The Living Constitution Kills Prop 8
Proposition 8 will soon become a cottage industry for all constitutional lawyers dealing with the equal protection clause. From a doctrinal point of view, the case is a vivid illustration of the enormous gulf that separates any theory of original constitution meaning from modern views of the living constitution. On the former, it seems pretty clear that the equal protection clause meant that the government could not in the enforcement of the criminal law make invidious distinctions between persons. Coupled with the Due Process Clause, it was intended to make sure that all states, and the southern states in particular, did not railroad folks into serious punishment by passing laws that discriminated or by enforcing facially neutral laws in an even-handed fashion. This rule could apply to any and all distinctions. It is not only blacks, but also women, foreigners and gays that should receive that kind of equal protection, which extends to all persons.
What the Equal Protection Clause was not in this view was a generator of new individual rights against the state, whether it relates to marriage or abortion or anything else. When the living constitution comes along, the older limitations vanish, and what we have is a redefinition of all sorts of substantive commitments. Marriage of course is a topic that gets to the core of human emotions, and the laws on family reflect a variety of religious and social perceptions that are not always in tune with the latest social theories. My fear here is that two different conceptions of legitimacy will lead to protracted social conflict which a more modest constitutional approach could perhaps avoid. But as things now stand, Vaughn Walker’s decision is in tune with recent Supreme Court cases in the way in which Prop 8 is not.
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Re: The Living Constitution Kills Prop 8
I haven't yet had a chance to read the opinion, Richard. But my basic view is that federal courts should not impose a uniform national rule about gay marriage, or abortion, even though I happen to think that as a matter of policy, states should allow gay marriage and liberal access to abortions. I think that under our Constitution, these are decisions that are for the people of the states to decide, just as they decide on the death penalty or euthanasia or a whole host of other laws. By intervening on gay marriage, the courts only ensure that the issue will become even more contentious and long-lived -- witness what Roe v. Wade has done to our politics and our courts.
Re: The Living Constitution Kills Prop 8
My thinking here will, as usual, trail that of Mssrs. Epstein and Yoo, for the reason that I, as Pooh once said, am a bear of very little brain. But one phrase in Richard's post struck me: "a generator of new original rights against the state." That's precisely the role Judge Vaughn Walker has taken upon himself.
Aug '10
Re: The Living Constitution Kills Prop 8
did not railroad folks into serious punishment by passing laws that discriminated or by enforcing facially neutral laws in an even-handed fashion.
I assume you mean in a biased or uneven-handed fashion.
This rule could apply to any and all distinctions. It is not only blacks, but also women, foreigners and gays that should receive that kind of equal protection, which extends to all persons.
But here's the problem -- all laws ever made in human history, past, present or future, discriminate and make classifications. And then they treat people unequally on the basis of said classification. The tax code treats people with kids different from people without; the criminal law treats people who rob or rape different from people who don't, etc.
Either equal protection means only the historical-context of racial classifications (and thus current jurisprudence is rejected in pretty much its entirety) or it means the courts are a super-legislature with the right to strike down any law they consider unwise, limited only by prudence about what the proles will accept. If a legislature can't classify, it can't act.
It's really that simple.
Aug '10
Re: The Living Constitution Kills Prop 8
I think that under our Constitution, these are decisions that are for the people of the states to decide, just as they decide on the death penalty or euthanasia or a whole host of other laws.
For now, Mr. Yoo. For now.
May '10
Re: The Living Constitution Kills Prop 8
Help me out here, folks. Prop 8 amended the California Constitution. How was the judge then able to declare a Constitution unconstitutional?
And a second question, did the judge today invoke a honking big incorporation thing (I'm sorry that I don't know the precise legal term) by saying that the state must abide by Federal standards? I know there were a couple court decisions on the Second Amendment that essentially said the Federal constitution specifically trumped State constitutions on gun laws. Did the judge do the same with marriage laws?
Aug '10
Re: The Living Constitution Kills Prop 8
Help me out here, folks. Prop 8 amended the California Constitution. How was the judge then able to declare a Constitution unconstitutional?
Actually that part per se is not controversial. He declared a part of the California Constitution a violation of the federal constitution. And if California had passed an amendment saying "black people can't vote," that would have been a correct and easy call on the basis of federal supremacy in the field of constitutional rights.
Re: The Living Constitution Kills Prop 8
Here are some further thoughts of mine:
May '10
Re: The Living Constitution Kills Prop 8
I'm not a judge, nor am I particularly learned, so here is what I would have said:
"I have no authority under the Constitution to define marriage. That is for legislators and the people themselves. I detect evolution and movement on the question, and I'm interested, as a citizen and an archair sociologist, where it's all headed. I'm sorry that this is a scary and passionate issue for you, but I can't make it go away with my Magic Fourteenth Amendment Wand. Did you not learn anything from Roe v Wade?"
May '10
Re: The Living Constitution Kills Prop 8
Prof. Epstein: Why only criminal law?
May '10
Re: The Living Constitution Kills Prop 8
This is very hard to grasp. Perhaps Mr. Bumble had a point...
How does this impact other states that currently do not issue marriage licenses to same-sex couples. This is a federal ruling, correct? If CA is unconstitutional then what of the others?
Jun '10
Re: The Living Constitution Kills Prop 8
John Yoo: I happen to think that as a matter of policy, states should allow gay marriage and liberal access to abortions... euthanasia or a whole host of other laws. · Aug 4 at 3:13pm
So we can have 50 different definitions of objective reality? Isn't this counter to reason? If the unborn and elderly are persons, they are entitled to the rights of persons protected by the constitution, no? If Rhode Island said that a murdered person was not really a person so long as they were killed at 4 pm and that no crime was committed, what would become of the role of federal government? What if abortion was outlawed in South Dakota but not in North? Logically, scientifically, one of them is objectively in the wrong; one of them either allows murder legally or one is scientifically deranged. You could have the same exact action in both states with different legal outcomes.
Jun '10
Re: The Living Constitution Kills Prop 8
G.A. Dean: This is a federal ruling, correct? If CA is unconstitutional then what of the others? · Aug 4 at 4:52pm
This is my question applied to abortion, euthanasia, and "a whole host of other laws." Dean cuts to the point.
Jun '10
Re: The Living Constitution Kills Prop 8
I think it only applies in the Ninth Circus at this point. That's usually how it is.
http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000135
Jun '10
Re: The Living Constitution Kills Prop 8
So have we reach the point where the citizens of a state are prohibited from changing their state constitution to reflect the societal and moral values of the majority of its citizens, on the grounds that such values are by their nature capricious and logically indefensible, and thus fail the federal Due Process test? Or am I mischaracterizing the ruling? Like Richard Epstein, I'd like to understand the logic of this ruling as potentially applied to other purely moral standards such as polygamy.
Jun '10
Re: The Living Constitution Kills Prop 8
Samwise you have 50 different positions on the death penalty right now, does that mean none or some or all do not reflect objective reality? What's special about a "Federal" definition of objective reality, especially when it comes to issues such as partial-birth abortion?
Jul '10
Re: The Living Constitution Kills Prop 8
I feel a little lost amidst the brilliance of my betters here. But it seems really pretty simple to me. To conclude that the Consitution of the United States has any bearing whatsoever on "what marriage is", is willful foolishness at best, and rotten to the core at worst. Judicial activism raised to almost a criminal level. The peer of Roe v Wade. That is simply not what the Constitution is about.
This ruling will agitate the "country party" in a very important way.
Jul '10
Re: The Living Constitution Kills Prop 8
It's worse than polygamy, Prof. Epstein.
There are plenty of restrictions on marriage today. You can't marry your sibling, your parent, or in some states, your cousin. You can't marry someone under the age of consent. How is this Proposition different?
The Constitution is purposefully silent on issues such as these. Then we should invoke the 9th and 10th Amendments.
The What?
(Only the 1st (limited) 4th, 5th and 15th exist.)
Jul '10
Re: The Living Constitution Kills Prop 8
Typo. 14th.
Jul '10
Re: The Living Constitution Kills Prop 8
I have to say, I was nervous to come in here today because being gay and all, the issue is a bit sensitive for me. I'm terrified the GOP will re-enact 1992 and terrify the country into giving this weak, effete, ineffectual man a second term. But you folks have really made me proud tonight. I disagree with elements of the ruling but the general theme of it seems to be to be on the right side of history, and to me there's something inherently conservative about the idea that the government can't regulate who I can marry and who I can't, so long as we're both (both, just two) consenting adults. I'm don't vote on just this issue, Obama has done more to drive me away as a gay voter than most Republican candidates could ever do, but...it's important. I agree with Mr. Yoo, and I think a favorable Supreme Court ruling is only likely to create a scenario where all states must RECOGNIZE marriages performed in other states but need not perform them. The difference between heterosexuals getting married in New York vs. Nevada, say.
Jul '10
Re: The Living Constitution Kills Prop 8
If I can be presumptuous enough to answer this as one of the few declared homosexuals on here...I don't necessarily have issues legally with polygamy so much as morally; I don't care who anyone else sleeps with or marries, but polygamy as it's practiced in the US most often isn't like "Big Love." It's a situation that endangers children and many women (some would presumably choose it just like some women choose the niqab). I'm not sure there's a way to legalize it while protecting those currently most abused by it, but...marrying my boyfriend isn't going to physically or sexually endanger anyone. We also don't commit welfare fraud or traffic in weapons (though if we didn't live in New York City, I'd practice a lively gun trade).