Law Talk With Epstein and Yoo #9: Unconstitutional Declaration
Blue Yeti ·
Jun 30, 2011 at 7:20pm
Is the Declaration of Independence unconstitutional? On this, our special 4th of July edition, the professors --ably guided by host Troy Senik-- debate that all-American question. In addition, they re-visit gay marriage (one last time), dissect the SCOTUS decisions on Wal-Mart and video games, and finish up by discussing a few of their favorite (and least favorite) presidents.
Be sure and give us your views on the Declaration of Independence and any other issues debated here (except gay marriage -- no mas!) in the comments.
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Thanks to EJHill for the graphic.
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Jan '11
Re: Law Talk With Epstein and Yoo #9: Unconstitutional Declaration
I appreciate Troy taking another run at gay marriage, but I can't express how disappointed I am that the arguments against gay marriage weren't really presented accurately. The argument about the interest in procreation wasn't simply people worrying about the birthrate. It was about biological parents, particularly fathers, not taking responsibility for their children and their partners. Reducing the argument simply to birthrates missed a very important point. No one argues that legalizing SSM by itself undermines family structures. Instead we argue allowing SSM is of a piece with other changes to marriage that have diluted the notion that marriage is about keeping families together. It was a mistake to allow changes like no-fault divorce and welfare to single mothers to go into effect. Just because SSM won't be any worse than those mistakes is hardly a compelling reason to be sanguine about it.
The argument from tradition was also presented poorly. Recognizing the traditional value of marriage doesn't amount to arguing that marriage has worked well so far so we shouldn't mess with it. I can't say how hard it was not to roll my eyes at that characterization. Rather the argument was that people have forgotten the traditional reasons for marrying which centered around procreation. Those reasons have been replaced by very silly, childish, romantic ideals. For society to accept, in official fashion, that marriage is simply a romantic celebration and a living arrangement based on your feelings, is very problematic. Society needs to understand that marriage isn't simply about telling the world how much you love someone else. That's not the point of getting married, and the government shouldn't affirm that idea.
If Troy had wanted to revisit the topic it would have been nice that have John and Richard respond to those points, not the incorrect notion that the main beef with SSM was that people will stop having kids or that people don't respect tradition for tradition's sake. Those summations don't do justice to the remarks people made.
Edited on Jul 1, 2011 at 5:33amJan '11
Re: Law Talk With Epstein and Yoo #9: Unconstitutional Declaration
I also take great exception to Richard claiming SSM opponents want government to actively supress the gay lifestyle or stop homosexuals from having families. Most SSM opponents are fine with living and letting live, they just don't believe that letting live necessarily requires the government blessing of your lifestyle.
John made a related point, believing that SSM opponents are simply worried about sanctioning an immoral lifestyle. I'm sure many SSM opponents do worry about that, but that wasn't the thrust of the arguments made here on Ricochet.
John also gave the strange advice that conservatives worried about the decline of our culture should be taking Hollywood and other purveyors of culture to task. AS IF WE DON'T ALREADY DO THAT ALSO. Please John, of course conservatives are very vocal regarding attacks on the culture everywhere. To say they don't is to not be paying attention. Suggesting conservatives should only worry about Hollywood or our schools, and just ignore how laws and governmental policies influece societal attitudes is simply nonsensical. The government influences cultural attitudes and solidifies notions that creep into the culture from elsewhere. Conservatives need to fight deleterious influences everyewhere, INCLUDING governmental policy.
Edited on Jun 30, 2011 at 9:48pmJul '10
Re: Law Talk With Epstein and Yoo #9: Unconstitutional Declaration
Love the graphic!
On video games, I don't see how this touches free speech at all. This isn't a political statement children are making by buying and playing them. How does this differ from restricting children from buying pornography, cigarettes, or alcohol that it should be exempted as form of speech? That argument seems absurd on its face and shows how far the jurisprudence has strayed from common sense regarding what does and does not constitute speech.
The constitutionality of the Declaration touches on a tangent we've been discussing on John's thread on Lincoln around when is secession allowable.
Great stuff as always, gentlemen!
Jan '11
Re: Law Talk With Epstein and Yoo #9: Unconstitutional Declaration
I agree. I was very disppointed.
It's difficult to hear the good lawyers, before the long conversation, portray the opposing arguments in a certain light. Then we have a long conversation making distinctions, trying to precisely walk the line through (what we feel) are misconceptions. But at the next instance, the lawyers once again portray the arguments, almost exactly as they did before the conversation.
I'd love to continue the argument, but not if we opponents are going to be pre-judged as threatened relics of a bigoted past. We aren't. Continuing that conversation is pointless.
I also actively reject the notion that "trends" serve as arguments. When the DOMA was passed easily, and when Prop 8 was defeated in California, no one was arguing trends. Trends only became "evidence" when the trends were in one's own favor. And when the trend is strongest among the least mature, that's hardly persuasive.
Oct '10
Re: Law Talk With Epstein and Yoo #9: Unconstitutional Declaration
To be clear, an act of rebellion, which is what happened circa. 1776, is a rebellion against the British government. There is no constitutional issue, assuming Britain even had one, since it was a rebellion. You lose, you are an outlaw. You win, and you are a patriot.
May '10
Re: Law Talk With Epstein and Yoo #9: Unconstitutional Declaration
As Ben Franklin supposedly once said, "A rebellion is always legal in the first person, such as 'our rebellion.' It is only in the third person - 'their rebellion' - that it becomes illegal."
Oct '10
Re: Law Talk With Epstein and Yoo #9: Unconstitutional Declaration
KC Mulville
I also actively reject the notion that "trends" serve as arguments. When the DOMA was passed easily, and when Prop 8 was defeated in California, no one was arguing trends. Trends only became "evidence" when the trends were in one's own favor. And when the trend is strongest among the least mature, that's hardly persuasive. · Jul 1 at 12:22am
Correct me if I'm wrong, but I thought the point of the "trend" comment was that communities define their own moral standards and, accordingly, have the right to change the definition of marriage. Maybe I just need a clarification on what you're objecting to: Do you think states have the right to change the definition of marriage using the legislative process?
Oct '10
Re: Law Talk With Epstein and Yoo #9: Unconstitutional Declaration
BThompson: The argument about the interest in procreation wasn't simply people worrying about the birthrate. It was about biological parents, particularly fathers, not taking responsibility for their children and their partners. ... we argue allowing SSM is of a piece with other changes to marriage that have diluted the notion that marriage is about keeping families together. It was a mistake to allow changes like no-fault divorce and welfare to single mothers to go into effect.
The argument from tradition was also presented poorly.... Rather, the argument was that people have forgotten the traditional reasons for marrying which centered around procreation. .... For society to accept, in official fashion, that marriage is simply a romantic celebration and a living arrangement based on your feelings, is very problematic.
I like your statement of the point. I must say that, in reading the threads on SSM, I didn't realize that these were in fact the issues. Maybe it's understandable that Troy's question missed these points.
BTW, Richard did mention that same-sex couples can have children, through technology or adoption. That suggests that part of the motivation for SSM is creating stable households for kids, not just celebrating "feelings."
Jan '11
Re: Law Talk With Epstein and Yoo #9: Unconstitutional Declaration
Yes. I have no objection to the New York process.
My objection about trends is the suggestion that resistance is futile because the younger generation is all in favor of it. That reply doesn't address the substance of any argument; it simply bypasses argument and appeals to some hazy sense of inevitability.
It's on par with another merely rhetorical suggestion that if the Republicans run on social issues in 2012 when the economy is so bad, we'll get creamed. That's a worse straw man, because no one is advocating social issues to the exclusion of economic issues.
Both are examples of rhetoric; let's not address arguments, and let's accept that gay marriage will win. Well, no.
Oct '10
Re: Law Talk With Epstein and Yoo #9: Unconstitutional Declaration
There was something that Professor Yoo said that I would like to hear more about. Something about how the framers wanted the British to go back to a system from 200-300 years earlier that never actually existed...
Jul '11
Re: Law Talk With Epstein and Yoo #9: Unconstitutional Declaration
I heart video games and some of them really are art, "Heavy Rain" and "Flower" to name a few; but I really don't see how they can be protected speech when an R rated movie isn't. I've seen R rated movies that are real art, but aren't protected as speech. Would these movies be protected as speech if a case about movie ratings had come before this particular court? As for the Dante's Inferno argument, there is a game by the same name with a very graphic depiction of hell.