Answering Peter Robinson on SCOTUS and Gay Marriage

 

Peter posed a question earlier today: If the Supreme Court legalizes gay marriage, how should we respond? I defer to Richard Epstein’s views on the comparison between Dred Scott, Lochner, and gay marriage. I think that Robert P. George rightly warns of the dangers of the use of the due process clause by judges to advance their personal policy preferences. There are surely similarities between the Court’s use of substantive due process in all three periods. I think that a decision imposing gay marriage on the nation incorrectly reads our constitutional structure, just as Dred Scott mistakenly interpreted the Constitution’s original understanding of federal and state control over slavery and freedom.

But there is an important difference here, one that shouldn’t affect their legal decision but will control the political response. A majority of Americans support gay marriage now, as opposed to 2008. There will be no groundswell of opposition to the Court on gay marriage in the way there was against Dred Scott.

The most there will be, I predict, will be opposition of the kind that arose in response to Roe v. Wade — gay marriage could become an important issue in debates about values and judicial appointments. But there won’t be widespread resistance and successful presidential candidates who promise to under-enforce the decision because the majority of Americans will agree with the outcome, even if they disagree with the way our society reached it.

Published in Law, Marriage
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  1. Ricochet Contributor
    Ricochet
    @TitusTechera

    Cato Rand:How you get from there to “removes the fundamental legal understanding of the complementarity of the sexes” though is beyond me.

    I wish you would pay more attention, because this is a case of what lawyers on TV call ‘asked & answered,’ except that I’d already done the answering before you asked. The ultimate reason behind the state sanction for marriage is reproduction & caring for children.

    And the fact that you, or anybody else, isn’t satisfied with the simple “gay people are being allowed to get married” — which is a simple, clear, and unbiased statement of the facts…

    You seem to be under a misapprehension: We are in agreement about the facts. What is in question is the political meaning of those political facts. If you do not think that any law or judicial decision is in need of interpretation, you are an innocent. The courts are these days redefining what marriage means. They are rejecting the older principles & must find other ones, which will be new to the laws &, to some extent, the people. That is one reason why the facts require interpretation, as I have said. This is far from over even in its first phase in the federal courts, heading to SCOTUS. If you are not interested, you need not think or talk about this, but is it honesty to say that stating the facts will suffice for those with a pure conscience?

    • #121
  2. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus: “This is far from over even in its first phase in the federal courts, heading to SCOTUS.”

    So would you say that the SSM debate is closer to being at the end of the beginning or the beginning of the end?

    • #122
  3. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus: “If you do not think that any law or judicial decision is in need of interpretation, you are an innocent.”

    You know that Cato and I are both lawyers, right?

    • #123
  4. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula:So would you say that the SSM debate is closer to being at the end of the beginning or the beginning of the end?

    The former, although I am not thinking primarily of the debate: I am thinking primarily of conservatism, the future of which depends more on clear principles than on political debates.

    You know that Cato and I are both lawyers, right?

    No, but of course I would not hold that against you, I’m sure you’re as honest as the next guy…

    • #124
  5. user_653084 Inactive
    user_653084
    @SalvatorePadula

    How are clear principles implemented if not through politics?

    • #125
  6. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus: “No, but of course I would not hold that against you, I’m sure you’re as honest as the next guy…”

    I do appreciate that.

    • #126
  7. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula: How are clear principles implemented if not through politics?

    I know of three ways. One of them is religious movements, another is changes in music, & the third is politics in the narrow sense. But clear principles are not a guarantee of political success & wrong principles or muddy principles are not a guarantee of defeat, except in the natural sense… I suspect clarity about principles has a lot to do with their survival, but I cannot say to you how much principle contributes to reasonable politics.

    • #127
  8. x Inactive
    x
    @CatoRand

    Titus Techera:

    Cato Rand:How you get from there to “removes the fundamental legal understanding of the complementarity of the sexes” though is beyond me.

    I wish you would pay more attention, because this is a case of what lawyers on TV call ‘asked & answered,’ except that I’d already done the answering before you asked. The ultimate reason behind the state sanction for marriage is reproduction & caring for children.

    And the fact that you, or anybody else, isn’t satisfied with the simple “gay people are being allowed to get married” — which is a simple, clear, and unbiased statement of the facts…

    You seem to be under a misapprehension: We are in agreement about the facts. What is in question is the political meaning of those political facts. If you do not think that any law or judicial decision is in need of interpretation, you are an innocent. The courts are these days redefining what marriage means. They are rejecting the older principles & must find other ones, which will be new to the laws &, to some extent, the people. That is one reason why the facts require interpretation, as I have said. This is far from over even in its first phase in the federal courts, heading to SCOTUS. If you are not interested, you need not think or talk about this, but is it honesty to say that stating the facts will suffice for those with a pure conscience?

    This boils down to you not accepting that I don’t accept your interpretation of what’s happening.  C’est la vie.  But I still don’t.  And you restating it doesn’t change that.

    And as far as being a legal innocent goes, I will put my legal education and experience up against yours any time you like.

    • #128
  9. Ricochet Contributor
    Ricochet
    @TitusTechera

    Cato Rand:This boils down to you not accepting that I don’t accept your interpretation of what’s happening.

    Again, I get the sense that you somehow are not hearing what I am saying: You have been saying things are so or not so, but not why. Do you see what I am looking for? I do not understand why you even try to talk to me if you do not give reasons for your opinions…

    And as far as being a legal innocent goes, I will put my legal education and experience up against yours any time you like.

    I raise my eyebrow at your legal education here: I said nothing about legal–I said an innocent, if you do not think interpretation is necessary, which is what I understood you to mean when you were doing your ‘just the facts, ma’am’ routine. As you now know, I had no idea you were a lawyer, as you & I are no ways familiar or acquainted. As per our acquaintance–I am not impressed with your legal skills. If you want to ‘put you legal education & experience’ to any kind of test, I suggest you try to move from ‘It does not… I said it does not!’ to saying that it does not & then saying why or how come-

    • #129
  10. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus: “But clear principles are not a guarantee of political success & wrong principles or muddy principles are not a guarantee of defeat, except in the natural sense… I suspect clarity about principles has a lot to do with their survival, but I cannot say to you how much principle contributes to reasonable politics.”

    I agree with you about this, but I’m not sure how it connects to your previous comment about the issue of same-sex marriage being far from over? While same-sex marriage is clearly a question based on principle, whether or not it is recognized at law is fundamentally determined by politics. I agree with you that it is important to have clear principles, but as you’ve acknowledged, the clarity (or soundness) of a principle does not guarantee that that principle will be reflected in policy. I think I understand your position on the principle of same-sex marriage, but I was asking you about your views on the politics of it.

    • #130
  11. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula: I agree with you about this, but I’m not sure how it connects to your previous comment about the issue of same-sex marriage being far from over? While same-sex marriage is clearly a question based on principle, whether or not it is recognized at law is fundamentally determined by politics. I agree with you that it is important to have clear principles, but as you’ve acknowledged, the clarity (or soundness) of a principle does not guarantee that that principle will be reflected in policy. I think I understand your position on the principle of same-sex marriage, but I was asking you about your views on the politics of it.

    Oh, my mistake. I was looking upstream, so to speak, to the way law understands human connections & psychology before the emergence of politics.

    Looking downstream, I see bad things. I believe Justice Kennedy is turning continuously into the farce of libertarianism, of democratic individualism, of hippie politics. Justice Kennedy is the Big Lebowski on the Supreme Court. I think the question will be decided by SCOTUS–marriage will not just be allowed to be redefined by a little legal tyranny, which seems to be the American way, but it will be redefined by SCOTUS, which also happens now & then. This is either the beginning or the end of the alliance between liberal statism & libertarian individualism.

    But the GOP has an astounding chance to take power in so many states that federalism becomes a serious matter. I am always amused to hear conservatives talk about federalism as if it has to do with some guy doing something in his state: It is about states fighting the federal gov’t. This primarily means three things: New laws to neuter & counter, as far as possible, SCOTUS decisions; state constitutional amendments when a number of states feel like they can act together, presumably in tandem with lawsuits; & narrow construction of decisions. Warfare in the courts & legislatures, or the GOP consigns itself to extinction: I don’t see a conservative movement without Christians who are serious about marriage.

    • #131
  12. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus- Do you recognize the validity of the Supremacy Clause? If not, why not? If so, how can states act to negate rights conferred by the Federal Constitution? (I agree that the Constitution does not actually recognize a right to SSM, but that is a different question.)

    • #132
  13. x Inactive
    x
    @CatoRand

    Titus Techera:

    Cato Rand:This boils down to you not accepting that I don’t accept your interpretation of what’s happening.

    Again, I get the sense that you somehow are not hearing what I am saying: You have been saying things are so or not so, but not why. Do you see what I am looking for? I do not understand why you even try to talk to me if you do not give reasons for your opinions…

    And as far as being a legal innocent goes, I will put my legal education and experience up against yours any time you like.

    I raise my eyebrow at your legal education here: I said nothing about legal–I said an innocent, if you do not think interpretation is necessary, which is what I understood you to mean when you were doing your ‘just the facts, ma’am’ routine. As you now know, I had no idea you were a lawyer, as you & I are no ways familiar or acquainted. As per our acquaintance–I am not impressed with your legal skills. If you want to ‘put you legal education & experience’ to any kind of test, I suggest you try to move from ‘It does not… I said it does not!’ to saying that it does not & then saying why or how come-

    1) Well, I know you’re new here, but my profile identifies me as a lawyer.  And your reference to me being an “innocent” was with respect to what was going on in an area of the law.  But whatever.  That doesn’t much matter.

    2) I’m not sure what you want me to answer, but I’ll take a shot and assume it’s something like this:  “What’s the purpose of marriage, if not ‘the complementarity of the sexes’ or ‘reproduction and child rearing?'”

    This may come down to you being new here too, but I’ve had this argument so many times on this site, I might be guilty of using shorthand or making assumptions about people already knowing what I think.

    In brief, I do not believe marriage is an entirely child centered institution.  No doubt the creation of a stable, two parent family for the production and rearing of children is among its very important purposes, but I do not believe it is the only purpose.  (As an aside, until gays began demanding to get married, I don’t think anyone thought it was the only one.)  Among its other purposes is as an avenue for love, commitment, physical and emotional intimacy, and mutual support (of all sorts) and security between two adults.  It serves all these purposes for gay couples just like it does for straight couples with children, and straight couples without and, to boot, many gay couples raise children so for them, it serves the “stable family for the raising of children” purpose as well.

    Does that help?

    3) Now I have a question for you:  without relying on reasonless and loaded phrases that assume you conclusion and tell me nothing else, like “genderless marriage,” what’s your objection to same sex marriage?  And if you’re going to use “complementarity of the sexes” please explain what, other than “no gays allowed” that phrase means to you.  Because the way it gets used around here, by you and a few other people, that’s all it seems to mean.

    • #133
  14. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula: Titus- Do you recognize the validity of theSupremacy Clause? If not, why not? If so, how can states act to negate rights conferred by the Federal Constitution? (I agree that the Constitution does not actually recognize a right to SSM, but that is a different question.)

    I have no problem with the Supremacy Clause–my problem is the idea that the Supreme Court decides what it can decide. Either the GOP remembers that every political authority is an interpreter of the Constitution or they had better start obeying SCOTUS–which would mean believing in Roe v. Wade, as opposed to committing to repealing it. The great opportunity presented by this presumed newfanlged decision is that conservatives will decide whether they’re for their Christian electorate or for the kind of political establishment where SCOTUS can play king on occasion…

    As for what can be done–oh, any number of things. Primarily, narrow interpretation of decisions to deny rights that are not written into the Constitution. It’s one thing to obey what SCOTUS decides in a case; another to believe their reasoning. This is a dangerous thing to do, but it’s necessary. Partisan conflict is the only solution to the American’s weird idea that he can legalize / constitutionalize every conflict. I think it’s not too hard to see how this could be a problem.

    I think conservatives could move the GOP this way. The party needs Congress–for example, try to pass a law that excludes itself from SCOTUS review to affirm marriage is a state issue? That’s another thing. Of course, you probably need real lawyers to come up with the means, but first you need lawyers who believe in this fight…

    • #134
  15. Ricochet Contributor
    Ricochet
    @TitusTechera

    Cato Rand: 1) Well, I know you’re new here, but my profile identifies me as a lawyer. And your reference to me being an “innocent” was with respect to what was going on in an area of the law. But whatever. That doesn’t much matter.

    I’m also not interested in a quarrel. I don’t think of this as a question of law primarily. Or rather I do not think of law primarily in terms of things lawyers do. I laugh at the notion that some lawyer made lawyerly reasoning happen & then marriage was redefined. This is the fundamental political thing, marriage is…

    2) …This may come down to you being new here too, but I’ve had this argument so many times on this site, I might be guilty of using shorthand or making assumptions about people already knowing what I think.

    We just had a misunderstanding, not need to think on guilt. I would understand if you felt like there’s nothing to be gained from the umpteenth iteration, but I’m sure you can decide for yourself. Meanwhile:

    In brief, I do not believe marriage is an entirely child centered institution. No doubt the creation of a stable, two parent family for the production and rearing of children is among its very important purposes, but I do not believe it is the only purpose.

    Lots of purposes, sure, but the question is which one matters. As you point out yourself, only one of them really distinguishes marriage from this new public recognition with benefits notion. You’d have to argue against reproduction–I believe this is the future of libertarianism–that childbirth is really not a big deal, I mean legally, politically, & that child-rearing no longer needs family, because we’re not short-living barbarians these days!– this would not make an attractive family sitcom, I don’t think, but soon, no one will know what that is…

     Among its other purposes is as an avenue for love, commitment, physical and emotional intimacy, and mutual support (of all sorts) and security between two adults.

    Well, these are all worthy things & I am certainly not of the opinion that love should be denied to homosexuals. It is only marriage that should be restrained by a serious political principle. Or else there are consequences.

    It serves all these purposes for gay couples just like it does for straight couples with children, and straight couples without and, to boot, many gay couples raise children so for them, it serves the “stable family for the raising of children” purpose as well.

    Marriage makes sense for people who cannot have children because you cannot know who they are in advance & because it’s not worth the bother to distinguish them legally. In fact, childless couples may be said to have enough to upset them without being asked to divorce because they cannot produce offspring, or have their marriages revoked, not to say anything about screening couples for fertility before allowing for marriage or forcing people to prove they’d be fit parents or whatever a very logical mind might require…

    None of this is supposed to suggest that homosexual couples should also be included. But of course, once you remove the reproduction, something changes which you have not mentioned: It should not mattered whether it’s two men or ten who want to marry. & others things, too. Or shall the laws embodied in you prove that ten men cannot have the commitment or love or whatever you might require as criterion.

    3)What’s your objection to same sex marriage? …

    Nothing except that nature & law are put together in marriage to acknowledge the need to produce & educate & protect children. The complementarity of the sexes I take to mean what it means basically, despite your misgivings: That men & women together produce children. What nature bestows beyond that, the superior strength & anger of the male, the superior care & endurance of the female–these things also contribute. The child knows who his mother is & will learn about his father, too. These facts are obvious to those who see families, I’d say…

    This includes things of dubious rationality, but which are necessary: Why only two, one man, one woman? Why should we think polygamy or what have you barbaric, like people & politicians & the laws once did with Utah? There are political downsides to the jealousy which we encourage legally by marriage, but the sense of ownership required for living together should not be defied by the laws.

    • #135
  16. x Inactive
    x
    @CatoRand

    Titus Techera:

    Cato Rand: 1) Well, I know you’re new here, but my profile identifies me as a lawyer. And your reference to me being an “innocent” was with respect to what was going on in an area of the law. But whatever. That doesn’t much matter.

    I’m also not interested in a quarrel. I don’t think of this as a question of law primarily. Or rather I do not think of law primarily in terms of things lawyers do. I laugh at the notion that some lawyer made lawyerly reasoning happen & then marriage was redefined. This is the fundamental political thing, marriage is…

    2) …This may come down to you being new here too, but I’ve had this argument so many times on this site, I might be guilty of using shorthand or making assumptions about people already knowing what I think.

    We just had a misunderstanding, not need to think on guilt. I would understand if you felt like there’s nothing to be gained from the umpteenth iteration, but I’m sure you can decide for yourself. Meanwhile:

    In brief, I do not believe marriage is an entirely child centered institution. No doubt the creation of a stable, two parent family for the production and rearing of children is among its very important purposes, but I do not believe it is the only purpose.

    Lots of purposes, sure, but the question is which one matters. As you point out yourself, only one of them really distinguishes marriage from this new public recognition with benefits notion. You’d have to argue against reproduction–I believe this is the future of libertarianism–that childbirth is really not a big deal, I mean legally, politically, & that child-rearing no longer needs family, because we’re not short-living barbarians these days!– this would not make an attractive family sitcom, I don’t think, but soon, no one will know what that is…

    Among its other purposes is as an avenue for love, commitment, physical and emotional intimacy, and mutual support (of all sorts) and security between two adults.

    Well, these are all worthy things & I am certainly not of the opinion that love should be denied to homosexuals. It is only marriage that should be restrained by a serious political principle. Or else there are consequences.

    It serves all these purposes for gay couples just like it does for straight couples with children, and straight couples without and, to boot, many gay couples raise children so for them, it serves the “stable family for the raising of children” purpose as well.

    Marriage makes sense for people who cannot have children because you cannot know who they are in advance & because it’s not worth the bother to distinguish them legally. In fact, childless couples may be said to have enough to upset them without being asked to divorce because they cannot produce offspring, or have their marriages revoked, not to say anything about screening couples for fertility before allowing for marriage or forcing people to prove they’d be fit parents or whatever a very logical mind might require…

    None of this is supposed to suggest that homosexual couples should also be included. But of course, once you remove the reproduction, something changes which you have not mentioned: It should not mattered whether it’s two men or ten who want to marry. & others things, too. Or shall the laws embodied in you prove that ten men cannot have the commitment or love or whatever you might require as criterion.

    3)What’s your objection to same sex marriage? …

    Nothing except that nature & law are put together in marriage to acknowledge the need to produce & educate & protect children. The complementarity of the sexes I take to mean what it means basically, despite your misgivings: That men & women together produce children. What nature bestows beyond that, the superior strength & anger of the male, the superior care & endurance of the female–these things also contribute. The child knows who his mother is & will learn about his father, too. These facts are obvious to those who see families, I’d say…

    This includes things of dubious rationality, but which are necessary: Why only two, one man, one woman? Why should we think polygamy or what have you barbaric, like people & politicians & the laws once did with Utah? There are political downsides to the jealousy which we encourage legally by marriage, but the sense of ownership required for living together should not be defied by the laws.

    First of all, nothing here is new.  There’s nothing here that your anti-SSM fellow Ricochetti haven’t said to me 1000 times.  That’s nothing personal.  Given the volume of discussion of this subject here, it would have been a real shocker, and very impressive, if you’d have come up with something genuinely new.

    Second, the highlighted portion seems to be the sum and substance of your argument against SSM.  Am I wrong?  Because when I put that — which differs from “it’s always been this way and I think it should be this way” — up against the denial of the benefits (legal and otherwise) of marriage to a whole class of millions of people who are harming no one and nothing by entering into their marriages, it just doesn’t stack up for me.  Unless you rig a moral system with the premise that homosexuality is bad, I can’t conjure any form of moral reasoning that doesn’t conclude that it’s just obvious that gay people should be allowed to get married.

    And last, the polygamy thing.  My simple answer is that’s a different question.  Slippery slopes only really exist in arguments.  When the question of legalized polygamy is really presented, we can debate its merits.  But in the mean time, I’m not going down the path of conceding that I need to defend polygamy in order to defend same sex marriage.

    • #136
  17. Instugator Thatcher
    Instugator
    @Instugator

    Titus Techera:

      Justice Kennedy is the Big Lebowski on the Supreme Court.

    Based on the context, I think you must mean either the “Little Lebowski” or “the Dude” (same person). The Big Lebowski was the man in the wheelchair.

    Back to lurking.

    • #137
  18. x Inactive
    x
    @CatoRand

    Instugator:

    Titus Techera:

    Justice Kennedy is the Big Lebowski on the Supreme Court.

    Based on the context, I think you must mean either the “Little Lebowski” or “the Dude” (same person). The Big Lebowski was the man in the wheelchair.

    Back to lurking.

    I have no idea what you’re talking about, but LOL!

    • #138
  19. Ricochet Contributor
    Ricochet
    @TitusTechera

    Cato Rand:

    Instugator:

    Titus Techera:

    Justice Kennedy is the Big Lebowski on the Supreme Court.

    Based on the context, I think you must mean either the “Little Lebowski” or “the Dude” (same person). The Big Lebowski was the man in the wheelchair.

    Back to lurking.

    I have no idea what you’re talking about, but LOL!

    Thanks for that–I simply could not write that sentence, nor do I think anyone should…

    • #139
  20. Ricochet Contributor
    Ricochet
    @TitusTechera

    Cato Rand:First of all, nothing here is new. There’s nothing here that your anti-SSM fellow Ricochetti haven’t said to me 1000 times. That’s nothing personal. Given the volume of discussion of this subject here, it would have been a real shocker, and very impressive, if you’d have come up with something genuinely new.

    I’m glad this is not new, because getting to the tough stuff will be easier. Also, I’m new here–but you should not expect I say new things; I say old things, often.

    Second, the highlighted portion seems to be the sum and substance of your argument against SSM. Am I wrong? Because when I put that — which differs from “it’s always been this way and I think it should be this way” — up against the denial of the benefits (legal and otherwise) of marriage to a whole class of millions of people who are harming no one and nothing by entering into their marriages, it just doesn’t stack up for me. Unless you rig a moral system with the premise that homosexuality is bad, I can’t conjure any form of moral reasoning that doesn’t conclude that it’s just obvious that gay people should be allowed to get married.

    I am not sure why the thing that matters to you is ‘benefits’. I can understand why married people should get some benefits with a view to childbearing, but not simply because they marry. As to the idea that marriage essentially means benefits, it does not occur to you that you’re doing the weird thing here. As for the fact that the argument from nature means nothing to you–well, that’s not a surprise, is it…

    And last, the polygamy thing. My simple answer is that’s a different question. Slippery slopes only really exist in arguments. When the question of legalized polygamy is really presented, we can debate its merits. But in the mean time, I’m not going down the path of conceding that I need to defend polygamy in order to defend same sex marriage.

    I don’t thing you understand what I mean at all. This is not a matter of ‘slippery slope’–this is a matter of principle. Do not get me started on lawyer jokes. If reproduction is taken out of the definition–legal–of marriage, then you’re left with what you say: Tell the nice judge you love each other & here are the benefits! Why should that mean two people? How do you define love as meaning only two homosexuals or any other two people? What is the reason? If you say to others, well you’re just old-fashioned, then you do not get to retain any of the benefits of the old fashion, including the number two. Unless you fetishize it for some reason… If you understood what I meant, you’d’ve noticed that all you needed to do, on your intentions, to defend same sex marriage in twos but not tens, is distinguish the two, not defend both–but thanks for the suggestion there…

    • #140
  21. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus- What do you think the prospects are for the doctrine of judicial review being done away with?

    • #141
  22. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula: Titus- What do you think the prospects are for the doctrine of judicial review being done away with?

    I do not believe it needs to be removed–just reinterpreted. If you want to know where I learned that this is what the GOP needs to do–Lincoln, he said it.

    As for the prospects, they are very small, but then again, that does not bother me so much. It takes a while for people to move from insane ideas, like Mr. Bush, Jr. saying he signed a law he deemed unconstitutional because it’s not his problem, let SCOTUS sort it out, to only silly-insane ideas, like Speaker Boehner threatening to take the president to court, not to say ask for his lunch money back. Probably, progress requires a crisis. & someone who does not cry before the cameras…

    • #142
  23. user_653084 Inactive
    user_653084
    @SalvatorePadula

    How do you think judicial review should be reinterpreted?

    • #143
  24. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula:How do you think judicial review should be reinterpreted?

    Judicial review is supposed to be a small power, not an override on the political system. What can be more disgusting in American politics than a Supreme Court that acts like it’s the moral arbiter of the nation, never mind Dredd Scott, Plessy, &c.? What is the really good thing that SCOTUS has done to make up for that sort of thing? I suppose democrats do not care about history enough to be skeptical of such institutions… That’s part of the problem. The Supreme Court is not particularly competent or careful about politics & the Justices are not particularly prudent people. I’ve never heard anyone argue otherwise in all seriousness. There seems to be an assumption that law is not part of politics, as if the servants of legislators are somehow the masters! But it’s been generations already of Courts acting as if they were setting the direction of the ship of state. This will either stop or remove from citizens the possibility of understanding themselves as citizens, as opposed to plaintiffs & defendants…

    So that’s it in brief. If you want something longer–& maybe you shouldn’t–my purpose with the reinterpretation of judicial review is threefold: I want the American citizens to feel less powerless; I want the political process to be more serious, especially deliberation; & I want the democratic reliance on authority to be curbed before the combination of the administrative state & judicial fiat overtake the American mind.

    1.I’m sure all lawyers read their Tocqueville. I have nothing to add to the man saying that democratic individualism is a problem. People come into conflict & they expect a court to settle it. This is because neither can really be right or wrong, because they cannot really be different. Individualism has nothing but legislated & adjudicated rights to go by, which means people are always asking for help, never associating around an opinion other than the majority opinion & those opinions it authorizes. People who might fight their neighbor supinely obey the judge. This is obviously great for law & order, but might be a disaster for the people… If the courts are restrained, people previously thrown out of politics by 5 black robes suffering from a misunderstanding of their unimportance in the scheme of political things have a fighting chance again.

    2.Americans have a bias toward the executive, or getting things done. They have little respect for deliberation & little patience with people who disagree. That’s why the Senators get six years–it’s political insurance, as is the President’s four-year term. That is also why congressmen have two-year terms. The people should be part of the deliberative process. But if silly Justices take the politics out of politics because they think they get how things are supposed to end up–that’s no good for America, especially for the legitimacy of the system, which does not depend solely on good gov’t, but also on electing representatives. Without representation, you have the ancient alternatives: Political freedom in small cities & despotism everywhere else. If courts are allowed to intervene when they want & castrate the politicians, however…

    3.I already mentioned the weakness of democratic individualism in conflicts & the reliance on majority opinion. There is something worse happening to what is becoming a litigious society–Americans less & less feel the need to associate for political purposes & increasingly depend on a nationalized politics which produces majority opinions however it can, on any subject relevant. Less & less are people really able to deal with their lives–the federal gov’t is going to do it, one way or the other. Whether the best outcomes come from the federal gov’t is not at stake–the question is whether the people should abandon their hard-won rights to know-it-alls.

    • #144
  25. user_653084 Inactive
    user_653084
    @SalvatorePadula

    But constitutional judicial review is simply the doctrine that courts have to power to invalidate laws and actions which violate the Constitution. It doesn’t address whether any particular law violates the constitution. What do you think needs to be revised about the doctrine, as opposed to particular rulings?

    • #145
  26. x Inactive
    x
    @CatoRand

    Titus Techera:

    Cato Rand:First of all, nothing here is new. There’s nothing here that your anti-SSM fellow Ricochetti haven’t said to me 1000 times. That’s nothing personal. Given the volume of discussion of this subject here, it would have been a real shocker, and very impressive, if you’d have come up with something genuinely new.

    I’m glad this is not new, because getting to the tough stuff will be easier. Also, I’m new here–but you should not expect I say new things; I say old things, often.

    Second, the highlighted portion seems to be the sum and substance of your argument against SSM. Am I wrong? Because when I put that — which differs from “it’s always been this way and I think it should be this way” — up against the denial of the benefits (legal and otherwise) of marriage to a whole class of millions of people who are harming no one and nothing by entering into their marriages, it just doesn’t stack up for me. Unless you rig a moral system with the premise that homosexuality is bad, I can’t conjure any form of moral reasoning that doesn’t conclude that it’s just obvious that gay people should be allowed to get married.

    I am not sure why the thing that matters to you is ‘benefits’. I can understand why married people should get some benefits with a view to childbearing, but not simply because they marry. As to the idea that marriage essentially means benefits, it does not occur to you that you’re doing the weird thing here. As for the fact that the argument from nature means nothing to you–well, that’s not a surprise, is it…

    [By “benefits” I meant all the benefits of marriage I mentioned, not just financial benefits.]

    [And no, the argument from nature does not impress me.  I find that people see in nature what they want to see.]

    And last, the polygamy thing. My simple answer is that’s a different question. Slippery slopes only really exist in arguments. When the question of legalized polygamy is really presented, we can debate its merits. But in the mean time, I’m not going down the path of conceding that I need to defend polygamy in order to defend same sex marriage.

    I don’t thing you understand what I mean at all. This is not a matter of ‘slippery slope’–this is a matter of principle. Do not get me started on lawyer jokes. If reproduction is taken out of the definition–legal–of marriage, then you’re left with what you say: Tell the nice judge you love each other & here are the benefits! Why should that mean two people? How do you define love as meaning only two homosexuals or any other two people? What is the reason? If you say to others, well you’re just old-fashioned, then you do not get to retain any of the benefits of the old fashion, including the number two. Unless you fetishize it for some reason… If you understood what I meant, you’d’ve noticed that all you needed to do, on your intentions, to defend same sex marriage in twos but not tens, is distinguish the two, not defend both–but thanks for the suggestion there…

    [I’m having trouble figuring out why this isn’t a slippery slope argument.  It still looks like one to me.]

    [And if you just want to stand on “principle” my question would be who gets to decide which principle.  Mine differ from yours.]

    • #146
  27. x Inactive
    x
    @CatoRand

    Titus Techera:

    Salvatore Padula:How do you think judicial review should be reinterpreted?

    Judicial review is supposed to be a small power, not an override on the political system. [Judicial review is supposed to be used when statutes violate the Constitution.  It is not intended to be either “large” or “small.”]  What can be more disgusting in American politics than a Supreme Court that acts like it’s the moral arbiter of the nation, never mind Dredd Scott, Plessy, &c.? What is the really good thing that SCOTUS has done to make up for that sort of thing? [The Court did not create slavery or segregation.  It simply failed to prevent them.  It’s odd that you criticize the Court for that, while advocating for the legislatures that created those evils.]  I suppose democrats do not care about history enough to be skeptical of such institutions… That’s part of the problem. The Supreme Court is not particularly competent or careful about politics & the Justices are not particularly prudent people. [Wow.  That’s a pretty sweeping statement.  We’ve had some pretty remarkable individuals and minds on the Supreme Court over the years.  What have you done that qualifies you to judge the prudence of all of them, in one fell swoop?]  I’ve never heard anyone argue otherwise in all seriousness. [Seriously.  Yor comment just sounds arrogant, and juvenile.]  There seems to be an assumption that law is not part of politics, as if the servants of legislators are somehow the masters! [Read your Constitution.  The federal courts are a coordinate branch.  They do not answer to the legislature.]  But it’s been generations already of Courts acting as if they were setting the direction of the ship of state. This will either stop or remove from citizens the possibility of understanding themselves as citizens, as opposed to plaintiffs & defendants…

    So that’s it in brief. If you want something longer–& maybe you shouldn’t–my purpose with the reinterpretation of judicial review is threefold: I want the American citizens to feel less powerless; I want the political process to be more serious, especially deliberation [And the political branches are well known for their seriousness and deliberation.]; & I want the democratic reliance on authority to be curbed before the combination of the administrative state & judicial fiat overtake the American mind.

    1.I’m sure all lawyers read their Tocqueville. I have nothing to add to the man saying that democratic individualism is a problem. People come into conflict & they expect a court to settle it. This is because neither can really be right or wrong, because they cannot really be different. Individualism has nothing but legislated & adjudicated rights to go by, which means people are always asking for help, never associating around an opinion other than the majority opinion & those opinions it authorizes. People who might fight their neighbor supinely obey the judge. This is obviously great for law & order, but might be a disaster for the people… If the courts are restrained, people previously thrown out of politics by 5 black robes suffering from a misunderstanding of their unimportance in the scheme of political things have a fighting chance again.  [I can’t figure out what most of this means, but I don’t want to live in a polity without courts.  Whatever their sins, they are critical to minimizing the kind of violent self-help that would proliferate without them.]

    2.Americans have a bias toward the executive, or getting things done. They have little respect for deliberation & little patience with people who disagree. That’s why the Senators get six years–it’s political insurance, as is the President’s four-year term. That is also why congressmen have two-year terms. The people should be part of the deliberative process. But if silly Justices take the politics out of politics because they think they get how things are supposed to end up–that’s no good for America, especially for the legitimacy of the system, which does not depend solely on good gov’t, but also on electing representatives. Without representation, you have the ancient alternatives: Political freedom in small cities & despotism everywhere else. If courts are allowed to intervene when they want & castrate the politicians, however… [Didn’t see “castrate” coming, I gotta admit.  Huh?]

    3.I already mentioned the weakness of democratic individualism in conflicts & the reliance on majority opinion. There is something worse happening to what is becoming a litigious society–Americans less & less feel the need to associate for political purposes & increasingly depend on a nationalized politics which produces majority opinions however it can, on any subject relevant. Less & less are people really able to deal with their lives–the federal gov’t is going to do it, one way or the other. Whether the best outcomes come from the federal gov’t is not at stake–the question is whether the people should abandon their hard-won rights to know-it-alls.  [It seems like you’re no longer talking about the courts here.]

    By the way, these are the comments of someone who agrees with you that the courts sometimes overreach, and that federalism, and the general tendency to push legislative decisions to the smallest and most local polity possible, is wise.

    • #147
  28. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula:But constitutional judicial review is simply the doctrine that courts have to power to invalidate laws and actions which violate the Constitution. It doesn’t address whether any particular law violates the constitution. What do you think needs to be revised about the doctrine, as opposed to particular rulings?

    The opinion that the Supreme Court knows best. First, judicial review is about as vague as war powers, as far as the Constitution is concerned. Secondly, this is not a matter of individual rulings, but of the twin things they teach you: That Justices routinely act as if they were authorized constitutionally in a way superior to the elected branches; & that their authorization is to institute a new individualism. On both counts, the Justices are wrong.

    • #148
  29. Ricochet Contributor
    Ricochet
    @TitusTechera

    Cato Rand[I’m having trouble figuring out why this isn’t a slippery slope argument. It still looks like one to me.

    The questions is, what is marriage? There is an old-fashioned answer to that, to which you object. Ok. What is the newfangled answer? Two people is something part of the old idea. You reject it especially for homosexuals. Once you reject it, however, it is gone. Everyone else may marry, too, according to their definition. When once you reject the one man plus one woman, how do you create a principle that says one man plus one man, but no more, or one woman plus one woman, but no more. What justifies the number two?

    As for nature, we might take up that subject later.

    • #149
  30. Ricochet Contributor
    Ricochet
    @TitusTechera

    Cato Rand:Judicial review is supposed to be used when statutes violate the Constitution. It is not intended to be either “large” or “small.”

    Do not play coy with me: Who decides when statutes are constitutional? If it’s SCOTUS & any federal court who feels like it, then there is no law except what they allow! Every authorized power decides about the Constiution, then they fight it out–it’s messy, but it’s better than the silliness now ongoing.

    The Court did not create slavery or segregation. It simply failed to prevent them. It’s odd that you criticize the Court for that, while advocating for the legislatures that created those evils.

    Simply failed to prevent slavery is not at all what Dredd Scott about–have you ever heard Justice Taney’s ‘blacks have no rights white men are obliged to recognize’ spiel? The same Justice who had defended the Constitution to the opposite effect in his youth? If ‘simply failed to prevent slavery’ was at stake, then Dredd Scott would never have been necessary or it would have been a mere declaration that the Court could do nothing. But if SCOTUS is what you seem to think it is, then of course it should have declared unconstitutional anything it did not like.

    [Wow. That’s a pretty sweeping statement. We’ve had some pretty remarkable individuals and minds on the Supreme Court over the years. What have you done that qualifies you to judge the prudence of all of them, in one fell swoop?]

    I’m pleased for you. I guess all lawyers, maybe all Americans can pat themselves on the back for these great Justices. That aside, when it mattered, SCOTUS came up with horrendous mistakes. All in all, it’s the pathetic power. Sure, the other branches did terrible things–but they also did the greatest things. What in God’s heaven has SCOTUS ever done that compares?

    Read your Constitution. The federal courts are a coordinate branch. They do not answer to the legislature.]

    I’ve had the chance to read it now & again. What I meant was, SCOTUS was not there in the beginning. But the rest of the gov’t was. There can only be judicial review after someone makes up the laws & Constitution. Legislation is the master of the judiciary, therefore.

    [I can’t figure out what most of this means, but I don’t want to live in a polity without courts. Whatever their sins, they are critical to minimizing the kind of violent self-help that would proliferate without them.]

    Again, my point is that the political regime comes before the courts. Without it, they are useless at best. But I’ll add that it is also required that citizens want to obey the laws & the courts, which the courts take for granted: In these ways, they are an inferior institution.

    [Didn’t see “castrate” coming, I gotta admit. Huh?]

    Think about the terrible decisions like Dredd Scott. Or the small moronic things that hurt the political process because a few people turn lunatic, while, no doubt, reading your Constitution.

    [It seems like you’re no longer talking about the courts here.]

    Yes, we are. The courts are also a political education in themselves. Tocqueville suggests that jury duty teaches people what the law really means, because they have to enforce it. But it goes beyond that. The habit of recourse to the courts instead of the political process is the basic problem.

    By the way, these are the comments of someone who agrees with you that the courts sometimes overreach, and that federalism, and the general tendency to push legislative decisions to the smallest and most local polity possible, is wise.

    Mr. Cato Rand, I say with some regret, agreeing with me is difficult. If you find, it cannot be done, don’t beat yourself up about it.

    • #150
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