguing that he supported bringing federal dollars for education, and that voters should choose him for that reason — and reject McDaniel because he opposed a federal role in education.

    1) Is Thad Cochran a “Republican” or a “conservative” under your definition?

    2) Is a man who makes that sort of argument worthy of a vote cast by a “conservative”?

    Patterico (9c670f)

  110. I suspect people need a deity of some form. I question their narcissistic choice.

    I blame God. He made Himself utilitarian. “I am your Lord God who delivered you from slavery in Egypt“. “Whosoever believes in me Me shall not perish but shall have eternal life“. “Look what I’ve done for you and, here, I’ll do more”. If he had been a “Do what I say or I’ll smite your disobedient asses” God, people might have a different attitude. ?

    nk (dbc370)

  111. “As several people have pointed out, if SSM is an equal protection issue, why isn’t polygamy?”

    I have never heard a good explanation as to why marriage requires sanction and permission from the State.

    Tom (33d536)

  112. JVW wrote:

    Well, we can still ban beastiality on the same principle by which we ban pedophilia: the lack of the ability to properly consent on the part of one of the parties.

    Well, while you’ll never get the consent of a horse — he’ll always say, “Neigh!” — none of the other animals would express their objections.

    The very snarky Dana (af9ec3)

  113. 98. Patterico: If you take out your misleading ellipsis, Sammy, and read the post again, you’ll see that the thing that didn’t address the right of blacks to vote was “equal protection.”

    True, you said “equal protection” didn’t address the right of blacks to vote but you also said which is why a Fifteenth Amendment was thought necessary which means that nothing in the 14th amendment did.

    I would assume that the reason for mentioning “equal protection” is that that Section 1 is generally the only clause in the 14th amendment anybody pays any attention to. (they did a little to section 4 at the time of the debt limit crisises)

    Sammy Finkelman (032a0d)

  114. 101.I fear that economic coercion might be too thin a reed upon which to float an incest ban. What if the younger party in the relationship is already independently wealthy?

    You mean like the parent of a now-adult child star coercing the child into a marriage to preserve control of the money?
    That sounds like a prime example of what to prevent rather than a case for exemption.

    And if society starts to worry about economic coercion as a basis for marriage, should the state then step in and block the union next time some 60-year-old billionaire tries to marry a 22-year-old Playboy Playmate?

    That is more on the lines of bribery rather than coercion, and ultimately is more related to why outlawing prostitution is always going to be as successful as spitting in the wind.

    Beyond economic issues and just to the point of coercion in general, should any potential Svengali-like relationships be banned? A tenured professor can never marry a research assistant or a symphony conductor can never marry a violinist? It would be pretty hard to chart a path where you can limit the coercion clause to only cases of incest.
    JVW (feb406)

    I can certainly see a public good to be served by such bans, and appealing to classical morality there once were such.
    However I think the reverse is true – it is quite easy to limit the coercion to incest, polyamory, and age/ability to consent. So then limit those, and leave the anti-”seduction” laws to their own section.

    Sam (e8f1ad)

  115. Still, I see you are saying that what people might think would provide a right to vote, (equal protection) doesn’t.

    But “did not address…which is why” is just bad language.

    Sammy Finkelman (032a0d)

  116. But it’s a mistake to think that the Constitution was ever anything but a beautiful mask placed over the face of Power, which is the only thing that has ever or will ever decide what can or cannot happen in human life.
    Leviticus (1aca67) — 7/2/2014 @ 1:29 pm

    In one way I agree that “Power” is everything. But “Power” can exist in the form of a virtuous people humbly seeking to do their best. Apart from virtue and “right making might”, existence (humanly speaking) is at the whim of who out manipulates everyone else, by whatever tactics they use.

    How is this for an apologetic for our terribly imperfect country:
    Have the worst problems of our country come from the logical consequences of our founding ideals,
    or from inconsistency in practice and lack of implementation?
    How so for other countries?
    If the problems have not come from the logical extension and consequences of the ideals, but from inconsistency, perhaps instead of a fundamental change we need more enthusiastic adherence to the best of what has been.

    FWIW: I have virtual no knowledge of John Marshall, but I have an impression from some movie I saw as a child that from what I understood at the time, portrayed him as a great man. I do not know if I misunderstood the movie (whatever it’s name was), or that the redefinition of history has been going on a long time.

    MD in Philly (f9371b)

  117. Tom wrote:

    I have never heard a good explanation as to why marriage requires sanction and permission from the State.

    Certainly you have, in this very thread:

    Marriage licenses were first granted in the colonies for one reason; the Common Law protection of a child’s right to inheritance as we became a propertied society. It was to avoid litigation when a man had more than one family.

    The state needed marriage as a legal institution long before our colonial period, of course, because of the necessity of caring for children and insuring proper inheritance rights; this has been going on for as long as we have records of societies with laws.

    Some how, some way, every single culture about which we know anything at all has had a form of marriage. It’s ubiquity is its own testimony to the fact that humans need marriage as part of the social contract, and our own recent “wisdom” in deciding that, hey, shacking up is just as good, or at least good enough, is proving the reverse, that as you reduce marriage as the common organizing principle, society starts to fall apart.

    The very realistic Dana (af9ec3)

  118. True, you said “equal protection” didn’t address the right of blacks to vote but you also said which is why a Fifteenth Amendment was thought necessary which means that nothing in the 14th amendment did.

    No. Your grasp of simple logic is faulty. Try again.

    Patterico (9c670f)

  119. nk,

    I assume you are somewhat, but not entirely I guess, tongue in cheek.
    He actually did promise that if His people were disobedient there would be what for to pay.

    I think utilitarianism is not a good way of deciding what to do, nor do I think God really is utilitarian in that respect,
    but I think there is a role for utilitarianism in observing what is a indeed good. What is “good” almost (certainly?) must be the best outcome, when all is considered. It is just that we rarely keep in perspective even those things we know to consider, let alone take into consideration things beyond our grasp.

    MD in Philly (f9371b)

  120. But “did not address…which is why” is just bad language.

    I can’t help it that you seem to be confused by a simple concept: if the presence of the equal protection clause were interpreted as addressing equality generally, as a free-floating mandate for equality before the law, then surely it would encompass the right to vote — which would render the Fifteenth Amendment superfluous.

    Patterico (9c670f)

  121. FWIW: I have virtual no knowledge of John Marshall, but I have an impression from some movie I saw as a child that from what I understood at the time, portrayed him as a great man. I do not know if I misunderstood the movie (whatever it’s name was), or that the redefinition of history has been going on a long time.

    He is generally portrayed by history as some kind of hero. In my view, he was not.

    Patterico (9c670f)

  122. FWIW: I have virtual no knowledge of John Marshall, but I have an impression from some movie I saw as a child that from what I understood at the time, portrayed him as a great man.

    Marshall endured the winter at Valley Forge with the Continental Army, so he deserves our respect certainly for that. And he acquitted himself nicely while serving in a U.S. delegation to France in the XYZ Affair by steadfastly refusing to pay bribes to the odious French ministers as a condition of receiving a hearing at Versailles.

    JVW (feb406)

  123. I have never heard a good explanation as to why marriage requires sanction and permission from the State.

    It dates back to the concept of pater familias where the senior male of the family could order the marriage and divorce of his sons and daughters.

    nk (dbc370)

  124. I was being tongue in cheek, MD. He did make a Covenant, two actually, it’s people who are demanding more from the contract.

    nk (dbc370)

  125. 111. Tom (33d536) — 7/2/2014 @ 6:47 pm

    I have never heard a good explanation as to why marriage requires sanction and permission from the State.

    You can’t make laws against adultery and bigamy without defining marriage.

    Of course you could do that after the fact, too, and have a judge or jury decide whether or not a prior marriage existed – there must have been some other reason for keeping track of marriages.

    Mostly, it is that laws apply differently to unrelated individuals and to married couples.

    There used to be several states that had “common law” marriage but this was very much diminished in the mid twentieth century or so.

    It is still recognized, I read, in New Hampshire (only for purposes of probate) Rhode Island, Pennsylvania, South Carolina, Alabama, Iowa, Kansas, Colorado, Montana, and Texas, as well as the District of Columbia, and possibly Oklahoma.

    It was abolished in England in 1753, but that law did not apply to overseas territories (or even Scotland) so it was the status quo in 1776. Scotland abolished it (under a different name) in 2008 and was the last European jurisdiction to do so.

    Why they want to abolish it is not clear but this is apparently to avoid a situation where the existence or non-existence of a marriage is not clear, and people might pick and choose depending on what is of benefit to them, and some people don’t like that idea..

    Sammy Finkelman (032a0d)

  126. Our esteemed host wrote:

    I can’t help it that you seem to be confused by a simple concept: if the presence of the equal protection clause were interpreted as addressing equality generally, as a free-floating mandate for equality before the law, then surely it would encompass the right to vote — which would render the Fifteenth Amendment superfluous.

    No, actually, because the Fourteenth didn’t outlaw such things as property-holding requirements to vote; the Fourteenth could have included the right to vote, yet still allowed states to set up officially neutral but nevertheless discriminatory practices. The Twenty-Fourth Amendment was required to outlaw poll taxes.

    I, however, don’t think that the authors of the Fourteenth had any idea just to what mischief their loose language would lead. This was more a response to Dred Scott v Sanford than anything else, because under that case, the South could still have held that the freedmen were not citizens of the state.

    The historian Dana, who still isn't a lawyer (af9ec3)

  127. Since we are discussing the topic again, I will make a point again.
    The important issue for some of us is not so much whether society/government wants to recognize a committed relationship between a same sex couple as having the same legal standing as a heterosexual couple,
    it is the desire of some to put into law the opinion that same sex relationships are every bit as “normal” as heterosexual relationships,
    and that if you do not at least act like you believe that, you can suffer legal consequences.

    MD in Philly (f9371b)

  128. He is generally portrayed by history as some kind of hero. In my view, he was not.
    Patterico (9c670f) — 7/2/2014 @ 7:06 pm

    Yes, I gathered that, which is why I made my aside.
    I was just commenting that I don’t know any better.

    MD in Philly (f9371b)

  129. 120. Patterico:

    if the presence of the equal protection clause were interpreted as addressing equality generally, as a free-floating mandate for equality before the law, then surely it would encompass the right to vote — which would render the Fifteenth Amendment superfluous.

    A necessary but not a sufficient condition for the 15h amendment.

    It could only be a sufficient condition if nothing else in the 14th amendment granted it.

    Nothing did, but you said the fact that (the famous clause in the 14th amendment) did not “address” the right to vote was the reason the 15th amendment was needed.

    Actually, though, another part of the 14th amendment, did “address” the issue. It just didn’t address it in a mandatory way. But it did address it. To address something means to deal with an issue, not necessarily to deal with it in the most likely way.

    So that wasn’t the reason the 15th amendment was needed.

    Sammy Finkelman (032a0d)

  130. Patterico, you know you will never get Teh Sammeh to admit you were right about anything; he is Authority. But it’s better than giving up.

    Speaking of which, many people look at this system we are discussing, and opt out, give up, say it has always been thus, etc. Cynicism is often a pose assumed by people who once had enthusiastic hopes and dreams than not. But I saw this recently, by some Hollywood parakeet, that struck a chord with me:

    “..Cynicism is kind of like folding your arms and stepping back and commenting on things, like the old guys in ‘The Muppets,’ just throwing out comments all the time, whereas there are other people on the ground really trying to affect things and improve their lives and the lives of other people. I think it’s noble and I think it’s cool…” -Josh Radnor

    That’s pretty good actually. It’s easier to give up, and say nothing matters. And maybe cynics are right.

    But what if they aren’t?

    St. Augustine felt that giving up in the face of awfulness was a kind of sin, and I suspect he was right. I think of how things looked to him at the time—the world was ending from his point of view, in North Africa!–and think of this quote:

    …Pray as though everything depended on God. Work as though everything depended on you…

    Maybe, just maybe, if we roll up our sleeves, we can make things better. And that is much, much better to me than the hopelessness of cynicism, from my perspective.

    YMMV.

    Simon Jester (ad5df4)

  131. Let me make this shorter.

    It didn’t even address the right of blacks to vote, which is why a Fifteenth Amendment was thought necessary

    means that a 15th amendment was necessary because the issue of right of blacks to vote was not “addressed” (ANYWHERE IN THE 14TH AMENDMENT.)

    Or so it seemed on quick reading.

    You didn’t say it didn’t “grant” it, but it didn’t “address” it. This implies that something which you have in mind, (presumably the entire Section 1 of the 14th amendment) can do something less than grant the right to vote,

    Else why use the word “address?”

    I thought of the whole clause.

    Sammy Finkelman (032a0d)

  132. #91

    I recall the libertarian columnist at Washington Examiner arguing that Bush issued some constitutionally dubious executive orders. I can’t recall what they were and I don’t feel like looking it up. But I’m pretty sure they pale in comparison with what Obama’s done, like giving “czars” that aren’t subject to confirmation real executive powers, making recess appointments when they’re not in recess, refusing to enforce laws he doesn’t feel like enforcing. He’s ignored the War Powers Act when he feels like it. I’m probably forgetting a few things.

    Gerald A (9e3e6a)

  133. …which would render the 15th Amendment superfluous…

    But why should we be limited to the understanding of the late 19th Century Supreme Court or 19th Century Congress to the meaning of the word “equal” or “persons”? The old Supreme Court did not see the guarantee of equal protection of the law provided to “all persons” as applying to women, or protection against the schemes of Southern states to deprive, through various means, ex slaves of their civil rights. The Congress seeing where this was headed thought it helpful to emphasize the point, at least regarding voting, by putting in a specific amendment. How else were they to make the point clear to the Court and to the Southern States, as against crabbed interpretations of the 14th Amendment?

    Using the 15th Amendment as a retroactive nullification of any applicability of the 14th Amendment to voting, is unconvincing. There is nothing to stop Congress from being mildly redundant.

    And if we are held to the understanding of 19th Century congresspeople, then the literal words of the 14th Amendment, that all persons are guaranteed equal protection of the laws, is then reduced to psychoanalyzing what those now dead persons would have thought was meant by “persons” or “equality”. Laws putting gays in prison would then be unobjectionable under the Constitution even if people today though gays were human. Your only alternative would be to amend a Constitution, as against a determined minority of Congresspeople and states that may still hold anti-gay animus. And looking at the U.S. today, there clearly is such a determined minority.

    Another party (8e12a4)

  134. Let me make this shorter.

    It [the Equal Protection Clause is what I assume you mean by "it" here -- P] didn’t even address the right of blacks to vote, which is why a Fifteenth Amendment was thought necessary

    means that a 15th amendment was necessary because the issue of right of blacks to vote was not “addressed” (ANYWHERE IN THE 14TH AMENDMENT.)

    No. Try to follow, Sammy.

    The 15th Amendment was necessary because the right of blacks to vote was not guaranteed by the 14th Amendment.

    The post is about gay marriage, and the fact that a part of the 14th Amendment — the equal protection clause — did not extend to every legal right one could imagine. If, for example, the equal protection clause were considered to have addressed the question of blacks’ right to vote, it would necessarily have guaranteed it — since, under that interpretation, “equal protection” would encompass an equal right to vote.

    But it didn’t. As proof, note the necessity for the Fifteenth Amendment.

    So: saying that the Equal Protection Clause did not address the right to vote is NOT the same as saying the 14th Amendment nowhere addressed voting.

    And: saying that the 14th Amendment as a whole did not guarantee the right to vote (which I believe is the case, and which I certainly implied, by noting the need for the Fifteenth Amendment at all) is not the same as saying that the Equal Protection Clause, a subset of the 14th Amendment, did not address the right to vote.

    None of this means that the 14th Amendment as a whole did not address the issue of voting at all. I did not say that, and (read properly) nothing I said implied it.

    I’m sure this is boring to almost everyone, which is why I didn’t spell it out in detail the first time, but rather asked you to re-examine your logic. Which you did not thoroughly do.

    Patterico (9c670f)

  135. why should we be limited to the understanding of the late 19th Century Supreme Court or 19th Century Congress to the meaning of the word “equal” or “persons”?

    Another party (8e12a4) — 7/2/2014 @ 7:51 pm

    What are you talking about?

    Gerald A (9e3e6a)

  136. …which would render the 15th Amendment superfluous…

    But why should we be limited to the understanding of the late 19th Century Supreme Court or 19th Century Congress to the meaning of the word “equal” or “persons”?

    Because of what I said in the post, and what Simon Jester said in the post. The answer to that question, if you didn’t notice, is what the whole post is about.

    The old Supreme Court did not see the guarantee of equal protection of the law provided to “all persons” as applying to women, or protection against the schemes of Southern states to deprive, through various means, ex slaves of their civil rights.

    The guarantee in the Fifth Amendment, you mean, which operated against the federal government? No, the Court did not see that as binding the States — and why should it? It was never intended to. So?

    The Congress seeing where this was headed thought it helpful to emphasize the point, at least regarding voting, by putting in a specific amendment. How else were they to make the point clear to the Court and to the Southern States, as against crabbed interpretations of the 14th Amendment?

    The Congress, being part of the Union, which won the war, passed amendments to ensure that the losing party, the South (as well as all other states), guaranteed certain rights to blacks/former slaves.

    Using the 15th Amendment as a retroactive nullification of any applicability of the 14th Amendment to voting, is unconvincing. There is nothing to stop Congress from being mildly redundant.

    That’s why I cited the research of Raoul Berger in the post. The existence of the 15th and 19th Amendments is only one argument in favor of the contemporaneous understanding of the meaning of the 14th Amendment, and in particular its Equal Protection Clause. The evidence is abundant and irrefutable, for anyone who cares to actually examine it.

    And if we are held to the understanding of 19th Century congresspeople, then the literal words of the 14th Amendment, that all persons are guaranteed equal protection of the laws, is then reduced to psychoanalyzing what those now dead persons would have thought was meant by “persons” or “equality”.

    It is reduced, as all judging is, to interpreting the written word. If done properly, that judging will attempt to discern the original understanding of the words.

    Laws putting gays in prison would then be unobjectionable under the Constitution even if people today though[t] gays were human. Your only alternative would be to amend a Constitution, as against a determined minority of Congresspeople and states that may still hold anti-gay animus. And looking at the U.S. today, there clearly is such a determined minority.

    There might be other provisions that could arguably govern, but no, the Equal Protection Clause does not speak to homosexuality.

    Patterico (9c670f)

  137. People cannot be punished for their innate and immutable traits which they cannot change to conform to the requirements of the law. That’s not equal protection; that’s fundamental due process.

    nk (dbc370)

  138. Let me clarify something.
    I am only a very little bit concerned about any implications for my life if my view of sexuality is essentially outlawed in the public square,
    I am more concerned for my children and grandchildren,

    and I am even more concerned about the world at large.

    If some things are true, nothing is to be gained by standing aside and doing nothing.
    This is not an issue of bigotry and certainly not irrational, though some of you think it so.
    It is an issue of how we were designed by God, and how we have been corrupted.
    We have all been corrupted, though in some it is more obvious than in others, myself included.

    If we live in a universe with no perception of reality or morals outside of ourselves, then do what you want. The Apostle Paul even said so.
    But if we live in a universe with objective reality and morals outside of ourselves, then to ignore that is harmful and foolish.
    So makes your pick.

    To me it makes much more sense to believe we were made good, messed up, and need the mercy and grace of a loving God than to try to live with the penumbra of thinking we are on our own and each free to do what we please.

    I think there is Truth. I think there is a God. I think He made us to enjoy a relationship with Him.
    I think we chose to go our own way and have suffered the consequences of that deluded and foolish decision in billions of ways.
    The ultimate disastrous consequence of our decision was eternal separation from a loving God.
    He took upon Himself that consequence on the cross on our behalf.
    There is nothing we can do to earn His love, and nothing so bad that we are beyond His love.
    But, we are left with the decision whether we will admit our situation and turn to Him,
    or persist in going our own way.
    God did not make us to be ruled by our sexual desires, whether it be sex outside of marriage, adultery, or same sex relationships; just as he did not make us to be ruled by greed, pride, fear, alcohol, power, insecurity or anyone of a zillion other things.
    Worse than to be ensnared by sin is to encourage those in sin to continue in it.
    God wants more than that for us, God is worthy of more than that from us.

    For many, maybe most, this qualifies as 100% foolishness. So be it.

    You may think this is outside of the items for discussion here. If this was only about the law, then I guess you would be right. But this is not about the law, it is about trying to use the law for self-justification in a sphere outside of the law, trying to use the force of law to not only define what is “normal” or “abnormal” behavior, but to impose consequences for nonconformity to the official position.

    MD in Philly (f9371b)

  139. 1`) you and Jester believe that only by limiting ourselves to the 19th century Congressperson’s own understanding of equality or person are we safe from unbounded interpretations of those terms. This does not follow. Today, “equality” and “[person” have meanings that can be derived and we benefit from the last 100 years or so of people working out the implications. On the other hand, trying to determine what the 19th Century understanding is involves numerous calculations, not of them definitive : who counts for interpretation, floor leaders in Congress, public press, newspaper editorials, those arguing against the amendment in Congress, in state houses? Do only the public statements count as opposed to private writings? There is a wealth of possible sources of intent and trying to decide which actually count will inevitably devolve into cherry picking.

    And there’s the moral/philosophical side. The one advantage you/Jester/Berger present for your theory of constitutional interpretation is that it is more certain. The meaning of the Constitution is frozen in the year of the enactment of a particular provision, and no further thought on the meaning of the terms is relevant. As noted above, I doubt this will make it significantly more certain. I am more sure that it does not make for a better Constitution to simply ignore that what most people now think about the legal status of women, blacks and gays is diofferent than what was thought 100 years ago.

    (I am leaving out for now the proposal, of several such as Dworkin, that those writing the 14th Amendment purposely used general language. That again goes down a rabbit hole of historical quote research).

    2) I refer to the Supreme court cases following the 14th amendment that found discrimination against women to be fine, and the general failure of the Court in subsequent years to find Southern schemes to disenfranchise or discriminate against Blacks a problem. Why do you bring up the 5th Amendment?

    3) What evidence do you have that is irrefutable that those writing a Constitution are not aware that general language will be interpreted broadly? It is a commonplace of statutes to be written broadly with the understanding that they will be given meaning in particular situations by courts. In Brown the Court hashed out at some length whether the 14th Amendment writers did or did not find that segregated schools would be lawful. They found that inconclusive and determined in the end that finding an answer would not be conclusive. Do you think as regards racial segregation the Constitution is limited to whatever the laws of Washington D.C. stated in 1868?

    4) Looking at the words, all persons are guaranteed equal protection of the law I don’t understand your argument that this does not mean that gay persons are guaranteed equal application of marriage laws. What original understanding of equal and person is left out? And how would you apply the 14th Amendment in situations not considered by the 19th Century congress – e.g. to smokers, or illegitimate children? Do you even accept that the legisilsture needs a rational basis to subject a discrete minority to differing treatment?

    5) The EP clause speaks about persons. Homosexuals are persons. How does it not apply?

    Another party (8e12a4)

  140. Re #140:

    Um…I think most of that is beside the point.

    If the Constitution can be made to say anything, it really says nothing.

    And that is fine with some people, who want what they want, because they want it. Fair enough.

    But the question then becomes, what if the fluid definitions come to mean things that are horrifying and awful?

    The “Progressive Ratchet™” never seems to consider that possibility.

    Limits on governmental power are good things, not bad. Progressives think of only people like themselves wielding that kind of situational power, and never, ever consider—for example—Conservatives doing so. It’s antimonic thinking, and has a whiff of amnesia about it (probably due to the lack of teaching about history in our schools).

    Rather like this:

    http://3.bp.blogspot.com/-4huvY-tJvc4/UHDpoQA6PPI/AAAAAAAAAkk/FZbTp1WnmZM/s1600/Illegal+Wiretapping+vs.jpg

    This isn’t really about SSM. It’s about something far, far more important. But if you got what you want, cool. I wonder what a President or judge you don’t like and agree with will do, using the same powers you find fine and dandy now.

    Simon Jester (ad5df4)

  141. MD, I don’t mind your comments on faith and religion, and enjoy your posts. Some folks are traditionally religious, others are atheists, and we all have things to learn from one another….perhaps especially when we disagree. I was raised in a faith-based environment, and though I don’t attend services, I certainly know my Christianity and pray (my minister as a boy used to say I would make a good Jesuit, which I didn’t understand was funny at the time).

    Dana touched on something that has been bandied about a bit among the “pop” science types: is there are genetic need for religion in the human mind?

    http://chronicle.com/blogs/brainstorm/a-god-gene/47327

    There is a certain degree of academic nose-wrinkling in that essay, so apologies ahead of time. You know the saying about academic infighting, right? The reason that academic infighting is so bitter is that the stakes are so low.

    The genetic or biochemical “need” for religion in the human mind is above my pay grade. But I would observe that I know supposedly strict atheists who sure seem to treat their politics the way snake-handling fundamentalists discuss their religion. It may well be there is a “hole” on our souls that only something like religion can fill. And if religion isn’t put there, something must be inserted.

    Even Lightworkers.

    Simon Jester (ad5df4)

  142. But you’re stuck in this false dilemma between the Constituion saying anything, or the Constitution only saying what we, retroactively, predict what the framers of particular language would have said if, having a time machine, we go back in time, explain the modern world to them, and then ask their opinion.

    Those aren’t the only two alternatives. Supreme Court justices are selected to be reasonable people doing their best to give words meaning, which will necessarily involve history but also require a contemporary understanding of what terms mean and, even more important, what broader principle underly general Constitutional language.

    The 4th Amendment says not a word about wiretaps. That wase enough to lead Justice Black in 1970 to claim that the police were not restricted in their placement of wiretaps. The rest of the Court believed that the framers of the 4th Amendment had some broader principle in mind, just as those writing the First Amendment may have actually meant that speech principles require allowing corporations to spend freely on t.v. ads despite having little experience with corporations and none with T.v.

    You have identified no virtue in the fundamentalist orginalism you seem to prefer other than certainty. Well the certainty is not that clear, as e.g. the historical debate around the 2nd Amendment has tended to show, and certainty is not the highest virtue. If a court or courts go astray, as arguably the Court did in the 30′s, there are political solutions. The solution of sticking to the predilections of 19th Century politicians unless an overwhelming majority of Congresspeople and state legislatures can be persuaded to change the Constitution to accomodate the historical research of a particular set of Supreme Court Justices is not obviously better.

    Another party (8e12a4)

  143. Oh, I think you have made your position clear. We just don’t agree, and I think it is ironic how you portray my own point of view.

    But there is no Progressive Ratchet, despite what you think. And do review Robespierre’s career; it is more relevant to today than people suspect.

    Best of luck to you.

    Simon Jester (ad5df4)

  144. This may have been covered and I missed it. I see the point being made that the 14th Amendment does not necessarily support the concept of gay marriage as that concept had not been part of the human condition at the time the 14th was written, even though marriage (the heterosexual version) was a staple of civilized existence. The idea of a broad brush application of the 14th would cover the right to vote, it is argued as well, would make the 15th unnecessary. Yet the 15th is there.

    So where does all this leave the 2nd Amendment? It looks to me that this argument (loose inclusive language vs. specifics) would support those who think the 2A only applies to muskets and Kentucky long rifles and flintlock pistols since those were the “arms” of the times, to the exclusion of other firearms (arms) that have since come into existence. Arms were a long-existing item at the time the Constitution was amended, as was marriage when the 14th came along. But neither the M-16 or Ma Deuce was in anyone’s mind in 1789, just as gay marriage was not a “thing” in 1866. We know that “papers” as referenced in The Fourth Amendment has come to include computer memories and magnetic media.

    Any discussion that might hinge on the Framers’ intent, or word meanings at the time of writing, needs to deal with these apparently inconsistencies… Inconsistencies in that the idea that something like arms or papers logically extends to our current electronic media but that human rights as a concept does not extend beyond those specifically enumerated, the right to marry, for example.

    And government is in deed in the marriage business as long as it bestows advantages on some and denies them to others based on whether they are married or not. Maybe the blanket “civil contract” is the answer, leaving the marriage to the various religions. After all as it stands now, the civil union established by the judge during lunch hour is as valid on one’s 1040 or to establish next of kin for all kinds of legal issues as is the union officiated at by clergy.

    Gramps, the original (29ecf6)

  145. She looks like she could sing for Whitesnake, nk.

    Colonel Haiku (2601c0)

  146. So where does all this leave the 2nd Amendment? It looks to me that this argument (loose inclusive language vs. specifics) would support those who think the 2A only applies to muskets and Kentucky long rifles and flintlock pistols since those were the “arms” of the times, to the exclusion of other firearms (arms) that have since come into existence. Arms were a long-existing item at the time the Constitution was amended, as was marriage when the 14th came along. But neither the M-16 or Ma Deuce was in anyone’s mind in 1789, just as gay marriage was not a “thing” in 1866. We know that “papers” as referenced in The Fourth Amendment has come to include computer memories and magnetic media.

    Any discussion that might hinge on the Framers’ intent, or word meanings at the time of writing, needs to deal with these apparently inconsistencies… Inconsistencies in that the idea that something like arms or papers logically extends to our current electronic media but that human rights as a concept does not extend beyond those specifically enumerated, the right to marry, for example.

    There is a difference between using judgment to discern original meaning and applying it to modern circumstances, on one hand, and changing what the original meaning is, on the other hand. Nobody thinks that the Founders intended to take a principle and freeze it in such a way that it cannot be applied to future technological developments. But gays were there in 1868. Abortion methods had been invented in 1868. Voting had been invented in 1868. It’s not as though these were inventions that came along after the fact. If the People who ratified the 14th Amendment had meant the Equal Protection Clause to apply to gay marriage or voting or abortion, they could have done so.

    Patterico (9c670f)

  147. And, again, it’s not about “loose inclusive language vs. specifics” as I do not advocate a “strict” construction (or a “loose” one) but only a “reasonable” one.

    The 14th Amendment cannot reasonably be read to apply to abortion or gay marriage. The right to bear arms can reasonably be read to include types of guns that are technologically advanced over the types in existence in 1791.

    Patterico (9c670f)

  148. I don’t see how the second amendment’s original meaning (your right to have weapons is unlimited) has anything to do with technology of the time. There were private citizens with actual warships back then.

    Dustin (8fe590)

  149. Another party,

    I refer to the Supreme court cases following the 14th amendment that found discrimination against women to be fine, and the general failure of the Court in subsequent years to find Southern schemes to disenfranchise or discriminate against Blacks a problem. Why do you bring up the 5th Amendment?

    I’m lost. You’re saying that the Fifteenth Amendment was passed because of all the Supreme Court decisions following ratification of the Fourteenth Amendment that failed to enforce the plain meaning of the Fourteenth Amendment, necessitating the passage of the redundant (in your view) Fifteenth Amendment? This is your argument?

    Can you name these Supreme Court cases interpreting the Fourteenth Amendment, ratified in July 1868, that caused Congress to pass the Fifteenth Amendment in February 1869 and submit it to the states?

    What Supreme Court cases were decided in those seven months that prompted passage of the Fifteenth Amendment? School me!

    The rest of your comment bespeaks confusion about what my position is. I am not saying, for example, that gay people are not entitled to the protections of the 14th Amendment’s Equal Protection Clause. If a citizen is a black gay man, for example, the clause will protect the state from imposing discriminatory conditions on him, on account of his race, concerning his life, liberty, and property.

    It’s not that he’s not protected by the clause because he’s gay. It’s that the guarantee of equal protection has nothing to do with his sexuality.

    Patterico (9c670f)

  150. happyfeet (8ce051) — 7/2/2014 @ 1:08 pm

    how many more super serious discussions about the gay marriage do we need exactly Mr. Jester?

    we have a consensus in the federal judiciary already…

    I’d find it easier to take you at your word that you hate fascism, mr. fees, if you didn’t cheer so loudly as our government overlords march us bayonet point toward our fascist future.

    Steve57 (c4c6a6)

  151. “The 14th Amendment cannot reasonably be read to apply to abortion or gay marriage. ”

    The 14th Amendment can be read to apply to two people appearing before a marriage license bureau and being told that the state of which they are citizens refuses that license based on the state’s view that the legal status of marriage should not apply to them because their genitals are of the wrong arrangment. Such a case concerns a question of the laws, and their equal application to persons.

    Otherwise the 14th Amendment has no larger principle than that states should not deny civil rights to ex slaves from the Civil war. As those people are all now dead, your argument would be that the 14th amendment has little existing meaning.

    As for abortion, or contraception, or sterilization, or teaching your children German, or forcing parents to give visitation rights to grandparents, or all the other matters now also swept into the 14th amendment. Well you can either read the 14th (and 9th) to recognize the concept of fundamental rights or you don’t. And those fundamental rights are either those recognized by a certain subset of political people at specific moments in the late 18th Century and 1860′s or they have broader meanings. What is left unclear is what actual advantage it is to the U.S. today to choose that latter interpretation.

    Another party (8e12a4)

  152. The 14th Amendment can be read to apply to two people a blind person appearing before a marriage driver’s license bureau and being told that the state of which they are citizens he is a citizen refuses that license based on the state’s view that the legal status of marriage driver should not apply to them him because their genitals his eyes are of the wrong arrangment. Such a case concerns a question of the laws, and their equal application to persons.

    nk (dbc370)

  153. Whatever happened to the 9th Amendment?
    If every single condition must be explicitly spelled out in its own separate clause, then the 9th Amendment has functionally been repealed.

    And if you declare that the Equal Protection Clause does not apply to homosexuality because it doesn’t say it does and we can expect the people who wrote it didn’t expect to apply it to such acts, then what about it applying to homosexuals in general?
    Can the government deny the right to vote if people will not sign a paper declaring that they are not now nor ever have been homosexuals?
    Wasn’t that the same principle used to justify eugenics laws – that equal protection clearly couldn’t be conceived to apply to the mentally defective?
    That’s not a slippery slope but a greased cliff.

    A greased cliff that drops right in front of the door to the President declaring he can take whatever action he feels is needed when Congress won’t because it doesn’t actually say he can’t but it does say he is supposed to lead. Oh wait . . .

    Now that doesn’t mean that anything and everything someone wants to claim is a right really is one – the whole “right” to have an employer pay for your abortifacients and more general birth control which is the base from which all of this proceeds.
    It does however mean that dismissing any consideration of some extension of Equal Protection because it wasn’t spelled out at the time and hasn’t been since is equally invalid.

    Sam (e8f1ad)

  154. As for abortion, or contraception, or sterilization, or teaching your children German, or forcing parents to give visitation rights to grandparents, or all the other matters now also swept into the 14th amendment.

    Another party (8e12a4) — 7/2/2014 @ 10:43 pm

    You seem to make things up.

    Gerald A (9e3e6a)

  155. Whatever happened to the 9th Amendment?
    If every single condition must be explicitly spelled out in its own separate clause, then the 9th Amendment has functionally been repealed.

    The imperial judiciary has written it out of the Constitution but I do not. Basic rights as understood in 1791 are still held today in my view. The right of gays to gay marry is not one of those 1791 rights.

    Patterico (fc1c1f)

  156. Our host wrote:

    Using the 15th Amendment as a retroactive nullification of any applicability of the 14th Amendment to voting, is unconvincing. There is nothing to stop Congress from being mildly redundant.

    That’s why I cited the research of Raoul Berger in the post. The existence of the 15th and 19th Amendments is only one argument in favor of the contemporaneous understanding of the meaning of the 14th Amendment, and in particular its Equal Protection Clause. The evidence is abundant and irrefutable, for anyone who cares to actually examine it.

    It seems simple enough: even if the Republicans controlling he Congress believed that the Fourteenth Amendment was sufficient to insure that blacks could vote, by not having it distinctly specified, they left the door open to various ploys to deny blacks the vote, and it could have taken several election cycles to get the matter through to the Supreme Court, where the ruling might still have been a surprise. The Fifteenth Amendment might have been superfluous in the long run, and still necessary to secure black voting rights in the short term.

    Of course, the Nineteenth Amendment was just plain mischief!

    The Confederate Dana (3e4784)

  157. Can the government deny the right to vote if people will not sign a paper declaring that they are not now nor ever have been homosexuals?

    As with another argument earlier, there may well be other constitutional provisions that apply, and the equal protection clause might be held under current interpretations to prevent it, but in my view the argument that the equal protection clause prevents this because it carves out special protection for homosexuals is a loser.

    Patterico (2c96b3)

  158. It seems simple enough: even if the Republicans controlling he Congress believed that the Fourteenth Amendment was sufficient to insure that blacks could vote, by not having it distinctly specified, they left the door open to various ploys to deny blacks the vote, and it could have taken several election cycles to get the matter through to the Supreme Court, where the ruling might still have been a surprise.

    As I have noted, the 14th amendment was not thought to address voting, and there were not several election cycles between the ratification of the 14th in July 1868 and Congress’s passage of the 15th in February 1869.

    Patterico (a2ae70)

  159. nk wrote:

    People cannot be punished for their innate and immutable traits which they cannot change to conform to the requirements of the law. That’s not equal protection; that’s fundamental due process.

    Actually, it seems that they can, as long as those are individual traits, rather than group traits. If you cannot see well enough, you cannot enlist in the military, period; if you are too fat or too stupid, you can be denied entry into the Army.

    And this is where it seems that the courts have gone off the rails. In their zeal to protect homosexuals, they have been seizing upon a trait which is not limited to any particular racial or ethnic group, and effectively created a new group for the purpose of defining rights. We had the Fourteenth Amendment, which was clearly meant to insure that blacks had the same rights as whites, and the Nineteenth, which stated that women had just as much right to vote as men, but the Equal Rights Amendment, banning all discrimination on the basis of sex, failed when submitted to the states for ratification. It seems to me that the courts are trying to ratify a constitutional amendment which failed through the constitutionally-specified process.

    The heteronormativist Dana (3e4784)

  160. And Republican whining doesn’t seem to have any affect on the momentum of this thing.

    Not on judicial opinion.

    Not on public opinion.

    Mr. Jester that it’s a dangerous precedent for these courts to say hey you can’t pass laws what discriminate against minorities.

    Well me I think it’s a great precedent, a really top-shelf top-notch top-o-the-morning-to-you-ma’am happyfeet (8ce051) — 7/2/2014 @ 10:34 am

    Okay, I feel kind of dumb giving even 2 seconds to time to your comments, happyfeet, since I’m sure you’re fully aware that the way you debate is done in an intentionally silly manner. But mainly because the human nature involved in controversies like SSM fascinates me — far more than judicial wrangling about the equal protection clause — you illustrate the interesting contradictions in many people out there.

    Simply put, you’re very emotionally protective of homosexuals having access to traditional marriage, yet you often use “gay” in a negative way. You’re very emotionally protective of homosexuals having access to traditional marriage, yet you’re oddly quite negative about multi-partner marriages.

    The two-faced reactions of folks like you are quite a sight to behold. You’re therefore not too different from lots of staunch liberals throughout America (or the biggest fans of SSM), which is why I believe there’s a ton of bilge in the sentiments and opinions of such people.

    Also, more than the specifics of the way that SSM is treated by the judiciary, and whether it does or doesn’t fall under the US Constitution, I recall Patterico saying that one reason why he sympathized with the idea of 2 guys getting married to each other was because his own sexuality made it totally impossible for him to be emotionally and sexually aroused by another male. At the time, that struck me as a rather good point. But ever since the SSM debate really heated up — particularly following the ruling on Proposition 8 — I’ve had to look more closely at the human nature involved in terms of human sexuality.

    The polymorphous nature of many people is what has surprised me, in which even various self-described gays (and, in this case, “gays” referring to male homosexuals only) admit to having engaged in legitimate (ie, not fake, not “beards”) social/sexual straight relationships on at least a few occasions during their life.

    (BTW, no less than the reported bisexuality of the guy now in the White House is a good example of this.)

    That’s a crucial reason why as society is moving to the left regarding this matter, I’m moving right—and now have far greater understanding of just how correct traditional, conservative cultural opinions on this issue really have been.

    Mark (cb6333)

  161. I was talking about criminal punishments, Dana. It’s also tied in with bills of attainder but there hasn’t been much of that going on in America.

    It’s a different analysis in your examples. Those people are not being punished, they’re been told they’re not good enough for the job. If you don’t belong in a suspect classification — race, national origin or sex — rational relationship is all that’s requirement. Sex comes under intermediate scrutiny, and race under or national origin under strict scrutiny. Sex is one I know something about. I was in the police academy with Chicago’s first class of lady firefighters. All they did was work out all day. They had to meet the lift and carry requirement. The blanket ban had been lifted but they still had to meet the job’s requirements. Seven made it, I think. The ones who failed did not have a cause of action based on “I’m a girl, it’s impossible for me to do that”.

    nk (dbc370)

  162. i woke up today hating fascisms more than ever Mr. 57

    happyfeet (8ce051)

  163. This is 9th Amendment abuse

    Neo (d1c681)

  164. “In one way I agree that “Power” is everything. But “Power” can exist in the form of a virtuous people humbly seeking to do their best. Apart from virtue and “right making might”, existence (humanly speaking) is at the whim of who out manipulates everyone else, by whatever tactics they use.”

    - MD in Philly

    I absolutely agree with this. I use the word “power” but I accept that it has many forms.

    Leviticus (1aca67)

  165. The denial of SSM is not a violation of the equal protection clause of the 14ad.

    Traditional marriage between opposite sex couples have existed from the beginning of human.
    SSM has also existed from near beginning of human history – albiet in much smaller numbers and most often in hiding and/or closeted. and albiet not legally recognized as a marriage until the very recent history.
    Poligomists marriages have also existed from near the beginning of human history – albiet in much smaller numbers. While no state in the United states legally recognizes a polygomist marriage, the continue to exist.

    Sometime beginning in the 13th to 14th century, many societies began enacting laws to establish the legal rules for those wishing to enter into traditional marriages would be governed for legal purposes. Each state in the United States have enacted statutes which govern the legal rules for those wishing to enter into traditional marriages.

    Beginning in the late 1990′s, several states in the United states enacted statutes which governed the rules for those wishing to enter into SSM’s. Those laws were often called domestic partner laws, Some states incorporated the SSM laws into the same family codes as traditional marriage laws.

    However, the creation of laws which govern one type of transaction/one type of marriage/one type of relationship is not violation of the equal protection clause simply because the legislature did not enact a different set of laws to govern a different type of transaction/relationship.

    joe (debac0)

  166. Isn’t it weird how Mark is so unilaterally obsessed with his Unified Field Theory of Postmodern Homosexuality? I think it’s weird.

    Leviticus (1aca67)

  167. Everybody thinks Mark’s obsession with non-normative sex is weird. And his other obsessions too. I was recently discussing this with Nicolas Maduro, sitting in his limousine, with his lady personal assistant and his male private secretary, on our way back from the International Congress of the Franklin Delano Roosevelt Memorial Philatelic Society in Caracas.

    nk (dbc370)

  168. Was Rupert Everett with you, by any chance?

    Leviticus (1aca67)

  169. Nk, you should have an endowed chair at the Algonquin Table. That was funny.

    Simon Jester (ad5df4)

  170. when the judges look at the constitution and say hey goofballs you can’t ban the gay marriages

    they are making us more free as a people not less

    this is a rare and special thing – like Blue Bell White Chocolate Almond, which you can only get seasonally at best anymore

    but anyways

    yay freedom say me

    happyfeet (8ce051)

  171. And it was such a nice morning.

    Simon Jester (ad5df4)

  172. I think it’s weird.

    Leviticus, since you apparently don’t feel that way about homosexuality, I take your definition of “weird” with a big grain of salt. Keep in mind that even in super liberal Hollywood, many people don’t play the guessing game about the rumored homosexuality of Actor A or B the same way they might wonder about rumors that Actor A or B is secretly an heir to a billion-dollar fortune.

    And, nk, given the socio-political trends in this society, the only type of sex that will eventually be deemed non-normative is one that involves monogamy between a man and woman.

    Mark (cb6333)

  173. this is the way the world ends
    this is the way the world ends
    this is the way the world ends
    not with a bunch of banging, but a whimper

    Leviticus (1aca67)

  174. It’s more a rough beast, slouching toward Bethelem, awaiting to be born. Because the center cannot hold.

    Simon Jester (ad5df4)

  175. Feets, you have a sweet tooth… and not just for Blue Bell White Chocolate Almond…

    Colonel Haiku (2601c0)

  176. Joe wrote:

    Traditional marriage between opposite sex couples have existed from the beginning of human. SSM has also existed from near beginning of human history – albiet in much smaller numbers and most often in hiding and/or closeted. and albiet not legally recognized as a marriage until the very recent history.

    .

    At least his time Joe has addressed my point that the numbers of “SSMs” are anywhere close to those of heterosexual marriages. But that raises the next question: if “SSM” is the abbreviation for “same-sex marriage,” just how many of them — meaning: real ceremonies in front of friends and family and with some sort of legal or religious sanctification — actually occurred, or is Joe actually referring to same-sex shack-ups?

    For the vast majority of our history, in the vast majority of places, homosexual unions were, at the very least, disapproved of, and more often the subject of physical, emotional and legal assaults; t’would be the brave homosexual couple indeed who had some sort of actual ceremony, rather than just sneaking off to live quietly where no one could see them.

    The heteronormativist Dana (3e4784)

  177. The very prescient Mark wrote:

    And, nk, given the socio-political trends in this society, the only type of sex that will eventually be deemed non-normative is one that involves monogamy between a man and woman.

    Yup, you’re almost certainly right! Heterosexual sex will probably be thought of as OK, but you’ll still be expected to have multiple partners.

    The Dana who thinks Mark is very sadly right (3e4784)

  178. and for a lot of this, remember this on July 4th… http://cdn.pjmedia.com/instapundit/wp-content/uploads/2013/01/SunKingObama.jpg

    Colonel Haiku (2601c0)

  179. Patterico,

    I’m trying to summarize your argument for my own understanding:

    If we were to stipulate that gay people are gay from birth, your response to aphrael’s point that gay marriage is a logical extension of Loving v. Virginia would be that equal protection principles have been expressly (Constitutionally) extended to racial categories in a way that they haven’t been expanded to categories of sexual orientation. Is that correct?

    If so, I have ask: if, as a people, we’re either okay with a judge’s Constitutional interpretations becoming law, or we aren’t, where do you stand on that? I think I have an idea, based on you’re comments re: Marshall, but I think it’s a good Square One for the discussion.

    Leviticus (1aca67)

  180. this is the way the world ends
    this is the way the world ends
    this is the way the world ends
    not with a bunch of banging, but a whimper lightly-loafered mince

    Colonel Haiku (2601c0)

  181. Ok, I know it’s “only” judicial precedent, but we have to have an anchoring point or at least start somewhere. Racial classifications are very suspect and subject to strict scrutiny under the Fourteenth Amendment. That scrutiny has not been extended to sex when it involves men and women; it is intermediate scrutiny. Sex has not “yet” been extended to homosexuality. So Loving is three steps removed as precedent. Ok?

    nk (dbc370)

  182. Patterico–

    A question, then. Which rights (life, liberty, right to own property, right to marry, right to speak, pray, defend oneself, etc) did blacks not have as natural rights prior to the 13th and 14th amendments? Do rights come from a grant by the state? Or are they a natural and inherent aspect of being human?

    Certainly they were rights that were denied before then, but, unless rights are conditioned on the State’s granting of them, they already existed.

    Kevin M (b357ee)

  183. “You did it for blacks, now do it for gays” is garbage constitutional analysis, to put it mildly.

    nk (dbc370)

  184. Free blacks had all of those rights, Kevin. Slaves, of any color (and they came in all colors) did not.* That’s what slavery means.

    *Indians not taxed, too, but let’s leave that aside.

    nk (dbc370)

  185. Joe wrote:

    Sometime beginning in the 13th to 14th century, many societies began enacting laws to establish the legal rules for those wishing to enter into traditional marriages would be governed for legal purposes.

    Huh? We have had laws governing marriage for a lot longer than that. The most easily accessible example is the Old Testament, including in Leviticus and Deuteronomy; Leviticus was written sometime around the mid 15th century BC.

    Beyond the Bible, the proto-Egyptian dynasties in Thinis, circa 4000 BC, had at least some inheritance laws, from father-to-eldest-son, and that would require some form of determining legitimacy.

    The historian Dana (3e4784)

  186. Kevin M wrote:

    A question, then. Which rights (life, liberty, right to own property, right to marry, right to speak, pray, defend oneself, etc) did blacks not have as natural rights prior to the 13th and 14th amendments? Do rights come from a grant by the state? Or are they a natural and inherent aspect of being human?

    Some of these things are not like the others. The rights to life and liberty are rights inherent in the individual, but the right to marry is a claim upon the recognition of others. I’d say that anyone has the right to live with whomever he chooses, as long as the desire is reciprocal, but that does not mean that there is some sort of right which compels other people to regard that arrangement as good or proper or legitimate.

    The nit-picking Dana (3e4784)

  187. Dana, a decent answer, and a nice finesse.

    The point I am obviously making though is that the Reconstruction Amendments did not “grant” rights, they only recognized some of these that always existed and attempted (largely unsuccessfully) to prevent their further suppression by state governments. So, really, any discussion of what was in the minds of the legislators that proposed or ratified the amendments is immaterial since it had little relation to what Rights existed, only on which were being recognized.

    Other existing rights may have still been denied.

    Kevin M (b357ee)

  188. Free blacks had all of those rights, Kevin.

    According to the Founder’s rhetoric, all men had those rights, inherently. The State did not recongnize them, but if they did NOT have those rights, in and of being human, then there was no evil to slavery.

    Kevin M (b357ee)

  189. Dana – We can quibble all day and night on when traditional marriage laws were codified into statutes. We can also quibble all day and night to what extent that SSM has existed in society, either in formal ceremonies or shacking up or in the closet.

    The broader point is that various societies have enacted laws for those wanting to enter into traditional marriages for how those relationships would be governed. The failure to enact statutes for how a different type of relationship would be governed is not a violation of the equal protection clause.
    Nor more so than the failure to enact limited liability statutes in a particular state and those wishing to be treated as limited liability companies suing to be treated as limited liability companies under the states corporate business codes.
    Or Nor more so than polygomists wanting to legalize their polygomy marriage under the states family code when there is no provision in that states family code for a polygomy marriage.

    joe (debac0)

  190. The Declaration of Independence was a press release: We hold these truths to be self-evident: if you like your insurance you can keep your insurance; if you like your doctor you can keep your doctor; it was a spontaneous uprising because of a YouTube video.

    Slavery was a legal status like married woman*, minority, or guardianship due to mental infirmity. It did not make slaves non-persons, it makes them persons under certain legal disabilities and obligations. The Constitution refers to them as persons held to labor or service in Article I.

    *Married women pretty much lost control of their property and freedom to their husbands at that time.

    nk (dbc370)

  191. So, nk, you hold that all rights emanate from the State?

    Kevin M (b357ee)

  192. And, nk, was slavery evil? If so, why?

    Kevin M (b357ee)

  193. From society. Look at the case at hand. They’re claiming a right to marry but they’re asking for a license.

    nk (dbc370)

  194. Slavery was evil because the community denied the full benefit of the social contract to some of its members for the selfish benefit of some other stronger, more influential, members of the community. It was not as evil as eating children, but it was pretty evil.

    nk (dbc370)

  195. They are not asking for the license from society. You attempt to make a distinction that is not there, and if it were there, you would be opening up the whole “Living Constitution” thing as that DOES emanate from society.

    Kevin M (b357ee)

  196. Then if it was evil, there were rights inherent in the person that were being denied by the State. And when the State stopped denying those particular Rights, there may have been others that were still denied.

    Kevin M (b357ee)

  197. Not really, Kevin. Human societies flourish through organization and cooperation. Inequality in the most basic benefit of society, protection of people’s persons and property, is anti-social. What they called slavery we now punish as kidnapping, false imprisonment, aggravated battery, rape, murder …. Nicht wahr?

    nk (dbc370)

  198. 172.when the judges look at the constitution and say hey goofballs you can’t ban the gay marriages

    they are making us more free as a people not less

    …yay freedom say me

    happyfeet (8ce051) — 7/3/2014 @ 8:12 am

    You mean like how the Kelo decision freed relatively poor homeowners of their property because a higher bidder offered the city of New London potentially higher ta revenue? How blacks were freed of citizenship and therefore standing to sue in federal court in Dred Scott?

    Like I said earlier, Mr. feets, it would be easier to believe your anti-fascism rants in the absence of your displays of affection for fascism.

    Don’t think! That’s what the SCOTUS is for. Conform!

    Steve57 (c4c6a6)

  199. All I am saying here is that Patterico’s premise, that the original understanding of the Reconstruction Amendments was X, is immaterial to what rights are inherently held by people.

    Now there may be further arguments without that premise, but the basis of this post seems flawed.

    Kevin M (b357ee)

  200. Basing rights on what society (currently) thinks is not a particularly originalist point of view.

    Kevin M (b357ee)

  201. like i said Mr. 57

    the republican party is welcome to remedy this grave injustice with a constitutional amendment to make anti-gay bigotry the law of the land

    but they need to get on that so they can get a mandate in the mid-terms and in 2016

    happyfeet (8ce051)

  202. I get it. I’d go with what rights were pretty much taken for granted as rights by everybody at the time, whether written down or not.

    nk (dbc370)

  203. Citizens, you are more free as a people, not less, when you are overruled by the central government.

    You have ten seconds to comply.

    So says the anti-fascist Mr. feets

    Steve57 (c4c6a6)

  204. happyfeet is rubbing it in. The ship of Amendment missed the tide in 1996 and the ferry of DOMA which evacuated the passengers was torpedoed in 2013.

    nk (dbc370)

  205. Have you secured the conract to provide onsite catering at the gulag with your gourmet burrito truck, Mr. feets?

    Steve57 (c4c6a6)

  206. All comrades who have enlisted for occupational rehabilitation in our Arctic Circle Environmental Reclamation Project receive adequate nutrition, Citizen Steve57.

    nk (dbc370)

  207. Kevin M wrote:

    The point I am obviously making though is that the Reconstruction Amendments did not “grant” rights, they only recognized some of these that always existed and attempted (largely unsuccessfully) to prevent their further suppression by state governments.

    Depends upon how you look at it. Our natural rights, as recognized under the First and Second Amendments, are rights we say we always had, and that the Amendments are just recognition and protection of those rights from the government. With the use of the Fourteenth Amendment to “incorporate” the Bill of Rights as pertaining to state action as well, you could make the argument you have.

    But the right to vote and the rights to due process and equal protection of the laws are different; they are rights which are incumbent upon there being a political and legal system through which to exercise those rights; your right to vote is meaningless if there is no government for which to vote.

    The philosopher Dana (3e4784)

  208. 207. happyfeet is rubbing it in…

    nk (dbc370) — 7/3/2014 @ 10:39 am

    Yes, but what he’s rubbing in is the fact that the ship of fascism arrived and gave him everything he wanted.

    And now up is down, five equals four and slavery is freedom.

    Steve57 (c4c6a6)

  209. nk wrote:

    From society. Look at the case at hand. They’re claiming a right to marry but they’re asking for a license.

    To which Kevin M responded:

    They are not asking for the license from society. You attempt to make a distinction that is not there, and if it were there, you would be opening up the whole “Living Constitution” thing as that DOES emanate from society.

    nk was right: in the claim that homosexuals have the same right to marry as do normal people, the claim is being made that the state must recognize and accept a marriage between two homosexuals on the same basis as it does between heterosexuals. Since there is no law against two — or more — homosexuals sharing a domicile, no prohibition at all there, then there are no inherent rights being denied by the state even if the state declines to recognize such arrangements as legal marriages.

    The Dana who can see the difference (3e4784)

  210. Joe wrote:

    We can quibble all day and night on when traditional marriage laws were codified into statutes.

    Actually, no, we can’t, at least not to the extent that you claimed (13th and 14th centuries AD). The problem is that you have fallen into the separation of church and state trap, and are having a difficult time seeing laws which were put into place by religions — Leviticus being the most obvious example — as the codification of laws by the state. In 1400 BC, there was no separation of church and state.

    The Dana who can see the difference (3e4784)

  211. Okay, this is a hopeless, task. Patterico, can we PLEASE get Mr. Feet to NOT insult people—especially given his, um, lack of seriousness in general—by calling opponents of SSM “bigots”?

    Especially given his long history of rather bigoted statements toward a wide variety of groups?

    Fact is, Mr. Feets likes judicial fiat when it agrees with him, which is jaw-droppingly frightening and bereft of literally any historical perspective.

    Look at his response to plural marriages. The *fact* remains that if it is “bigoted” of people to be opposed to SSM, it is equally bigoted to object to plural marriage. He has no good answer to that, other than more bigotry. Which is beyond hypocritical.

    Me, I think government has little place in personal consensual relationships between unrelated adults.

    But you watch. He cannot help but call some groups silly and insulting names. Mr. Feet has no consistency, other than that.

    It’s just fashion and despite what he says (“failamerica”) almost proudly unserious.

    This is because SSM became fashionable in our culture during the past twenty years. Look at current Progressive Heroes twenty years ago on this topic, and today, on this specific topic. Including the POTUS.

    What Mr. Feet forgets in his odd persona is what will happen in the next twenty years? THAT is the point, and that is the danger.

    It should not, ever be about fashion.

    Why, I believe in Mr. Feet’s world, there are no laws. Just political fashion, reasoning from the heart without thought as to outcomes or challenges. And that route goes dark places, quickly.

    It does little good for me to write this. He will continue that weird persona of his, just like Mark can’t help but say odd things about gay folks. It’s kind of who they are. Though I would like, just once, for Mr. Feet to write normally about what he believes.

    It might be interesting, and even convincing.

    But I see little in his current persona that demonstrates deep thought as opposed to fashionista politics.

    Again, Robespierre thought he was doing right. And look what happened to him. And France.

    Simon Jester (c8876d)

  212. > In 1400 BC, there was no separation of church and state.

    While true in the sense that the modern formalized concept meant it, it’s *also* true that many states tolerated and encompassed multiple religions. The tight binding between the religious apparatus and the state apparatus that was found in medieval times didn’t really exist in ancient times – as long as you participated in whatever the official cult was, your insistence in believing in *other* gods was usually just fine.

    This is, after all, somewhat the nature of polytheism. :)

    aphrael (e777bc)

  213. … can we PLEASE get Mr. Feet to NOT insult people—especially given his, um, lack of seriousness in general—by calling opponents of SSM “bigots”?

    No.

    He’s just the pretend anti-fascist catering he Nuremberg rally.

    Next question?

    Remember what you’re dealing with.

    Fighting for gay marriage generally involves lying about what we’re going to do with marriage when we get there, because we lie that the institution of marriage is not going to change, and that is a lie. The institution of marriage is going to change, and it should change, and again, I don’t think it should exist.

    He’s doing what a committed partisan has to do, while maintaining his “I’m just a harmless pikachu” front.

    Steve57 (c4c6a6)

  214. Yup. Rome had a multiplicity of religions. It would even import some gods (Asclepius) when needed and evict others (Bona Dea) when they corrupted the women. The pontifexes were part of the civil service. They sat in the Senate. Julius Caesar was elected Pontifex Maximus before he was consul, I believe. The position was for life and it was usurped by his successors on down to the present Bishop of Rome. And there were two degrees, at least, of marriage. Flamens, high priests of some deities, married for life whereas ordinary marriage was by limited-term contract that was renewable.

    nk (dbc370)

  215. Dana, but Patterico’s argument is based upon the rights granted under the 13th and 14th amendments as being dependent upon the thinking of the legislators. My argument, which you seem to accept, is that most of these rights already existed and what the legislators thought about them did not matter. Perhaps many of them had no intention of letting blacks own guns, for example, yet their right to do so was inherent.

    The issue of whether marriage contracts are a function of state laws, etc, isn’t really relevant to my argument, which is that the premise in the original post is largely a non sequitur. The question, as you have indicated, is whether marriage rights are inherent or whether marriage is wholly a state construct.

    Kevin M (b357ee)

  216. Let me phrase that better.

    The issue of whether marriage contracts are a function of state laws, etc, isn’t really relevant to my argument, which is that the premise in the original post is largely a non sequitur.

    Now, if you want to bring up that question, which is a good one, that fine. But the thinking of date and federal legislators who belatedly recognized some inherent rights isn’t germane.

    Kevin M (b357ee)

  217. This is, after all, somewhat the nature of polytheism.

    You didn’t really have to participate in the official religious cult at all, so long as you didn’t attack it. Then as now, however, you did have to participate in the official secular cults.

    Kevin M (b357ee)

  218. 218. … The question, as you have indicated, is whether marriage rights are inherent or whether marriage is wholly a state construct.

    Kevin M (b357ee) — 7/3/2014 @ 11:27 am

    What do you mean by “inherent?”

    I know the dictionary meaning of the word, but what do you mean when you use it in conjunction with “marriage rights”?

    Steve57 (c4c6a6)

  219. 157. The imperial judiciary has written it out of the Constitution but I do not. Basic rights as understood in 1791 are still held today in my view. The right of gays to gay marry is not one of those 1791 rights.

    So you are just revising the plain text of the 9th Amendment:
    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others as people may interpret us to understand them as of the passage of this amendment, retained by the people.”
    That is different from the actions of the judiciary how?

    159. As with another argument earlier, there may well be other constitutional provisions that apply, and the equal protection clause might be held under current interpretations to prevent it, but in my view the argument that the equal protection clause prevents this because it carves out special protection for homosexuals is a loser.

    Others like the 9th Amendment.
    Except you’ve altered that.
    Much as the 14th Amendment altered the 2nd Amendment by incorporating it against the States, but somehow not as the anti-2nd Amendment people want to alter that the way you insist on time stamping the 9th Amendment.

    As far as I can see, going by this sort of strict temporal construction, since the Equal Rights Amendment was defeated, it is in fact constitutionally sound to discriminate against women in anything but voting, and indeed as long as you are “creative” enough you can justify any other sort of discrimination in the absence of an absolute and specific legislative ban.

    Sam (e8f1ad)

  220. Steve, that really isn’t the subject of the original post, which suggested that a recognition of rights that ARE inherent (life, liberty, etc) but were denied, has a bearing on other rights that were not mentioned. All I am saying is that the premise is flawed as it does not really inform us of anything.

    Kevin M (b357ee)

  221. ““You did it for blacks, now do it for gays” is garbage constitutional analysis, to put it mildly.”

    - nk

    Maybe or maybe not, but if you accept the traits as equally fixed then it makes inherent logical sense – at which point I tell you that I reject your Constitutional framework for its failure to adequately protect individual rights, and for its tendency to dull sharp minds at the altar of “precedent.”

    Or, to put it another way, I don’t care. The Constitution enshrines an Electoral College, too, and I’m looking forward to the imminent demise of that mechanism for the sheer sake of jarring iconoclasm.

    Leviticus (1aca67)

  222. Patterico, can we please get Simon Jester to stop calling people “bigoted” because those people called other people “bigots?” It really bothers me at a deep and serious and super-duper fundamental level, and I would really like it if you kept him from saying what he wanted to say.

    Leviticus (1aca67)

  223. I always feel better after a nap, myself.

    nk (dbc370)

  224. Mr M wrote:

    Dana, but Patterico’s argument is based upon the rights granted under the 13th and 14th amendments as being dependent upon the thinking of the legislators. My argument, which you seem to accept, is that most of these rights already existed and what the legislators thought about them did not matter. Perhaps many of them had no intention of letting blacks own guns, for example, yet their right to do so was inherent.

    I think that we will all agree that freedom of speech is an inherent right, one that we have as individuals. Trouble is, as long as states exist, how other people look upon those rights will vary. In the US, we enjoy what is probably the widest scope of freedom of speech, while other perfectly good and noble democracies recognize that the freedom of speech exists, but that there are limits that we don’t see here. In Canada, a free and democratic country, you can get in trouble for exercising your freedom of speech in ways that others might find offensive, while in Austria, people have gone to jail, recently, for denying that the Holocaust occurred.

    Recognizing that a right is inherent does not mean that the state won’t regulate, or try to regulate it. Right here, right now, the Democrats want to pass regulations on he freedom of speech, and right here, right now, the Democrats are trying to say that the freedom of religion is still subject to the state.

    The Dana with a wide view (3e4784)

  225. Fair enough, Leviticus. I do seem to upset you, and I have tried not to irritate you. I won’t write to you, and you don’t need to write to me. And if I irritate folks enough, I’ll post less. I just dislike hearing people of faith called “bigots” when they haven’t earned that insult. It’s small of me, and shouldn’t matter.

    Nk, as always, I enjoy your historical perspectives. Thank you.

    Simon Jester (c8876d)

  226. > the Democrats are trying to say that the freedom of religion is still subject to the state.

    On some level, *of course it is*. If I subscribe to a religion which requires me, once in my lifetime, as a sacrament, to sacrifice a human being to my God, then the state will *rightly* prevent me from carrying out that religious requirement – because however earnestly I believe I am required to do so, and however much the state wants to protect religious liberty, my acting on that requirement is something that a pluralistic society cannot tolerate.

    The debate is about *where* the line should be drawn, not whether or not there should be a line.

    One of our country’s founding principles is that that line should be drawn to exclude as little activity as possible, because we place a great value on freedom of religion. But that doesn’t mean there are no limits at all.

    aphrael (e777bc)

  227. “I won’t write to you, and you don’t need to write to me.”

    - Simon Jester

    I’ll continue to write what I want, and I suspect that you’ll continue to do the same, and I suspect that happyfeet and everyone else will continue to do the same. Your passive-aggressive tendencies irritate me, but they’re obviously your prerogative.

    Leviticus (1aca67)

  228. “37. Now, see, this is why I don’t like posting most of the time around here …”

    Come to Ricochet. :) Not trying to steal Patterico’s “crew,” because the posts here are great and the converation is great … but if some of you have time for participating in conversations in two places, I think you’d like it.

    TG (71074c)

  229. TG (71074c) — 7/3/2014 @ 1:30 pm Come to Ricochet.

    If this is it, http://ricochet.com/ I just saw something there:

    Who is your favorite founding father and why? Who’s the most overrated? (Professor Yoo, as I recall, had James Madison in his sights, though it was for his conduct as president, not for his role in the founding).

    We were sort of discussing this, already, or I was.

    Sammy Finkelman (48f9c6)

  230. Dana – The issue I am addressing is whether the denial of SSM is a violation of the equal protections clause or is not a violation of the equal protection clause of the 14th.

    Societies have chosen to enact laws for those who wish to enter into traditional marriages. Whether those laws were enacted circa 2000bc or the 12-14th century or in the americas in the 1700′s to 1800′s is not relevant. What is relevant is that all were enacted prior to 14A. Further virtually no society has enacted laws to govern SSM even though it has existed in limited form (and generally unrecognized form for centuries.

    My point is that the creation of laws which govern one type of transaction/one type of marriage/one type of relationship is not violation of the equal protection clause simply because the legislature did not enact a different set of laws to govern a different type of transaction/relationship.(SSM)

    joe (debac0) — 7/3/2014 @ 7:52 am

    joe (debac0)

  231. 224. Leviticus (1aca67) — 7/3/2014 @ 12:19 pm

    The Constitution enshrines an Electoral College, too, and I’m looking forward to the imminent demise of that mechanism for the sheer sake of jarring iconoclasm.

    Th Electoral College, as practiced, gives everyone, an approximately equal unfair advantage, limits the scale of counting disputes, and reduces, as well, the cost of campaigns..

    Sammy Finkelman (48f9c6)

  232. Howzabout we all chill and celebrate the 4th by buying Revolutionary War era guns via mail order. What’s more American than that?

    onenienly,DiieGunWorksifhainga4hofJulysale.

    http://www.dixiegunworks.com/product_info.php?products_id=5928

    FK0940 Pedersoli Kentucky Pistol Kit – .50 Cal. Flint

    Was $317.50, now $295.00.

    We can unleash our hate when Al Baghdadi and his merry band of Salafists shows up. Save it for then.

    Steve57 (c4c6a6)

  233. The argument in play here will really be interesting when the challenge to Obamacare based on Origination of a Revenue Raising Bill in the wrong house is decided by the courts. Will they decide that eliminating a Bill from the House of Representatives and reusing its House identification number for a new Bill from the Senate will qualify as a Bill originating in the House? Will they decide thus that an explicit clause in the Constitution no longer has meaning or force of law?

    Ken in Camarillo (481b14)

  234. The argument in play here will really be interesting when the challenge to Obamacare based on Origination of a Revenue Raising Bill in the wrong house is decided by the courts. Will they decide that eliminating a Bill from the House of Representatives and reusing its House identification number for a new Bill from the Senate will qualify as a Bill originating in the House? Will they decide thus that an explicit clause in the Constitution no longer has meaning or force of law?

    Ken in Camarillo (481b14) — 7/3/2014 @ 2:04 pm

    My discussion with a couple of former scotus clerks is that this is unlikely to gain much traction. there have been a couple of other tax laws enacted under similar circumstances including the 1986 tax reform act. Granted my discussion with both former clerks was prior to the Noel Canning decision. Though the line up and reasoning of the noel canning decision would further indicate that it will not fly. Noel Canning was 9-0 up holding the recess appointment clause, but only 4-5 for up holding based on strict reading of the constitution. The 5-4 was upholding the clause based on a feel good compromise.

    joe (debac0)

  235. Recognizing that a right is inherent does not mean that the state won’t regulate, or try to regulate it

    And of course, the 14th Amendment was pretty much a dead letter for blacks from 1880 to the 1950′s. Cruikshank and so forth, so even that much didn’t work.

    Kevin M (b357ee)

  236. Does anyone want to touch upon the way they argued Loving v. Virginia, where (excerpt by Wikipedia) they unanimous court said:

    Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

    Does this decision necessarily hang on the racial component? The grand declaration at the start would make it seem like it need not.

    Kevin M (b357ee)

  237. nk has declared that to be “garbage constitutional analysis.” The argument being that Amendments have expressly extended equal protection to racial minorities (by strict scrutiny), and no Amendments have expressly extended equal protection to sexual minorities.

    I don’t know how we account for the equal protection of alienage minorities by that standard, since discrimination on the basis of alienage also gets strict scrutiny. Did they pass another Amendment when I wasn’t looking?

    Leviticus (c3237f)

  238. oh pickles Mr. Jester

    why you have to make everything all personal and fraught

    it’s not a fun thing

    I’m going to go steam squash now

    happyfeet (8ce051)

  239. Dana, but Patterico’s argument is based upon the rights granted under the 13th and 14th amendments as being dependent upon the thinking of the legislators.

    Not quite. It’s not dependent on the thinking of the legislators, which would be an appeal to their subjective interpretation. It’s dependent on the original understanding of the public at the time, which is an objective analysis that views evidence of the legislator’s subjective intent with skepticism, giving it weight but not undue weight.

    I do understand your larger point, which is, I think, at the crux of this debate. You contend, in essence, that there are certain natural rights that are inherent, and it really doesn’t matter whether the government recognizes them or not. I tend to agree with the first part of that statement, but not the second. For example, I agree with you that at the time of the Founding, slaves had a moral right to be free. They clearly did not have such a legal right.

    As a skeptic of government, I rebel at the idea that a government should ever be able to tell anyone that they don’t have a right that I consider inherent. In my own personal behavior, I would strive to act in accordance with my view of inherent rights to the extent I could, and if there were a conflict between that and the law, I would like to think that I would ignore the law — if the issue were important enough, like slavery.

    But Kevin M, you’re also a realist, and criticize me for not being one. But I am, to some extent, and one of the ways that I am a realist is that I see that people disagree about what the law is and should be. So if you’re going to have a functioning society, you have to figure out: how are we going to make those decisions, and who gets to decide?

    And as a practical matter, I am saying that the best arrangement, in my opinion, is to set up an extremely limited government, and write down very limited rules that are to be interpreted by judges without the judges resorting to their own opinions of what the law should be. Because, as hard as legislative change appears to be sometimes, it can and does happen. Changing the law sometimes appears impossible.

    And when you tell a citizen or group of citizens that there is effectively no way for them to even consider pursuing what they consider a critical policy, because it is beyond the reach of the political process, the only possible consolation for them (in my view) is that their inability to do so is required by a legitimate document like the Constitution. Because the existence of the Constitution at least gives the decision some form of legitimacy. If they begin to suspect (as many reasonably do these days) that their strongly held views are irrelevant due to the differing opinions of some unelected tyrant in a black robe, they may reach a point where they say they will not abide by the restrictions that have been illegitmately placed upon them.

    And of such sentiments are revolutions born.

    Which is a long way of saying, as Joe Biden said, that all of this is a big . . . deal.

    Patterico (9c670f)

  240. Patterico, can we please get Simon Jester to stop calling people “bigoted” because those people called other people “bigots?” It really bothers me at a deep and serious and super-duper fundamental level, and I would really like it if you kept him from saying what he wanted to say.

    I don’t think that’s what he was saying, with respect, although I can’t authoritatively speak for him. I think Simon was referring to happy’s often casual use of words like gay, whore, homo, and the like. Many of those uses are ironic and they don’t bother me as much as they bother Simon; in a public debate forum, you’ll find people of many different styles and levels of decorum, and they don’t always get along well. I always implore people to try to be polite to one another, but it’s not always done and I am sometimes impolite myself when I get irritated or think someone is being deliberately obtuse or dishonest. All I can say is: can’t we all just get along?

    Patterico (9c670f)

  241. Alienage? More pineapples and papayas? Alienage is its own category. Congress has plenary power over aliens and can exclude them or deport them for entry into the United States with the intent to practice medicine (honest Injun). States don’t have much role in immigration so their laws affecting aliens are inherently suspect, like race, and receive close scrutiny. If a state wants to keep a foreign doctor from practicing medicine, it will have to show that sacrificing chickens to Damballah does not meet the standard of skill generally found in the community.

    This thing is not like the others, hum, hum, hum ….

    nk (dbc370)

  242. But Kevin M, you’re also a realist, and criticize me for not being one. But I am, to some extent, and one of the ways that I am a realist is that I see that people disagree about what the law is and should be. So if you’re going to have a functioning society, you have to figure out: how are we going to make those decisions, and who gets to decide?

    Patterico,

    First let me say, outright, that I have always had great respect for you and your blog. If I criticize you for not being practical, as I have done, I am positive there are other times I have the same fault. Consistency is the hobgoblin of little minds, and I would expect neither of us to be perfectly consistent.

    In this case, I am on the fence as you are, but for a slightly different reason. I understand my gay friends arguments that “but this is a right long denied, not a new right” and while I don’t entirely agree with that, I do understand it, hence my tack on this thread in asking how originalism informs us; a question is begging.

    My real objection, which coincides with yours, is that this is a particularly poor choice of tactics, and less likely than some to achieve social closure. I say Roe, aphrael says Loving, which was not at all controversial in the end. Maybe. But the default judgements like in CA and OR ought to be very troubling as they look a lot like collusion and underhandedness.

    Kevin M (b357ee)

  243. Congress has plenary power over aliens, and yet we are told by the courts that aliens cannot be discriminated against by Congress or any other state actor unless necessary to fulfill a compelling state interest. There is no 15th Amendment-analogue for aliens. So where does their right to equal protection come from?

    Leviticus (ffcf6f)

  244. And as a practical matter, I am saying that the best arrangement, in my opinion, is to set up an extremely limited government, and write down very limited rules that are to be interpreted by judges without the judges resorting to their own opinions of what the law should be. Because, as hard as legislative change appears to be sometimes, it can and does happen. Changing the law sometimes appears impossible.

    Oh, I agree, I’ve just given up on it. Social forces seem to make that happy state of affairs impossible, like some kind of “Conservation of BS” law or maybe Thermodynamics. I’m sure Hari Seldon could explain.

    Kevin M (b357ee)

  245. I haven’t seen Icy around.
    RIP Louis Zamperini, an incredible man. I had hoped he would have lived long enough to be around when the movie comes out.
    http://www.powerlineblog.com/archives/2014/07/the-improbable-lives-of-louis-zamperini-2.php
    http://www.nytimes.com/2014/07/04/arts/louis-zamperini-olympian-war-survivor-unbroken-dies.html?_r=1

    MD in Philly (f9371b)

  246. Sigh. Open your Constitutional Law book. Federal discrimination against all aliens is rational basis. State discrimination against legal aliens is strict scrutiny. State discrimination against illegal aliens (or at least their children) is intermediate scrutiny.

    Where did I say Fifteenth Amendment? I said judicial precedent. I said that court decisions have set the varying analyses for discrimination. I said you may not like courts saying what the Constitution is but you have to have some anchor or starting point. I said race is strict scrutiny. I said sex, man/woman, is intermediate scrutiny. I said homosexuality has not yet been classified as a sex.

    nk (dbc370)

  247. That said, both the ninth and tenth circuits have applied strict scrutiny to sexual orientation – the tenth in _Kitchen v Herbert_ (a same sex marriage case) and the ninth in a case involving the deliberate exclusion of gay people from juries.

    aphrael (c5786e)

  248. Thank you, aphrael. I had heard about the Tenth Circuit case but haven’t read it. Is there one more from the Sixth?

    nk (dbc370)

  249. when the judges look at the constitution and say hey goofballs you can’t ban the gay marriages

    they are making us more free as a people not less

    this is a rare and special thing – like Blue Bell White Chocolate Almond, which you can only get seasonally at best anymore

    but anyways

    yay freedom say me

    happyfeet (8ce051) — 7/3/2014 @ 8:12 am

    Uh you seem to have missed the entire point of this thread – whether on purpose or due to tunnel vision I’m not sure. Try rereading what Pat wrote. The rule of law is indispensable to freedom. If you don’t see things that way then you are Obama/Reid/Pelosi/Leviticus-like.

    Gerald A (9e3e6a)

  250. I’m not aware that the sixth circuit has ruled yet, nk.

    aphrael (c5786e)

  251. The rule of law is indispensable to freedom.

    oh goodness that ship has sailed Mr. A

    and not just because we have a lawless corrupt president and attorney general

    but also…

    this is why the Pervert Roberts Court is called the Pervert Roberts Court

    it’s notoriously whimsical and capricious and just the right amount of naughty

    and if there’s anyone to be mad at about the gay marriagings it’s that Pervert Roberts Court, not the dozens of federal courts what are looking at how the perv court ruled and applying that decision with remarkable uniformity

    but anyway

    allowing gay marriage bans brings no tangible reward or meaningful succor to the banners, and in fact they’re quite harmful to the achievement of many of the other political aims the banners are widely believed to be pursuing, such as electing non-fascist presidents and such

    but these bans are quite tangibly harmful to the people who are disallowed the marriagings

    It’s more better for harms to be avoided than for spiteful and arbitrary laws to be honored as Right and Just, when they are not these things.

    happyfeet (8ce051)

  252. nk,

    My casebook says: “The Supreme Court has held that generally alienage classifications must meet strict scrutiny.” It was my impression that rational basis was only the standard re: federal decisions as to unadmitted aliens, but that the Feds still had to meet strict scrutiny re: unequal treatment of resident aliens.

    Leviticus (ffcf6f)

  253. Except re: civic government stuff

    Leviticus (ffcf6f)

  254. feets-
    you keep saying the same thing over and over
    so I will also say the same thing over and over

    if you want to talk about winning elections, then ask if people really want their children using the same bathroom, even showers after sports, at school with children of the other physical plumbing,
    ’cause it’s happening right here in America, in CA, MA, and in between in CO
    and ask people if they want to be told by the government what their values should be

    but if you want to talk about things that are more important than winning elections, then perhaps you might like to know that God does not consider His ways to be spiteful and arbitrary,
    but He loves you anyway, even if he doesn’t appreciate your humor

    MD in Philly (f9371b)

  255. good luck with that shower thing

    happyfeet (8ce051)

  256. Invidious discrimination, motivated by malice. Mostly, though, it’s a due process not equal protection analysis, as in detention pending deportation, extraordinary rendition, etc.

    nk (dbc370)

  257. As a salute to all the pro-SSM federal judges throughout the land, and to this country on its 238th birthday, the following main headline currently on the drudgereport.com is hereby presented:

    JOAN RIVERS SHOCK: ‘OBAMA GAY, MICHELLE A TRANNY’

    gossipcop.com: Joan Rivers calls President Obama “gay” and describes Michelle Obama with a homophobic slur in a new video. Asked by a street reporter whether a gay president or a female president will take office first, Rivers replied, “We already have it with Obama.”

    “You know Michelle is a tr*nny,” she went on. “A transgender. We all know.”

    My only question is when did “tranny” become a homophobic slur? I didn’t think transgendered people had anything to do with homosexuality.

    Mark (cb6333)

  258. Mark. Libs don’t care if Tranny is a perjorative or not. Libbtarrds like cheap suited lawyers are only interested in THEMSELVES. Much like Hillary Rodham and her RAPIST client. It’s not about the truth, it’s not about justice, it’s not about helping a true VICTIM of anything. It’s about the morally vaccuous LIBTARD winning a losing argument or case. They twist themselves into pretzels lying about lying upon lying about lying. Decency does not matter, honesty is not important, WINNING, POWER and MONEY are what matters. All else is RATIONALIZED. Rodham was FIRED from the Watergate committee for being a dishonest lying HACK. Tell me ONE SINGLE DEMOCRAT that is NOT completely dishonest. One.

    Gus (70b624)

  259. I didn’t think transgendered people had anything to do with homosexuality.

    Transgendered people. WOW. When do we get to change our skin color, nationality or PLANET of ORIGIN?????

    How did we get to this point, where we discuss the possibility of “disparaging or insulting SO CALLED…TRANSGENDERED people?”

    Gus (70b624)

  260. Gus wrote:

    Mark. Libs don’t care if Tranny is a perjorative or not.

    Robert Stacey Stacy McCain noted:

    Having been called a “faggot” innumerable times by these Enlightened Disciples of Progress, I understand that they have no actual principles or moral standards, and the same is generally true of feminists. They demand to be treated as equal to men, but when I respond to their stupid arguments the way I’d respond to any stupid argument made by a man — i.e., with cruel, mocking sarcasm — they act as if this proves that I am a hateful misogynist, and perhaps also either (a) a faggot, or (b) someone with a small penis, or usually (c) both.

    Amongst our oh-so-enlightened, multi-cultural and inclusive friends on the left, accusations of male homosexuality are commonly used as an insult, and, more, the accusations tend to be focused on accusing the male conservative whose positions they do not like as being the “bottom.” You should never think that the left won’t use racist or sexist insults if they believe it somehow helps their cause, or that they are somehow less bigoted than they claim the right to be.

    The Dana who does read other blogs (af9ec3)

  261. but if you want to talk about things that are more important than winning elections, then perhaps you might like to know that God does not consider His ways to be spiteful and arbitrary,
    but He loves you anyway, even if he doesn’t appreciate your humor

    . This thread probably isn’t the best place but since your offering, here are some kick starters:

    Does he also love the billions of people in the Far East who have not heard the good news and are doomed to an eternity of torture for not believing?

    Does he also love the millions of kids who die every year around the world or their parents who actively pray for them to survive?

    If Hitler accepted Jesus before dying and some of the millions he slaughtered did not, who would go to heaven? And how does that have anything to do with morality?

    What loving father would put his kids in a candy store and tell them not to eat the orange lollipops because those are laced with poison?

    Gil (454bd7)

  262. Dana – I must be unusually lucky in my friend selection, then, as the (generally very left-leaning) friends I have do not, in my experience, use references to homosexuality as insults. (They have been known to *joke* about it, yes, but that’s different).

    That said, very, very few of them are activists. And there’s no good reason to assume that my friends’ behavior extends to all liberals – just as there’s no good reason to assume that the behavior of the liberals Stacy McCain is interacting with extend to all people.

    I’m reminded of a discussion Milhouse – who I have still not managed to meet despite living in the same city – and I once had about a group of people we were both acquainted with. He perceived them to be substantially more “crazy liberal” than I did, and when we talked about it, it became clear to me that he was specifically discussing one individual whom everyone in the group actually thought was crazy (nice, and fun to hang out with, but crazy).

    I wonder to what degree a similar dynamic applies here.

    aphrael (e777bc)

  263. Gil gets his god-hate and Godwin out in one comment. Good work

    JD (addbc4)

  264. Although I do believe that if women did not have vaginas we would have exterminated them a long time ago, the fact is that they do have vaginas. So I am inclined to attribute misogyny to homosexuality, whether the misogynist himself recognizes it or not. Ergo, feminists who question RSM’s sexual orientation might be proven wrong if the case is taken to ultimate proof, but they do have reasonable cause for the accusation in my opinion.

    Ok, how many people have I offended?

    nk (dbc370)

  265. The rule of law is indispensable to freedom.

    oh goodness that ship has sailed Mr. A

    and if there’s anyone to be mad at about the gay marriagings it’s that Pervert Roberts Court, not the dozens of federal courts what are looking at how the perv court ruled and applying that decision with remarkable uniformity

    happyfeet (8ce051) — 7/3/2014 @ 7:45 pm

    Mr. feet you must be referring to where the Supreme Court didn’t reverse the lower court on CA’s same sex marriage ban. You obviously had no interest in understanding what actually happened there, which is no surprise.

    My recollection is that their ruling in that case was based on the issue of standing. The Democrat government in CA violated the longstanding rules of the game and refused to defend the constitutionality of their own law, and SCOTUS ruled that no one else had standing to defend it in court. So they never got into the constitutionality of it at all. The Democrat AG in VA recently refused to defend VA’s SSM ban in federal court. In fact this lunatic SSM mania is becoming like a black hole sucking in and destroying the entire system on which the rule of law in this country has rested for centuries, and as a side effect, individual freedoms as well. And you are on the side of the destroyers.

    Gerald A (9e3e6a)

  266. Libbtarrds like cheap suited lawyers are only interested in THEMSELVES.

    My greatest problem with most liberals is they believe their biases imbue them with great compassion, generosity, tolerance and sophistication. If they at least sensed — or were honest enough to admit — their liberalism was simply predicated on cheap emotions, a case of flimsy compassion for compassion’s sake, I wouldn’t be as irritated by so many of them.

    Amongst our oh-so-enlightened, multi-cultural and inclusive friends on the left, accusations of male homosexuality are commonly used as an insult

    A variation of that little routine was being both performed by (and admit it, Leviticus and nk) and directed at me by Leviticus and nk several postings above. But words like “weird” or “non-normative” used instead of gay or bi, or whatever.

    I’ve noticed so many instances through the years (among public figures like Alec Baldwin, for example) where a dyed-in-the-wool liberal will end up accusing someone they’re arguing with or ticked off at of being homosexual or of questionable masculinity (if lobbed at guys) or femininity (if aimed at women). And such an accusation does not spring forth from the same place where that accuser might challenge a person by claiming he or she in private is actually quite popular, witty, intelligent and wealthy.

    This is why I think the average person is innately, intrinsically programed to feel apprehensive about people who are GLBT (or sub-sections thereof), best exemplified by the famous ancient Greek philosopher Plato. That notable originally wrote, during his younger years, about homosexuality in a way typical of modern-day liberals but eventually came around to strongly condemning it. BTW, Plato was not influenced by (natch) the Bible or teachings of Jesus Christ.

    Mark (cb6333)

  267. Good morning JD.
    Of course I don’t hate god. It would be silly for me to hate something don’t believe exists.

    Gil (454bd7)

  268. Of course I don’t hate god. It would be silly for me to hate something don’t believe exists.

    That’s between you and Him, Gil. Why bother us with it? I, personally, don’t believe in West Virginia, there’s only one Virginia and its capital is Richmond, but you don’t seem me obsessing about it on every blog post.

    nk (dbc370)

  269. > My recollection is that their ruling in that case was based on the issue of standing

    You recollect correctly.

    I would note that as an ex-Californian who cares a lot about California constitutional law, I *really dislike* the way the court’s standing decision weakened the initiative system. The 9th circuit had certified a question to California – “under California law does the initiative sponsor stand in for the state in cases like this” – and that should have settled the question, IMO.

    aphrael (e777bc)

  270. Hi nk

    Actually I let several long winded posts relating to god go by. One even asserted that there was some link between gods existence and the originalist method of interpreting the constitution (#lol #what!?). But then MD offered to discuss something “more important” and I couldn’t resist anymore. Sorry to add an outside point of view. I know it’s much easier to discuss things with like minded people.

    Gil (db527f)

  271. In that case, Gil, could I take a moment to talk to you about the blatantly illegal, immoral, and unconstitutional way West Virginia came into existence from land stolen from Virginia? It makes these judges judicially amending marriage laws (not, they’re not “striking down bans”) seem like small potatoes.

    nk (dbc370)

  272. *no*, they’re not striking down bans

    nk (dbc370)

  273. no Mr. A i’m on the side of treating gay people like they all equal and stuff

    Team R is just whining cause they chose to be on the side of prima fascie bigotry and they chose poorly

    the courts are helping them slip that noose god love em

    except maybe the Texas ones

    what’s wrong with those people

    happyfeet (8ce051)

  274. Sure nk. But I don’t really have any strong opinions (or knowledge) of west Virginia. Did this happen when we were still colonies or after there were states etc?

    PS go ahead and quote me saying I have no knowledge JD. I set you up nice for it! :)

    Gil (db527f)

  275. Forum shopping is an art, happyfeet. I’d like to know how these particular judges got these cases; it’s worth money to plaintiffs’ lawyers.

    nk (dbc370)

  276. i’d like to know more about that as well Mr. nk

    happyfeet (8ce051)

  277. Do you like historical plays?

    William Roper: So, now you give the Devil the benefit of law!

    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

    William Roper: Yes, I’d cut down every law in England to do that!

    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

    nk (dbc370)

  278. For the Chicago contingent:

    “All government, in the last resort, is violence; all law, in the last resort, is force.”

    - Albert Parsons

    Leviticus (3cf82d)

  279. In the last resort, what isn’t?

    nk (dbc370)

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