The Money Mustache Community
Other => Off Topic => Topic started by: Exflyboy on June 27, 2018, 02:43:46 PM
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AK was often the tie breaking vote.. Now Trump will install a right wing whack job no doubt.
How do we think that will affect the next attack on the ACA or other "entitlement programs"??
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AK was often the tie breaking vote.. Now Trump will install a right wing whack job no doubt.
How do we think that will affect the next attack on the ACA or other "entitlement programs"??
You nailed it - that would be my concern. ACA, SS, Medicare. But who knows what technicality could be challenged as unconstitutional in the future.
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Hopefully this sounds the klaxon horn spurring Democrats to action and voters to vote D ALL THE WAY DOWN.
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I see no silver lining and no way of stopping this.
A Democratic President expands the Court.
It seems unlikely but millenials outnumber boomers and boomers are dying. When the court is way out-of-sync with the populace, the populace makes the court fit.
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I got the below in my inbox from Sen. Chris Murray; got a similar message from Sen. Kamala Harris. I'm not sure what ability the Dems have to postpone a vote, but I'm all in favor...
Earlier today, Supreme Court Justice Anthony Kennedy announced he would be stepping down from the court at the end of July. I wanted to take a moment so you knew exactly where I stand on what should happen next:
Mitch McConnell set the rule. Now, he and Senate Republicans need to follow it.
The United States Senate should not vote on any nomination until the voters have had a chance to weigh in on this court-altering decision and a new Congress is sworn in.
No vote on a Supreme Court nominee until after the new Congress is seated.
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I got the below in my inbox from Sen. Chris Murray; got a similar message from Sen. Kamala Harris. I'm not sure what ability the Dems have to postpone a vote, but I'm all in favor...
Earlier today, Supreme Court Justice Anthony Kennedy announced he would be stepping down from the court at the end of July. I wanted to take a moment so you knew exactly where I stand on what should happen next:
Mitch McConnell set the rule. Now, he and Senate Republicans need to follow it.
The United States Senate should not vote on any nomination until the voters have had a chance to weigh in on this court-altering decision and a new Congress is sworn in.
No vote on a Supreme Court nominee until after the new Congress is seated.
Fuck it, why not wait 2.5 years so the American people have a voice just like what happened with Merrick Garland?
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A Democratic President expands the Court.
I hate the fact that it has come to this, but at this point this really is our only option. That or impeach Gorsuch. Without the Supreme Court, progress is impossible.
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A Democratic President expands the Court.
I hate the fact that it has come to this, but at this point this really is our only option. That or impeach Gorsuch. Without the Supreme Court, progress is impossible.
Well, it's not a slam dunk yet.
McCain probably won't vote and Flake isn't exactly a Trump loyalist. There's also Capito, who is more of a pro-choice Republican than not. And Murkowski and Collins. Collins may be the most vulnerable if she sides with a virulent anti-choice nominee.
They could toe the line for Gorsuch because of Kennedy. Without him, abortion is on the chopping block.
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A Democratic President expands the Court.
I hate the fact that it has come to this, but at this point this really is our only option. That or impeach Gorsuch. Without the Supreme Court, progress is impossible.
God forbid progress goes through the democratic process and within constitutional constraints.
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A Democratic President expands the Court.
I hate the fact that it has come to this, but at this point this really is our only option. That or impeach Gorsuch. Without the Supreme Court, progress is impossible.
God forbid progress goes through the democratic process and within constitutional constraints.
Thankfully, expanding the Court is within constitutional constraints.
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Nothing is ever as good as it seems or as bad as it seems. This too shall pass. etc, etc...
I'd say let's at least, if we could, please agree that reasonable people can take different views on the items in your list. That there can be some middle ground on these things that don't necessarily make one side giddy and the other angry. That if we were sitting down with a couple of beers and just discussing some of these things that while we may not change anyone's mind, we might at least agree with some of the other's points of concern.
Can we agree that the supreme court has taken an outsized role in our society? That our other two branches have become unbalanced, with the executive taking too much power and the legislature too little, as the politics are easier to just let the administrative / regulatory apparatus govern without the need for those pesky on-the-record votes? Let the court decide, and then you can just shrug and say "well, I'm on your side!"
I don't know what will happen, of course, but I think it is reasonable to nominate and confirm a new justice before the next congress sits. I understand why that will be argued about quite forcefully, but I do think that this situation is a bit different than the situation at the end of Obama's term.
First, the president picks the nominee, the senate just confirms. The president is in a position of greater power to 'choose the candidates' as it were. In that case, we were guaranteed to have a new president, regardless of which party won. In this case, the same president is going to submit the nominee. Had Obama's nominee gone through the hearings, do you think the Republican senate would have confirmed him under those circumstances, or would it just have been a theater for political grandstanding with a forgone conclusion? An opportunity to get everyone even angrier?
Second, the justice in this case (Kennedy) is a middle of the spectrum judge. His replacement, even if it is someone who is to the right (probably) doesn't change every outcome. The last few days have shown that Kennedy already voted with the 'conservative' justices on many important cases. In contrast, when Scalia died, he was a staunch pillar of the conservative wing on the court. Had he been replaced with a liberal wing justice, that would have changed many more potential outcomes. It would have been a much more dramatic shift of the court. It would be more like the scenario of Ruth Bader Ginsberg retiring and being replaced with a conservative justice.
That scenario will happen soon enough, I imagine. God help us when it does, given the state of discourse in this country.
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A Democratic President expands the Court.
I hate the fact that it has come to this, but at this point this really is our only option. That or impeach Gorsuch. Without the Supreme Court, progress is impossible.
God forbid progress goes through the democratic process and within constitutional constraints.
I want progressive legislation to go through the democratic process, but a conservative Supreme Court will overturn even the mildest sliver of progressive legislation on the flimsiest legal pretense. They decide what "constitutional constraints" means and they won't decide in favor of progress.
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Second, the justice in this case (Kennedy) is a middle of the spectrum judge. His replacement, even if it is someone who is to the right (probably) doesn't change every outcome. The last few days have shown that Kennedy already voted with the 'conservative' justices on many important cases. In contrast, when Scalia died, he was a staunch pillar of the conservative wing on the court. Had he been replaced with a liberal wing justice, that would have changed many more potential outcomes. It would have been a much more dramatic shift of the court. It would be more like the scenario of Ruth Bader Ginsberg retiring and being replaced with a conservative justice.
Kennedy was a moderate for important votes, however. He voted with the left on the Planned Parenthood case re-affirming Roe. He voted with the left in Obergefell, which made gay marriage legal.
So while it's a nice platitude that "This, too, shall pass," real lives could be affected in significant ways. We're not discussing the internet sales tax, after all (which was also 5-4, with Kennedy voting on the majority side).
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Nothing is ever as good as it seems or as bad as it seems. This too shall pass. etc, etc...
I'd say let's at least, if we could, please agree that reasonable people can take different views on the items in your list. That there can be some middle ground on these things that don't necessarily make one side giddy and the other angry. That if we were sitting down with a couple of beers and just discussing some of these things that while we may not change anyone's mind, we might at least agree with some of the other's points of concern.
Can we agree that the supreme court has taken an outsized role in our society? That our other two branches have become unbalanced, with the executive taking too much power and the legislature too little, as the politics are easier to just let the administrative / regulatory apparatus govern without the need for those pesky on-the-record votes? Let the court decide, and then you can just shrug and say "well, I'm on your side!"
I don't know what will happen, of course, but I think it is reasonable to nominate and confirm a new justice before the next congress sits. I understand why that will be argued about quite forcefully, but I do think that this situation is a bit different than the situation at the end of Obama's term.
First, the president picks the nominee, the senate just confirms. The president is in a position of greater power to 'choose the candidates' as it were. In that case, we were guaranteed to have a new president, regardless of which party won. In this case, the same president is going to submit the nominee. Had Obama's nominee gone through the hearings, do you think the Republican senate would have confirmed him under those circumstances, or would it just have been a theater for political grandstanding with a forgone conclusion? An opportunity to get everyone even angrier?
Second, the justice in this case (Kennedy) is a middle of the spectrum judge. His replacement, even if it is someone who is to the right (probably) doesn't change every outcome. The last few days have shown that Kennedy already voted with the 'conservative' justices on many important cases. In contrast, when Scalia died, he was a staunch pillar of the conservative wing on the court. Had he been replaced with a liberal wing justice, that would have changed many more potential outcomes. It would have been a much more dramatic shift of the court. It would be more like the scenario of Ruth Bader Ginsberg retiring and being replaced with a conservative justice.
That scenario will happen soon enough, I imagine. God help us when it does, given the state of discourse in this country.
This is all bullshit. The Trump administration is much, much worse than it seems. Modern Republicans don't want middle ground on these things; they explicitly want liberals to be angry and they're succeeding, spectacularly. Obama was president until January 2017 and he had the authority to appoint Supreme Court justices until then, and the seat he should have gotten appointed was stolen from him, plain and simple.
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I see no silver lining and no way of stopping this.
A Democratic President expands the Court.
It seems unlikely but millenials outnumber boomers and boomers are dying. When the court is way out-of-sync with the populace, the populace makes the court fit.
Only after Congress and the president amend 28 U. S. C. §1
The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.
(June 25, 1948, ch. 646, 62 Stat. 869.)
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Only after Congress and the president amend 28 U. S. C. §1
It's hard to do, but at least it only requires a change in law and not a constitutional amendment. Though I wouldn't put it past a conservative Supreme Court to rule that a change to the law expanding the court is unconstitutional for (bullshit reason X).
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Justice Kennedy knows he will be replaced by a white nationalist. Apparently that's what he wants.
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Ginsburg is not in great health. Once the stacking is done they can push things back to 1923.
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It seems unlikely but millenials outnumber boomers and boomers are dying. When the court is way out-of-sync with the populace, the populace makes the court fit.
I hope. But I watched Idiocracy again last weekend and I am not so convinced that it's a generational thing. Bread and circuses, and history keeps repeating.
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It seems unlikely but millenials outnumber boomers and boomers are dying. When the court is way out-of-sync with the populace, the populace makes the court fit.
I hope. But I watched Idiocracy again last weekend and I am not so convinced that it's a generational thing. Bread and circuses, and history keeps repeating.
I don't think it's a matter of the next generation being more intelligent, but perhaps they will be better prepared to navigate this newfangled world wide web. I've seen more than a couple boomers (intelligent ones, I think) getting caught up in some beliefs where they probably would've known better if it wasn't for the all consuming nature of the filter bubble.
On the other hand, what new technologies might exist 10 years from now that then 40-50 year olds won't understand? And admittedly, plenty of younger people are buying into various madnesses over the internet as well.
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Plan B has a 4 year shelf life. Side hustle opportunity?
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...God help us when it does, given the state of discourse in this country.
This is all bullshit. ...
(sigh.)
The Trump administration is much, much worse than it seems. Modern Republicans don't want middle ground on these things; they explicitly want liberals to be angry and they're succeeding, spectacularly.
Does it surprise you that the Republicans (as a generalization) feel exactly the same way about the Democrats and the former president who led them? Each team feels that they are the aggrieved party. Just swap the words in your sentence. And isn't that sad? That everyday Americans now get angry with one another over this level of politics. When in reality we probably agree on 80% of things. The forces at work here (the political parties, the media, big corporations such as Facebook, even the Russians for heaven's sake) are playing us for the irrational humans that we are. Everything is black and white with no room for compromise or for nuance. Only the extremes are heard. Some of it is no longer even intentional, but more like a natural resonant frequency that is building upon itself and making things worse and worse.
Obama was president until January 2017 and he had the authority to appoint Supreme Court justices until then, and the seat he should have gotten appointed was stolen from him, plain and simple
In point of fact, he had the authority to nominate someone for the position. The US Senate has the role of confirming that nominee. My point was that his nominee wouldn't have been confirmed.
Don't worry too much over this. There is a long history of presidents nominating someone who turns out to vote entirely differently than they would have predicted. And just a few short years ago, Donald Trump was a Democrat. If he even knew what that was. It's entirely likely that some shiny thing or loud noise will distract him right as he's naming the nominee and he'll mess it up anyway.
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I guess I'll be the outlier and chime in that I will be quite happy if another person like Neil Gorsuch is appointed. I wasn't thrilled with the recent sales tax ruling but I'm quite happy with all the other important decisions in the last week or so.
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Does it surprise you that the Republicans (as a generalization) feel exactly the same way about the Democrats and the former president who led them?
It doesn't surprise me, but it does disappoint me, because the difference between the two presidents is plainly obvious as night and day. Any reasonable person paying attention *should* be able to see that Obama was making a good-faith effort to improve the country for everyone while Trump is a corrupt narcissistic buffoon whose only concern is personal profit and self-glorification, and the GOP backing him are spineless sociopaths only concerned with consolidating power.
The forces at work here (the political parties, the media, big corporations such as Facebook, even the Russians for heaven's sake) are playing us for the irrational humans that we are.
It's mostly Fox News and Russia.
Everything is black and white with no room for compromise or for nuance.
There is room for compromise and nuance, but Republicans don't want it and won't allow it.
In point of fact, he had the authority to nominate someone for the position. The US Senate has the role of confirming that nominee.
Mitch McConnell never even allowed a vote on Obama's nomination. It would be one thing if the nomination were brought to a vote in front of the entire Senate and the Senate as a whole voted the nomination down, but there was no vote. It wasn't the whole Senate, it was just one person, Mitch McConnell, who sat on the nomination for almost a full year and did nothing with it. There's zero precedent for that. It's a bullshit tactic. Then, after obstructing Obama's judicial nominations at all levels for years, as soon as Trump became president McConnell ended the filibuster for judicial nominations and Trump immediately started packing the courts with conservative judges at all levels. Now Trump is in the same situation as Obama, able to nominate a replacement to the Supreme Court in an election year, and McConnell has the gall to go on TV spouting bullshit about how the American people won't stand for any delay in the nomination process. It's baldly hypocritical, but McConnell does not care because he feels no shame.
I'm tired of mincing words and I'm tired of playing civil. Civility gets you nowhere when you've got opponents waging war on you with scorched-earth, zero compromise tactics. Republican politicians do not act in good faith. They are AGGRESSIVELY AND RELENTLESSLY EVIL. They're lying hypocrites who don't care what it takes as long as they win *and they ARE WINNING, HANDILY*. It's not even close.
I see no way out of this. I really see no path from here back to a functional democracy. I feel like the United States (and with it, the world) is entering a state of permanent dystopia, and I have no hope to see my nieces and nephews prosper in such a world. My only slight comfort is the knowledge that I don't have any children myself.
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This is the exact nightmare that worried me the most about Trump and GOP Control of all 3 branches of Government.
Democrats have an extremely tough path to winning back the Senate this fall, so Trump will likely have another 2 years to nominate any additional SCJs if, God forbid, there are more vacancies to fill.
This is going to hurt America for quite awhile, but hopefully this spurs action from Democrats in 2020 and beyond.
Godspeed.
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I guess I'll be the outlier and chime in that I will be quite happy if another person like Neil Gorsuch is appointed. I wasn't thrilled with the recent sales tax ruling but I'm quite happy with all the other important decisions in the last week or so.
You enjoy watching unions getting decimated and partisan gerrymandering continuing to control our elections?
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STOP. Just STOP. This is not dystopia. This is not hopeless. This is a brief period in time in which the opposite party is in charge. It has happened numerous times before. This time is not really that different. It just feels different because it is being spearheaded by an objectively crude person. Look, I'm a moderate Republican. I know for some people that means nothing else I say matters, but try to have some perspective. Kennedy wasn't all that moderate. A conservative judge will be replaced by a conservative judge. Don't forget Kennedy brought you Citizens United along with Obergefell.
Democrats didn't vote in 2016. They lost. Elections have consequences. It will suck on the national level for Democrats for at least the next two years. At the same time, Democrats had the presidency and both chambers of Congress from 2008 - 2010. Obama was the president until 2016. If Republicans made it through 8 years of Obama and you somehow believe they now rule everything, surely you can see a way forward when there are elections in a few months. Vote. Fight for your values. Fight at the local level. Pendulums swing. Life continues. There's no need for hyperbole.
I find Trump odious. From my point of view, he has gutted the number of moderate Republicans running for Congress. He has made Republican synonymous with "pure evil" to an entire generation of Americans. He has turned considered conservative discourse into sycophantic propaganda. I think Republicans have won the battle but may have lost the long-term war. I suspect demographics may still be destiny, but dead cats can bounce high. Hawaii, California, Washington and Oregon will fight against Trump just as Texas, Alabama, etc. fought against Obama. I'm hoping Trump makes the Left believe in federalism.
Elections have consequences but the next election is always only two years away. America has made it through much worse. The "Right" has more to fear going forward than the "Left." Just my $.02.
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STOP. Just STOP. This is not dystopia. This is not hopeless. This is a brief period in time in which the opposite party is in charge. It has happened numerous times before. This time is not really that different. It just feels different because it is being spearheaded by an objectively crude person. Look, I'm a moderate Republican. I know for some people that means nothing else I say matters, but try to have some perspective. Kennedy wasn't all that moderate. A conservative judge will be replaced by a conservative judge. Don't forget Kennedy brought you Citizens United along with Obergefell.
Democrats didn't vote in 2016. They lost. Elections have consequences. It will suck on the national level for Democrats for at least the next two years. At the same time, Democrats had the presidency and both chambers of Congress from 2008 - 2010. Obama was the president until 2016. If Republicans made it through 8 years of Obama and you somehow believe they now rule everything, surely you can see a way forward when there are elections in a few months. Vote. Fight for your values. Fight at the local level. Pendulums swing. Life continues. There's no need for hyperbole.
I find Trump odious. From my point of view, he has gutted the number of moderate Republicans running for Congress. He has made Republican synonymous with "pure evil" to an entire generation of Americans. He has turned considered conservative discourse into sycophantic propaganda. I think Republicans have won the battle but may have lost the long-term war. I suspect demographics may still be destiny, but dead cats can bounce high. Hawaii, California, Washington and Oregon will fight against Trump just as Texas, Alabama, etc. fought against Obama. I'm hoping Trump makes the Left believe in federalism.
Elections have consequences but the next election is always only two years away. America has made it through much worse. The "Right" has more to fear going forward than the "Left." Just my $.02.
Supreme court justices are appointed for life. That's not a "brief period of time". It's a lifetime. The Supreme Court is literally *supreme*, it has the power to override anything any other branch of government does. Even if Democrats sweep the presidency and both branches of congress, we won't be able to do anything without it surviving the veto of the Supreme Court. It's not hyperbole. This is really, really bad.
And I did vote for in 2016, for Clinton, and so did millions of other Americans. In fact 3 million more people voted for Clinton than for Trump. Doesn't matter, Trump is the one now in power. That's not a functional democracy. That's dystopia.
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It is a functional democracy. It is not a dystopia. I couldn't post this in many countries around the world - see Russia, North Korea, Yemen, etc. I told my Republican friends that the sky wasn't falling in November 2008. Now the Left believes the Republicans will run everything indefinitely. The pendulum has simply swung to the right. It will swing back. It will swing again after that. RBG, Breyer and Thomas are not young. Three seats will likely be up for grabs before 2024. Fight at the local and state levels. A conservative Supreme Court is likely to allow states to have more of a say in their own laws. State legislators are not appointed for life. State judges are not typically appointed for life. History rhymes. I'm not saying the current situation is ideal for the Left...I'm just saying there is no need for hysteria.
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None of "the pendulum" matters without the Supreme Court, and in my lifetime the Supreme Court has never swung left. At best it's been mostly conservative but with one swing vote, and that swing vote is now gone and the court is going to go harder right than it's ever been in my life. Don't talk to me about "states rights". The Supreme Court has only ever used that excuse to allow states to write terrible laws but never lets states write good laws, and that pattern is going to get much, much worse now. Every terrible law will be upheld, and every attempt at progressive law will be struck down mercilessly.
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I don't have a positive opinion on Trump but I think SCOTUS is relative bastion of reason in the quagmire that is the Federal Government. You might hate Alito or Ginsburg but they are probably both smarter and better informed than you, along with the rest of the court. Read several decisions and dissensions and you will see very clearly how, unlike any other branch of government, SCOTUS must embrace some aspects of rationalism by explaining their decisions within the confines of Constitutional law & legal precedent. Remember that the same fuel that generates such disdain for our better institutions provides fodder for the campaigns of derelicts such as Trump.
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I am Australian, and am puzzled that justices of the US Supreme Court seem to have the right to allow their personal political beliefs to influence their judgments.
In Australia, our Constitution specifies that the Federal Government has the power to legislate on marriage. The Constitution does not define marriage. Australia recently had a national referendum of gay marriage, which was carried in favor, and people at the time pointed out that the referendum was unnecessary, as the Federal government could just legislate for gay marriage.
Some people would regard abortion as murder, so the Supreme Court will be involved on this matter.
I understand that the US Supreme Court judges on gerrymandering, while in Australia we have had an independent commission for electoral boundaries for decades. Gerrymandering, that is grossly distorted electoral boundaries for political gain, is obviously undemocratic, and a Federal government created the Australian Electoral Commission. I do not think that our Supreme Court was involved.
I have read the Second Amendment to the US Constitution, and it so vaguely worded that there is considerable scope for disagreement about how to implement the Second Amendment in the modern world.
Can anyone enlighten me?
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Can anyone enlighten me?
No, sorry. We don't get it either. It's mostly bull shit for the ultra wealthy.
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I am Australian, and am puzzled that justices of the US Supreme Court seem to have the right to allow their personal political beliefs to influence their judgments.
In Australia, our Constitution specifies that the Federal Government has the power to legislate on marriage. The Constitution does not define marriage. Australia recently had a national referendum of gay marriage, which was carried in favor, and people at the time pointed out that the referendum was unnecessary, as the Federal government could just legislate for gay marriage.
Some people would regard abortion as murder, so the Supreme Court will be involved on this matter.
I understand that the US Supreme Court judges on gerrymandering, while in Australia we have had an independent commission for electoral boundaries for decades. Gerrymandering, that is grossly distorted electoral boundaries for political gain, is obviously undemocratic, and a Federal government created the Australian Electoral Commission. I do not think that our Supreme Court was involved.
I have read the Second Amendment to the US Constitution, and it so vaguely worded that there is considerable scope for disagreement about how to implement the Second Amendment in the modern world.
Can anyone enlighten me?
They don't have the "right" to, it's just that once you accept that they are the final arbiter on what the constitution and statutes say and mean, then you are dependent on having people apply principled reasoning and not just acting as super legislators. Unfortunately most people in the U.S. want the supreme court acting as super legislators, they just want them to act as super legislators that agree with them.
You can look on this forum and see all the hysterics about what "the supreme court did" with respect to Trump's travel restrictions. In reality, the supreme court's hands were tied to the extent they wanted to actually not contribute to a further departure from a republican form of government. Congress has long been held to have plenary power with respect to immigration. Congress delegated authority to the President to just about exercise his discretion in any way he pleases with respect to prohibiting aliens or classes of aliens from being allowed into the country. I personally think that was a poor decision on Congress's part and an overly broad delegation, but it's what they did. A lot of people wanted the court to just come in and say, that was a poor decision and since trump doesn't like muslims, the courts should take that delegated authority away. There was just no legal justification presented to allow them to do so. What's really disturbing was that the travel restrictions themselves were undoubtedly legal on their face, and four members signed off on the argument that "yea, but he said some nasty stuff before, so the court should just take away his ability to issue facially valid orders because he is tainted."
So when you see people flipping out about having another originalist or textualist on the court, when they are acting hysterical, it is because they want the court to act as super legislators in their favor and they know they won't get that again for a while. When you see people just disappointed by it, it is because even the judges that try to be unbiased have priors that affect their decisions in truly close cases. And that's why you saw the right break norms to prevent Garland, because that would have put the balance of the court at two justices pretty much all in on acting as super legislators for the left, two more that were willing to do so for the pet issues, and then Garland who at the very least, was extremely deferential to adminsitrative agencies and the government in general.
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I am Australian, and am puzzled that justices of the US Supreme Court seem to have the right to allow their personal political beliefs to influence their judgments.
In Australia, our Constitution specifies that the Federal Government has the power to legislate on marriage. The Constitution does not define marriage. Australia recently had a national referendum of gay marriage, which was carried in favor, and people at the time pointed out that the referendum was unnecessary, as the Federal government could just legislate for gay marriage.
Some people would regard abortion as murder, so the Supreme Court will be involved on this matter.
I understand that the US Supreme Court judges on gerrymandering, while in Australia we have had an independent commission for electoral boundaries for decades. Gerrymandering, that is grossly distorted electoral boundaries for political gain, is obviously undemocratic, and a Federal government created the Australian Electoral Commission. I do not think that our Supreme Court was involved.
I have read the Second Amendment to the US Constitution, and it so vaguely worded that there is considerable scope for disagreement about how to implement the Second Amendment in the modern world.
Can anyone enlighten me?
They don't have the "right" to, it's just that once you accept that they are the final arbiter on what the constitution and statutes say and mean, then you are dependent on having people apply principled reasoning and not just acting as super legislators. Unfortunately most people in the U.S. want the supreme court acting as super legislators, they just want them to act as super legislators that agree with them.
You can look on this forum and see all the hysterics about what "the supreme court did" with respect to Trump's travel restrictions. In reality, the supreme court's hands were tied to the extent they wanted to actually not contribute to a further departure from a republican form of government. Congress has long been held to have plenary power with respect to immigration. Congress delegated authority to the President to just about exercise his discretion in any way he pleases with respect to prohibiting aliens or classes of aliens from being allowed into the country. I personally think that was a poor decision on Congress's part and an overly broad delegation, but it's what they did. A lot of people wanted the court to just come in and say, that was a poor decision and since trump doesn't like muslims, the courts should take that delegated authority away. There was just no legal justification presented to allow them to do so. What's really disturbing was that the travel restrictions themselves were undoubtedly legal on their face, and four members signed off on the argument that "yea, but he said some nasty stuff before, so the court should just take away his ability to issue facially valid orders because he is tainted."
So when you see people flipping out about having another originalist or textualist on the court, when they are acting hysterical, it is because they want the court to act as super legislators in their favor and they know they won't get that again for a while. When you see people just disappointed by it, it is because even the judges that try to be unbiased have priors that affect their decisions in truly close cases. And that's why you saw the right break norms to prevent Garland, because that would have put the balance of the court at two justices pretty much all in on acting as super legislators for the left, two more that were willing to do so for the pet issues, and then Garland who at the very least, was extremely deferential to adminsitrative agencies and the government in general.
And that would be why Mitch McConnell blocked nominations until he got the person he wanted (https://www.huffingtonpost.com/entry/mitch-mcconnell-neil-gorsuch-conservative-court_us_5b326aabe4b0cb56051c92d6).
Within an hour after Justice Antonin Scalia died in Feb. 2016, McConnell announced that he would block any Obama replacement. Republicans followed his lead by denying a Senate confirmation hearing to Obama’s choice for the court, Merrick Garland. It was a cynical tactic, and it worked: the seat sat empty for a year and Trump went on to fill it with Gorsuch, a staunch conservative.
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So when you see people flipping out about having another liberal pick on the court, when they are acting hysterical, it is because they want the court to act as super legislators in their favor and they know they won't get that again for a while.
Fixed it for you.
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I guess I'll be the outlier and chime in that I will be quite happy if another person like Neil Gorsuch is appointed. I wasn't thrilled with the recent sales tax ruling but I'm quite happy with all the other important decisions in the last week or so.
When I was in school, most of the important and historical SCOTUS decisions that we were taught about were progressive decisions striking down long held bigotry in America. Many recent decisions have moved towards once again legalizing bigotry. It is disheartening to see so many Americans proudly proclaim their approval of those rulings.
The pendulum will swing back again, but it does take decades to happen.
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So when you see people flipping out about having another liberal pick on the court, when they are acting hysterical, it is because they want the court to act as super legislators in their favor and they know they won't get that again for a while.
Fixed it for you.
Certainly lots of people on the right would like the court to act as super legislators, but for the most part, there's no comparison to what the left has done through the courts and what the right has done.
Qualified immunity is a major thing that has been judicially created and that was a mistake (although I'm not sure that's even an issue on most people's radar on either side). Compare that to the left that has virtucally completely flipped our constitutional setup, with virtually anything within the federal government's power unless it is expressly prohibited. Basically the only precedent that is still good invovles the women against violence act and issues involving commandeering of state or local governments.
I think same sex marriage shoudl have been legalized long ago, but it's ridiculous to claim that it's constitutionally mandated and not a super legislative act of the courts.
There is also nothing in the constitution regarding abortion. Even most legal professors, at least until maybe the last decade to decade and a half, would acknowledge that while they liked the result of Roe v. Wade, it was not a decision grounded in law.
What have "conservative" judges been able to do that is in any way comparable? Where have they completely taken a political issues out of the legislative sphere without constitutional justification? I'm not naive enough to think judges I agree with don't let their biases impact their judgment, but what significant legislative acts have they accomplished through the courts?
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What have "conservative" judges been able to do that is in any way comparable? Where have they completely taken a political issues out of the legislative sphere without constitutional justification? I'm not naive enough to think judges I agree with don't let their biases impact their judgment, but what significant legislative acts have they accomplished through the courts?
Oh barf dude. Why do conservatives always have to go and dry hump The Constitution?
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Does it surprise you that the Republicans (as a generalization) feel exactly the same way about the Democrats and the former president who led them? Each team feels that they are the aggrieved party. Just swap the words in your sentence. And isn't that sad? That everyday Americans now get angry with one another over this level of politics. When in reality we probably agree on 80% of things. The forces at work here (the political parties, the media, big corporations such as Facebook, even the Russians for heaven's sake) are playing us for the irrational humans that we are. Everything is black and white with no room for compromise or for nuance. Only the extremes are heard. Some of it is no longer even intentional, but more like a natural resonant frequency that is building upon itself and making things worse and worse.
I get what your saying and I appreciate it, but just because someone feels a particular way does not make it true. Try looking objectively at the situation and see if it looks like one side is more or less open to compromise. And then the problem becomes that if one side is only nominating moderate justices (because they inherently believe in the value of compromise) while the other is nominating only extremists then that affects the way that decisions fall.
Obama was president until January 2017 and he had the authority to appoint Supreme Court justices until then, and the seat he should have gotten appointed was stolen from him, plain and simple
In point of fact, he had the authority to nominate someone for the position. The US Senate has the role of confirming that nominee. My point was that his nominee wouldn't have been confirmed.
Don't worry too much over this. There is a long history of presidents nominating someone who turns out to vote entirely differently than they would have predicted. And just a few short years ago, Donald Trump was a Democrat. If he even knew what that was. It's entirely likely that some shiny thing or loud noise will distract him right as he's naming the nominee and he'll mess it up anyway.
Even if we accept everything that your saying here, the precedent has now been set that neither party gets to appoint justices to the Supreme Court without controlling both the Presidency and the Senate. I hope we're ready for some long stretches without a full Supreme Court, because I image Democrats will be highly disappointed in the their party if they don't hold to that precedent. And I doubt that Trump will nominate a non-extreme candidate even if he is highly distractible, because the extreme right has already handed him their wish list of nominees to choose from.
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I hope we're ready for some long stretches without a full Supreme Court, because I image Democrats will be highly disappointed in the their party if they don't hold to that precedent.
And remember that revenge is wired in to humans. (It just feels so good.) When this place swings left again, conservatives are going to implode.
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STOP. Just STOP. This is not dystopia. This is not hopeless. This is a brief period in time in which the opposite party is in charge. It has happened numerous times before. This time is not really that different. It just feels different because it is being spearheaded by an objectively crude person. Look, I'm a moderate Republican. I know for some people that means nothing else I say matters, but try to have some perspective. Kennedy wasn't all that moderate. A conservative judge will be replaced by a conservative judge. Don't forget Kennedy brought you Citizens United along with Obergefell.
Democrats didn't vote in 2016. They lost. Elections have consequences. It will suck on the national level for Democrats for at least the next two years. At the same time, Democrats had the presidency and both chambers of Congress from 2008 - 2010. Obama was the president until 2016. If Republicans made it through 8 years of Obama and you somehow believe they now rule everything, surely you can see a way forward when there are elections in a few months. Vote. Fight for your values. Fight at the local level. Pendulums swing. Life continues. There's no need for hyperbole.
I find Trump odious. From my point of view, he has gutted the number of moderate Republicans running for Congress. He has made Republican synonymous with "pure evil" to an entire generation of Americans. He has turned considered conservative discourse into sycophantic propaganda. I think Republicans have won the battle but may have lost the long-term war. I suspect demographics may still be destiny, but dead cats can bounce high. Hawaii, California, Washington and Oregon will fight against Trump just as Texas, Alabama, etc. fought against Obama. I'm hoping Trump makes the Left believe in federalism.
Elections have consequences but the next election is always only two years away. America has made it through much worse. The "Right" has more to fear going forward than the "Left." Just my $.02.
The next presidential election may be only 2 years away, but the next potential Supreme Court seat available for a liberal President to appoint may not be for a generation depending on how the next few years play out. And this is after the Supreme Court has already had a conservative tilt for my entire lifetime. If Democrats had won the last election they could have potentially given the Supreme Court a slight liberal tilt, instead we're potentially looking at a very conservative Supreme Court for decades. I'm not usually one to let politics get me upset, but this one even got to me a bit.
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Does it surprise you that the Republicans (as a generalization) feel exactly the same way about the Democrats and the former president who led them? Each team feels that they are the aggrieved party. Just swap the words in your sentence. And isn't that sad? That everyday Americans now get angry with one another over this level of politics. When in reality we probably agree on 80% of things. The forces at work here (the political parties, the media, big corporations such as Facebook, even the Russians for heaven's sake) are playing us for the irrational humans that we are. Everything is black and white with no room for compromise or for nuance. Only the extremes are heard. Some of it is no longer even intentional, but more like a natural resonant frequency that is building upon itself and making things worse and worse.
I get what your saying and I appreciate it, but just because someone feels a particular way does not make it true. Try looking objectively at the situation and see if it looks like one side is more or less open to compromise. And then the problem becomes that if one side is only nominating moderate justices (because they inherently believe in the value of compromise) while the other is nominating only extremists then that affects the way that decisions fall.
Obama was president until January 2017 and he had the authority to appoint Supreme Court justices until then, and the seat he should have gotten appointed was stolen from him, plain and simple
In point of fact, he had the authority to nominate someone for the position. The US Senate has the role of confirming that nominee. My point was that his nominee wouldn't have been confirmed.
Don't worry too much over this. There is a long history of presidents nominating someone who turns out to vote entirely differently than they would have predicted. And just a few short years ago, Donald Trump was a Democrat. If he even knew what that was. It's entirely likely that some shiny thing or loud noise will distract him right as he's naming the nominee and he'll mess it up anyway.
Even if we accept everything that your saying here, the precedent has now been set that neither party gets to appoint justices to the Supreme Court without controlling both the Presidency and the Senate. I hope we're ready for some long stretches without a full Supreme Court, because I image Democrats will be highly disappointed in the their party if they don't hold to that precedent. And I doubt that Trump will nominate a non-extreme candidate even if he is highly distractible, because the extreme right has already handed him their wish list of nominees to choose from.
You consider Gorsuch extreme?
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You can look on this forum and see all the hysterics about what "the supreme court did" with respect to Trump's travel restrictions. In reality, the supreme court's hands were tied to the extent they wanted to actually not contribute to a further departure from a republican form of government. Congress has long been held to have plenary power with respect to immigration. Congress delegated authority to the President to just about exercise his discretion in any way he pleases with respect to prohibiting aliens or classes of aliens from being allowed into the country. I personally think that was a poor decision on Congress's part and an overly broad delegation, but it's what they did. A lot of people wanted the court to just come in and say, that was a poor decision and since trump doesn't like muslims, the courts should take that delegated authority away. There was just no legal justification presented to allow them to do so. What's really disturbing was that the travel restrictions themselves were undoubtedly legal on their face, and four members signed off on the argument that "yea, but he said some nasty stuff before, so the court should just take away his ability to issue facially valid orders because he is tainted."
If this is the reason that they couldn't invalidate it then why was it okay to reverse the Masterpiece decision because a council member made nasty remarks? I thought it was because it demonstrated that the decision was made with hostility toward religion. How do Trumps nasty comments not similarly demonstrate that the decision was made with hostility toward religion?
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STOP. Just STOP. This is not dystopia. This is not hopeless. This is a brief period in time in which the opposite party is in charge. It has happened numerous times before. This time is not really that different. It just feels different because it is being spearheaded by an objectively crude person. Look, I'm a moderate Republican. I know for some people that means nothing else I say matters, but try to have some perspective. Kennedy wasn't all that moderate. A conservative judge will be replaced by a conservative judge. Don't forget Kennedy brought you Citizens United along with Obergefell.
Democrats didn't vote in 2016. They lost. Elections have consequences. It will suck on the national level for Democrats for at least the next two years. At the same time, Democrats had the presidency and both chambers of Congress from 2008 - 2010. Obama was the president until 2016. If Republicans made it through 8 years of Obama and you somehow believe they now rule everything, surely you can see a way forward when there are elections in a few months. Vote. Fight for your values. Fight at the local level. Pendulums swing. Life continues. There's no need for hyperbole.
I find Trump odious. From my point of view, he has gutted the number of moderate Republicans running for Congress. He has made Republican synonymous with "pure evil" to an entire generation of Americans. He has turned considered conservative discourse into sycophantic propaganda. I think Republicans have won the battle but may have lost the long-term war. I suspect demographics may still be destiny, but dead cats can bounce high. Hawaii, California, Washington and Oregon will fight against Trump just as Texas, Alabama, etc. fought against Obama. I'm hoping Trump makes the Left believe in federalism.
Elections have consequences but the next election is always only two years away. America has made it through much worse. The "Right" has more to fear going forward than the "Left." Just my $.02.
The next presidential election may be only 2 years away, but the next potential Supreme Court seat available for a liberal President to appoint may not be for a generation depending on how the next few years play out. And this is after the Supreme Court has already had a conservative tilt for my entire lifetime. If Democrats had won the last election they could have potentially given the Supreme Court a slight liberal tilt, instead we're potentially looking at a very conservative Supreme Court for decades. I'm not usually one to let politics get me upset, but this one even got to me a bit.
If Democrats had won the election, it would not have been a slight liberal tilt. It would have been a huge liberal tilt. No more 1st amendment applied to political speech. No more individual right to own guns. General police powers for the federal government rather than the tiny bit of limitation on the commerce clause that currently remains. If another sotamayer were appointed and confirmed, the balance would have been two judges that approach first from a partisan perspective, then RBG who is partisan on some things, then Breyer and Kagan who will apply the text but are willing to bend for certain key issues.
And the court has not had a conservative tilt for your entire lifetime unless you are younger than 12. Even then, that depends on calling an originalist or textualist approach "conservative" rather than just respectful of the constitution.
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What have "conservative" judges been able to do that is in any way comparable? Where have they completely taken a political issues out of the legislative sphere without constitutional justification? I'm not naive enough to think judges I agree with don't let their biases impact their judgment, but what significant legislative acts have they accomplished through the courts?
Oh barf dude. Why do conservatives always have to go and dry hump The Constitution?
Well, interpreting the constitution is the purpose of the Supreme Court.
On the other hand I disagree with Jrr85 that the Supreme Court acted as a super legislature in their gay marriage and abortion decisions. You're right that neither marriage nor abortion were mentioned in the constitution but they were not ruling on the constitutionality of allowing these things, they were ruling on the constitutionality of government decisions to deny them. The rulings stated that DOMA in the case of gay marriage and various state laws in the case of abortion were unconstitutional.
Otherwise I think your explanation is fair. I do wonder though, how do those who want the supreme court to act strictly within their duties feel about the decision of Korematsu v US?
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Does it surprise you that the Republicans (as a generalization) feel exactly the same way about the Democrats and the former president who led them? Each team feels that they are the aggrieved party. Just swap the words in your sentence. And isn't that sad? That everyday Americans now get angry with one another over this level of politics. When in reality we probably agree on 80% of things. The forces at work here (the political parties, the media, big corporations such as Facebook, even the Russians for heaven's sake) are playing us for the irrational humans that we are. Everything is black and white with no room for compromise or for nuance. Only the extremes are heard. Some of it is no longer even intentional, but more like a natural resonant frequency that is building upon itself and making things worse and worse.
I get what your saying and I appreciate it, but just because someone feels a particular way does not make it true. Try looking objectively at the situation and see if it looks like one side is more or less open to compromise. And then the problem becomes that if one side is only nominating moderate justices (because they inherently believe in the value of compromise) while the other is nominating only extremists then that affects the way that decisions fall.
Obama was president until January 2017 and he had the authority to appoint Supreme Court justices until then, and the seat he should have gotten appointed was stolen from him, plain and simple
In point of fact, he had the authority to nominate someone for the position. The US Senate has the role of confirming that nominee. My point was that his nominee wouldn't have been confirmed.
Don't worry too much over this. There is a long history of presidents nominating someone who turns out to vote entirely differently than they would have predicted. And just a few short years ago, Donald Trump was a Democrat. If he even knew what that was. It's entirely likely that some shiny thing or loud noise will distract him right as he's naming the nominee and he'll mess it up anyway.
Even if we accept everything that your saying here, the precedent has now been set that neither party gets to appoint justices to the Supreme Court without controlling both the Presidency and the Senate. I hope we're ready for some long stretches without a full Supreme Court, because I image Democrats will be highly disappointed in the their party if they don't hold to that precedent. And I doubt that Trump will nominate a non-extreme candidate even if he is highly distractible, because the extreme right has already handed him their wish list of nominees to choose from.
You consider Gorsuch extreme?
Yes.
(https://fivethirtyeight.com/wp-content/uploads/2018/06/roeder-scotus-nominee-GORSUCH-UPDATE.png?w=575)
https://fivethirtyeight.com/features/which-justices-were-bffs-this-scotus-term/
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You can look on this forum and see all the hysterics about what "the supreme court did" with respect to Trump's travel restrictions. In reality, the supreme court's hands were tied to the extent they wanted to actually not contribute to a further departure from a republican form of government. Congress has long been held to have plenary power with respect to immigration. Congress delegated authority to the President to just about exercise his discretion in any way he pleases with respect to prohibiting aliens or classes of aliens from being allowed into the country. I personally think that was a poor decision on Congress's part and an overly broad delegation, but it's what they did. A lot of people wanted the court to just come in and say, that was a poor decision and since trump doesn't like muslims, the courts should take that delegated authority away. There was just no legal justification presented to allow them to do so. What's really disturbing was that the travel restrictions themselves were undoubtedly legal on their face, and four members signed off on the argument that "yea, but he said some nasty stuff before, so the court should just take away his ability to issue facially valid orders because he is tainted."
If this is the reason that they couldn't invalidate it then why was it okay to reverse the Masterpiece decision because a council member made nasty remarks? I thought it was because it demonstrated that the decision was made with hostility toward religion. How do Trumps nasty comments not similarly demonstrate that the decision was made with hostility toward religion?
The nasty remarks were made by somebody acting in a judicial capacity, so that is very different, but regardless, that is working the same way as the approach to trump. The Colorado Commission is not prohibited from penalizing the baker for refusing to make a wedding cake for same sex wedding. They just can't show open hostility to christianity when they do so. If they go through he trouble of putting the baker through the wringer again, and avoid making derogatory remarks on the record or showing any obvious hostility towards the baker's religion, the S. Ct. will not say "nope, you're tainted forever and cannot apply the law unless and until the makeup of your commission changes." They'll rule on the merits of the baker's free expression claim.
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The nasty remarks were made by somebody acting in a judicial capacity, so that is very different, but regardless, that is working the same way as the approach to trump. The Colorado Commission is not prohibited from penalizing the baker for refusing to make a wedding cake for same sex wedding. They just can't show open hostility to christianity when they do so. If they go through he trouble of putting the baker through the wringer again, and avoid making derogatory remarks on the record or showing any obvious hostility towards the baker's religion, the S. Ct. will not say "nope, you're tainted forever and cannot apply the law unless and until the makeup of your commission changes." They'll rule on the merits of the baker's free expression claim.
Okay, I can buy that reasoning I suppose. I guess Trump is just able to push multiple attempts through the court system faster because he's president and so was able to get to it right sooner. Although I'm not entirely sure that he's stopped his "nasty remarks" about Muslims, I don't recall seeing any recently.
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The nasty remarks were made by somebody acting in a judicial capacity, so that is very different, but regardless, that is working the same way as the approach to trump. The Colorado Commission is not prohibited from penalizing the baker for refusing to make a wedding cake for same sex wedding. They just can't show open hostility to christianity when they do so. If they go through he trouble of putting the baker through the wringer again, and avoid making derogatory remarks on the record or showing any obvious hostility towards the baker's religion, the S. Ct. will not say "nope, you're tainted forever and cannot apply the law unless and until the makeup of your commission changes." They'll rule on the merits of the baker's free expression claim.
Okay, I can buy that reasoning I suppose. I guess Trump is just able to push multiple attempts through the court system faster because he's president and so was able to get to it right sooner. Although I'm not entirely sure that he's stopped his "nasty remarks" about Muslims, I don't recall seeing any recently.
How long ago were those videos posted to twitter?
Although I think the decision in Masterpiece v. Colorado had more to do with the bias being within the courts. Why the lower court's bias mattered is a technicality that I don't fully understand. It didn't change the actions of Masterpiece.
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What have "conservative" judges been able to do that is in any way comparable? Where have they completely taken a political issues out of the legislative sphere without constitutional justification? I'm not naive enough to think judges I agree with don't let their biases impact their judgment, but what significant legislative acts have they accomplished through the courts?
Oh barf dude. Why do conservatives always have to go and dry hump The Constitution?
Well, interpreting the constitution is the purpose of the Supreme Court.
On the other hand I disagree with Jrr85 that the Supreme Court acted as a super legislature in their gay marriage and abortion decisions. You're right that neither marriage nor abortion were mentioned in the constitution but they were not ruling on the constitutionality of allowing these things, they were ruling on the constitutionality of government decisions to deny them. The rulings stated that DOMA in the case of gay marriage and various state laws in the case of abortion were unconstitutional.
Regulation of abortion is a police power. There are certainly cases where the bill of rights is applied to states to limit their exercise of police power, but there's just nothing in there about abortion or anything that can reasonably be applied to abortion. They basically passed a federal law through judicial precedent that limited the ability to regulate abortions.
DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
Otherwise I think your explanation is fair. I do wonder though, how do those who want the supreme court to act strictly within their duties feel about the decision of Korematsu v US?
Funnily enough, the S. Ct. just trashed that decision in the majority opinion of the Hawaii case. I think their opinion of it would be pretty representative. But, that said, it's not the S. Ct.'s job to get the "right" decision, except so far as the right decision is dictated by the law. It's entirely possible for them to follow their duties and that result in a bad or even horrible result, because there are lots of bad or even horrible things Congress and/or the president can do that are not prohibited by the constitution. The political process is the only protection we have against a lot of bad things.
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Does it surprise you that the Republicans (as a generalization) feel exactly the same way about the Democrats and the former president who led them? Each team feels that they are the aggrieved party. Just swap the words in your sentence. And isn't that sad? That everyday Americans now get angry with one another over this level of politics. When in reality we probably agree on 80% of things. The forces at work here (the political parties, the media, big corporations such as Facebook, even the Russians for heaven's sake) are playing us for the irrational humans that we are. Everything is black and white with no room for compromise or for nuance. Only the extremes are heard. Some of it is no longer even intentional, but more like a natural resonant frequency that is building upon itself and making things worse and worse.
I get what your saying and I appreciate it, but just because someone feels a particular way does not make it true. Try looking objectively at the situation and see if it looks like one side is more or less open to compromise. And then the problem becomes that if one side is only nominating moderate justices (because they inherently believe in the value of compromise) while the other is nominating only extremists then that affects the way that decisions fall.
Obama was president until January 2017 and he had the authority to appoint Supreme Court justices until then, and the seat he should have gotten appointed was stolen from him, plain and simple
In point of fact, he had the authority to nominate someone for the position. The US Senate has the role of confirming that nominee. My point was that his nominee wouldn't have been confirmed.
Don't worry too much over this. There is a long history of presidents nominating someone who turns out to vote entirely differently than they would have predicted. And just a few short years ago, Donald Trump was a Democrat. If he even knew what that was. It's entirely likely that some shiny thing or loud noise will distract him right as he's naming the nominee and he'll mess it up anyway.
Even if we accept everything that your saying here, the precedent has now been set that neither party gets to appoint justices to the Supreme Court without controlling both the Presidency and the Senate. I hope we're ready for some long stretches without a full Supreme Court, because I image Democrats will be highly disappointed in the their party if they don't hold to that precedent. And I doubt that Trump will nominate a non-extreme candidate even if he is highly distractible, because the extreme right has already handed him their wish list of nominees to choose from.
You consider Gorsuch extreme?
Yes.
(https://fivethirtyeight.com/wp-content/uploads/2018/06/roeder-scotus-nominee-GORSUCH-UPDATE.png?w=575)
https://fivethirtyeight.com/features/which-justices-were-bffs-this-scotus-term/
That's all good and well for predicting results, but to rely on that to count what is extreme requires that you either assume that an originalist or textualist approach is extreme, or attribute the decisions of the legislative or administrative bodies to judges that apply them.
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The nasty remarks were made by somebody acting in a judicial capacity, so that is very different, but regardless, that is working the same way as the approach to trump. The Colorado Commission is not prohibited from penalizing the baker for refusing to make a wedding cake for same sex wedding. They just can't show open hostility to christianity when they do so. If they go through he trouble of putting the baker through the wringer again, and avoid making derogatory remarks on the record or showing any obvious hostility towards the baker's religion, the S. Ct. will not say "nope, you're tainted forever and cannot apply the law unless and until the makeup of your commission changes." They'll rule on the merits of the baker's free expression claim.
Okay, I can buy that reasoning I suppose. I guess Trump is just able to push multiple attempts through the court system faster because he's president and so was able to get to it right sooner. Although I'm not entirely sure that he's stopped his "nasty remarks" about Muslims, I don't recall seeing any recently.
How long ago were those videos posted to twitter?
Although I think the decision in Masterpiece v. Colorado had more to do with the bias being within the courts. Why the lower court's bias mattered is a technicality that I don't fully understand. It didn't change the actions of Masterpiece.
Two reasons. Lower courts (or administrative agencies or commissions) often act as fact finding bodies, and when they make a fact finding, reviewing courts will not overturn it unless it is clearly wrong. Having an overtly biased fact finder means they shouldn't get deference. I'm not sure this was actually in play here because I'm not sure there were key undisputed facts.
Second, people are entitled to due process. There are some failures of due process that reviewing courts will say was harmless, but generally, having due process is how people have confidence that the result was right. So for egregious failures of due process (and not having at least the appearance of an unbiased fact finder/judge is egregious), they will be much more likely to kick it back down.
That said, the master piece cake case was a punt by the court. They could have had a 5-4 ruling on the free expression claim, and kennedy would have been the swing vote one way or the other. Roberts and Kagan are both very interested in the court as an institution, and you will see them work more than others to work towards consensus and to avoid 5-4 decisions, even if that means moving from their preferred position. So as a compromise, they got a 7 vote majority on an issue they could agree on and punted on the probably more important and definitely more controversial question of whether things like making a custom cake or arranging flowers are a form of free expression such that they are protected from government mandated speech. This was probably easy to get Kennedy on board with because he doesn't want to do anything that might undermine his opinions on gay marriage and/or the "politically unpopular minority" hook from Romer v. Evans, and Breyer was I assume happy to jump on the compromise because he couldn't be sure how Kennedy would vote if they forced his hand.
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DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?
See, this is the problem with your whole "originalist/textualist" label. To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally. For some reason you seem to disagree. Which of us is the textualist in this case? Most people on my side would probably think it's me and those on your side will probably think it's you. Personally, I think we're both just interpreting the text. Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases. I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".
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What have "conservative" judges been able to do that is in any way comparable? Where have they completely taken a political issues out of the legislative sphere without constitutional justification? I'm not naive enough to think judges I agree with don't let their biases impact their judgment, but what significant legislative acts have they accomplished through the courts?
Oh barf dude. Why do conservatives always have to go and dry hump The Constitution?
Well, interpreting the constitution is the purpose of the Supreme Court.
On the other hand I disagree with Jrr85 that the Supreme Court acted as a super legislature in their gay marriage and abortion decisions. You're right that neither marriage nor abortion were mentioned in the constitution but they were not ruling on the constitutionality of allowing these things, they were ruling on the constitutionality of government decisions to deny them. The rulings stated that DOMA in the case of gay marriage and various state laws in the case of abortion were unconstitutional.
Regulation of abortion is a police power. There are certainly cases where the bill of rights is applied to states to limit their exercise of police power, but there's just nothing in there about abortion or anything that can reasonably be applied to abortion. They basically passed a federal law through judicial precedent that limited the ability to regulate abortions.
DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
Otherwise I think your explanation is fair. I do wonder though, how do those who want the supreme court to act strictly within their duties feel about the decision of Korematsu v US?
Funnily enough, the S. Ct. just trashed that decision in the majority opinion of the Hawaii case. I think their opinion of it would be pretty representative. But, that said, it's not the S. Ct.'s job to get the "right" decision, except so far as the right decision is dictated by the law. It's entirely possible for them to follow their duties and that result in a bad or even horrible result, because there are lots of bad or even horrible things Congress and/or the president can do that are not prohibited by the constitution. The political process is the only protection we have against a lot of bad things.
Why is regulation of abortion a police power? Are you making an assumption that a fetus is part of "the public"?
You say it wasn't some hidden right to gay-marriage but the point is that there doesn't need to be. If anyone has a right to marriage then so do gay people. There is also nothing in the constitution that suggests the original form of legal marriage was only between a man and a woman. Either everyone can receive the legal benefits of marriage or no one can.
This is why I posed the question. You think it is not the purpose of the Supreme Court to get the "right" decision. I agree with that, I was just wondering if you thought in a case where the negative consequences would be so great that you would support the Supreme Court acting outside of their duties. I better understand your position now and I don't disagree but I also don't necessarily agree. Undecided I suppose.
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DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?
See, this is the problem with your whole "originalist/textualist" label. To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally. For some reason you seem to disagree. Which of us is the textualist in this case? Most people on my side would probably think it's me and those on your side will probably think it's you. Personally, I think we're both just interpreting the text. Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases. I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".
Yep. Like states' rights, the term is only applied when needed. Citizens United is a good example (one guess as to who the majority was). Scalia was a favorite of the "originalist" cheerleaders but he went off course numerous times to further his personal agenda.
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I do feel for those that are adversely affected by SCOTUS decisions regardless if they are liberal or conservative decisions in nature. That said, I want decisions or processes that many do not care for to be exposed and possibly improved if the majority of citizens feel that way, which includes individual states taking more initiative instead of waiting for a federal ruling (I think states can do a lot with regard to abortion protections, gerrymandering, voter suppression, unions, etc.).
I think overall civic engagement (at all levels) is low.
Don't like the SCOTUS nomination process and powers of the Senate/President? Let it be known, petition, write, and vote accordingly.
Don't like a conservative or liberal decision on something? Same process, get the word out for what you feel is right.
That's not to say that a decision can't be devastating for individuals, they can be. I don't mean to undermine someone's perceived right going out the window and them "not liking that". I think the potential of federally recognized gay marriages or Roe v Wade going away has unequal effects. During "liberal times" a conservative* who would never marry a gay person or abort a fetus is not affected directly in their life. The converse is not true in many instances. Potential decisions like these, and there are plenty besides these two examples, that have an unequal impact on one side of the aisle should be carefully examined rather than just trying to make the majority political side in a situation win. Slight tangent - I hate the bicameral political system. Multiple parties with no majority would be my preferred setup.
*-I'm not saying conservatives can't be gay or that a conservative has never had an abortion or that all liberals are gay and/or have abortions.
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Oh barf dude. Why do conservatives always have to go and dry hump The Constitution?
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Otherwise I think your explanation is fair. I do wonder though, how do those who want the supreme court to act strictly within their duties feel about the decision of Korematsu v US?
This is a very good question that I had been thinking about for a few weeks now.
Korematsu seems to have originally based his argument on the fifth amendment's Grand Jury clause, but then transferred to "nor be deprived of life, liberty, or property, without due process of law" for the 9th and SCOTUS appeals.
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The question then becomes, is an executive order enough "Due Process" to deprive one of "life, liberty, or property" and specifically in this instance Liberty- for a time, and Property- for a time.
The court tip-toed on the answer from what I can tell, that an Executive Order alone was not quite enough to deprive liberty and property, but when combined with the intent of congress in the Act of March 21, 1942, it gave just enough due process that violation of the order merited a crime.
Getting back to the constitution, it has specific wartime powers assigned to the president, and I have heard the argument that the balance of power intentionally and systematically shifts more to the executive once a War Act has been signed (hence: Article I, Section 8, Clause 11 and Article II, Section 2). I would say that in peace-time, the result would not have been the same (obviously) than in wartime.
Overall, I think I would have dissented as the order was solely based on race and there was no means of due process in an appeal, but I see how they came to their conclusion. As far as legislating from the bench.... I'm not sure how that is a great example since they didn't do any re-write and had plenty of legal documents to observe.
On a sidenote:
Also, It would be great if SCOTUS reigned in the multiple illegal foreign wars that have not had a War Act signed for and been going on through multiple presidents of both parties.... That would be great.
Edit to add:
The travel ban majority explicitly stated against Korematsu v. United States and the Dicta now considers it no longer valid precedent for Law (subject to another case wherein that will be a holding matter to finalize things). I say that is a pretty big win...? Surprised that I didn't hear anything about that.
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DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?
See, this is the problem with your whole "originalist/textualist" label. To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally. For some reason you seem to disagree. Which of us is the textualist in this case? Most people on my side would probably think it's me and those on your side will probably think it's you. Personally, I think we're both just interpreting the text. Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases. I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".
You are not basing it on an originalist or textualist approach though. You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell. There are definitely close cases where you can't just say "this judge was right; this one was wrong". That's not one of them.
Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.
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DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?
See, this is the problem with your whole "originalist/textualist" label. To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally. For some reason you seem to disagree. Which of us is the textualist in this case? Most people on my side would probably think it's me and those on your side will probably think it's you. Personally, I think we're both just interpreting the text. Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases. I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".
You are not basing it on an originalist or textualist approach though. You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell. There are definitely close cases where you can't just say "this judge was right; this one was wrong". That's not one of them.
Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.
People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
The Constitution says absolutely nothing about marriage. One could reasonably conclude that any person ought to have that right, to marry the adult person of one's choosing. (See: Fourteenth Amendment.)
The term "originalist" is convenient, but it's also really problematic. It sure gets bandied about a lot as gospel, though.
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DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?
See, this is the problem with your whole "originalist/textualist" label. To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally. For some reason you seem to disagree. Which of us is the textualist in this case? Most people on my side would probably think it's me and those on your side will probably think it's you. Personally, I think we're both just interpreting the text. Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases. I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".
You are not basing it on an originalist or textualist approach though. You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell. There are definitely close cases where you can't just say "this judge was right; this one was wrong". That's not one of them.
Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.
I'm doing no such thing. I'm asserting a right to equal treatment under the law, which I think is clearly provided by the text of the 14th amendment. You're the one not taking an originalist or textualist approach in this case since your clearly ignoring the text of the 14th amendment. I think in this case your being blinded by your assumption that I'm assuming a right to gay marriage when I'm not.
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What have "conservative" judges been able to do that is in any way comparable? Where have they completely taken a political issues out of the legislative sphere without constitutional justification? I'm not naive enough to think judges I agree with don't let their biases impact their judgment, but what significant legislative acts have they accomplished through the courts?
Oh barf dude. Why do conservatives always have to go and dry hump The Constitution?
Well, interpreting the constitution is the purpose of the Supreme Court.
On the other hand I disagree with Jrr85 that the Supreme Court acted as a super legislature in their gay marriage and abortion decisions. You're right that neither marriage nor abortion were mentioned in the constitution but they were not ruling on the constitutionality of allowing these things, they were ruling on the constitutionality of government decisions to deny them. The rulings stated that DOMA in the case of gay marriage and various state laws in the case of abortion were unconstitutional.
Regulation of abortion is a police power. There are certainly cases where the bill of rights is applied to states to limit their exercise of police power, but there's just nothing in there about abortion or anything that can reasonably be applied to abortion. They basically passed a federal law through judicial precedent that limited the ability to regulate abortions.
DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
Otherwise I think your explanation is fair. I do wonder though, how do those who want the supreme court to act strictly within their duties feel about the decision of Korematsu v US?
Funnily enough, the S. Ct. just trashed that decision in the majority opinion of the Hawaii case. I think their opinion of it would be pretty representative. But, that said, it's not the S. Ct.'s job to get the "right" decision, except so far as the right decision is dictated by the law. It's entirely possible for them to follow their duties and that result in a bad or even horrible result, because there are lots of bad or even horrible things Congress and/or the president can do that are not prohibited by the constitution. The political process is the only protection we have against a lot of bad things.
Why is regulation of abortion a police power? Are you making an assumption that a fetus is part of "the public"?
Because it's a statute/regulation under the police power. You'll have to explain what you are getting at. I honestly have no clue what you would be arguing or why.
You say it wasn't some hidden right to gay-marriage but the point is that there doesn't need to be. If anyone has a right to marriage then so do gay people. There is also nothing in the constitution that suggests the original form of legal marriage was only between a man and a woman. Either everyone can receive the legal benefits of marriage or no one can.
Everyone can receive the legal benefits of marriage. It's just that there is no constitutional requirement that states define marriage to be between indeterminate sex. Just like it's not a violation of the equal protection law for a government building to have a men and women's restroom and to actually enforce that only men go into the mens' restroom and only women go into the women's restroom. It's not a violation of equal protection to provide free k-12 elementary to people between the against of 5 and 20, but not to provide free k-12 education to people over 20 and under 5.
This is why I posed the question. You think it is not the purpose of the Supreme Court to get the "right" decision. I agree with that, I was just wondering if you thought in a case where the negative consequences would be so great that you would support the Supreme Court acting outside of their duties. I better understand your position now and I don't disagree but I also don't necessarily agree. Undecided I suppose.
There have been several times where the S. Ct. got the wrong decision because they thought it would create a constitutional crisis to get the right one. Some of the school segregation cases, courts basically punted because they weren't sure the political will was there to enforce their decision. I think that approach is not obviously wrong, except that it can become an excuse of political cowardice in situations where the decision would be enforced, but it would be extremely divisive and controversial.
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People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
The Constitution says absolutely nothing about marriage. One could reasonably conclude that any person ought to have that right, to marry the adult person of one's choosing. (See: Fourteenth Amendment.)
The term "originalist" is convenient, but it's also really problematic. It sure gets bandied about a lot as gospel, though.
It's used as a shield. "This is an originalist decision. It's not conservative or liberal."
Scalia, who first mentioned originalism in a decision in the mid-90s, often abused the "I'm just an originalist!" defense. He felt that the equal protection clause didn't apply to women. Or gay people. Even if one could create arguments to make his ideology work ("The Reconstructors didn't intend for it to apply to women."), it shows the bankruptcy of the originalist theory.
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DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?
See, this is the problem with your whole "originalist/textualist" label. To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally. For some reason you seem to disagree. Which of us is the textualist in this case? Most people on my side would probably think it's me and those on your side will probably think it's you. Personally, I think we're both just interpreting the text. Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases. I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".
You are not basing it on an originalist or textualist approach though. You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell. There are definitely close cases where you can't just say "this judge was right; this one was wrong". That's not one of them.
Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.
People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
Umm....No, no they weren't. That's why women everywhere didn't get the right to vote. Even when the 14th amendment passed, they didn't get the right to vote. The 14th amendment is not an "Everything good is now legal or mandated" amendment. Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.
The Constitution says absolutely nothing about marriage. One could reasonably conclude that any person ought to have that right, to marry the adult person of one's choosing. (See: Fourteenth Amendment.)
The could definitely reasonably conclude taht, like the majority (I think, if nto close to it) of this country has.
The term "originalist" is convenient, but it's also really problematic. It sure gets bandied about a lot as gospel, though.
If by problematic, you mean it doesn't always lead to the "best" results and sometimes leads to bad results, that's true. But it's less problematic than having an unelected body of 5 people legislating from the bench. If a democratic process doesn't give a good result, you cannot expect that you are going to get the "right" 5 people on the bench who will do better. And continuing teh way the S. Ct. is appointed, progressives in particular shouldn't want that. If the right was pushing for 5 policy makers the way people on the left want the court to act, you really could see progressives held back by republican/conservative politics on the bench. Right now, at least you are getting people bound by some espoused principles and not judges saying the constitution is living and what it says changes.
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Everyone can receive the legal benefits of marriage. It's just that there is no constitutional requirement that states define marriage to be between indeterminate sex. Just like it's not a violation of the equal protection law for a government building to have a men and women's restroom and to actually enforce that only men go into the mens' restroom and only women go into the women's restroom. It's not a violation of equal protection to provide free k-12 elementary to people between the against of 5 and 20, but not to provide free k-12 education to people over 20 and under 5.
Yes, there is. It's called the equal protection clause and the text of it clearly provides that the laws of the US government shall be applied equally to all citizens. Why are you refusing to take an origninalist/textualist approach to this?
How about this... Would it be legal for a government building to only have a men's restroom and prohibit women from using it? I can't even give a good counterexample for your second point since it makes no damn sense. Nobody under 5 has yet gotten a free k-12 education and everybody over 20 already got their free k-12 education (or were at least offered it).
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DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?
See, this is the problem with your whole "originalist/textualist" label. To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally. For some reason you seem to disagree. Which of us is the textualist in this case? Most people on my side would probably think it's me and those on your side will probably think it's you. Personally, I think we're both just interpreting the text. Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases. I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".
You are not basing it on an originalist or textualist approach though. You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell. There are definitely close cases where you can't just say "this judge was right; this one was wrong". That's not one of them.
Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.
People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
Umm....No, no they weren't. That's why women everywhere didn't get the right to vote. Even when the 14th amendment passed, they didn't get the right to vote. The 14th amendment is not an "Everything good is now legal or mandated" amendment. Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.
No, see, that was my point (perhaps poorly worded).
If you are an originalist, then are you saying that you don't think women should have the right to vote?
Because, what is the "originalist" stance on that?
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People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
The Constitution says absolutely nothing about marriage. One could reasonably conclude that any person ought to have that right, to marry the adult person of one's choosing. (See: Fourteenth Amendment.)
The term "originalist" is convenient, but it's also really problematic. It sure gets bandied about a lot as gospel, though.
It's used as a shield. "This is an originalist decision. It's not conservative or liberal."
Scalia, who first mentioned originalism in a decision in the mid-90s, often abused the "I'm just an originalist!" defense. He felt that the equal protection clause didn't apply to women. Or gay people. Even if one could create arguments to make his ideology work ("The Reconstructors didn't intend for it to apply to women."), it shows the bankruptcy of the originalist theory.
No, it shows the bankruptcy of lawmakers at the time.
If you think Scalia or Gorsuch or Thomas or whoever is so terrible, do you really want them ruling unbound by any principles other than what they think is good policy?
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DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?
See, this is the problem with your whole "originalist/textualist" label. To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally. For some reason you seem to disagree. Which of us is the textualist in this case? Most people on my side would probably think it's me and those on your side will probably think it's you. Personally, I think we're both just interpreting the text. Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases. I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".
You are not basing it on an originalist or textualist approach though. You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell. There are definitely close cases where you can't just say "this judge was right; this one was wrong". That's not one of them.
Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.
People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
Umm....No, no they weren't. That's why women everywhere didn't get the right to vote. Even when the 14th amendment passed, they didn't get the right to vote. The 14th amendment is not an "Everything good is now legal or mandated" amendment. Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.
No, see, that was my point (perhaps poorly worded).
If you are an originalist, then are you saying that you don't think women should have the right to vote?
Because, what is the "originalist" stance on that?
No, if you are an originalist or textualist, you don't think your job as a judge is to set policy. So if you are an originalist in 1890, you say the 14th amendment doesn't grant women the right to vote, if you are a textualist, it could probably go either way. If you are an originalist or textualist after 1920, you say women have the right to vote, even if you are huge misogynist and think it's the worst idea ever to let women vote.
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What have "conservative" judges been able to do that is in any way comparable? Where have they completely taken a political issues out of the legislative sphere without constitutional justification? I'm not naive enough to think judges I agree with don't let their biases impact their judgment, but what significant legislative acts have they accomplished through the courts?
Oh barf dude. Why do conservatives always have to go and dry hump The Constitution?
Well, interpreting the constitution is the purpose of the Supreme Court.
On the other hand I disagree with Jrr85 that the Supreme Court acted as a super legislature in their gay marriage and abortion decisions. You're right that neither marriage nor abortion were mentioned in the constitution but they were not ruling on the constitutionality of allowing these things, they were ruling on the constitutionality of government decisions to deny them. The rulings stated that DOMA in the case of gay marriage and various state laws in the case of abortion were unconstitutional.
Regulation of abortion is a police power. There are certainly cases where the bill of rights is applied to states to limit their exercise of police power, but there's just nothing in there about abortion or anything that can reasonably be applied to abortion. They basically passed a federal law through judicial precedent that limited the ability to regulate abortions.
DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
Otherwise I think your explanation is fair. I do wonder though, how do those who want the supreme court to act strictly within their duties feel about the decision of Korematsu v US?
Funnily enough, the S. Ct. just trashed that decision in the majority opinion of the Hawaii case. I think their opinion of it would be pretty representative. But, that said, it's not the S. Ct.'s job to get the "right" decision, except so far as the right decision is dictated by the law. It's entirely possible for them to follow their duties and that result in a bad or even horrible result, because there are lots of bad or even horrible things Congress and/or the president can do that are not prohibited by the constitution. The political process is the only protection we have against a lot of bad things.
Why is regulation of abortion a police power? Are you making an assumption that a fetus is part of "the public"?
Because it's a statute/regulation under the police power. You'll have to explain what you are getting at. I honestly have no clue what you would be arguing or why.
You're operating under the assumption that no one has the constitutional right to an abortion, which they do not because it was not explicitly stated. But they do have the right to a private life and making their own decisions. in order for the state to infringe upon that constitutional right, it must be for the health and safety of the public. If a fetus is not a member of the public, police powers should not apply. you said:
there's just nothing in there about abortion or anything that can reasonably be applied to abortion
This is where you disagree with the Supreme court decision. There is nothing that can be reasonably applied. The Supreme court decided the 14th amendment can be reasonably applied. Why is this outside the scope of the Supreme court?
You say it wasn't some hidden right to gay-marriage but the point is that there doesn't need to be. If anyone has a right to marriage then so do gay people. There is also nothing in the constitution that suggests the original form of legal marriage was only between a man and a woman. Either everyone can receive the legal benefits of marriage or no one can.
Everyone can receive the legal benefits of marriage. It's just that there is no constitutional requirement that states define marriage to be between indeterminate sex. Just like it's not a violation of the equal protection law for a government building to have a men and women's restroom and to actually enforce that only men go into the mens' restroom and only women go into the women's restroom. It's not a violation of equal protection to provide free k-12 elementary to people between the against of 5 and 20, but not to provide free k-12 education to people over 20 and under 5.
Again, this conclusion requires an assumption. You must assume that the right of a gay man to marry a woman is equal to the right of a straight man to marry a woman. My assumption is that true equality would be the right to marry a person you want to marry. If everyone had the right to wear a yarmulke but not an hijab, would that be equal? After all, they have the same right to wear the same thing.
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If you think Scalia or Gorsuch or Thomas or whoever is so terrible, do you really want them ruling unbound by any principles other than what they think is good policy?
Ah, this is the fundamental disagreement. The left doesn't think that (most of) Scalia's or Thomas' decisions are bound by some unassailable principle. Or, to put it another way, their personal biases are all over their decisions.
It's also amusing when both the majority and dissent opinions argue from an originalist/textual standpoint. Which originalist is correct? DC v Heller comes to mind.
Eta: Scalia, the uber-originalist, wrote in a dissenting opinion in Lawrence v Texas, “This effectively decrees the end of all morals legislation." Ha. So much originalism.
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DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?
See, this is the problem with your whole "originalist/textualist" label. To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally. For some reason you seem to disagree. Which of us is the textualist in this case? Most people on my side would probably think it's me and those on your side will probably think it's you. Personally, I think we're both just interpreting the text. Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases. I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".
You are not basing it on an originalist or textualist approach though. You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell. There are definitely close cases where you can't just say "this judge was right; this one was wrong". That's not one of them.
Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.
People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
Umm....No, no they weren't. That's why women everywhere didn't get the right to vote. Even when the 14th amendment passed, they didn't get the right to vote. The 14th amendment is not an "Everything good is now legal or mandated" amendment. Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.
No, see, that was my point (perhaps poorly worded).
If you are an originalist, then are you saying that you don't think women should have the right to vote?
Because, what is the "originalist" stance on that?
No, if you are an originalist or textualist, you don't think your job as a judge is to set policy. So if you are an originalist in 1890, you say the 14th amendment doesn't grant women the right to vote, if you are a textualist, it could probably go either way. If you are an originalist or textualist after 1920, you say women have the right to vote, even if you are huge misogynist and think it's the worst idea ever to let women vote.
So, what about if you are an originalist in 2018? Because the word "originalist" doesn't seem to have any meaning at all in that context. Textualist, maybe. But what is the "original" document?
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You say it wasn't some hidden right to gay-marriage but the point is that there doesn't need to be. If anyone has a right to marriage then so do gay people. There is also nothing in the constitution that suggests the original form of legal marriage was only between a man and a woman. Either everyone can receive the legal benefits of marriage or no one can.
Everyone can receive the legal benefits of marriage. It's just that there is no constitutional requirement that states define marriage to be between indeterminate sex. Just like it's not a violation of the equal protection law for a government building to have a men and women's restroom and to actually enforce that only men go into the mens' restroom and only women go into the women's restroom. It's not a violation of equal protection to provide free k-12 elementary to people between the against of 5 and 20, but not to provide free k-12 education to people over 20 and under 5.
Again, this conclusion requires an assumption. You must assume that the right of a gay man to marry a woman is equal to the right of a straight man to marry a woman. My assumption is that true equality would be the right to marry a person you want to marry. If everyone had the right to wear a yarmulke but not an hijab, would that be equal? After all, they have the same right to wear the same thing.
If you think Scalia or Gorsuch or Thomas or whoever is so terrible, do you really want them ruling unbound by any principles other than what they think is good policy?
Ah, this is the fundamental disagreement. The left doesn't think that (most of) Scalia's or Thomas' decisions are bound by some unassailable principle. Or, to put it another way, their personal biases are all over their decisions.
It's also amusing when both the majority and dissent opinions argue from an originalist/textual standpoint. Which originalist is correct? DC v Heller comes to mind.
Sorry Jrr85, ignore my last post. This is more what I should have said I think. Your making just as many assumptions in your interpretation of the 14th amendment as anyone else, you just don't seem to see it.
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DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?
See, this is the problem with your whole "originalist/textualist" label. To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally. For some reason you seem to disagree. Which of us is the textualist in this case? Most people on my side would probably think it's me and those on your side will probably think it's you. Personally, I think we're both just interpreting the text. Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases. I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".
You are not basing it on an originalist or textualist approach though. You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell. There are definitely close cases where you can't just say "this judge was right; this one was wrong". That's not one of them.
Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.
People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
Umm....No, no they weren't. That's why women everywhere didn't get the right to vote. Even when the 14th amendment passed, they didn't get the right to vote. The 14th amendment is not an "Everything good is now legal or mandated" amendment. Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.
No, see, that was my point (perhaps poorly worded).
If you are an originalist, then are you saying that you don't think women should have the right to vote?
Because, what is the "originalist" stance on that?
No, if you are an originalist or textualist, you don't think your job as a judge is to set policy. So if you are an originalist in 1890, you say the 14th amendment doesn't grant women the right to vote, if you are a textualist, it could probably go either way. If you are an originalist or textualist after 1920, you say women have the right to vote, even if you are huge misogynist and think it's the worst idea ever to let women vote.
So, what about if you are an originalist in 2018? Because the word "originalist" doesn't seem to have any meaning at all in that context. Textualist, maybe. But what is the "original" document?
Originalist is generally shorthand for someone who tries to adhere to the original intent. So whether you are a textualist or an originalist, the document you are looking at when considering whether women have a constitutional right to vote is the constitution, and in particular the 19th amendment. There are different flavors of originalism, with some people saying it's just textualism, with emphasis on what the text would have meant to the people voting and/or writing it, while others might claim their version of originalism allows context outside of the four corners of the document to determine what the intent was. It's splitting hair in most cases but does make a difference in others.
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If you think Scalia or Gorsuch or Thomas or whoever is so terrible, do you really want them ruling unbound by any principles other than what they think is good policy?
Ah, this is the fundamental disagreement. The left doesn't think that (most of) Scalia's or Thomas' decisions are bound by some unassailable principle. Or, to put it another way, their personal biases are all over their decisions.
It's also amusing when both the majority and dissent opinions argue from an originalist/textual standpoint. Which originalist is correct? DC v Heller comes to mind.
Why is that amusing? Originalism is not a claim that every question has an easy and clear answer. And that's one where different shades of textualism versus originalism matter, as the textualism argument is more clear cut than the originalist argument.
Eta: Scalia, the uber-originalist, wrote in a dissenting opinion in Lawrence v Texas, “This effectively decrees the end of all morals legislation." Ha. So much originalism.
Why do you think that's inconsistent with originalism?
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DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?
See, this is the problem with your whole "originalist/textualist" label. To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally. For some reason you seem to disagree. Which of us is the textualist in this case? Most people on my side would probably think it's me and those on your side will probably think it's you. Personally, I think we're both just interpreting the text. Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases. I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".
You are not basing it on an originalist or textualist approach though. You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell. There are definitely close cases where you can't just say "this judge was right; this one was wrong". That's not one of them.
Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.
People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
Umm....No, no they weren't. That's why women everywhere didn't get the right to vote. Even when the 14th amendment passed, they didn't get the right to vote. The 14th amendment is not an "Everything good is now legal or mandated" amendment. Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.
No, see, that was my point (perhaps poorly worded).
If you are an originalist, then are you saying that you don't think women should have the right to vote?
Because, what is the "originalist" stance on that?
No, if you are an originalist or textualist, you don't think your job as a judge is to set policy. So if you are an originalist in 1890, you say the 14th amendment doesn't grant women the right to vote, if you are a textualist, it could probably go either way. If you are an originalist or textualist after 1920, you say women have the right to vote, even if you are huge misogynist and think it's the worst idea ever to let women vote.
So, what about if you are an originalist in 2018? Because the word "originalist" doesn't seem to have any meaning at all in that context. Textualist, maybe. But what is the "original" document?
Originalist is generally shorthand for someone who tries to adhere to the original intent. So whether you are a textualist or an originalist, the document you are looking at when considering whether women have a constitutional right to vote is the constitution, and in particular the 19th amendment. There are different flavors of originalism, with some people saying it's just textualism, with emphasis on what the text would have meant to the people voting and/or writing it, while others might claim their version of originalism allows context outside of the four corners of the document to determine what the intent was. It's splitting hair in most cases but does make a difference in others.
The thing is, the document itself has changed so much over the years with added amendments (the last being in 1992) that to me it seems fairly ridiculous to call this "original." The authors of the constitution -- the "original originalists," if you'd like -- would never have agreed with women having the vote. And yet, there it is, in an amendment. The Constitution has changed, evolved -- lived -- with the changing times. I find it quite odd when people have such a problem with the idea of the Constitution being reinterpreted in light of the present moment -- you know, when people of color are 5/5 of a human instead of 3/5, for example. And when we actually think that homosexuals are human beings with rights. And that women should be able to own property.
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If you think Scalia or Gorsuch or Thomas or whoever is so terrible, do you really want them ruling unbound by any principles other than what they think is good policy?
Ah, this is the fundamental disagreement. The left doesn't think that (most of) Scalia's or Thomas' decisions are bound by some unassailable principle. Or, to put it another way, their personal biases are all over their decisions.
It's also amusing when both the majority and dissent opinions argue from an originalist/textual standpoint. Which originalist is correct? DC v Heller comes to mind.
Why is that amusing? Originalism is not a claim that every question has an easy and clear answer. And that's one where different shades of textualism versus originalism matter, as the textualism argument is more clear cut than the originalist argument.
Because the entire "originalist" defense of a judicial decision is based on an unassailable argument. It's not a conservative or liberal decision. It's originalist!
So when the liberal side of the court disagrees with the conservative side of the court, and both sides use originalism and textualism to support their opinions, it's amusing. Obviously not both sides are correct -- the original authors would've agreed with only one or the other.
Eta: Scalia, the uber-originalist, wrote in a dissenting opinion in Lawrence v Texas, “This effectively decrees the end of all morals legislation." Ha. So much originalism.
Why do you think that's inconsistent with originalism?
Look at the decision and his opinion. He was on the side that wanted to continue morality legislation (and continue a ban on homosexual anal sex).
Read what he wrote. He decides that homosexual sex is not a "fundamental liberty" because of Bowers (not because of an originalist argument).
Now compare that to Loving, which used the same logic to deny inter-racial marriages. That was struck down, per Scalia, because "we correctly applied heightened scrutiny" to the law. Ah, but it doesn't work for Lawrence v Texas because the law's applicability is "readily satisfied here by the same rational basis that satisfied it in Bowers--society's belief that certain forms of sexual behavior are immoral and unacceptable."
The more relevant question is, what about his dissenting opinion was consistent with originalism? He doesn't mention the Framers at all in his dissent, nor is sodomy mentioned in the Constitution. Sex isn't deemed a "fundamental liberty" in the Constitution at all. Instead, he relies on "society's belief."*
Yep, truly an originalist.
* And he was wrong about that, too. Society's belief changed by 2003 and he didn't notice or didn't care because of the "homosexual agenda."**
** Yes, he really wrote that in his dissent.
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You say it wasn't some hidden right to gay-marriage but the point is that there doesn't need to be. If anyone has a right to marriage then so do gay people. There is also nothing in the constitution that suggests the original form of legal marriage was only between a man and a woman. Either everyone can receive the legal benefits of marriage or no one can.
Everyone can receive the legal benefits of marriage. It's just that there is no constitutional requirement that states define marriage to be between indeterminate sex. Just like it's not a violation of the equal protection law for a government building to have a men and women's restroom and to actually enforce that only men go into the mens' restroom and only women go into the women's restroom. It's not a violation of equal protection to provide free k-12 elementary to people between the against of 5 and 20, but not to provide free k-12 education to people over 20 and under 5.
Okay, I just want to more clearly state my problem with textualism now that I understand it a bit better.
According to Wikipedia...
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as: intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.[1]
The problem comes in with the words "ordinary meaning". Whose definition of equal here falls under the "ordinary meaning"? We obviously disagree about the meaning of equal treatment under the law. You think it means that if a homosexual male is legally allowed to enter into a marriage agreement with a female then that is equal to a heterosexual male being legally allowed to enter into a marriage agreement with a female. I think that it means that if a heterosexual male is legally allowed to enter into a marriage agreement with their significant other then it is equal to a homosexual male being legally allowed to enter into a marriage agreement with their significant other. Why do you think that your meaning is more "ordinary" than mine? Because I'm pretty sure my meaning is actually more ordinary than yours. Either way, they're both interpretations and you calling your interpretation "textualist" doesn't make it better than mine just because you decided to apply that label to it.
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DOMA was the same thing. There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years. I am glad same-sex is legal, but it shouldn't have been done through the courts. At the least, they should have done as much as possible through a freedom of contract argument. Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity. I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.
How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?
See, this is the problem with your whole "originalist/textualist" label. To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally. For some reason you seem to disagree. Which of us is the textualist in this case? Most people on my side would probably think it's me and those on your side will probably think it's you. Personally, I think we're both just interpreting the text. Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases. I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".
You are not basing it on an originalist or textualist approach though. You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell. There are definitely close cases where you can't just say "this judge was right; this one was wrong". That's not one of them.
Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.
People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
Umm....No, no they weren't. That's why women everywhere didn't get the right to vote. Even when the 14th amendment passed, they didn't get the right to vote. The 14th amendment is not an "Everything good is now legal or mandated" amendment. Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.
No, see, that was my point (perhaps poorly worded).
If you are an originalist, then are you saying that you don't think women should have the right to vote?
Because, what is the "originalist" stance on that?
No, if you are an originalist or textualist, you don't think your job as a judge is to set policy. So if you are an originalist in 1890, you say the 14th amendment doesn't grant women the right to vote, if you are a textualist, it could probably go either way. If you are an originalist or textualist after 1920, you say women have the right to vote, even if you are huge misogynist and think it's the worst idea ever to let women vote.
So, what about if you are an originalist in 2018? Because the word "originalist" doesn't seem to have any meaning at all in that context. Textualist, maybe. But what is the "original" document?
Originalist is generally shorthand for someone who tries to adhere to the original intent. So whether you are a textualist or an originalist, the document you are looking at when considering whether women have a constitutional right to vote is the constitution, and in particular the 19th amendment. There are different flavors of originalism, with some people saying it's just textualism, with emphasis on what the text would have meant to the people voting and/or writing it, while others might claim their version of originalism allows context outside of the four corners of the document to determine what the intent was. It's splitting hair in most cases but does make a difference in others.
The thing is, the document itself has changed so much over the years with added amendments (the last being in 1992) that to me it seems fairly ridiculous to call this "original." The authors of the constitution -- the "original originalists," if you'd like -- would never have agreed with women having the vote. And yet, there it is, in an amendment. The Constitution has changed, evolved -- lived -- with the changing times. I find it quite odd when people have such a problem with the idea of the Constitution being reinterpreted in light of the present moment -- you know, when people of color are 5/5 of a human instead of 3/5, for example. And when we actually think that homosexuals are human beings with rights. And that women should be able to own property.
You're not understanding what originalism is. It is not that the constitution cannot be amended or that the only thing that matters is the original version of the constitution before any of the amendments were ratified. The originalist/textualist position is that we are a constitutional republic, and if we want the constitution to change, it should be changed pursuant to the mechanism provided for changing the constitution, not because 5 people decide that it would be better if it was changed. The "living constitution" theory originalist object to is the idea that as society changes and their view on policy changes, the original intent can provide results that would be contrary to the policy preferences of the nation and judges should step in and stop that from happening.
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The "swing vote" has gone from O'Connor to Kennedy to (presumably) Roberts. If Republicans hadn't abdicated their Constitutional responsibility the swing vote would be Kagan/Breyer/Garland (one of those three). It's really amazing the heist McConnell pulled without facing any consequences.
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STOP. Just STOP. This is not dystopia. This is not hopeless.
My son has multiple disabilities (pre-existing conditions), is an atheist (religious minority), and is LGBT.
People like to talk about religious liberty being about serving LGBT folks, but what is not mentioned is that it is a slippery slope that can be extended to so many things. I would not surprised if going forward a case goes to the courts where someone is denied an apartment because they answered "no" to the question "do you accept Jesus Christ as your lord and savior?" on a rental application.
A conservative court could invalidate gay marriage rights, uphold laws used to discriminate against LGBT folks (in many places it is legal to be fired for being gay), uphold "religious liberty" laws to all business so they can discriminate against all non-Christians, and gut the provision of the ACA that requires health insurance companies to provide insurance to people with pre-existing conditions.
To my child who is soon to be an adult - in the next few years his right to marry can be taken away, Jim Crow type laws can be upheld allowing full discrimination by businesses including in housing, and he could be barred from the private insurance market. None of those are alarmist or unthinkable given who is in charge of all 3 branches of the government and their recent actions in the past few years.
Sounds pretty freakin' scary and dystopian to me.
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If you think Scalia or Gorsuch or Thomas or whoever is so terrible, do you really want them ruling unbound by any principles other than what they think is good policy?
Ah, this is the fundamental disagreement. The left doesn't think that (most of) Scalia's or Thomas' decisions are bound by some unassailable principle. Or, to put it another way, their personal biases are all over their decisions.
It's also amusing when both the majority and dissent opinions argue from an originalist/textual standpoint. Which originalist is correct? DC v Heller comes to mind.
Why is that amusing? Originalism is not a claim that every question has an easy and clear answer. And that's one where different shades of textualism versus originalism matter, as the textualism argument is more clear cut than the originalist argument.
Because the entire "originalist" defense of a judicial decision is based on an unassailable argument. It's not a conservative or liberal decision. It's originalist!
So when the liberal side of the court disagrees with the conservative side of the court, and both sides use originalism and textualism to support their opinions, it's amusing. Obviously not both sides are correct -- the original authors would've agreed with only one or the other.
It's not an unassailable argument. It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy". You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns. you can't make an originalist argument of why states must allow same sex marriage.
Eta: Scalia, the uber-originalist, wrote in a dissenting opinion in Lawrence v Texas, “This effectively decrees the end of all morals legislation." Ha. So much originalism.
Why do you think that's inconsistent with originalism?
Look at the decision and his opinion. He was on the side that wanted to continue morality legislation (and continue a ban on homosexual anal sex).
Read what he wrote. He decides that homosexual sex is not a "fundamental liberty" because of Bowers (not because of an originalist argument).
Now compare that to Loving, which used the same logic to deny inter-racial marriages. That was struck down, per Scalia, because "we correctly applied heightened scrutiny" to the law. Ah, but it doesn't work for Lawrence v Texas because the law's applicability is "readily satisfied here by the same rational basis that satisfied it in Bowers--society's belief that certain forms of sexual behavior are immoral and unacceptable."
The more relevant question is, what about his dissenting opinion was consistent with originalism? He doesn't mention the Framers at all in his dissent, nor is sodomy mentioned in the Constitution. Sex isn't deemed a "fundamental liberty" in the Constitution at all. Instead, he relies on "society's belief."*
Yep, truly an originalist.
* And he was wrong about that, too. Society's belief changed by 2003 and he didn't notice or didn't care because of the "homosexual agenda."**
** Yes, he really wrote that in his dissent.
You are mixing up a lot of issues. You have to understand some of the precedent he was applying, and then it still leaves you with an issue that could fill (and has filled) multiple law journal articles.
But generally (and extremely abbreviated), the discussion of whether sodomy was a fundamental right occurs b/c he was applying precedent for substantive due process. For substantive due process claims, if you are dealing with a fundamental right, you apply strict scrutiny (which means the government violates substantive due process unless there is a compelling gov't interest and the law/regulation/act in question is narrowly tailored and no more burdensome than necessary; gov'ts almost always lose these claims, but there are still plenty of claims that the gov't can and does defeat). If it's not a fundamental right, then you apply rational basis, which is any rational basis you can come up with, the gov't wins (and the gov't wins these almost always, rational doesn't mean good or even justifiable; it just means if there is a rational basis the gov't could have had, even if it's an awful one, it's still permissible). So that is why he made the argument that sodomy isn't a fundamental right and why he talked about society's views (whether they have a longstanding history is part of what courts look at to determine if a right is fundamental). Note that the majority agreed with him on this and claimed to apply rational basis.
The reference to Loving v. Virginia is applying precedent under the equal protection clause. Under the equal protection, it's the class that determines what level of scrutiny to apply. Race is a suspect class, because that was basically the entire point of the equal protection clause. So anything differentiating on race gets strict scrutiny. The reason this is brought up is that O'Conner (but not any of the other judges) was arguing that this should be an equal protection claim like Loving v. Virginia, but homosexuality is not a suspect class under the equal protection clause, so it would still be rational review.
And applying the rational basis test is why he made the comments about morals legislation. Morality had always satisfied the rational basis test.
So all three of those areas of precedent together explain why he made the comment about homosexual agenda. The court was ignoring prior precedent and seemed to be making it up as they went along, which to living constitutionalist is no problem, but to originalist is a bad way to approach it (One of scalia's saying is that he wished he could replace some opinions with just a stamp that said "Stupid, but constitutional".). And while "homosexual agenda" sounds goofy, he was correct in that basically the majority had decided that notwithstanding prior precedent, they wanted a different policy towards homosexuality and same-sex marriage in the U.S.
Of course that does raise the question of what place, if any, stare decisis plays in originalist theory. In this case, he was mostly trying to at least hold other justices to the standard they claimed to be following, but Scalia relied on a lot of precedent in his decisions also that if not contradictory with originalism, were not necessarily supported by it (such as all the different tests for when to apply heightened standards of review and what those standards are). You could literally write a book on it, and I assume people have. I know there have been plenty of law review articles on it.
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STOP. Just STOP. This is not dystopia. This is not hopeless.
My son has multiple disabilities (pre-existing conditions), is an atheist (religious minority), and is LGBT.
People like to talk about religious liberty being about serving LGBT folks, but what is not mentioned is that it is a slippery slope that can be extended to so many things.
I would not surprised if going forward a case goes to the courts where someone is denied an apartment because they answered "no" to the question "do you accept Jesus Christ as your lord and savior?" on a rental application.
A conservative court could invalidate gay marriage rights, uphold laws used to discriminate against LGBT folks (in many places it is legal to be fired for being gay), uphold "religious liberty" laws to all business so they can discriminate against all non-Christians, and gut the provision of the ACA that requires health insurance companies to provide insurance to people with pre-existing conditions.
To my child who is soon to be an adult - in the next few years his right to marry can be taken away, Jim Crow type laws can be upheld allowing full discrimination by businesses including in housing, and he could be barred from the private insurance market. None of those are alarmist or unthinkable given who is in charge of all 3 branches of the government and their recent actions in the past few years.
Sounds pretty freakin' scary and dystopian to me.
If you have traveled around the country at all, you have probably spent time in places where people have always been able to refuse to serve people for being homosexual, yet how many places does it happen? I don't want to minimize how hurtful it must feel when people are refused service, but as bad as it is, it's not a dystopia. In most places, businesses will risk going out of business if they openly discriminate against homosexuals.
With respect to housing, the acceptance of jesus question is already clearly prohibited by the fair housing act for all rental housing other than owner occupied quadplexes, triplexes, or duplexes. I don't think there's going to be any political interest in changing this.
THe occupational stuff is worse, but again, most businesses are already operating in areas that do not protect homosexuality as a protected class (or at least did until the "gender non-conforming" suits started gaining steam). So it's not likely to get worse at least.
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It's not an unassailable argument. It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy". You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns.
Ah, good, glad to read that.
you can't make an originalist argument of why states must allow same sex marriage.
Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.
Now we're back to one originalist vs another originalist. Who is correct?
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It's not an unassailable argument. It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy". You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns.
Ah, good, glad to read that.
you can't make an originalist argument of why states must allow same sex marriage.
Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.
Now we're back to one originalist vs another originalist. Who is correct?
well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.
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It's not an unassailable argument. It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy". You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns.
Ah, good, glad to read that.
you can't make an originalist argument of why states must allow same sex marriage.
Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.
Now we're back to one originalist vs another originalist. Who is correct?
well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.
Well, given that the actual definition of "original" is "from the beginning," most originalist arguments that take into consideration the Amendments to the Constitution are incorrect.
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"I have known a great many troubles in my life, but most of them never happened." - Mark Twain*
* ok probably someone else
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well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.
Well, given that the actual definition of "original" is "from the beginning," most originalist arguments that take into consideration the Amendments to the Constitution are incorrect.
Exactly when is an originalist an originalist?
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If Democrats had won the election, it would not have been a slight liberal tilt. It would have been a huge liberal tilt. No more 1st amendment applied to political speech. No more individual right to own guns. General police powers for the federal government rather than the tiny bit of limitation on the commerce clause that currently remains. If another sotamayer were appointed and confirmed, the balance would have been two judges that approach first from a partisan perspective, then RBG who is partisan on some things, then Breyer and Kagan who will apply the text but are willing to bend for certain key issues.
So when you see people flipping out about having another liberal pick on the court, when they are acting hysterical, it is because they want the court to act as super legislators in their favor and they know they won't get that again for a while.
Fixed it for you.
I rest my case.
1. When you say "no more 1st amendment applied to political speech" What you're really talking about is money = political speech? Citizens United?
2. Even a big swing left probably wouldn't get rid of all guns. Unsure why there aren't more of The Right advocating to at least not let violent offenders, domestic abusers, those with mental health problems etc. have guns, incorporate actual background checks, and firearm training courses.
3. Unsure what problem the Right has with getting rid of gerrymandering... oh wait, it's because they're fine with stacking the odds in their favor.
4. Don't know why The Right wants to limit voting rights for American citizens... oh wait, it's because they're removing those rights from the poor and not white.
5. Why does The Right want to get rid of a woman's right to choose? Oh yeah, it's because they're women.
6. Equal LGBTQ rights? Not your problem because you're not gay.
So as long as the future of America is ok for the straight white monied male, the court is working just fine. Amirite?
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well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.
Well, given that the actual definition of "original" is "from the beginning," most originalist arguments that take into consideration the Amendments to the Constitution are incorrect.
Exactly when is an originalist an originalist?
Good question. But I am just pointing out -- rightly, I think -- that anything that wasn't present "from the beginning" is not "original."
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The problem with both the left and right picks on the supreme court is they both allow the federal government more authority than the enumerated powers when their particular belief is on the line.
If it's gay marriage - guess what, the federal government has no power to legislate on marriage at all! Gay marriage, straight marriage - the feds have nothing to do with it. Any federal law on marriage, whether it be to say gay marriage is illegal or to say that everyone who bangs must get married, or that marriage can only happen by people over 14, is unconstitutional!
The federal government should have ZERO laws on education. Where in the constitution does it give the feds power to make any laws on education? But nope, when the righties are in office/courts, they make federal education laws that are right wing and when the lefties are in there they make lefty ones. Most of it is through the mutilation of the commerce clause. Commerce clause was meant to say "yo states, we'll help if you fucks decide to start boycotting each others' shit or putting up trade barrier between states".
The 10th amendment clearly says most powers should reside with the states, or with the people! Below is a list of enumerated powers of the federal government that is further restricted by the bill of rights - why does it do all this other shit to begin with???
The supreme court should be nixing laws left and right that the federal government somehow deems is in its authority. But they don't. They only do that (say it's a state issue) when it's not their belief. It's horrible and now that we have a fucking pyscho in the white house it's even worse.
Enumerated powers:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
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It's not an unassailable argument. It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy". You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns.
Ah, good, glad to read that.
you can't make an originalist argument of why states must allow same sex marriage.
Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.
Now we're back to one originalist vs another originalist. Who is correct?
well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.
Yeah, pretty sure no one has made that argument anyway. I think the argument that has been made is that if the government gives particular individuals the right to enter into a marriage agreement then the principal of equal treatment under the law requires them to allow all citizens to enter into a marriage agreement. And that interpretation is entirely based off of the original text of the 14th amendment. If you think otherwise could you explain it please, because I still don't seem to understand your argument here.
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All of that being said I think the way federal judges are selected is too partisan and below is my proposal to rectify that.
1) Members in good standing of the bar associations nominate (by vote), and the senate confirms, federal district court judges from the bar of that district
2) the federal district court judges select, by vote, judges within their circuit when there is a circuit court opening
3) supreme court justices are selected in a similar manner as 2) by the circuit court judges
Judges could be impeached by the current method.
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It's not an unassailable argument. It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy". You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns.
Ah, good, glad to read that.
you can't make an originalist argument of why states must allow same sex marriage.
Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.
Now we're back to one originalist vs another originalist. Who is correct?
well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.
Yeah, pretty sure no one has made that argument anyway. I think the argument that has been made is that if the government gives particular individuals the right to enter into a marriage agreement then the principal of equal treatment under the law requires them to allow all citizens to enter into a marriage agreement. And that interpretation is entirely based off of the original text of the 14th amendment. If you think otherwise could you explain it please, because I still don't seem to understand your argument here.
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And that same interpretation would mean you can't have single sex bathrooms in a government building, and that you can't make section 8 vouchers available t one person without making them available to every person. So I think most people would recognize that the original intent couldn't have been to prohibit the government from making any distinctions between citizens. You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.
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You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.
Yet there are some. Or are some originalists not originalists?
Is this a "not a true scotsman" issue?
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It's not an unassailable argument. It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy". You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns.
Ah, good, glad to read that.
you can't make an originalist argument of why states must allow same sex marriage.
Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.
Now we're back to one originalist vs another originalist. Who is correct?
well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.
Well, given that the actual definition of "original" is "from the beginning," most originalist arguments that take into consideration the Amendments to the Constitution are incorrect.
No. That’s stupid. The originalist idea is that the original Constitution has a provision to change the Constitution, and if you want to change it you go through that process. Originalists don’t think the founding fathers completely infallible and the document final, they think that the FF gave us a mechanism to update the Constitution if desired and that’s the mechanism you need to use if you want to make a change. Can’t muster up the votes to make a Constitutional change? Then you can’t go around trying to reinterpret the Constitution to say something it doesn’t. Change it or abide by it.
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I guess I'll be the outlier and chime in that I will be quite happy if another person like Neil Gorsuch is appointed. I wasn't thrilled with the recent sales tax ruling but I'm quite happy with all the other important decisions in the last week or so.
You enjoy watching unions getting decimated and partisan gerrymandering continuing to control our elections?
Yes to the first. If you want to be part of a union then go ahead and join one. If they are providing value for the cost of that service they should fluorish. If they are not then they should wither away. I don't think you should be forced to pay a fee just for the privelege of taking a job.
I wasn't thinking about the gerrmyandering cases so I guess I'll amend my previous comments. I didn't read those opinions as I did with some of the other recent ones so I'm not sure what the legal justitifcation was. I think gerrymandering is bad overall. The fact that incumbent legislators get re-elected something lik 80-90% of the time is a serious part of the problem with our government. It invites and breeds corruption.
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You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.
Yet there are some. Or are some originalists not originalists?
Is this a "not a true scotsman" issue?
Not at all. If somebody says they're a libertarian and thinks abortion on demand is the right approach, and another person claiming to be a libertarian says the right to life is the most important liberty so the other person can't claim to be a libertarian while believing in abortion on demand, that's a no true Scotsman issue. If a person says they're libertarian, but they support slavery, don't believe in freedom of the press or religion, and think any mid level government manager should be able to i prison anybody without a trial, that's not a no true Scotsman issue. It's a 'are we going to use a common language or not issue'. You can have good faith disputes over what is 'really originalist' on certain questions, but if you are trying to claim that you are using an originalist approach to determine that the constitution requires same sex marriage to be recognized if marriage is recognized, you are just trying to avoid any real discussion of merits by trying to use word in a way that comes nowhere close to their commonly accepted meaning.
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Yes to the first. If you want to be part of a union then go ahead and join one. If they are providing value for the cost of that service they should fluorish. If they are not then they should wither away. I don't think you should be forced to pay a fee just for the privelege of taking a job.
Unions provide enormous value, but they provide it to all members of the profession they represent, not just union members, and there's no way around that. So the obvious rational thing to do is to leave the union and just keep enjoying the benefits provided by the union anyway, which makes it impossible for unions to actually continue operating, which was the point of the case all along. Free rider problem, something conservatives refuse to acknowledge exists.
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Yes to the first. If you want to be part of a union then go ahead and join one. If they are providing value for the cost of that service they should fluorish. If they are not then they should wither away. I don't think you should be forced to pay a fee just for the privelege of taking a job.
Unions provide enormous value, but they provide it to all members of the profession they represent, not just union members, and there's no way around that. So the obvious rational thing to do is to leave the union and just keep enjoying the benefits provided by the union anyway, which makes it impossible for unions to actually continue operating, which was the point of the case all along. Free rider problem, something conservatives refuse to acknowledge exists.
Unions certainly can provide benefits and have throughout their history done a lot for many working people, but they've done a lot of damage as well, to themselves and others. The typical American style labor union is nothing like the style that exists in western Europe or the Nordic regions, and for that Americans have a lot of potential improvements.
Your argument is biased. Read any writings by Janus himself, or the opinion of the majority of the court.
Is being a free rider a problem? Yes. So is forcing people to fund private institutions as a condition of employment.
I'm a pro-union person, but where I work my union is a corrupt institutional failure. Any criticism directed at them they see as an attack and dig their fingers in even deeper to their dysfunctional ways. Their politics are toxic and I assume they are involved in corrupt activity. Their ability to collectively bargain effectively or represent most members is long gone. I want nothing to do with them, this ruling gives me that option.
I believe unions would be much more successful if they weren't so tone deaf. Much of their decline is based on their own failures, but that argument doesn't fit their agenda.
In my view Janus wasn't about destroying unions. I'm sure he was funded by those that have that ideology, but for the love of God, if unions want to thrive many of them need to change their ways.
Blaming others for their failures, the paranoia that exists within many labor unions...so toxic and dysfunctional.
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STOP. Just STOP. This is not dystopia. This is not hopeless.
My son has multiple disabilities (pre-existing conditions), is an atheist (religious minority), and is LGBT.
People like to talk about religious liberty being about serving LGBT folks, but what is not mentioned is that it is a slippery slope that can be extended to so many things.
I would not surprised if going forward a case goes to the courts where someone is denied an apartment because they answered "no" to the question "do you accept Jesus Christ as your lord and savior?" on a rental application.
A conservative court could invalidate gay marriage rights, uphold laws used to discriminate against LGBT folks (in many places it is legal to be fired for being gay), uphold "religious liberty" laws to all business so they can discriminate against all non-Christians, and gut the provision of the ACA that requires health insurance companies to provide insurance to people with pre-existing conditions.
To my child who is soon to be an adult - in the next few years his right to marry can be taken away, Jim Crow type laws can be upheld allowing full discrimination by businesses including in housing, and he could be barred from the private insurance market. None of those are alarmist or unthinkable given who is in charge of all 3 branches of the government and their recent actions in the past few years.
Sounds pretty freakin' scary and dystopian to me.
If you have traveled around the country at all, you have probably spent time in places where people have always been able to refuse to serve people for being homosexual, yet how many places does it happen? I don't want to minimize how hurtful it must feel when people are refused service, but as bad as it is, it's not a dystopia. In most places, businesses will risk going out of business if they openly discriminate against homosexuals.
With respect to housing, the acceptance of jesus question is already clearly prohibited by the fair housing act for all rental housing other than owner occupied quadplexes, triplexes, or duplexes. I don't think there's going to be any political interest in changing this.
THe occupational stuff is worse, but again, most businesses are already operating in areas that do not protect homosexuality as a protected class (or at least did until the "gender non-conforming" suits started gaining steam). So it's not likely to get worse at least.
Except with the baker case just being decided, there is a judicial precedent for all the people who want to discriminate out there. All the congress needs to do is pass a law that says "religious Liberty" trumps discrimination law and then a conservative court upholds it.
You sound very much like the old, white, christian, straight, conservative man I was talking to after Trump was elected. I was very worried about repeal and replace for the ACA and losing all the protections in terms of pre-existing conditions at lifetime limits. It was when my son was having about a $1Million a year in medical expenses (he had cancer and bone marrow transplant). The man said acted like I was being hysterical and then said "they won't take those away". When I challenged him, he replied "they would never do that to people".
Sure enough, the last version of repeal (no replace in sight) had a provision that left it up to states to make enforcement of the pre-existing conditions protections optional. Basically taking that protection away for everyone in a red state.
I don't trust the Republicans not to throw people like my son under the bus the second it is politically convenient. Stripping rights away from LGBT is the perfect dog whistle to a certain base of people. We already have a president who thinks nothing of mocking people with disabilities or banning certain LGBT people from the military.
The idea that people like my son don't need their rights inshrined in law, that conservatives actually care about them, (remember Mike Pence - uber Christian anti-gay guy is only 1 fast food induced heart attack away from the presidency) or that just because it is ok now it always will be is naive.
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You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.
Yet there are some. Or are some originalists not originalists?
Is this a "not a true scotsman" issue?
Not at all. If somebody says they're a libertarian and thinks abortion on demand is the right approach, and another person claiming to be a libertarian says the right to life is the most important liberty so the other person can't claim to be a libertarian while believing in abortion on demand, that's a no true Scotsman issue. If a person says they're libertarian, but they support slavery, don't believe in freedom of the press or religion, and think any mid level government manager should be able to i prison anybody without a trial, that's not a no true Scotsman issue. It's a 'are we going to use a common language or not issue'. You can have good faith disputes over what is 'really originalist' on certain questions, but if you are trying to claim that you are using an originalist approach to determine that the constitution requires same sex marriage to be recognized if marriage is recognized, you are just trying to avoid any real discussion of merits by trying to use word in a way that comes nowhere close to their commonly accepted meaning.
No, I think it is a "not a true scotsman" issue.
Person A: "No Originalist could use originalism to support gay marriage."
Person B: "But these legal scholars who are Originalists do so and they even filed an originalist amicus brief in Obgerfell."
Person A: "Ah yes, but no true Originalist could use originalism to support gay marriage."
If you think these originalists aren't true* originalists, you are just trying to avoid the fact that originalism is an interpretive approach and isn't as unassailable as you seem to think it is.
But, hey, if one needs an exclusive shield to defend and mask their policies, who am I deny them their woobie?
* https://en.wikipedia.org/wiki/No_true_Scotsman
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STOP. Just STOP. This is not dystopia. This is not hopeless.
My son has multiple disabilities (pre-existing conditions), is an atheist (religious minority), and is LGBT.
People like to talk about religious liberty being about serving LGBT folks, but what is not mentioned is that it is a slippery slope that can be extended to so many things.
I would not surprised if going forward a case goes to the courts where someone is denied an apartment because they answered "no" to the question "do you accept Jesus Christ as your lord and savior?" on a rental application.
A conservative court could invalidate gay marriage rights, uphold laws used to discriminate against LGBT folks (in many places it is legal to be fired for being gay), uphold "religious liberty" laws to all business so they can discriminate against all non-Christians, and gut the provision of the ACA that requires health insurance companies to provide insurance to people with pre-existing conditions.
To my child who is soon to be an adult - in the next few years his right to marry can be taken away, Jim Crow type laws can be upheld allowing full discrimination by businesses including in housing, and he could be barred from the private insurance market. None of those are alarmist or unthinkable given who is in charge of all 3 branches of the government and their recent actions in the past few years.
Sounds pretty freakin' scary and dystopian to me.
If you have traveled around the country at all, you have probably spent time in places where people have always been able to refuse to serve people for being homosexual, yet how many places does it happen? I don't want to minimize how hurtful it must feel when people are refused service, but as bad as it is, it's not a dystopia. In most places, businesses will risk going out of business if they openly discriminate against homosexuals.
With respect to housing, the acceptance of jesus question is already clearly prohibited by the fair housing act for all rental housing other than owner occupied quadplexes, triplexes, or duplexes. I don't think there's going to be any political interest in changing this.
THe occupational stuff is worse, but again, most businesses are already operating in areas that do not protect homosexuality as a protected class (or at least did until the "gender non-conforming" suits started gaining steam). So it's not likely to get worse at least.
Except with the baker case just being decided, there is a judicial precedent for all the people who want to discriminate out there. All the congress needs to do is pass a law that says "religious Liberty" trumps discrimination law and then a conservative court upholds it.
Again, most of the U.S. didn't need legal precedent. They already could legally discriminate against homosexuals. The only places federal law would change anything would be states and/or cities that already have majorities that want to ensure protection for homosexuals from discrimination. I'm not saying there won't ever be anything bad happen, I'm just saying if your worried about your son all the sudden being denied service, it's just not going to happen without a seismic shift in opinion in this country.
You sound very much like the old, white, christian, straight, conservative man I was talking to after Trump was elected. I was very worried about repeal and replace for the ACA and losing all the protections in terms of pre-existing conditions at lifetime limits. It was when my son was having about a $1Million a year in medical expenses (he had cancer and bone marrow transplant). The man said acted like I was being hysterical and then said "they won't take those away". When I challenged him, he replied "they would never do that to people".
Sure enough, the last version of repeal (no replace in sight) had a provision that left it up to states to make enforcement of the pre-existing conditions protections optional. Basically taking that protection away for everyone in a red state.
It's funny that you think I sound like that guy since i literally said nothing about healthcare. But if it's small comfort, despite the rhetoric, people weren't allowed to die in the street before ACA. I had a family member and a friend dealing with cancer at the same time, and one of them had very good insurance and one had no insurance and no potential to pay. They both got the same quality of care as far as I could tell. Again, that's probably small comfort in an incredibly stressful and worrying time, but it's something.
I don't trust the Republicans not to throw people like my son under the bus the second it is politically convenient. Stripping rights away from LGBT is the perfect dog whistle to a certain base of people. We already have a president who thinks nothing of mocking people with disabilities or banning certain LGBT people from the military.
The idea that people like my son don't need their rights inshrined in law, that conservatives actually care about them, (remember Mike Pence - uber Christian anti-gay guy is only 1 fast food induced heart attack away from the presidency) or that just because it is ok now it always will be is naive.
It's not that things can't change, but the election of Trump, who waved a rainbow flag on stage at a campaign rally, is not a reason to be hysterical about gay rights. If you want to be disappointed, sure. If you want to be concerned that the trend of more and more people being accepting and tolerant of homosexuality is reversing, then sure, be concerned (although I haven't seen anything to indicate this would be the case). But this is not a moment for teeth gnashing. Again, we are less than ten years away from Obama having to blatantly lie about his position on gay marriage to be a viable candidate. We are less than 6 years from teh time he had to be at least coy about it. And less than two years ago when a republican candidate for president went out of his way to ask for a rainbow flag from an attendant to waive it on stage.
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You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.
Yet there are some. Or are some originalists not originalists?
Is this a "not a true scotsman" issue?
Not at all. If somebody says they're a libertarian and thinks abortion on demand is the right approach, and another person claiming to be a libertarian says the right to life is the most important liberty so the other person can't claim to be a libertarian while believing in abortion on demand, that's a no true Scotsman issue. If a person says they're libertarian, but they support slavery, don't believe in freedom of the press or religion, and think any mid level government manager should be able to i prison anybody without a trial, that's not a no true Scotsman issue. It's a 'are we going to use a common language or not issue'. You can have good faith disputes over what is 'really originalist' on certain questions, but if you are trying to claim that you are using an originalist approach to determine that the constitution requires same sex marriage to be recognized if marriage is recognized, you are just trying to avoid any real discussion of merits by trying to use word in a way that comes nowhere close to their commonly accepted meaning.
No, I think it is a "not a true scotsman" issue.
Person A: "No Originalist could use originalism to support gay marriage."
Person B: "But these legal scholars who are Originalists do so and they even filed an originalist amicus brief in Obgerfell."
Person A: "Ah yes, but no true Originalist could use originalism to support gay marriage."
If you think these originalists aren't true* originalists, you are just trying to avoid the fact that originalism is an interpretive approach and isn't as unassailable as you seem to think it is.
But, hey, if one needs an exclusive shield to defend and mask their policies, who am I deny them their woobie?
* https://en.wikipedia.org/wiki/No_true_Scotsman
Again, it's not an argument over "true originalist". it's an argument over whether a common language means anything. The term originalist is intended to be descriptive of a particular type of judicial philosophy. There is no universally accepted definition of originalist and exactly how different legal analyses should be handled (just like there is no universally accepted definition of libertarianism and what powers the state should or should not have), but that doesn't mean the terms are meaningless.
If a person is trying to call him/herself an originalist and claiming that an originalist approach to interpretation leads to the conclusion that the equal protection clause, ratified in 1868, provided a constitutional right to same-sex marriage anywhere traditional marriage is aloud, that person is either very stupid, or more likely, they are being disingenuous and rather than trying to make an argument on the merits, is trying to either shift the argument to a pointless discussion on whether words can have actual meanings, or is trying to sucker dumb and/or ignorant people who think there is something magic about the word "originalism" or "originalist", rather than there being merit to a judicial philosophy that makes the supreme court something other than the most powerful legislators in the land.
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No, I think it is a "not a true scotsman" issue.
Person A: "No Originalist could use originalism to support gay marriage."
Person B: "But these legal scholars who are Originalists do so and they even filed an originalist amicus brief in Obgerfell."
Person A: "Ah yes, but no true Originalist could use originalism to support gay marriage."
If you think these originalists aren't true* originalists, you are just trying to avoid the fact that originalism is an interpretive approach and isn't as unassailable as you seem to think it is.
But, hey, if one needs an exclusive shield to defend and mask their policies, who am I deny them their woobie?
* https://en.wikipedia.org/wiki/No_true_Scotsman
Again, it's not an argument over "true originalist".
Yes, it is. You claim that someone isn't a true originalist; I claim that they are (more importantly, they claim that they are).
If a person is trying to call him/herself an originalist and claiming that an originalist approach to interpretation leads to the conclusion that the equal protection clause, ratified in 1868, provided a constitutional right to same-sex marriage anywhere traditional marriage is aloud, that person is either very stupid, or more likely, they are being disingenuous and rather than trying to make an argument on the merits, is trying to either shift the argument to a pointless discussion on whether words can have actual meanings, or is trying to sucker dumb and/or ignorant people who think there is something magic about the word "originalism" or "originalist", rather than there being merit to a judicial philosophy that makes the supreme court something other than the most powerful legislators in the land.
Or perhaps the "I'm a originalist!" advocate needs "not a true scotsman" to support their socially regressive beliefs because, when those same originalist arguments are used to support the other side, like in Obgerfell, cognizant dissonance occurs and they resort to implying that others are "dumb and/or ignorant people."
Eh, whatever helps you sleep at night. Cheers.
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No, I think it is a "not a true scotsman" issue.
Person A: "No Originalist could use originalism to support gay marriage."
Person B: "But these legal scholars who are Originalists do so and they even filed an originalist amicus brief in Obgerfell."
Person A: "Ah yes, but no true Originalist could use originalism to support gay marriage."
If you think these originalists aren't true* originalists, you are just trying to avoid the fact that originalism is an interpretive approach and isn't as unassailable as you seem to think it is.
But, hey, if one needs an exclusive shield to defend and mask their policies, who am I deny them their woobie?
* https://en.wikipedia.org/wiki/No_true_Scotsman
Again, it's not an argument over "true originalist".
Yes, it is. You claim that someone isn't a true originalist; I claim that they are (more importantly, they claim that they are).
If a person is trying to call him/herself an originalist and claiming that an originalist approach to interpretation leads to the conclusion that the equal protection clause, ratified in 1868, provided a constitutional right to same-sex marriage anywhere traditional marriage is aloud, that person is either very stupid, or more likely, they are being disingenuous and rather than trying to make an argument on the merits, is trying to either shift the argument to a pointless discussion on whether words can have actual meanings, or is trying to sucker dumb and/or ignorant people who think there is something magic about the word "originalism" or "originalist", rather than there being merit to a judicial philosophy that makes the supreme court something other than the most powerful legislators in the land.
Or perhaps the "I'm a originalist!" advocate needs "not a true scotsman" to support their socially regressive beliefs because, when those same originalist arguments are used to support the other side, like in Obgerfell, cognizant dissonance occurs and they resort to implying that others are "dumb and/or ignorant people."
Eh, whatever helps you sleep at night. Cheers.
I honestly can't tell if you're trolling or you really have no understanding of the argument.
Again, there is nothing magic about the world originalist. If you want to call yourself originalist and people that follow what is generally recognized as an originalist approach something else, that doesn't change anything. Call it a 'non-legislative' approach instead if you want. The argument in favor of the non-legislative approach is that it constrains its adherents from simply approaching each issue from a 'what would I prefer the result to be' angle. When people follow that approach, it turns the Supreme Court into a super legislator and makes a huge, possibly the greatest, responsibility of the president and senators to be acting as a representative of their voters in selecting these super legislators that will have a lifetime appointment. That's perverse and elevates the Supreme Court above the other two branches of government.
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It's not an unassailable argument. It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy". You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns.
Ah, good, glad to read that.
you can't make an originalist argument of why states must allow same sex marriage.
Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.
Now we're back to one originalist vs another originalist. Who is correct?
well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.
Yeah, pretty sure no one has made that argument anyway. I think the argument that has been made is that if the government gives particular individuals the right to enter into a marriage agreement then the principal of equal treatment under the law requires them to allow all citizens to enter into a marriage agreement. And that interpretation is entirely based off of the original text of the 14th amendment. If you think otherwise could you explain it please, because I still don't seem to understand your argument here.
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And that same interpretation would mean you can't have single sex bathrooms in a government building, and that you can't make section 8 vouchers available t one person without making them available to every person. So I think most people would recognize that the original intent couldn't have been to prohibit the government from making any distinctions between citizens. You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.
I took a night to think on this, but I still don't think I'm understanding your logic here. So here's how I feel about these two issues, can you please point out were my reasoning is inconsistent with my previous interpretation of the 14th amendment and/or your stated situations?
14th Amendment Interpretation: If the government provides public restrooms to particular individuals then the principal of equal treatment under the law requires them to provide public restrooms for all individuals.
Current Situation: By providing male and female public restrooms the government is providing public restrooms for all individuals.
14th Amendment Interpretation: If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation: The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.
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It's not an unassailable argument. It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy". You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns.
Ah, good, glad to read that.
you can't make an originalist argument of why states must allow same sex marriage.
Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.
Now we're back to one originalist vs another originalist. Who is correct?
well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.
Yeah, pretty sure no one has made that argument anyway. I think the argument that has been made is that if the government gives particular individuals the right to enter into a marriage agreement then the principal of equal treatment under the law requires them to allow all citizens to enter into a marriage agreement. And that interpretation is entirely based off of the original text of the 14th amendment. If you think otherwise could you explain it please, because I still don't seem to understand your argument here.
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And that same interpretation would mean you can't have single sex bathrooms in a government building, and that you can't make section 8 vouchers available t one person without making them available to every person. So I think most people would recognize that the original intent couldn't have been to prohibit the government from making any distinctions between citizens. You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.
I took a night to think on this, but I still don't think I'm understanding your logic here. So here's how I feel about these two issues, can you please point out were my reasoning is inconsistent with my previous interpretation of the 14th amendment and/or your stated situations?
14th Amendment Interpretation: If the government provides public restrooms to particular individuals then the principal of equal treatment under the law requires them to provide public restrooms for all individuals.
Current Situation: By providing male and female public restrooms the government is providing public restrooms for all individuals.
Just sub out a few words, and you get:
14th Amendment Interpretation: If the government recognizes marriage of particular individuals then the principal of equal treatment under the law requires them to recognize marriage of all individuals.
Current Situation: By recognizing marriage of men to women, and women to men, the government is recognizing marriage of all individuals.
You are making a distinction and claiming that allowing a woman to marry a man when she wants to marry a woman does not satisfy equal protection, but allowing a woman to use a woman's restroom when she wants to use the men's restroom does satisfy equal protection. There's nothing unreasonable about that distinction, but there's not a good argument that it was intended by the people adopting the 14th amendment.
14th Amendment Interpretation: If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation: The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.
14th Amendment Interpretation: If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation: The government allows all individuals who are men to marry women.
Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals. If you can just pick your class, then you can always satisfy equal protection. If you can't make any distinction, then you can just about never satisfy equal protection.
So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".
There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion." And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not.
Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?
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I took a night to think on this, but I still don't think I'm understanding your logic here. So here's how I feel about these two issues, can you please point out were my reasoning is inconsistent with my previous interpretation of the 14th amendment and/or your stated situations?
14th Amendment Interpretation: If the government provides public restrooms to particular individuals then the principal of equal treatment under the law requires them to provide public restrooms for all individuals.
Current Situation: By providing male and female public restrooms the government is providing public restrooms for all individuals.
Just sub out a few words, and you get:
14th Amendment Interpretation: If the government recognizes marriage of particular individuals then the principal of equal treatment under the law requires them to recognize marriage of all individuals.
Current Situation: By recognizing marriage of men to women, and women to men, the government is recognizing marriage of all individuals.
You are making a distinction and claiming that allowing a woman to marry a man when she wants to marry a woman does not satisfy equal protection, but allowing a woman to use a woman's restroom when she wants to use the men's restroom does satisfy equal protection. There's nothing unreasonable about that distinction, but there's not a good argument that it was intended by the people adopting the 14th amendment.
Except that your "current situation" statement is not a true statement. By that I don't mean to say it is necessarily a false statement either, it is an indeterminate statement at best because without further context we do not know whether recognizing the marriage of men to women and women to men covers all individuals. My "current situation" statement is necessarily true if we assume that male and female are the only two available sexes (I know that is also currently being questioned, but I think that's a separate issue that we don't need to debate for the sake of an example).
14th Amendment Interpretation: If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation: The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.
14th Amendment Interpretation: If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation: The government allows all individuals who are men to marry women.
Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals. If you can just pick your class, then you can always satisfy equal protection. If you can't make any distinction, then you can just about never satisfy equal protection.
Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.
So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".
There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion." And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not.
I don't think that this argument needs to be made. I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling. The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage. For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.
Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?
I'm pretty sure that's going to happen whether I want it to or not. Sure, you could try to say that his policy preferences won't be implemented because they're his policy preferences but instead because they're the "right decisions from an originalist/textualist interpretation", but he'll still get his policy preferences. I personally think that's because "originalist/textualist" is just another way of saying conservative, so it's not really any consolation to me.
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The "swing vote" has gone from O'Connor to Kennedy to (presumably) Roberts. If Republicans hadn't abdicated their Constitutional responsibility the swing vote would be Kagan/Breyer/Garland (one of those three). It's really amazing the heist McConnell pulled without facing any consequences.
Actually, one could argue that the Senate under McConnell performed their duties as they saw fit, as a co-equal branch of government. They have the constitutional right / power /authority to reject the president's nominee. They did. They just did it by refusing to vote on him. The constitution does not require that they vote.
Incidentally, it was the Democratic party that started this mess. Then judiciary chair Joe Biden was the first to propose what has become know as the "Biden Rule" which was to not nominate a supreme court justice close to a presidential election.
"... it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not — and not — name a nominee until after the November election is completed."
And also that if a nominee were presented that "the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over."
Of course, the Republicans thought that was a horrible idea at the time because it would work against their interests. Just as the Democrats thought it was a horrible injustice when McConnell actually acted upon the suggestion in the Garland case. Of course it's hypocrisy. But it's hypocrisy from both sides. It just happens to have bitten the Democrats this time around.
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But it's hypocrisy from both sides. It just happens to have bitten the Democrats this time around.
Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench. The Ds will be in power again at some point and will be able to use the lowered vote threshold of 51 established by McConnell to confirm one or more justices that will hopefully offset Thomas and steer the court along a centrist path. In 2004, I never imagined that in four years' time we'd see both Chambers of Congress controlled by Democrats and a Democratic President as well. Obama got two Justices confirmed to the Supreme Court, and I'd bet that the next Democratic President will have the opportunity to nominate a similar number of Justices.
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Why should the appointment of Justices of the US Supreme Court be a political football? In Australia, where I live, the Governor General, acting in place of Queen Elizabeth, appoints a Justice to our Supreme court on the advice of a council. In Australia, the council consists mainly of past and present Cabinet ministers, so that the two major political parties are represented. The UK and Canada have similar systems, but their Councils include senior members of the judiciary. New Zealand justices are appointed from existing justices on seniority and merit.
As is often the case in governmental matters, mental attitudes matter as much as formal arrangements. There is supposed to be separation of powers, so that Legislature, Judiciary and Executive should be separate. People in power should feel that it is improper to appoint a new justice on purely sectarian beliefs. The ancient Romans had the word 'gravitas' to describe people acting impartially and properly.
The US Constitution was written in order to stop narrow vested interests from influencing government decisions. That was, and is, the point.
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Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.
No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.
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Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.
No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.
You misunderstand what OK means. You'll be OK as long as you're a straight white wealthy man. Who gives a shit about those not in that category? It's not the end of the world, just a reconsolidation of power to those who have already historically had it.
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A Democratic President expands the Court.
I hate the fact that it has come to this, but at this point this really is our only option. That or impeach Gorsuch. Without the Supreme Court, progress is impossible.
Well, it's not a slam dunk yet.
McCain probably won't vote and Flake isn't exactly a Trump loyalist. There's also Capito, who is more of a pro-choice Republican than not. And Murkowski and Collins. Collins may be the most vulnerable if she sides with a virulent anti-choice nominee.
They could toe the line for Gorsuch because of Kennedy. Without him, abortion is on the chopping block.
A woman's unalienable right to choose abortion is among the most fundamental rights of the individual liberty of family matters.
During his confirmation hearing before the Senate Judiciary Committee John Roberts, who is now Chief Justice, said that Roe had been reaffirmed and that it was settled law.
Though stare decisis is not an "inexorable command," its application to Roe will continue.
Some statehouses may legislate more restrictions of abortion but Roe will not be overturned.
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Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.
No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.
Well, not necessarily for decades. None of the justices are spring chickens. Aside from the fact that anyone could drop at anytime (Neil Gorsuch could get in a car accident tomorrow, and Scalia's death seemed to be a surprise to everyone), they will all keep aging, and we could very well end up in a situation a few years down the road where the Democrats are in control and get a few seats to fill. Human longevity is hard to predict. It's frustrating to see the progress of the last few years in jeopardy, but at the time a lot of these changes were happening it reminded me a bit of (being a gardener) of a leggy plant. It feels great to see the plant growing, but it's not all that healthy and, for instance, able to stand up to storms. It felt good to see Obama move a lot of social issues forward, but I wondered if he was moving too fast for them to stick. (I think he may have known that, and hoped that a little more time under one more Democratic administration might do the trick.) The cruelty of the Trump administration, though, is providing the fertilizer (just to totally beat this metaphor into the ground) that may grow a good healthy root structure. How many people do you know who were sort of apathetic about politics before the current administration, and are taking a serious interest now? People are often bad at peace and prosperity and good in a crisis. Trump gave his opponents one.
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A Democratic President expands the Court.
I hate the fact that it has come to this, but at this point this really is our only option. That or impeach Gorsuch. Without the Supreme Court, progress is impossible.
Well, it's not a slam dunk yet.
McCain probably won't vote and Flake isn't exactly a Trump loyalist. There's also Capito, who is more of a pro-choice Republican than not. And Murkowski and Collins. Collins may be the most vulnerable if she sides with a virulent anti-choice nominee.
They could toe the line for Gorsuch because of Kennedy. Without him, abortion is on the chopping block.
A woman's unalienable right to choose abortion is among the most fundamental rights of the individual liberty of family matters.
During his confirmation hearing before the Senate Judiciary Committee John Roberts, who is now Chief Justice, said that Roe had been reaffirmed and that it was settled law.
Though stare decisis is not an "inexorable command," its application to Roe will continue.
Some statehouses may legislate more restrictions of abortion but Roe will not be overturned.
It's not "may," it's "already have been." People tend to think we either have Roe and safe, accessible reproductive care in every state, or we have nothing. But there's a painful grey area, and we are already in it.
Roe has already been chipped away at. It doesn't need to be overturned completely to be rendered essentially ineffective. I foresee fundamental parts of it being successfully challenged at the SC, even if some small pieces remain. Viability thresholds moved up, onerous restrictions on facilities, religious exemptions, "state interest" in the matter, etc. These will find a toehold at the court.
This is a useful, non-partisan history of abortion and the Supreme Court: http://www.pewforum.org/2013/01/16/a-history-of-key-abortion-rulings-of-the-us-supreme-court/
Most people that I talk to about this have a general optimism about precedent winning out. I don't share that optimism, with either with Roe or Obergefell. I wish I could, I just haven't seen a convincing argument for it.
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Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.
No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.
You misunderstand what OK means. You'll be OK as long as you're a straight white wealthy man. Who gives a shit about those not in that category? It's not the end of the world, just a reconsolidation of power to those who have already historically had it.
Gorsuch is an improvement over Scalia. I believe that Justice Roberts really does believe in the Court as an Institution, and while I certainly do not agree with some of the major decisions the Court has handed down over the past 10 years, his vote to uphold ACA leads me to believe that Roe V Wade is safe at a Federal level. Progress comes in fits and starts, and demographics in this country nearly ensure that progress will continue and that eventually Republicans will have to distance themselves from their platform of Corporatism/Evangelism/Veiled (or not veiled) racism if they want to win a Presdiential election. There will be a Democratic presedient again, and whomever that person is will likely get to appoint a Justice or two; I’m hoping for a replacement for Clarence Thomas.
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Progress comes in fits and starts, and demographics in this country nearly ensure that progress will continue and that eventually Republicans will have to distance themselves from their platform of Corporatism/Evangelism/Veiled (or not veiled) racism if they want to win a Presdiential election.
Lots of people put hope in "changing demographics," but I have a big concern: Republicans can retain control of the government despite being a shrinking minority. The Senate structure favors them, gerrymandering favors them in the House, and the Electoral College favors them. The gutting of the Voting Rights Act encourages some states to engage in racially-based electoral changes for as long as they can get away with it. With a hard right-wing SC, voting rights will be attacked further and partisan/racial gerrymandering will be extreme. There are many ways for Republicans to hold onto control even if fewer and fewer people want to vote for them.
(I know both parties have engaged in gerrymandering. Republicans have been much more extreme.)
The demographics argument also assumes that large blocks of people will have the same voting preferences for decades. Also that elections will be free from outside interference and manipulation.
I believe that Justice Roberts really does believe in the Court as an Institution, and while I certainly do not agree with some of the major decisions the Court has handed down over the past 10 years, his vote to uphold ACA leads me to believe that Roe V Wade is safe at a Federal level.
Just to reiterate a point from my previous comment: Roe v Wade is already not safe. Major components of it have been attacked by targeted lawsuits. The reality of reproductive rights and state-level restrictions is already dire in some places. A gigantic, organized industry of anti-choice activists have built the foundation to make Roe meaningless, if not do away with it entirely.
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Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.
No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.
Hooo... About those Democrats... You may want to sit down.
https://motherboard.vice.com/amp/en_us/article/vbyp59/house-vote-702-fisa
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Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.
No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.
Hooo... About those Democrats... You may want to sit down.
https://motherboard.vice.com/amp/en_us/article/vbyp59/house-vote-702-fisa
Is this supposed to convince me to vote third party? Because a fraction of Democrats (which is smaller than 50%, and much smaller than the corresponding fraction of Republicans) voted for this one bad bill? No, I'll vote for progressives in the Democratic primaries to try to steer the party in that direction, but in the general election I'm voting straight party Democrat in every single election from president to neighborhood dog catcher until the Republican party is in ashes. It's apparent now that the only possible way even the tiniest sliver of progress is ever going to be made in this country is if we get absolutely overwhelming majorities for the Demcratic party. It's going to need to be like 80% of the national vote or it's worthless. I'm not going to throw my vote away just because Democrats fail to nominate a perfect progressive unicorn. That's what got us Trump and that's what lost us the Supreme Court for decades.
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Lots of people put hope in "changing demographics," but I have a big concern: Republicans can retain control of the government despite being a shrinking minority. The Senate structure favors them, gerrymandering favors them in the House, and the Electoral College favors them. The gutting of the Voting Rights Act encourages some states to engage in racially-based electoral changes for as long as they can get away with it. With a hard right-wing SC, voting rights will be attacked further and partisan/racial gerrymandering will be extreme. There are many ways for Republicans to hold onto control even if fewer and fewer people want to vote for them.
This is already happening and it's going to get much, much worse. Clinton got 3 million more votes than Trump and lost the election. Democrats got 11 million more votes than Republican in the vote for the Senate, and lost the Senate. Don't tell me everything's fine, functional democracy when it's plainly not.
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This is already happening and it's going to get much, much worse. Clinton got 3 million more votes than Trump and lost the election. Democrats got 11 million more votes than Republican in the vote for the Senate, and lost the Senate. Don't tell me everything's fine, functional democracy when it's plainly not.
Which is a function of the way the system was set up 2 and a half centuries ago. Clinton got 3 million more votes and STILL lost because of her strategic failure in states that Trump's team flipped. Ohio, Wisconsin, Michigan, Pennsylvania, etc. Plus her votes tended to concentrate in states like California. Those numbers mean very little. Democracy functions just fine, hiccups and all. Democrats just need get to get back out and work it.
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The way it was set up two and a half centuries ago is stupid and has always been stupid, and it's a historical artifact of the political reality of the time and the concessions needed to get the country formed, not a noble and admirable feature of a democracy. There's no justifiable reason why the vote of someone in Arizona should be worth 500 times as much as the vote of someone in California.
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Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.
No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.
Hooo... About those Democrats... You may want to sit down.
https://motherboard.vice.com/amp/en_us/article/vbyp59/house-vote-702-fisa
Is this supposed to convince me to vote third party? Because a fraction of Democrats (which is smaller than 50%, and much smaller than the corresponding fraction of Republicans) voted for this one bad bill? No, I'll vote for progressives in the Democratic primaries to try to steer the party in that direction, but in the general election I'm voting straight party Democrat in every single election from president to neighborhood dog catcher until the Republican party is in ashes. It's apparent now that the only possible way even the tiniest sliver of progress is ever going to be made in this country is if we get absolutely overwhelming majorities for the Demcratic party. It's going to need to be like 80% of the national vote or it's worthless. I'm not going to throw my vote away just because Democrats fail to nominate a perfect progressive unicorn. That's what got us Trump and that's what lost us the Supreme Court for decades.
You don't find it odd that some how Trump's Agenda keeps getting passed? That every time just enough Democrats cross party lines to get it accomplished?
Banking deregulation
https://www.politico.com/story/2018/03/06/elizabeth-warren-bank-deregulation-bank-bill-387979
Increase in Military Budget
https://www.forbes.com/sites/eriksherman/2018/06/20/house-and-senate-democrats-vote-68-percent-and-85-percent-for-massive-military-spending/
Trump's pick for CIA director.
https://www.cnn.com/2018/05/17/politics/gina-haspel-confirmation-vote/index.html
Pompeo becomes secretary of State
https://www.cnn.com/2018/04/26/politics/mike-pompeo-senate-confirmation-vote-richard-grenell/index.html
Also Pelosi says "Socialism isn't a trend"
https://www.axios.com/nancy-pelosi-alexandria-ocasio-cortez-06581e0f-024c-4600-a69f-c0dbee770e55.html
So you can attempt to vote progressive, but for now, it's simply, "meet the new boss, same as the old boss."
The way it was set up two and a half centuries ago is stupid and has always been stupid, and it's a historical artifact of the political reality of the time and the concessions needed to get the country formed, not a noble and admirable feature of a democracy. There's no justifiable reason why the vote of someone in Arizona should be worth 500 times as much as the vote of someone in California.
Constitution: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:
Constitution: The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative
Apportionment Act of 1911 (Pub.L. 62–5, 37 Stat. 13) was an apportionment bill passed by the United States Congress on August 8, 1911. The law set the number of members of the United States House of Representatives at 435, effective with the 63rd Congress on March 4, 1913.[
So seems to me our system was arbitrarily restricted to a size appropriate to 1911 instead of growing as it should.
Please direct your anger towards the appropriate problem.
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Lots of people put hope in "changing demographics," but I have a big concern: Republicans can retain control of the government despite being a shrinking minority. The Senate structure favors them, gerrymandering favors them in the House, and the Electoral College favors them. The gutting of the Voting Rights Act encourages some states to engage in racially-based electoral changes for as long as they can get away with it. With a hard right-wing SC, voting rights will be attacked further and partisan/racial gerrymandering will be extreme. There are many ways for Republicans to hold onto control even if fewer and fewer people want to vote for them.
This is already happening and it's going to get much, much worse. Clinton got 3 million more votes than Trump and lost the election. Democrats got 11 million more votes than Republican in the vote for the Senate, and lost the Senate. Don't tell me everything's fine, functional democracy when it's plainly not.
Yep. But people still assert that eventually demographics will overwhelm any advantages Republicans hold. Or that "checks and balances" will keep us from excessive abuse of power. If one party controls everything, there are no checks and balances.
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Lots of people put hope in "changing demographics," but I have a big concern: Republicans can retain control of the government despite being a shrinking minority. The Senate structure favors them, gerrymandering favors them in the House, and the Electoral College favors them. The gutting of the Voting Rights Act encourages some states to engage in racially-based electoral changes for as long as they can get away with it. With a hard right-wing SC, voting rights will be attacked further and partisan/racial gerrymandering will be extreme. There are many ways for Republicans to hold onto control even if fewer and fewer people want to vote for them.
This is already happening and it's going to get much, much worse. Clinton got 3 million more votes than Trump and lost the election. Democrats got 11 million more votes than Republican in the vote for the Senate, and lost the Senate. Don't tell me everything's fine, functional democracy when it's plainly not.
Yep. But people still assert that eventually demographics will overwhelm any advantages Republicans hold. Or that "checks and balances" will keep us from excessive abuse of power. If one party controls everything, there are no checks and balances.
Exactly. The complacency from some on the left is infuriating. The Republicans know demographics are against them, which is why they’ve focused so hard on gerrymandering, voter suppression, removing barriers to campaign spending, and other techniques to counteract that. So far, it seems to be work8ng out pretty well for them.
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Is this supposed to convince me to vote third party? Because a fraction of Democrats (which is smaller than 50%, and much smaller than the corresponding fraction of Republicans) voted for this one bad bill? No, I'll vote for progressives in the Democratic primaries to try to steer the party in that direction, but in the general election I'm voting straight party Democrat in every single election from president to neighborhood dog catcher until the Republican party is in ashes. It's apparent now that the only possible way even the tiniest sliver of progress is ever going to be made in this country is if we get absolutely overwhelming majorities for the Demcratic party. It's going to need to be like 80% of the national vote or it's worthless. I'm not going to throw my vote away just because Democrats fail to nominate a perfect progressive unicorn. That's what got us Trump and that's what lost us the Supreme Court for decades.
You don't find it odd that some how Trump's Agenda keeps getting passed? That every time just enough Democrats cross party lines to get it accomplished?
Banking deregulation
https://www.politico.com/story/2018/03/06/elizabeth-warren-bank-deregulation-bank-bill-387979
Increase in Military Budget
https://www.forbes.com/sites/eriksherman/2018/06/20/house-and-senate-democrats-vote-68-percent-and-85-percent-for-massive-military-spending/
Trump's pick for CIA director.
https://www.cnn.com/2018/05/17/politics/gina-haspel-confirmation-vote/index.html
Pompeo becomes secretary of State
https://www.cnn.com/2018/04/26/politics/mike-pompeo-senate-confirmation-vote-richard-grenell/index.html
Also Pelosi says "Socialism isn't a trend"
https://www.axios.com/nancy-pelosi-alexandria-ocasio-cortez-06581e0f-024c-4600-a69f-c0dbee770e55.html
So you can attempt to vote progressive, but for now, it's simply, "meet the new boss, same as the old boss."
I don't find it odd because nobody has told me that democrats are perfect angels who only have the best ideas. Option A can be imperfect and also better than option b. We can vote for progressives in the primaries to continue improving the democratic party from within and still vote democratic in the general elections because even with their flaws they're better than republicans. So no, it's not simply "meet the new boss, same as the old boss.", it's more like "meet the new boss, they have some of the same problems as the old boss but at least they're not an asshole."
This is already happening and it's going to get much, much worse. Clinton got 3 million more votes than Trump and lost the election. Democrats got 11 million more votes than Republican in the vote for the Senate, and lost the Senate. Don't tell me everything's fine, functional democracy when it's plainly not.
Which is a function of the way the system was set up 2 and a half centuries ago. Clinton got 3 million more votes and STILL lost because of her strategic failure in states that Trump's team flipped. Ohio, Wisconsin, Michigan, Pennsylvania, etc. Plus her votes tended to concentrate in states like California. Those numbers mean very little. Democracy functions just fine, hiccups and all. Democrats just need get to get back out and work it.
The way it was set up two and a half centuries ago is stupid and has always been stupid, and it's a historical artifact of the political reality of the time and the concessions needed to get the country formed, not a noble and admirable feature of a democracy. There's no justifiable reason why the vote of someone in Arizona should be worth 500 times as much as the vote of someone in California.
Constitution: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:
Constitution: The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative
Apportionment Act of 1911 (Pub.L. 62–5, 37 Stat. 13) was an apportionment bill passed by the United States Congress on August 8, 1911. The law set the number of members of the United States House of Representatives at 435, effective with the 63rd Congress on March 4, 1913.[
So seems to me our system was arbitrarily restricted to a size appropriate to 1911 instead of growing as it should.
Please direct your anger towards the appropriate problem.
1. Democracy isn't functioning just fine. If you want to make the argument that America was set up as a representative democracy and that system is working just fine then do that. But there are very clearly a lot of problems with the current system that make it undemocratic (gerrymandering, the filibuster, the senate in general, the electoral college, the limit on house members) and there's nothing stopping us from being angry at all of those problems. A lot of people would like to see our system be more democratic in nature and telling them that the system works as intended doesn't help anything. We know it works as intended, we think it should work differently.
2. Clinton can have made a strategic mistake and the system can still be stupid and undemocratic. Democrats should work within the system that exists to gain power and then change the system once they have the power to do so.
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1. Democracy isn't functioning just fine. If you want to make the argument that America was set up as a representative democracy and that system is working just fine then do that. But there are very clearly a lot of problems with the current system that make it undemocratic (gerrymandering, the filibuster, the senate in general, the electoral college, the limit on house members) and there's nothing stopping us from being angry at all of those problems. A lot of people would like to see our system be more democratic in nature and telling them that the system works as intended doesn't help anything. We know it works as intended, we think it should work differently.
2. Clinton can have made a strategic mistake and the system can still be stupid and undemocratic. Democrats should work within the system that exists to gain power and then change the system once they have the power to do so.
I pretty much agree with your post. Democrats need to remember this in 2024 when they eventually get their turn at the presidency, hopefully after they've taken over the House and Senate.
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The way it was set up two and a half centuries ago is stupid and has always been stupid, and it's a historical artifact of the political reality of the time and the concessions needed to get the country formed, not a noble and admirable feature of a democracy. There's no justifiable reason why the vote of someone in Arizona should be worth 500 times as much as the vote of someone in California.
Not sure how you came up with the 500 times number. Are you referring to the Senate? Wyoming gets two Senators with a population of about 580,000 and California gets two with a population of just under 40 million (California has 69 times the population). Vermont (which is very liberal) also gets two Senators adn barely has 600,000 people. Each Congressional district is approximately the same size population wise. In the presidential election, each state is assigned a number of electors equal to the number of Congressman and Senators. Electoral votes for President therefore also largely track the population (i.e., California gets a lot more electoral votes than Arizona, Wyoming or Vermont). The Senate was set up the way it was originally as a check on Democracy (i.e., the "mob"). In fact, originally Senators were not directly elected but appointed by the state legislators. The Constitution would need to be amended to change this. In any event, the left (i.e., Progressives) have been using the unelected Judiciary to subvert Democracy by declaring so-called rights that have no textual basis in the Constitution -including so-called gay "marriage" and abortion. From my perspective, five black robed unelected jurists forced every state in the Union to recognize same sex marriage. This is the definition of anti-democratic.
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1. Democracy isn't functioning just fine. If you want to make the argument that America was set up as a representative democracy and that system is working just fine then do that. But there are very clearly a lot of problems with the current system that make it undemocratic (gerrymandering, the filibuster, the senate in general, the electoral college, the limit on house members) and there's nothing stopping us from being angry at all of those problems. A lot of people would like to see our system be more democratic in nature and telling them that the system works as intended doesn't help anything. We know it works as intended, we think it should work differently.
2. Clinton can have made a strategic mistake and the system can still be stupid and undemocratic. Democrats should work within the system that exists to gain power and then change the system once they have the power to do so.
I pretty much agree with your post. Democrats need to remember this in 2024 when they eventually get their turn at the presidency, hopefully after they've taken over the House and Senate.
The 2024 date appears to be an acknowledgement that Trump is a shoe-in for 2020. Hope you are correct. Democrats in Congress did change the system in 2009-2010 and got promptly removed from power. Significantly curtailing the levels of immigration - both legal and illegal - will blunt the demographic changes the left is counting on to fundamentally transform the country. This, in my view, would make us little better than Mexico or Venezuela.
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Is this supposed to convince me to vote third party? Because a fraction of Democrats (which is smaller than 50%, and much smaller than the corresponding fraction of Republicans) voted for this one bad bill? No, I'll vote for progressives in the Democratic primaries to try to steer the party in that direction, but in the general election I'm voting straight party Democrat in every single election from president to neighborhood dog catcher until the Republican party is in ashes. It's apparent now that the only possible way even the tiniest sliver of progress is ever going to be made in this country is if we get absolutely overwhelming majorities for the Demcratic party. It's going to need to be like 80% of the national vote or it's worthless. I'm not going to throw my vote away just because Democrats fail to nominate a perfect progressive unicorn. That's what got us Trump and that's what lost us the Supreme Court for decades.
You don't find it odd that some how Trump's Agenda keeps getting passed? That every time just enough Democrats cross party lines to get it accomplished?
Banking deregulation
https://www.politico.com/story/2018/03/06/elizabeth-warren-bank-deregulation-bank-bill-387979
Increase in Military Budget
https://www.forbes.com/sites/eriksherman/2018/06/20/house-and-senate-democrats-vote-68-percent-and-85-percent-for-massive-military-spending/
Trump's pick for CIA director.
https://www.cnn.com/2018/05/17/politics/gina-haspel-confirmation-vote/index.html
Pompeo becomes secretary of State
https://www.cnn.com/2018/04/26/politics/mike-pompeo-senate-confirmation-vote-richard-grenell/index.html
Also Pelosi says "Socialism isn't a trend"
https://www.axios.com/nancy-pelosi-alexandria-ocasio-cortez-06581e0f-024c-4600-a69f-c0dbee770e55.html
So you can attempt to vote progressive, but for now, it's simply, "meet the new boss, same as the old boss."
I don't find it odd because nobody has told me that democrats are perfect angels who only have the best ideas. Option A can be imperfect and also better than option b. We can vote for progressives in the primaries to continue improving the democratic party from within and still vote democratic in the general elections because even with their flaws they're better than republicans. So no, it's not simply "meet the new boss, same as the old boss.", it's more like "meet the new boss, they have some of the same problems as the old boss but at least they're not an asshole."
This is already happening and it's going to get much, much worse. Clinton got 3 million more votes than Trump and lost the election. Democrats got 11 million more votes than Republican in the vote for the Senate, and lost the Senate. Don't tell me everything's fine, functional democracy when it's plainly not.
Which is a function of the way the system was set up 2 and a half centuries ago. Clinton got 3 million more votes and STILL lost because of her strategic failure in states that Trump's team flipped. Ohio, Wisconsin, Michigan, Pennsylvania, etc. Plus her votes tended to concentrate in states like California. Those numbers mean very little. Democracy functions just fine, hiccups and all. Democrats just need get to get back out and work it.
The way it was set up two and a half centuries ago is stupid and has always been stupid, and it's a historical artifact of the political reality of the time and the concessions needed to get the country formed, not a noble and admirable feature of a democracy. There's no justifiable reason why the vote of someone in Arizona should be worth 500 times as much as the vote of someone in California.
Constitution: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:
Constitution: The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative
Apportionment Act of 1911 (Pub.L. 62–5, 37 Stat. 13) was an apportionment bill passed by the United States Congress on August 8, 1911. The law set the number of members of the United States House of Representatives at 435, effective with the 63rd Congress on March 4, 1913.[
So seems to me our system was arbitrarily restricted to a size appropriate to 1911 instead of growing as it should.
Please direct your anger towards the appropriate problem.
1. Democracy isn't functioning just fine. If you want to make the argument that America was set up as a representative democracy and that system is working just fine then do that. But there are very clearly a lot of problems with the current system that make it undemocratic (gerrymandering, the filibuster, the senate in general, the electoral college, the limit on house members) and there's nothing stopping us from being angry at all of those problems. A lot of people would like to see our system be more democratic in nature and telling them that the system works as intended doesn't help anything. We know it works as intended, we think it should work differently.
2. Clinton can have made a strategic mistake and the system can still be stupid and undemocratic. Democrats should work within the system that exists to gain power and then change the system once they have the power to do so.
Most of Trump's worst excesses have roots in previous administration's. That surveillance bill in the first part was formerly called "The Patriot Act." So, How about we agree that we need to hold our government accountable no matter who is in charge?
I'm pointing out that our system is not functioning as designed. The United States has 325 million people. Divide by 30,000 and we should have 10,833 representatives in the house. Which means there would be just as many congressional districts making gerrymandering a lot more difficult. The system would be far more granular and allow for more access to politicians.
As for making the system more democratic, curtail federal power, convene a convention to change your state constitution. If your experiment works, the country will follow. If your experiment fails, then we have data to argue over.
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Not sure what Trump's worst excesses are? Separation of families at the border seems to be the outrage du jour. This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.
Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign. Not aware of any violations or alleged misuse of the Patriot Act by Trump.
Most of the outrage appears to be over his tweets.
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Not sure what Trump's worst excesses are? Separation of families at the border seems to be the outrage du jour. This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.
Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign. Not aware of any violations or alleged misuse of the Patriot Act by Trump.
Most of the outrage appears to be over his tweets.
I agree with you. The point was that everyone is acting like it is something unique to Trump. Our executive branch has had it's power expanded with no checks on it because "the right guy was in charge." Now "The Wrong Guy" is in charge and everyone is horrified at what is happening.
One of these guys made the point to vote Democrat because they are the lesser of two evils with potential to be good guys down the road.
Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications. Trump the aspiring dictator. It is generally a bad idea to give aspiring dictators the keys to the surveillance state. But here we are.
I was aiming at breaking the cognitive dissonance by pointing out that the only political group with the resources to stop Trump seems complicit in his dealings.
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Not sure what Trump's worst excesses are? Separation of families at the border seems to be the outrage du jour. This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.
Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign. Not aware of any violations or alleged misuse of the Patriot Act by Trump.
Most of the outrage appears to be over his tweets.
I agree with you. The point was that everyone is acting like it is something unique to Trump. Our executive branch has had it's power expanded with no checks on it because "the right guy was in charge." Now "The Wrong Guy" is in charge and everyone is horrified at what is happening.
One of these guys made the point to vote Democrat because they are the lesser of two evils with potential to be good guys down the road.
Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications. Trump the aspiring dictator. It is generally a bad idea to give aspiring dictators the keys to the surveillance state. But here we are.
I was aiming at breaking the cognitive dissonance by pointing out that the only political group with the resources to stop Trump seems complicit in his dealings.
\
Agree that Dems view Trump as an "aspiring dictator". Don't think it's fair to call him one.
I think Obama was much more dangerous to our civil liberties in part because of his leftist philosophy which tends to aggrandize power to the central government but also because he received such favorable and uncritical press coverage in the mainstream media.
He summarily executed American citizens with drone strikes and the media barely objected. Imagine if Bush had done this?
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Not sure what Trump's worst excesses are? Separation of families at the border seems to be the outrage du jour. This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.
Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign. Not aware of any violations or alleged misuse of the Patriot Act by Trump.
Most of the outrage appears to be over his tweets.
I agree with you. The point was that everyone is acting like it is something unique to Trump. Our executive branch has had it's power expanded with no checks on it because "the right guy was in charge." Now "The Wrong Guy" is in charge and everyone is horrified at what is happening.
One of these guys made the point to vote Democrat because they are the lesser of two evils with potential to be good guys down the road.
Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications. Trump the aspiring dictator. It is generally a bad idea to give aspiring dictators the keys to the surveillance state. But here we are.
I was aiming at breaking the cognitive dissonance by pointing out that the only political group with the resources to stop Trump seems complicit in his dealings.
\
Agree that Dems view Trump as an "aspiring dictator". Don't think it's fair to call him one.
I think Obama was much more dangerous to our civil liberties in part because of his leftist philosophy which tends to aggrandize power to the central government but also because he received such favorable and uncritical press coverage in the mainstream media.
He summarily executed American citizens with drone strikes and the media barely objected. Imagine if Bush had done this?
I agree with you again. Obama's administration got away with things because he spoke eloquently and gave everyone that dopamine kick because "We're so progressive."
There seems to be two different realities in people's minds right now.
1. Trump is a dictator that somehow buffaloed Dems into going along with what he wants and is generally unstoppable. This is not a fun reality to be in.
Or
2. Trump is a run of the mill republican. An asshole at times. Ineloquent and has bad PR because media is generally jamming the fear centers of people's brains. I assume you and I live in this reality.
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Not sure what Trump's worst excesses are? Separation of families at the border seems to be the outrage du jour. This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.
Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign. Not aware of any violations or alleged misuse of the Patriot Act by Trump.
Most of the outrage appears to be over his tweets.
I agree with you. The point was that everyone is acting like it is something unique to Trump. Our executive branch has had it's power expanded with no checks on it because "the right guy was in charge." Now "The Wrong Guy" is in charge and everyone is horrified at what is happening.
One of these guys made the point to vote Democrat because they are the lesser of two evils with potential to be good guys down the road.
Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications. Trump the aspiring dictator. It is generally a bad idea to give aspiring dictators the keys to the surveillance state. But here we are.
I was aiming at breaking the cognitive dissonance by pointing out that the only political group with the resources to stop Trump seems complicit in his dealings.
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Agree that Dems view Trump as an "aspiring dictator". Don't think it's fair to call him one.
I think Obama was much more dangerous to our civil liberties in part because of his leftist philosophy which tends to aggrandize power to the central government but also because he received such favorable and uncritical press coverage in the mainstream media.
He summarily executed American citizens with drone strikes and the media barely objected. Imagine if Bush had done this?
I agree with you again. Obama's administration got away with things because he spoke eloquently and gave everyone that dopamine kick because "We're so progressive."
There seems to be two different realities in people's minds right now.
1. Trump is a dictator that somehow buffaloed Dems into going along with what he wants and is generally unstoppable. This is not a fun reality to be in.
Or
2. Trump is a run of the mill republican. An asshole at times. Ineloquent and has bad PR because media is generally jamming the fear centers of people's brains. I assume you and I live in this reality.
Number 2 is closer to the truth, at least as I see it. I don't think Trump is much of a Republican though. I think he's an opportunist who co-opted some Republican issues (taxes, judicial appointments) and adopted some populist issues (immigration and trade) that are very un-Republican and used to be Democrat issues (before Bill Clinton). It's a combination that is working pretty well for him. I suspect he will be a pretty formidable candidate in 2020 if the economy stays strong.
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Not sure what Trump's worst excesses are? Separation of families at the border seems to be the outrage du jour. This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.
Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign. Not aware of any violations or alleged misuse of the Patriot Act by Trump.
Most of the outrage appears to be over his tweets.
I agree with you. The point was that everyone is acting like it is something unique to Trump. Our executive branch has had it's power expanded with no checks on it because "the right guy was in charge." Now "The Wrong Guy" is in charge and everyone is horrified at what is happening.
One of these guys made the point to vote Democrat because they are the lesser of two evils with potential to be good guys down the road.
Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications. Trump the aspiring dictator. It is generally a bad idea to give aspiring dictators the keys to the surveillance state. But here we are.
I was aiming at breaking the cognitive dissonance by pointing out that the only political group with the resources to stop Trump seems complicit in his dealings.
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Agree that Dems view Trump as an "aspiring dictator". Don't think it's fair to call him one.
I think Obama was much more dangerous to our civil liberties in part because of his leftist philosophy which tends to aggrandize power to the central government but also because he received such favorable and uncritical press coverage in the mainstream media.
He summarily executed American citizens with drone strikes and the media barely objected. Imagine if Bush had done this?
The last president also entered the united states into treaties without following the constitutional rules, thus creating the unstable situation vis a vis the paris accords and the iran agreement. He also ruled by decree in the form of executive orders rather than through the proper constitutional process. He also violated his own oath the enforce the laws of the united states by decreeing that the executive branch would not enforce immigration laws. He also entered us into a war (Libya) with no congressional authority. Say what you will about Bush, he had congressional authorization for Iraq. Obama had his own cult of personality, constituted in great numbers by an obsequious press, which as mentioned above removed an important check on presidential and government power.
Personally, id rather have a loudmouthed spoiled rich kid with thin skin and poor people skills in charge rather than a smooth talking self righteous but poised man who is going to abuse his powers because he knows whats best for us whether we like it or not. That is far more dangerous to our republic. Remember the last president conspiring with the Russians to just get him past the elction so he could show more "flexibility" in our policies toward Russia? Remember the last Democratic nominee being heavily involved in the sale of a strategic national asset (uranium mines) to the Russians? You dont want a competent and appealing scoundrell in office. If you have to have a scoundrell, let them be obvious and obnoxious about it.
Hopefully this experience with the irritating and embarrassing president currently in power will teach us a lesson about giving the executive too much power and importance. The legislative branch has been far far too apathetic and cowardly in defending their proper role in governance.
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Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications.
The Patriot Act was originally signed in law with Bush (with a 98-1 vote in the Senate), extended under Obama, and repackaged without NSA surveillance under Obama again. The latest incarnation passed the House overwhelmingly and passed the Senate with a veto-proof vote (not that it mattered).
This indicates, if you're following along, that it was a bipartisan bill. H.R. 2048 had 150 co-sponsers.
The USA Freedom Act (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act) doesn't allow collecting everyone's communications without a warrant (but if you believe that...).
A leftist liberal commie organization, the ACLU, has sued for the release of FISA records related to the Patriot Act and its offspring.
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Not sure what Trump's worst excesses are? Separation of families at the border seems to be the outrage du jour. This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.
Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign. Not aware of any violations or alleged misuse of the Patriot Act by Trump.
Most of the outrage appears to be over his tweets.
I agree with you. The point was that everyone is acting like it is something unique to Trump. Our executive branch has had it's power expanded with no checks on it because "the right guy was in charge." Now "The Wrong Guy" is in charge and everyone is horrified at what is happening.
One of these guys made the point to vote Democrat because they are the lesser of two evils with potential to be good guys down the road.
Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications. Trump the aspiring dictator. It is generally a bad idea to give aspiring dictators the keys to the surveillance state. But here we are.
I was aiming at breaking the cognitive dissonance by pointing out that the only political group with the resources to stop Trump seems complicit in his dealings.
\
Agree that Dems view Trump as an "aspiring dictator". Don't think it's fair to call him one.
I think Obama was much more dangerous to our civil liberties in part because of his leftist philosophy which tends to aggrandize power to the central government but also because he received such favorable and uncritical press coverage in the mainstream media.
He summarily executed American citizens with drone strikes and the media barely objected. Imagine if Bush had done this?
The last president also entered the united states into treaties without following the constitutional rules, thus creating the unstable situation vis a vis the paris accords and the iran agreement. He also ruled by decree in the form of executive orders rather than through the proper constitutional process. He also violated his own oath the enforce the laws of the united states by decreeing that the executive branch would not enforce immigration laws. He also entered us into a war (Libya) with no congressional authority. Say what you will about Bush, he had congressional authorization for Iraq. Obama had his own cult of personality, constituted in great numbers by an obsequious press, which as mentioned above removed an important check on presidential and government power.
Personally, id rather have a loudmouthed spoiled rich kid with thin skin and poor people skills in charge rather than a smooth talking self righteous but poised man who is going to abuse his powers because he knows whats best for us whether we like it or not. That is far more dangerous to our republic. Remember the last president conspiring with the Russians to just get him past the elction so he could show more "flexibility" in our policies toward Russia? Remember the last Democratic nominee being heavily involved in the sale of a strategic national asset (uranium mines) to the Russians? You dont want a competent and appealing scoundrell in office. If you have to have a scoundrell, let them be obvious and obnoxious about it.
Hopefully this experience with the irritating and embarrassing president currently in power will teach us a lesson about giving the executive too much power and importance. The legislative branch has been far far too apathetic and cowardly in defending their proper role in governance.
"The legislative branch has been far far too apathetic and cowardly in defending their proper role in governance. " - couldn't agree more with this. Immigration policy is the latest example.
I was more irritated and embarrassed by the last president but that was probably because I tended to agree less with what he was advocating. I can certainly see someone being irritated and embarrassed by Trump. A lot of what he says is over the top bluster (generally anything he tweets) and he is wildly inaccurate in his recounting of mostly trivial facts. For example, he said no Republican has won Wisconsin since Eisenhower the other day at a rally when I know Reagan won Wisconsin in 1984 and pretty sure HW Bush won in 88 (edit - actually Dukakis won WI in 1988). He even explained that Wisconsin was the only state Reagan lost in 84 (pretty sure that was MN). This drives me crazy. Don't think these inaccuracies are a big deal and media make way to much of them. The same media largely gave Obama a pass for "like your doctor, keep your doctor - like your plan keep your plan" which was a lie told to advance legislation.
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I was more irritated and embarrassed by the last president but that was probably because I tended to agree less with what he was advocating. I can certainly see someone being irritated and embarrassed by Trump. A lot of what he says is over the top bluster (generally anything he tweets) and he is wildly inaccurate in his recounting of mostly trivial facts. For example, he said no Republican has won Wisconsin since Eisenhower the other day at a rally when I know Reagan won Wisconsin in 1984 and pretty sure HW Bush won in 88 (edit - actually Dukakis won WI in 1988). He even explained that Wisconsin was the only state Reagan lost in 84 (pretty sure that was MN). This drives me crazy. Don't think these inaccuracies are a big deal and media make way to much of them. The same media largely gave Obama a pass for "like your doctor, keep your doctor - like your plan keep your plan" which was a lie told to advance legislation.
I agree that Trump's communications both formal and tweet based are mostly not meant to be taken too seriously. I am uncomfortable with that in my president, but I don't think he's going to change.
I don't like our current president as a representative for our nation. He is uncouth and unprofessional. He creates most of his own problems with those traits and has sacrificed successes in some of his own policies due to his personality and motor-mouth. I also worry about his negotiations with other world leaders, since I don't think he is a very bright man. He certainly hasn't bothered to educate himself on the issues. I think he's a bit of a savant in terms of his psychology, having read the electorate far more accurately than the 'professionals'. He's certainly managed to tie his opponents in knots, perhaps largely because they are still in disbelief that this man could have bested them. Because of hubris on their parts, ironically.
That being said, I generally am in agreement with most of the actual policies that have been enacted.
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Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications.
The Patriot Act was originally signed in law with Bush (with a 98-1 vote in the Senate), extended under Obama, and repackaged without NSA surveillance under Obama again. The latest incarnation passed the House overwhelmingly and passed the Senate with a veto-proof vote (not that it mattered).
This indicates, if you're following along, that it was a bipartisan bill. H.R. 2048 had 150 co-sponsers.
The USA Freedom Act (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act) doesn't allow collecting everyone's communications without a warrant (but if you believe that...).
A leftist liberal commie organization, the ACLU, has sued for the release of FISA records related to the Patriot Act and its offspring.
https://www.aclu.org/blog/national-security/privacy-and-surveillance/congress-just-passed-terrible-surveillance-law-now
We are likely talking about two different bills.
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Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications.
The Patriot Act was originally signed in law with Bush (with a 98-1 vote in the Senate), extended under Obama, and repackaged without NSA surveillance under Obama again. The latest incarnation passed the House overwhelmingly and passed the Senate with a veto-proof vote (not that it mattered).
This indicates, if you're following along, that it was a bipartisan bill. H.R. 2048 had 150 co-sponsers.
The USA Freedom Act (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act) doesn't allow collecting everyone's communications without a warrant (but if you believe that...).
A leftist liberal commie organization, the ACLU, has sued for the release of FISA records related to the Patriot Act and its offspring.
https://www.aclu.org/blog/national-security/privacy-and-surveillance/congress-just-passed-terrible-surveillance-law-now
We are likely talking about two different bills.
Ah, we are. My bad. Well, they're all bills that should've gone nowhere.
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Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications.
The Patriot Act was originally signed in law with Bush (with a 98-1 vote in the Senate), extended under Obama, and repackaged without NSA surveillance under Obama again. The latest incarnation passed the House overwhelmingly and passed the Senate with a veto-proof vote (not that it mattered).
This indicates, if you're following along, that it was a bipartisan bill. H.R. 2048 had 150 co-sponsers.
The USA Freedom Act (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act) doesn't allow collecting everyone's communications without a warrant (but if you believe that...).
A leftist liberal commie organization, the ACLU, has sued for the release of FISA records related to the Patriot Act and its offspring.
https://www.aclu.org/blog/national-security/privacy-and-surveillance/congress-just-passed-terrible-surveillance-law-now
We are likely talking about two different bills.
Ah, we are. My bad. Well, they're all bills that should've gone nowhere.
I screwed up. It's the FISA bill. I'm not sure the difference but they are both horrifying in this age of madness.
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This thread started as a discussion of SCOTA, and has drifted into a discussion of other parts of the US constitution.
The US Constitution, article 2, specifies that the President, under advice, proposes an appointment to SCOTA, and Senate has to agree. This is a clear breach of the doctrine of ‘separation of powers’, as I pointed out in a previous post. I am surprised that the US Founding Fathers thought this was a good idea.
The US Constitution can only be amended if Congress puts up a proposed amendment, and a majority of Congress and state legislatures agree. American voters are not involved. In Australia, Federal government must put up a proposed amendment, but then can only be passed by a majority of Australian voters, and a majority of all Australian states. Australian voters have always been wary of changing our constitution, so there might not be much difference between our system and the US system.
New Zealand appoints justices to their Supreme Court by seniority and ability in the legal fraternity. Australia, Canada and the UK have councils to recommend Justices, and these councils are made of past and present Ministers of government, from both sides of politics, and also people outside politics.
The New Zealand arrangement may the best. I respectfully suggest that Americans lobby their congressmen to propose an amendment to the US Constitution to limit or abolish the power of the President and Senate to appoint Justices to the SCOTA. While you are at it, the proposed amendment would specify that a Justice must have legal knowledge and experience (not the case at the moment) and Justices do not serve for life.
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The US Constitution can only be amended if Congress puts up a proposed amendment, and a majority of Congress and state legislatures agree. American voters are not involved. In Australia, Federal government must put up a proposed amendment, but then can only be passed by a majority of Australian voters, and a majority of all Australian states. Australian voters have always been wary of changing our constitution, so there might not be much difference between our system and the US system.
One quick correction- There is another option for amending the constitution, though I do not believe it has been successfully used. It is a state's convention (which can be very limited in scope, only for the approval of one amendment if desired) and that an be forced by a referendum vote at the state level initiated by petition.
It is basically the only way anyone is going to get term limits for congress amended into the constitution, since congress won't fire themselves.
There are several states calling for a states convention on a variety of issues. I think it is about time that happened... :/
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The way it was set up two and a half centuries ago is stupid and has always been stupid, and it's a historical artifact of the political reality of the time and the concessions needed to get the country formed, not a noble and admirable feature of a democracy. There's no justifiable reason why the vote of someone in Arizona should be worth 500 times as much as the vote of someone in California.
Not sure how you came up with the 500 times number.
https://wallethub.com/edu/how-much-is-your-vote-worth/7932/
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My main concern is that corruption and nepotism in our government is getting out of control:
http://www.businessinsider.com/anthony-kennedy-son-loaned-president-trump-over-a-billion-dollars-2018-6 (http://www.businessinsider.com/anthony-kennedy-son-loaned-president-trump-over-a-billion-dollars-2018-6)
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I took a night to think on this, but I still don't think I'm understanding your logic here. So here's how I feel about these two issues, can you please point out were my reasoning is inconsistent with my previous interpretation of the 14th amendment and/or your stated situations?
14th Amendment Interpretation: If the government provides public restrooms to particular individuals then the principal of equal treatment under the law requires them to provide public restrooms for all individuals.
Current Situation: By providing male and female public restrooms the government is providing public restrooms for all individuals.
Just sub out a few words, and you get:
14th Amendment Interpretation: If the government recognizes marriage of particular individuals then the principal of equal treatment under the law requires them to recognize marriage of all individuals.
Current Situation: By recognizing marriage of men to women, and women to men, the government is recognizing marriage of all individuals.
You are making a distinction and claiming that allowing a woman to marry a man when she wants to marry a woman does not satisfy equal protection, but allowing a woman to use a woman's restroom when she wants to use the men's restroom does satisfy equal protection. There's nothing unreasonable about that distinction, but there's not a good argument that it was intended by the people adopting the 14th amendment.
Except that your "current situation" statement is not a true statement. By that I don't mean to say it is necessarily a false statement either, it is an indeterminate statement at best because without further context we do not know whether recognizing the marriage of men to women and women to men covers all individuals. My "current situation" statement is necessarily true if we assume that male and female are the only two available sexes (I know that is also currently being questioned, but I think that's a separate issue that we don't need to debate for the sake of an example).
14th Amendment Interpretation: If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation: The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.
14th Amendment Interpretation: If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation: The government allows all individuals who are men to marry women.
Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals. If you can just pick your class, then you can always satisfy equal protection. If you can't make any distinction, then you can just about never satisfy equal protection.
Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.
So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".
There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion." And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not.
I don't think that this argument needs to be made. I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling. The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage. For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.
But you just argued against applying that general principle with respect to section 8. So somebody has to decide on when it applies and when it doesn't. You can have judges try to remain faithful to what was intended, or you can have them just act as super legislators.
Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?
I'm pretty sure that's going to happen whether I want it to or not. Sure, you could try to say that his policy preferences won't be implemented because they're his policy preferences but instead because they're the "right decisions from an originalist/textualist interpretation", but he'll still get his policy preferences. I personally think that's because "originalist/textualist" is just another way of saying conservative, so it's not really any consolation to me.
Well, this is just ensuring that we can't have separation of powers with legislative powers vested in elected representatives. But if people on the left are comfortable saying, I don't care about norms, I don't like the results that come from trying to follow the constitution, so I just want judges that will do what I want, they can't simultaneously whine about republicans going to the mat with respect to stopping that.
ETA: Also, I still don't think you are fully considering how bad an idea it is to have judges unmoored from the constitution because you have not seen real activism from teh right. You only have to worry about judges stopping leftist legislation. But there's no reason that has to be the case if the left keeps trying to make judges superlegislators. If the left had to worry about judges not just avoiding passing new legislation that mandates same sex marriage be recognized, but actually mandating that states not recognize same sex marriage, then I think they'd be a little more appreciative of judges trying to follow the constitution. I don't think there's a chance in hell of anything like that coming about, and I don't think any of the "conservative" judges currently on the bench would even be open to legislating on other policy areas where they would like different public policy, but eventually, if the norm is eroded enough, there could be conservative judges that want to legislate on stuff like say tax policy. Even if that would be a few decades down the line, it's worth not going down that path.
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14th Amendment Interpretation: If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation: The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.
14th Amendment Interpretation: If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation: The government allows all individuals who are men to marry women.
Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals. If you can just pick your class, then you can always satisfy equal protection. If you can't make any distinction, then you can just about never satisfy equal protection.
Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.
So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".
There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion." And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not.
I don't think that this argument needs to be made. I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling. The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage. For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.
But you just argued against applying that general principle with respect to section 8. So somebody has to decide on when it applies and when it doesn't. You can have judges try to remain faithful to what was intended, or you can have them just act as super legislators.
No, I didn't. I argued that that principle was already being applied to section 8 because all citizens could be eligible for it during parts of their life. Although I would honestly prefer to replace section 8 with a universal basic income for many reasons which include your point here. Because even if it is equal treatment it doesn't feel equal.
Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?
I'm pretty sure that's going to happen whether I want it to or not. Sure, you could try to say that his policy preferences won't be implemented because they're his policy preferences but instead because they're the "right decisions from an originalist/textualist interpretation", but he'll still get his policy preferences. I personally think that's because "originalist/textualist" is just another way of saying conservative, so it's not really any consolation to me.
Well, this is just ensuring that we can't have separation of powers with legislative powers vested in elected representatives. But if people on the left are comfortable saying, I don't care about norms, I don't like the results that come from trying to follow the constitution, so I just want judges that will do what I want, they can't simultaneously whine about republicans going to the mat with respect to stopping that.
ETA: Also, I still don't think you are fully considering how bad an idea it is to have judges unmoored from the constitution because you have not seen real activism from teh right. You only have to worry about judges stopping leftist legislation. But there's no reason that has to be the case if the left keeps trying to make judges superlegislators. If the left had to worry about judges not just avoiding passing new legislation that mandates same sex marriage be recognized, but actually mandating that states not recognize same sex marriage, then I think they'd be a little more appreciative of judges trying to follow the constitution. I don't think there's a chance in hell of anything like that coming about, and I don't think any of the "conservative" judges currently on the bench would even be open to legislating on other policy areas where they would like different public policy, but eventually, if the norm is eroded enough, there could be conservative judges that want to legislate on stuff like say tax policy. Even if that would be a few decades down the line, it's worth not going down that path.
You're still not getting it. I'm not arguing that justices shouldn't adhere to the constitution. I'm arguing that the justices that you think are not adhering to the constitution are in fact already doing so. Also, that the justices that you think are adhering to the constitution are actually interpreting it just as much as those other justices that you dislike, just in a different manner.
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The US Constitution can only be amended if Congress puts up a proposed amendment, and a majority of Congress and state legislatures agree. American voters are not involved. In Australia, Federal government must put up a proposed amendment, but then can only be passed by a majority of Australian voters, and a majority of all Australian states. Australian voters have always been wary of changing our constitution, so there might not be much difference between our system and the US system.
One quick correction- There is another option for amending the constitution, though I do not believe it has been successfully used. It is a state's convention (which can be very limited in scope, only for the approval of one amendment if desired) and that an be forced by a referendum vote at the state level initiated by petition.
It is basically the only way anyone is going to get term limits for congress amended into the constitution, since congress won't fire themselves.
There are several states calling for a states convention on a variety of issues. I think it is about time that happened... :/
You are correct.
The Constitution has never been amended via an Article V Convention of States.
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The US Constitution can only be amended if Congress puts up a proposed amendment, and a majority of Congress and state legislatures agree. American voters are not involved. In Australia, Federal government must put up a proposed amendment, but then can only be passed by a majority of Australian voters, and a majority of all Australian states. Australian voters have always been wary of changing our constitution, so there might not be much difference between our system and the US system.
One quick correction- There is another option for amending the constitution, though I do not believe it has been successfully used. It is a state's convention (which can be very limited in scope, only for the approval of one amendment if desired) and that an be forced by a referendum vote at the state level initiated by petition.
It is basically the only way anyone is going to get term limits for congress amended into the constitution, since congress won't fire themselves.
There are several states calling for a states convention on a variety of issues. I think it is about time that happened... :/
You are correct.
The Constitution has never been amended via an Article V Convention of States.
It's not decided whether a State's convention can be limited to only one issue.
https://en.wikipedia.org/wiki/Convention_to_propose_amendments_to_the_United_States_Constitution
While there have been calls for an "Article V Convention" based on a single issue such as the balanced budget amendment, it is not clear whether a convention summoned in this way would be legally bound to limit discussion to a single issue
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14th Amendment Interpretation: If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation: The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.
14th Amendment Interpretation: If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation: The government allows all individuals who are men to marry women.
Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals. If you can just pick your class, then you can always satisfy equal protection. If you can't make any distinction, then you can just about never satisfy equal protection.
Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.
So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".
There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion." And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not.
I don't think that this argument needs to be made. I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling. The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage. For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.
But you just argued against applying that general principle with respect to section 8. So somebody has to decide on when it applies and when it doesn't. You can have judges try to remain faithful to what was intended, or you can have them just act as super legislators.
No, I didn't. I argued that that principle was already being applied to section 8 because all citizens could be eligible for it during parts of their life. Although I would honestly prefer to replace section 8 with a universal basic income for many reasons which include your point here. Because even if it is equal treatment it doesn't feel equal.
But you are making up a distinction. A perfectly reasonable distinction, but if you are not going by some standard, then you are just putting the justices in the position of policy makers. Same with single sex bathrooms? Why are governments not violating the equal protection law when they have single sex bathrooms?
Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?
I'm pretty sure that's going to happen whether I want it to or not. Sure, you could try to say that his policy preferences won't be implemented because they're his policy preferences but instead because they're the "right decisions from an originalist/textualist interpretation", but he'll still get his policy preferences. I personally think that's because "originalist/textualist" is just another way of saying conservative, so it's not really any consolation to me.
Well, this is just ensuring that we can't have separation of powers with legislative powers vested in elected representatives. But if people on the left are comfortable saying, I don't care about norms, I don't like the results that come from trying to follow the constitution, so I just want judges that will do what I want, they can't simultaneously whine about republicans going to the mat with respect to stopping that.
ETA: Also, I still don't think you are fully considering how bad an idea it is to have judges unmoored from the constitution because you have not seen real activism from teh right. You only have to worry about judges stopping leftist legislation. But there's no reason that has to be the case if the left keeps trying to make judges superlegislators. If the left had to worry about judges not just avoiding passing new legislation that mandates same sex marriage be recognized, but actually mandating that states not recognize same sex marriage, then I think they'd be a little more appreciative of judges trying to follow the constitution. I don't think there's a chance in hell of anything like that coming about, and I don't think any of the "conservative" judges currently on the bench would even be open to legislating on other policy areas where they would like different public policy, but eventually, if the norm is eroded enough, there could be conservative judges that want to legislate on stuff like say tax policy. Even if that would be a few decades down the line, it's worth not going down that path.
You're still not getting it. I'm not arguing that justices shouldn't adhere to the constitution. I'm arguing that the justices that you think are not adhering to the constitution are in fact already doing so. Also, that the justices that you think are adhering to the constitution are actually interpreting it just as much as those other justices that you dislike, just in a different manner.
They are not interpreting it in a way that binds them in any meaningful manner. If you have somebody who is an originalist or textualist, you can ask them in 2000, 2008, or 2016 whether the equal protection clause mandates that same sex marriages be recognized, and they would give you the same answer. For other approaches, that's not the case. They are either answering based on their personal preferences (in which case, do we really want 5 people exercising such enormous, unchecked power?), or maybe they are answering based on what they think people would vote for (in which case, do they really have this data, and even if they did, why not just let the elected representatives do it?), or they are maybe adopting some general philosophy that may or may not match their personal preferences but that they think is a good standard for whatever reason (in which case, again that is putting a lot of power into the hands of a few; do you want justices deciding that Ayn Rand is who we should look to for determining what a good result is?).
Certainly there are cases where it's so close a call that you are going to have judge's bias's come into it. But if you don't at least have a standard that judges can be judged against, then it's inevitable that you end up with a completely politicized court and even before then, you have people claiming that just applying the constitution or statute in straightforward cases is a political act.
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An originalist wouldn't recognize any marriage, straight or gay. It's not in the constitution, the government has no place being involved in it.
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An originalist wouldn't recognize any marriage, straight or gay. It's not in the constitution, the government has no place being involved in it.
More or less correct that the federal government doesn't have much of a role w/r/t marriage, but it's still a contract, so it could come up with respect to the contracts clause (unlikely, but if a connected person tried to get his/her specific marriage dissolved through a state legislature the U.S. constitution would prohibit it) and there would be full faith and credit questions and congress would of course have to make choices as to what constitutes a marriage and what impacts that has within areas of its actual jurisdiction.
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14th Amendment Interpretation: If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation: The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.
14th Amendment Interpretation: If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation: The government allows all individuals who are men to marry women.
Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals. If you can just pick your class, then you can always satisfy equal protection. If you can't make any distinction, then you can just about never satisfy equal protection.
Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.
So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".
There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion." And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not.
I don't think that this argument needs to be made. I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling. The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage. For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.
But you just argued against applying that general principle with respect to section 8. So somebody has to decide on when it applies and when it doesn't. You can have judges try to remain faithful to what was intended, or you can have them just act as super legislators.
No, I didn't. I argued that that principle was already being applied to section 8 because all citizens could be eligible for it during parts of their life. Although I would honestly prefer to replace section 8 with a universal basic income for many reasons which include your point here. Because even if it is equal treatment it doesn't feel equal.
But you are making up a distinction. A perfectly reasonable distinction, but if you are not going by some standard, then you are just putting the justices in the position of policy makers. Same with single sex bathrooms? Why are governments not violating the equal protection law when they have single sex bathrooms?
I'm not making a distinction between citizens, I'm making a distinction between their situations. Ideally, we'd do neither but I think a distinction in situations survives the equal protection clause because it could still potentially apply to all citizens at some point in their life. Every citizen can be eligible for section 8 if their income drops low enough, but gay men cannot ever be eligible for a marriage license if the state only recognizes marriage contracts between opposite sex citizens.
I already tried to explain the restroom thing above. I really don't understand how the government providing a restroom to all citizens is somehow unequal to you. How about you explain how governments are violating the equal protection clause when they provide single sex bathrooms?
Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?
I'm pretty sure that's going to happen whether I want it to or not. Sure, you could try to say that his policy preferences won't be implemented because they're his policy preferences but instead because they're the "right decisions from an originalist/textualist interpretation", but he'll still get his policy preferences. I personally think that's because "originalist/textualist" is just another way of saying conservative, so it's not really any consolation to me.
Well, this is just ensuring that we can't have separation of powers with legislative powers vested in elected representatives. But if people on the left are comfortable saying, I don't care about norms, I don't like the results that come from trying to follow the constitution, so I just want judges that will do what I want, they can't simultaneously whine about republicans going to the mat with respect to stopping that.
ETA: Also, I still don't think you are fully considering how bad an idea it is to have judges unmoored from the constitution because you have not seen real activism from teh right. You only have to worry about judges stopping leftist legislation. But there's no reason that has to be the case if the left keeps trying to make judges superlegislators. If the left had to worry about judges not just avoiding passing new legislation that mandates same sex marriage be recognized, but actually mandating that states not recognize same sex marriage, then I think they'd be a little more appreciative of judges trying to follow the constitution. I don't think there's a chance in hell of anything like that coming about, and I don't think any of the "conservative" judges currently on the bench would even be open to legislating on other policy areas where they would like different public policy, but eventually, if the norm is eroded enough, there could be conservative judges that want to legislate on stuff like say tax policy. Even if that would be a few decades down the line, it's worth not going down that path.
You're still not getting it. I'm not arguing that justices shouldn't adhere to the constitution. I'm arguing that the justices that you think are not adhering to the constitution are in fact already doing so. Also, that the justices that you think are adhering to the constitution are actually interpreting it just as much as those other justices that you dislike, just in a different manner.
They are not interpreting it in a way that binds them in any meaningful manner. If you have somebody who is an originalist or textualist, you can ask them in 2000, 2008, or 2016 whether the equal protection clause mandates that same sex marriages be recognized, and they would give you the same answer. For other approaches, that's not the case. They are either answering based on their personal preferences (in which case, do we really want 5 people exercising such enormous, unchecked power?), or maybe they are answering based on what they think people would vote for (in which case, do they really have this data, and even if they did, why not just let the elected representatives do it?), or they are maybe adopting some general philosophy that may or may not match their personal preferences but that they think is a good standard for whatever reason (in which case, again that is putting a lot of power into the hands of a few; do you want justices deciding that Ayn Rand is who we should look to for determining what a good result is?).
Certainly there are cases where it's so close a call that you are going to have judge's bias's come into it. But if you don't at least have a standard that judges can be judged against, then it's inevitable that you end up with a completely politicized court and even before then, you have people claiming that just applying the constitution or statute in straightforward cases is a political act.
They are bound by the text of the constitution and the laws passed by the legislature as well as precedent and other similar judicial standards. The same things that bind your favored justices. If you had asked me in 2000, 2008 or 2016 whether the equal protection clause mandates that same sex marriages be recognized I would have given you the same answer (yes). If you had asked me in 1960 or 1860 in fact I would have given you the same answer even then (had I been alive at the time). It's not that I would have interpreted that clause differently at different times, I just interpret it differently than you period.
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14th Amendment Interpretation: If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation: The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.
14th Amendment Interpretation: If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation: The government allows all individuals who are men to marry women.
Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals. If you can just pick your class, then you can always satisfy equal protection. If you can't make any distinction, then you can just about never satisfy equal protection.
Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.
So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".
There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion." And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not.
I don't think that this argument needs to be made. I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling. The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage. For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.
But you just argued against applying that general principle with respect to section 8. So somebody has to decide on when it applies and when it doesn't. You can have judges try to remain faithful to what was intended, or you can have them just act as super legislators.
No, I didn't. I argued that that principle was already being applied to section 8 because all citizens could be eligible for it during parts of their life. Although I would honestly prefer to replace section 8 with a universal basic income for many reasons which include your point here. Because even if it is equal treatment it doesn't feel equal.
But you are making up a distinction. A perfectly reasonable distinction, but if you are not going by some standard, then you are just putting the justices in the position of policy makers. Same with single sex bathrooms? Why are governments not violating the equal protection law when they have single sex bathrooms?
I'm not making a distinction between citizens, I'm making a distinction between their situations. Ideally, we'd do neither but I think a distinction in situations survives the equal protection clause because it could still potentially apply to all citizens at some point in their life. Every citizen can be eligible for section 8 if their income drops low enough, but gay men cannot ever be eligible for a marriage license if the state only recognizes marriage contracts between opposite sex citizens.
I already tried to explain the restroom thing above. I really don't understand how the government providing a restroom to all citizens is somehow unequal to you. How about you explain how governments are violating the equal protection clause when they provide single sex bathrooms?
I don't think they are. Let's try it this way. Why don't you explain how you rely on the constitution to determine that it's permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?
Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?
I'm pretty sure that's going to happen whether I want it to or not. Sure, you could try to say that his policy preferences won't be implemented because they're his policy preferences but instead because they're the "right decisions from an originalist/textualist interpretation", but he'll still get his policy preferences. I personally think that's because "originalist/textualist" is just another way of saying conservative, so it's not really any consolation to me.
Well, this is just ensuring that we can't have separation of powers with legislative powers vested in elected representatives. But if people on the left are comfortable saying, I don't care about norms, I don't like the results that come from trying to follow the constitution, so I just want judges that will do what I want, they can't simultaneously whine about republicans going to the mat with respect to stopping that.
ETA: Also, I still don't think you are fully considering how bad an idea it is to have judges unmoored from the constitution because you have not seen real activism from teh right. You only have to worry about judges stopping leftist legislation. But there's no reason that has to be the case if the left keeps trying to make judges superlegislators. If the left had to worry about judges not just avoiding passing new legislation that mandates same sex marriage be recognized, but actually mandating that states not recognize same sex marriage, then I think they'd be a little more appreciative of judges trying to follow the constitution. I don't think there's a chance in hell of anything like that coming about, and I don't think any of the "conservative" judges currently on the bench would even be open to legislating on other policy areas where they would like different public policy, but eventually, if the norm is eroded enough, there could be conservative judges that want to legislate on stuff like say tax policy. Even if that would be a few decades down the line, it's worth not going down that path.
You're still not getting it. I'm not arguing that justices shouldn't adhere to the constitution. I'm arguing that the justices that you think are not adhering to the constitution are in fact already doing so. Also, that the justices that you think are adhering to the constitution are actually interpreting it just as much as those other justices that you dislike, just in a different manner.
They are not interpreting it in a way that binds them in any meaningful manner. If you have somebody who is an originalist or textualist, you can ask them in 2000, 2008, or 2016 whether the equal protection clause mandates that same sex marriages be recognized, and they would give you the same answer. For other approaches, that's not the case. They are either answering based on their personal preferences (in which case, do we really want 5 people exercising such enormous, unchecked power?), or maybe they are answering based on what they think people would vote for (in which case, do they really have this data, and even if they did, why not just let the elected representatives do it?), or they are maybe adopting some general philosophy that may or may not match their personal preferences but that they think is a good standard for whatever reason (in which case, again that is putting a lot of power into the hands of a few; do you want justices deciding that Ayn Rand is who we should look to for determining what a good result is?).
Certainly there are cases where it's so close a call that you are going to have judge's bias's come into it. But if you don't at least have a standard that judges can be judged against, then it's inevitable that you end up with a completely politicized court and even before then, you have people claiming that just applying the constitution or statute in straightforward cases is a political act.
They are bound by the text of the constitution and the laws passed by the legislature as well as precedent and other similar judicial standards. The same things that bind your favored justices. If you had asked me in 2000, 2008 or 2016 whether the equal protection clause mandates that same sex marriages be recognized I would have given you the same answer (yes). If you had asked me in 1960 or 1860 in fact I would have given you the same answer even then (had I been alive at the time). It's not that I would have interpreted that clause differently at different times, I just interpret it differently than you period.
You can make that argument just like I can make the argument that the equal protection clause prohibits progressive taxation. It's a pretty reasonable argument based on just the text. I would still say that if you condone those arguments though, you are basicallyh leaving the court unbound by the constitution, because you can make all sorts of arguments based on the text if you are completely unbound to recognize any original intent.
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An originalist wouldn't recognize any marriage, straight or gay. It's not in the constitution, the government has no place being involved in it.
I've been arguing that the right to same sex marriage is protected by the constitution in that opposite sex marriage receives legal benefits and to deny those benefits to certain people would be unconstitutional. There is no need for a specific type of contract to be discussed in the constitution in order for the constitution to dictate that it must be applied too all citizens equally.
But my idealist feelings are actually more in line with this. I would argue that giving legal benefits to someone for being married is in itself unfair because it gives unequal treatment to those who are not able to become married. On the other hand this is more similar to the section 8 housing subsidies discussed earlier where everyone has the right to the same benefits but their ability to receive those benefits is based on their current state. As in, a person with less than x income can receive benefits/a person who is married can receive benefits. I don't think it's fair that marriage is a required state to receive those benefits but I also don't think there is a constitutional argument against it.
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An originalist wouldn't recognize any marriage, straight or gay. It's not in the constitution, the government has no place being involved in it.
I've been arguing that the right to same sex marriage is protected by the constitution in that opposite sex marriage receives legal benefits and to deny those benefits to certain people would be unconstitutional. There is no need for a specific type of contract to be discussed in the constitution in order for the constitution to dictate that it must be applied too all citizens equally.
But my idealist feelings are actually more in line with this. I would argue that giving legal benefits to someone for being married is in itself unfair because it gives unequal treatment to those who are not able to become married. On the other hand this is more similar to the section 8 housing subsidies discussed earlier where everyone has the right to the same benefits but their ability to receive those benefits is based on their current state. As in, a person with less than x income can receive benefits/a person who is married can receive benefits. I don't think it's fair that marriage is a required state to receive those benefits but I also don't think there is a constitutional argument against it.
Who is not able to become married?
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14th Amendment Interpretation: If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation: The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.
14th Amendment Interpretation: If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation: The government allows all individuals who are men to marry women.
Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals. If you can just pick your class, then you can always satisfy equal protection. If you can't make any distinction, then you can just about never satisfy equal protection.
Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.
So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".
There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion." And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not.
I don't think that this argument needs to be made. I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling. The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage. For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.
But you just argued against applying that general principle with respect to section 8. So somebody has to decide on when it applies and when it doesn't. You can have judges try to remain faithful to what was intended, or you can have them just act as super legislators.
No, I didn't. I argued that that principle was already being applied to section 8 because all citizens could be eligible for it during parts of their life. Although I would honestly prefer to replace section 8 with a universal basic income for many reasons which include your point here. Because even if it is equal treatment it doesn't feel equal.
But you are making up a distinction. A perfectly reasonable distinction, but if you are not going by some standard, then you are just putting the justices in the position of policy makers. Same with single sex bathrooms? Why are governments not violating the equal protection law when they have single sex bathrooms?
I'm not making a distinction between citizens, I'm making a distinction between their situations. Ideally, we'd do neither but I think a distinction in situations survives the equal protection clause because it could still potentially apply to all citizens at some point in their life. Every citizen can be eligible for section 8 if their income drops low enough, but gay men cannot ever be eligible for a marriage license if the state only recognizes marriage contracts between opposite sex citizens.
I already tried to explain the restroom thing above. I really don't understand how the government providing a restroom to all citizens is somehow unequal to you. How about you explain how governments are violating the equal protection clause when they provide single sex bathrooms?
I don't think they are. Let's try it this way. Why don't you explain how you rely on the constitution to determine that it's permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?
If there was another legal contract designed specifically for same sex couples that gave all of the same benefits as opposite sex marriage then this would be an appropriate analogy.
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An originalist wouldn't recognize any marriage, straight or gay. It's not in the constitution, the government has no place being involved in it.
I've been arguing that the right to same sex marriage is protected by the constitution in that opposite sex marriage receives legal benefits and to deny those benefits to certain people would be unconstitutional. There is no need for a specific type of contract to be discussed in the constitution in order for the constitution to dictate that it must be applied too all citizens equally.
But my idealist feelings are actually more in line with this. I would argue that giving legal benefits to someone for being married is in itself unfair because it gives unequal treatment to those who are not able to become married. On the other hand this is more similar to the section 8 housing subsidies discussed earlier where everyone has the right to the same benefits but their ability to receive those benefits is based on their current state. As in, a person with less than x income can receive benefits/a person who is married can receive benefits. I don't think it's fair that marriage is a required state to receive those benefits but I also don't think there is a constitutional argument against it.
Who is not able to become married?
Idk, assholes? :)
I don't really want to take this off on another tangent but my point was that legal benefits through marriage is unfair. I suppose you could make the argument that incentivizing marriage improves the odds that a child will have two parents rather than one which is a benefit to society.
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I don't think they are. Let's try it this way. Why don't you explain how you rely on the constitution to determine that it's permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?
I do not think it is constitutionally permissible for the government to provide only male restrooms. If male and female restrooms are both provided then the government is providing an equal benefit to both males and females (theoretically, this covers all citizens). I similarly do not think that it is constitutionally permissible for the government to provide only heterosexual marriage licenses. I do think it would be constitutionally permissible for the government to provide a differently named license for homosexual marriages so long as it provided the same benefits, though I do not think that it should do so.
You can make that argument just like I can make the argument that the equal protection clause prohibits progressive taxation. It's a pretty reasonable argument based on just the text. I would still say that if you condone those arguments though, you are basicallyh leaving the court unbound by the constitution, because you can make all sorts of arguments based on the text if you are completely unbound to recognize any original intent.
Again, I would argue that I am recognizing original intent.
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I don't think they are. Let's try it this way. Why don't you explain how you rely on the constitution to determine that it's permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?
I do not think it is constitutionally permissible for the government to provide only male restrooms. If male and female restrooms are both provided then the government is providing an equal benefit to both males and females (theoretically, this covers all citizens). I similarly do not think that it is constitutionally permissible for the government to provide only heterosexual marriage licenses. I do think it would be constitutionally permissible for the government to provide a differently named license for homosexual marriages so long as it provided the same benefits, though I do not think that it should do so.
You're not answering the question. Why is it permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage? Or if it's easier, why does equal protection require that women be allowed to marry women just like men, but not that they be allowed access to men's bathrooms?
You can make that argument just like I can make the argument that the equal protection clause prohibits progressive taxation. It's a pretty reasonable argument based on just the text. I would still say that if you condone those arguments though, you are basicallyh leaving the court unbound by the constitution, because you can make all sorts of arguments based on the text if you are completely unbound to recognize any original intent.
Again, I would argue that I am recognizing original intent.
I'm not sure exactly what you are referring to by "original intent", but I do know that you're not using it the same way that people normally use it in the context of discussions of the constitution and its interpretation/application.
I think, but do not know, that you are making an argument that fits within your morals/policy preferences and then coming up with an argument of how it's not clearly contrary to the text in the constitution. Which is the same thing I am doing with respect to the progressive taxation argument. And which is the same thing people could use to make all sorts of arguments.
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If there was another legal contract designed specifically for same sex couples that gave all of the same benefits as opposite sex marriage then this would be an appropriate analogy.
For a time there was in California.
Around the time of DOMA, California had a voter initiative define marriage as 1 man and 1 woman (Proposition 22). California's legislature later decided to give the rights of marriage to same sex couples under a different name (Registered Domestic Partnership). California courts ruled that having a different name made it unequal kicking off the first gay marriages in California. Opposition to gay marriage got a state constitution amendment on the ballot in an attempt to reverse the decision (Proposition 8). In the same year, the US Supreme Court overturned DOMA (I agree that there is no constitutional basis for the Federal government to fail to recognize a same-sex marriage legally entered into in any of the states) and Proposition 8 (mostly objecting to the right of those who supported Proposition 8 to bring the case - in my opinion a very bad precedent for rule of law - would have been much better to come the the later conclusion that same-sex marriage was a right subject to the equal protection clause). It would have been very interesting legally if the US Supreme Court had found DOMA unconstitutional, but upheld Proposition 8 - would the US government have recognized California's registered domestic partnerships the same way it recognized same-sex marriages from other states? Personally I think it would be better if "marriage" were a religious word (each person being free to use the definition that fit their religious views) and the legal entity having a separate name that applied to everyone ("civil union" seems like the best choice for this).
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I don't think they are. Let's try it this way. Why don't you explain how you rely on the constitution to determine that it's permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?
I do not think it is constitutionally permissible for the government to provide only male restrooms. If male and female restrooms are both provided then the government is providing an equal benefit to both males and females (theoretically, this covers all citizens). I similarly do not think that it is constitutionally permissible for the government to provide only heterosexual marriage licenses. I do think it would be constitutionally permissible for the government to provide a differently named license for homosexual marriages so long as it provided the same benefits, though I do not think that it should do so.
You're not answering the question. Why is it permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage? Or if it's easier, why does equal protection require that women be allowed to marry women just like men, but not that they be allowed access to men's bathrooms?
Because a male restroom and a female restroom are pretty much functionally equivalent whereas individual a and individual b are not.
You can make that argument just like I can make the argument that the equal protection clause prohibits progressive taxation. It's a pretty reasonable argument based on just the text. I would still say that if you condone those arguments though, you are basicallyh leaving the court unbound by the constitution, because you can make all sorts of arguments based on the text if you are completely unbound to recognize any original intent.
Again, I would argue that I am recognizing original intent.
I'm not sure exactly what you are referring to by "original intent", but I do know that you're not using it the same way that people normally use it in the context of discussions of the constitution and its interpretation/application.
I think, but do not know, that you are making an argument that fits within your morals/policy preferences and then coming up with an argument of how it's not clearly contrary to the text in the constitution. Which is the same thing I am doing with respect to the progressive taxation argument. And which is the same thing people could use to make all sorts of arguments.
I think we're just going to have to agree to disagree on this point. Although I will say that I am definitely arguing that equal treatment under the law is required by the constitution, not just "not clearly contrary" to it.
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And we should also mention that every Scalian Originalist also recognizes that the 2nd amendment was never intended to be used for personal gun ownership rights. That's why Scalia never overstepped the bounds of the Constitution and was a pure Originalist...
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I don't think they are. Let's try it this way. Why don't you explain how you rely on the constitution to determine that it's permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?
I do not think it is constitutionally permissible for the government to provide only male restrooms. If male and female restrooms are both provided then the government is providing an equal benefit to both males and females (theoretically, this covers all citizens). I similarly do not think that it is constitutionally permissible for the government to provide only heterosexual marriage licenses. I do think it would be constitutionally permissible for the government to provide a differently named license for homosexual marriages so long as it provided the same benefits, though I do not think that it should do so.
You're not answering the question. Why is it permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage? Or if it's easier, why does equal protection require that women be allowed to marry women just like men, but not that they be allowed access to men's bathrooms?
Because a male restroom and a female restroom are pretty much functionally equivalent whereas individual a and individual b are not.
You can make that argument just like I can make the argument that the equal protection clause prohibits progressive taxation. It's a pretty reasonable argument based on just the text. I would still say that if you condone those arguments though, you are basicallyh leaving the court unbound by the constitution, because you can make all sorts of arguments based on the text if you are completely unbound to recognize any original intent.
Again, I would argue that I am recognizing original intent.
I'm not sure exactly what you are referring to by "original intent", but I do know that you're not using it the same way that people normally use it in the context of discussions of the constitution and its interpretation/application.
I think, but do not know, that you are making an argument that fits within your morals/policy preferences and then coming up with an argument of how it's not clearly contrary to the text in the constitution. Which is the same thing I am doing with respect to the progressive taxation argument. And which is the same thing people could use to make all sorts of arguments.
I think we're just going to have to agree to disagree on this point. Although I will say that I am definitely arguing that equal treatment under the law is required by the constitution, not just "not clearly contrary" to it.
This makes me a little more confident that you are starting from your conclusion based on your individual morals/policy preferences and then coming up with the argument that's not clearly inconsistent with the text of the constitution. Which is understandable and the way most people think it should work (or at least want it to work when the person doing the deciding agrees with them). But I think people only think that because nobody has approached the constitution that way from a rightist perspective, and only Kennedy has approached it that way from a libertarianish perspective. If we had four supreme court justices trying to claim that capital gains taxes violate equal protection because they tax future consumption more heavily than current consumption, or that progressive taxation in general is suspect under the equal protection clause, you'd see a lot more people understand that it's a bad idea to not be bound by any originalism, but free to make whatever arguments are not clearly contradicted by the text of the constitution.
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This makes me a little more confident that you are starting from your conclusion based on your individual morals/policy preferences and then coming up with the argument that's not clearly inconsistent with the text of the constitution. Which is understandable and the way most people think it should work (or at least want it to work when the person doing the deciding agrees with them). But I think people only think that because nobody has approached the constitution that way from a rightist perspective, and only Kennedy has approached it that way from a libertarianish perspective. If we had four supreme court justices trying to claim that capital gains taxes violate equal protection because they tax future consumption more heavily than current consumption, or that progressive taxation in general is suspect under the equal protection clause, you'd see a lot more people understand that it's a bad idea to not be bound by any originalism, but free to make whatever arguments are not clearly contradicted by the text of the constitution.
I'm trying to see your perspective here, but your examples aren't helping. The tax laws are applied fairly and equally to all Americans so I'm not sure what this has to do with the Equal Protection clause.
The problem that comes up with originalism is that when you're trying to come up with general protections that will be relevant for centuries to come, you are going to necessarily write something that is generic so as to cover ideas and cases that you have no idea about. How do we apply freedoms of speech and privacy to modern cell phones? The original authors had no idea that these things would exist, but we still use originalist arguments to say that "well, their intention in this matter would be..." and you can more or less make up whatever you want as long as it sounds good enough in your head. And what are you going to argue for? Your natural tendencies and biases.
So you've been arguing that the 14th obviously can't extend to protect other classes because it was written for a specific purpose, and that since we had to ratify the 19th, obviously an idea like the 19th amendment is not covered in the 14th so you can't extend the 14th to include things like homosexual marriages.
Except the 19th was written not because the 14th was deficient, but because our congressmen were deficient. We can obviously see that things such as Japanese Internment are obvious violations of the 14th amendment, but they still happen anyways. The original authors' purpose can and should be bigger than simply the original purpose of their writing.
So when you've arbitrarily decided that only straight people can get married, and thus collect a huge a tax benefit, and gay people can't (and not to mention the sodomy laws still on the books). How can you call that anything but denial of equal protection?
I think you're trying to find a hypothetical situation that would be an obvious overreach of the 14th, but I don't think you're succeeding. If I understand correctly, you're saying that without originalism, you could claim a progressive tax system is unfair treatment. But how much money you earn isn't a part of who you are, and those laws are applied equally across all Americans. You're attempting a slippery slope argument: https://en.wikipedia.org/wiki/Slippery_slope (https://en.wikipedia.org/wiki/Slippery_slope)
That is you're saying "well if you give equal protection to x, then by the same logic you have to do this obvious thing no one would agree with" And the reason this works, is because the court is allowed to use common sense. Anyone can see that it wouldn't make sense to extend the 14th to include progressive tax systems (and the court has already decided the constitutionality of progressive taxes.) I'm sure you could make wild claims about certain conclusions you could make from originalism, but no here is going to present them because they would equally be a slippery slope fallacy.
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This makes me a little more confident that you are starting from your conclusion based on your individual morals/policy preferences and then coming up with the argument that's not clearly inconsistent with the text of the constitution. Which is understandable and the way most people think it should work (or at least want it to work when the person doing the deciding agrees with them). But I think people only think that because nobody has approached the constitution that way from a rightist perspective, and only Kennedy has approached it that way from a libertarianish perspective. If we had four supreme court justices trying to claim that capital gains taxes violate equal protection because they tax future consumption more heavily than current consumption, or that progressive taxation in general is suspect under the equal protection clause, you'd see a lot more people understand that it's a bad idea to not be bound by any originalism, but free to make whatever arguments are not clearly contradicted by the text of the constitution.
I'm trying to see your perspective here, but your examples aren't helping. The tax laws are applied fairly and equally to all Americans so I'm not sure what this has to do with the Equal Protection clause.
You think the tax laws are applied fairly and equally to all Americans. I think most people would disagree with that statement, although I think people would disagree on why (and in what "direction") they are unfair. But what is true if you follow something like an originalist approach is that "unfair" taxes are not prohibited by the constitution (unless you are doing something like taxing people based on what race they are).
The problem that comes up with originalism is that when you're trying to come up with general protections that will be relevant for centuries to come, you are going to necessarily write something that is generic so as to cover ideas and cases that you have no idea about. How do we apply freedoms of speech and privacy to modern cell phones? The original authors had no idea that these things would exist, but we still use originalist arguments to say that "well, their intention in this matter would be..." and you can more or less make up whatever you want as long as it sounds good enough in your head. And what are you going to argue for? Your natural tendencies and biases.
Again, originalism doesn't provide a clear cut answer to every issue. It ties the judges to some kind of standard other than "what would I prefer the law to be". How the right to privacy applies to new technology is an area that people can differ on in good faith while still following some form of what is generally recognized as originalism. Whether the equal protection clause mandates that same sex marriage be recognized or whether progressive taxation is prohibited is not an area that people can differ in good faith while following some form of what is generally recognized as originalism. Mandating that same sex marriage be recognized is a legislative act. The fact that I think it is good policy doesn't change the fact that it's a bad idea for the supreme court to do it. It's one thing with people's natural tendencies and biases affect close cases; it's another when the court drops even the pretense of not legislating.
So you've been arguing that the 14th obviously can't extend to protect other classes because it was written for a specific purpose, and that since we had to ratify the 19th, obviously an idea like the 19th amendment is not covered in the 14th so you can't extend the 14th to include things like homosexual marriages.
Except the 19th was written not because the 14th was deficient, but because our congressmen were deficient. We can obviously see that things such as Japanese Internment are obvious violations of the 14th amendment, but they still happen anyways. The original authors' purpose can and should be bigger than simply the original purpose of their writing.
That's an argument, and it's an argument explicitly for legislating from the bench. "I don't like the job our elected representatives are doing and think we'd get a better result by having 9 judges with lifetime appointments and therefore insulation from the political process decide certain policy questions." I get the appeal, but I think it's a bad idea, and I think people should consider that they migth not always like the way the supreme court legislates before explicitly arguing to break down the norm of being bound by the intent of the constitution. Again, no matter who you are and where you fall on the political spectrum, there are a lot of things that can be dreamed up that can be facially consistent with the constitution that you won't like.
So when you've arbitrarily decided that only straight people can get married, and thus collect a huge a tax benefit, and gay people can't (and not to mention the sodomy laws still on the books). How can you call that anything but denial of equal protection?
First, I haven't arbitrarily decided anything. Traditionally, marriage has been the fundamental building block of western societies and I do acknowledge that it does not violate the equal protection clause to only recognize traditional marriages. That's not the same thing as saying the government shouldn't recognize same sex marriages. I don't think there is a particularly good argument not to. But that's not the same thing as thinking it's a good idea for supreme court justices to make policy and legislate from the bench.
I think you're trying to find a hypothetical situation that would be an obvious overreach of the 14th, but I don't think you're succeeding. If I understand correctly, you're saying that without originalism, you could claim a progressive tax system is unfair treatment. But how much money you earn isn't a part of who you are, and those laws are applied equally across all Americans. You're attempting a slippery slope argument: https://en.wikipedia.org/wiki/Slippery_slope (https://en.wikipedia.org/wiki/Slippery_slope)
That is you're saying "well if you give equal protection to x, then by the same logic you have to do this obvious thing no one would agree with" And the reason this works, is because the court is allowed to use common sense. Anyone can see that it wouldn't make sense to extend the 14th to include progressive tax systems (and the court has already decided the constitutionality of progressive taxes.) I'm sure you could make wild claims about certain conclusions you could make from originalism, but no here is going to present them because they would equally be a slippery slope fallacy.
I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
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This makes me a little more confident that you are starting from your conclusion based on your individual morals/policy preferences and then coming up with the argument that's not clearly inconsistent with the text of the constitution. Which is understandable and the way most people think it should work (or at least want it to work when the person doing the deciding agrees with them). But I think people only think that because nobody has approached the constitution that way from a rightist perspective, and only Kennedy has approached it that way from a libertarianish perspective. If we had four supreme court justices trying to claim that capital gains taxes violate equal protection because they tax future consumption more heavily than current consumption, or that progressive taxation in general is suspect under the equal protection clause, you'd see a lot more people understand that it's a bad idea to not be bound by any originalism, but free to make whatever arguments are not clearly contradicted by the text of the constitution.
I'm trying to see your perspective here, but your examples aren't helping. The tax laws are applied fairly and equally to all Americans so I'm not sure what this has to do with the Equal Protection clause.
You think the tax laws are applied fairly and equally to all Americans. I think most people would disagree with that statement, although I think people would disagree on why (and in what "direction") they are unfair. But what is true if you follow something like an originalist approach is that "unfair" taxes are not prohibited by the constitution (unless you are doing something like taxing people based on what race they are).
Or not allowing legal benefits to someone because they are gay.
Your opinion is still following the assumption that allowing all males to marry females = equality and several analogies have been given that you didn't acknowledge, so I'm going to try again with something more hypothetical.
Let's say we have single payer healthcare and the government decides to pay for some drugs but not others. There are two equivalent diseases that cause the same symptoms but each one only effects people of a specific race. Race A is effected by disease A and cure A is covered by the government. Race B is effected by disease B but cure B is not covered by the government. Would you consider this to be an equal protection regardless of race? After all, everyone can get cure A paid for by the government.
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You keep using the phrase "legislating from the bench", but the courts aren't writing legislation. They use existing constitutional law to review current practices. That is explicitly not legislating from the bench.
What you call legislating is simply overturning traditional precedent. There is currently in our system, a lot of laws that will not be completely consistent with our codified set of ideals (ie the constitution). Because of bias, prejudice, etc, these inconsistencies can become codified in our law for long periods of time. It is not legislating from the bench just because you don't like the outcome. It is the recognition that the ideals and protections in our constitution do not always match.
Oberfell was the recognition that those values were not being applied correctly. The courts did not legislate demanding how States have to implement that decision, they just have to provide that equal protection. There was no mandated rules about how States had to implement this, States are perfectly capable and allowed to remove all marriage laws if they want.
I feel like your being purposely obtuse. Honestly, I see this all the time in fundamentalist church I grew up in too. Everything they interpreted in the Bible was an obvious application, or plain reading, but liberals were always just wanting to read whatever they wanted into Scripture.
Fundamentalism whether it is the Bible or Constitution, does not offer a superior version of reading or interpretation. You simply end up reworking your conclusions into a pseudo-historical/textual argument. What one side calls "you're just making things up" the other will say "no, I'm simply applying what was always there."
The slippery slope you get with originalism (and actually happened!) was the Plessy v Ferguson case. Where the court used an argument from original intent that the constitution doesn't explicitly speak out against "separate, but equal" so therefor is constitutional. You may feel that "originalism" has protected you from irrational thinking, but it is much more likely that holding onto "originalism" is actually just a rationalization of what you already believe.
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
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I couldn't read this whole thread,
but I hope when Ginsberg wakes up,
she decides it's her time to retire also.
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This makes me a little more confident that you are starting from your conclusion based on your individual morals/policy preferences and then coming up with the argument that's not clearly inconsistent with the text of the constitution. Which is understandable and the way most people think it should work (or at least want it to work when the person doing the deciding agrees with them). But I think people only think that because nobody has approached the constitution that way from a rightist perspective, and only Kennedy has approached it that way from a libertarianish perspective. If we had four supreme court justices trying to claim that capital gains taxes violate equal protection because they tax future consumption more heavily than current consumption, or that progressive taxation in general is suspect under the equal protection clause, you'd see a lot more people understand that it's a bad idea to not be bound by any originalism, but free to make whatever arguments are not clearly contradicted by the text of the constitution.
I'm trying to see your perspective here, but your examples aren't helping. The tax laws are applied fairly and equally to all Americans so I'm not sure what this has to do with the Equal Protection clause.
You think the tax laws are applied fairly and equally to all Americans. I think most people would disagree with that statement, although I think people would disagree on why (and in what "direction") they are unfair. But what is true if you follow something like an originalist approach is that "unfair" taxes are not prohibited by the constitution (unless you are doing something like taxing people based on what race they are).
Or not allowing legal benefits to someone because they are gay.
Your opinion is still following the assumption that allowing all males to marry females = equality and several analogies have been given that you didn't acknowledge, so I'm going to try again with something more hypothetical.
Let's say we have single payer healthcare and the government decides to pay for some drugs but not others. There are two equivalent diseases that cause the same symptoms but each one only effects people of a specific race. Race A is effected by disease A and cure A is covered by the government. Race B is effected by disease B but cure B is not covered by the government. Would you consider this to be an equal protection regardless of race? After all, everyone can get cure A paid for by the government.
I think you are missing that we are generally talking about two different questions. When you ask about equal protection, you generally seem to be asking the question: "Do I think this is equal protection? Or equality? Or the "right" result"?" My answer to that one is I'd have to have more information. How many people are affected by Disease A. How many are affected by Disease B. What the the costs of the preferred treatment of Disease A and Disease B. What are the costs of the second best alternative. Etc.
The question I am trying to get you to see is a different question: "Does this violate the equal protection clause of the U.S. Constitution?" If you're looking at it from an originalist perspective, the answer to that one is no, unless race was used as a deciding factor in determining which treatments to cover.
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
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You keep using the phrase "legislating from the bench", but the courts aren't writing legislation. They use existing constitutional law to review current practices. That is explicitly not legislating from the bench.
What you call legislating is simply overturning traditional precedent. There is currently in our system, a lot of laws that will not be completely consistent with our codified set of ideals (ie the constitution). Because of bias, prejudice, etc, these inconsistencies can become codified in our law for long periods of time. It is not legislating from the bench just because you don't like the outcome. It is the recognition that the ideals and protections in our constitution do not always match.
Oberfell was the recognition that those values were not being applied correctly. The courts did not legislate demanding how States have to implement that decision, they just have to provide that equal protection. There was no mandated rules about how States had to implement this, States are perfectly capable and allowed to remove all marriage laws if they want.
I feel like your being purposely obtuse. Honestly, I see this all the time in fundamentalist church I grew up in too. Everything they interpreted in the Bible was an obvious application, or plain reading, but liberals were always just wanting to read whatever they wanted into Scripture.
Fundamentalism whether it is the Bible or Constitution, does not offer a superior version of reading or interpretation. You simply end up reworking your conclusions into a pseudo-historical/textual argument. What one side calls "you're just making things up" the other will say "no, I'm simply applying what was always there."
The slippery slope you get with originalism (and actually happened!) was the Plessy v Ferguson case. Where the court used an argument from original intent that the constitution doesn't explicitly speak out against "separate, but equal" so therefor is constitutional. You may feel that "originalism" has protected you from irrational thinking, but it is much more likely that holding onto "originalism" is actually just a rationalization of what you already believe.
I am not the one being obtuse. And I recognize you are not purposefully being obtuse. But you keep coming at the constitution from a "what do I think is right" perspective. It's a fish can't see the water problem. You can't seem to envision any other way of approaching it because 99% of the time when people are talking about the constitution, unless they are of a particular intellectual/philosophical bent, that is the subconscious position they are arguing from. Pretty much everybody initially is bothered when something obviously bad or stupid is constitutional (which happens a lot) or when something they believe to be good and smart is unconstitutional (which also happens alot, although obviously good or smart ideas are much, much more rarely unconstitutional than obviously bad things being constitutional). But once everybody openly embraces the idea that the constitution is just there to support their preferred policy positions, you can't have effective separation of powers.
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
In fact, to argue that gay people should not have the same rights as straight people is a radical departure from what is laid out in the constitution, and deeply rooted in personal bias. A decision to deny gay people these rights because of these personal biases would be a good example of 'legislating from the bench' - exactly the opposite of your argument.
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You keep using the phrase "legislating from the bench", but the courts aren't writing legislation. They use existing constitutional law to review current practices. That is explicitly not legislating from the bench.
What you call legislating is simply overturning traditional precedent. There is currently in our system, a lot of laws that will not be completely consistent with our codified set of ideals (ie the constitution). Because of bias, prejudice, etc, these inconsistencies can become codified in our law for long periods of time. It is not legislating from the bench just because you don't like the outcome. It is the recognition that the ideals and protections in our constitution do not always match.
Oberfell was the recognition that those values were not being applied correctly. The courts did not legislate demanding how States have to implement that decision, they just have to provide that equal protection. There was no mandated rules about how States had to implement this, States are perfectly capable and allowed to remove all marriage laws if they want.
I feel like your being purposely obtuse. Honestly, I see this all the time in fundamentalist church I grew up in too. Everything they interpreted in the Bible was an obvious application, or plain reading, but liberals were always just wanting to read whatever they wanted into Scripture.
Fundamentalism whether it is the Bible or Constitution, does not offer a superior version of reading or interpretation. You simply end up reworking your conclusions into a pseudo-historical/textual argument. What one side calls "you're just making things up" the other will say "no, I'm simply applying what was always there."
The slippery slope you get with originalism (and actually happened!) was the Plessy v Ferguson case. Where the court used an argument from original intent that the constitution doesn't explicitly speak out against "separate, but equal" so therefor is constitutional. You may feel that "originalism" has protected you from irrational thinking, but it is much more likely that holding onto "originalism" is actually just a rationalization of what you already believe.
I am not the one being obtuse. And I recognize you are not purposefully being obtuse. But you keep coming at the constitution from a "what do I think is right" perspective. It's a fish can't see the water problem. You can't seem to envision any other way of approaching it because 99% of the time when people are talking about the constitution, unless they are of a particular intellectual/philosophical bent, that is the subconscious position they are arguing from. Pretty much everybody initially is bothered when something obviously bad or stupid is constitutional (which happens a lot) or when something they believe to be good and smart is unconstitutional (which also happens alot, although obviously good or smart ideas are much, much more rarely unconstitutional than obviously bad things being constitutional). But once everybody openly embraces the idea that the constitution is just there to support their preferred policy positions, you can't have effective separation of powers.
You say this, but just ended up ignoring what I wrote, and used the exact fallacious argument that I said fundamentalists use.
You are speaking as though your interpretation/ "originalism", is the baseline. The irony being that "originalism" is not a solid foundation of logic or reason that you think it is. In fact, it does the opposite. It is actually preventing you from considering and interpreting our founding principles. It demands that whatever prejudices the authors had must be inherited in our interpretation. It becomes a hypocritical foundation of clamoring at others "you're just doing whatever you think is right!", all the while, writing reasoning from your preconceived conclusion.
I'm not saying that all my interpretations are correct, and I'm sure you can admit the same. But you're presenting yourself on a pedestal of thought and reason that really has no foundation. All justices use a mixture of original intent, modern circumstances, and creativity. Scalia included. Since there's no way to prove original intention, you end up filling in the gaps with your own preconceived ideas. You may even admit this saying that "sure we all do this, but originalism is the ideal, even if perfectly unattainable". But that's just the thing. "Originalism" is all well and good as a piece of an argument, but you can't hide behind it. Once you've preserved your mind behind the wall of "originalism" you've started doing more harm than good, and you'll find that you've really only tricked yourself.
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This makes me a little more confident that you are starting from your conclusion based on your individual morals/policy preferences and then coming up with the argument that's not clearly inconsistent with the text of the constitution. Which is understandable and the way most people think it should work (or at least want it to work when the person doing the deciding agrees with them). But I think people only think that because nobody has approached the constitution that way from a rightist perspective, and only Kennedy has approached it that way from a libertarianish perspective. If we had four supreme court justices trying to claim that capital gains taxes violate equal protection because they tax future consumption more heavily than current consumption, or that progressive taxation in general is suspect under the equal protection clause, you'd see a lot more people understand that it's a bad idea to not be bound by any originalism, but free to make whatever arguments are not clearly contradicted by the text of the constitution.
I'm trying to see your perspective here, but your examples aren't helping. The tax laws are applied fairly and equally to all Americans so I'm not sure what this has to do with the Equal Protection clause.
You think the tax laws are applied fairly and equally to all Americans. I think most people would disagree with that statement, although I think people would disagree on why (and in what "direction") they are unfair. But what is true if you follow something like an originalist approach is that "unfair" taxes are not prohibited by the constitution (unless you are doing something like taxing people based on what race they are).
Or not allowing legal benefits to someone because they are gay.
Your opinion is still following the assumption that allowing all males to marry females = equality and several analogies have been given that you didn't acknowledge, so I'm going to try again with something more hypothetical.
Let's say we have single payer healthcare and the government decides to pay for some drugs but not others. There are two equivalent diseases that cause the same symptoms but each one only effects people of a specific race. Race A is effected by disease A and cure A is covered by the government. Race B is effected by disease B but cure B is not covered by the government. Would you consider this to be an equal protection regardless of race? After all, everyone can get cure A paid for by the government.
I think you are missing that we are generally talking about two different questions. When you ask about equal protection, you generally seem to be asking the question: "Do I think this is equal protection? Or equality? Or the "right" result"?" My answer to that one is I'd have to have more information. How many people are affected by Disease A. How many are affected by Disease B. What the the costs of the preferred treatment of Disease A and Disease B. What are the costs of the second best alternative. Etc.
The question I am trying to get you to see is a different question: "Does this violate the equal protection clause of the U.S. Constitution?" If you're looking at it from an originalist perspective, the answer to that one is no, unless race was used as a deciding factor in determining which treatments to cover.
The same number of two equal populations is effected. The cost of the drug is the same. There are no alternatives. If you have any other variables in question just assume all else is equal. The court cannot know whether or not race was a deciding factor but assuming all else is equal it would be obvious that it was.
Now I realize that in the case of same sex marriage we do not have this perfect hypothetical where all else is equal, however I would suggest that it isn't necessary for the court to prove that sexual orientation was a deciding factor in not allowing same sex marriages but rather the onus is on lawmakers to give a legitimate reason.
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
It's not a red herring. I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state. Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax.
In fact, to argue that gay people should not have the same rights as straight people is a radical departure from what is laid out in the constitution, and deeply rooted in personal bias. A decision to deny gay people these rights because of these personal biases would be a good example of 'legislating from the bench' - exactly the opposite of your argument.
I don't think there is anyway you are ever going to understand a different viewpoint.
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Also I used to be someone that would be in your position. I thought Scalia was the most reasonable and sensible judge on the court. So yes, I do know how to envision reading the constitution another way.
But when I noticed a few papers coming out written by Scalia that were obviously bent or him stretching the facts of history to match his prejudices, it made me reconsider just how logically sound it all really was. Don't get me wrong. I still think judges like Scalia make honorable decisions when they judge the constitution to say something that they don't personally agree with. I think him and RBG did this often. RBG most recently having a surprise decision to me on the State Sales Tax case.
So I know exactly why your arguing for "originalism". I used to hold that same point of view. But I personally came to realize that more often than not, people who leaned a little too heavily on original intent, often were including more bias in their "research" than they're aware of.
Does that mean the alternative is now the constitution means whatever you want it to mean?
No.
The alternative is a serious discussion that gives the original intent a voice, but doesn't let it dominate the conversation. The liberal position is to list out "what does this mean today?" "What did our ancestors learn, why did they codify this amendment?" "How has the world changed since the writing of this document?"
The justices are there not to just make up whatever or enact the will of the people. They are there to interpret what our documents mean today. They are there to see what in our constitution has to say about new problems. They are there to wisely apply the original intent, common sense, legal reasoning, and the specific circumstances.
All that to say that yes there is a safe ground in between staunch "originalism" and demagoguery.
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You keep using the phrase "legislating from the bench", but the courts aren't writing legislation. They use existing constitutional law to review current practices. That is explicitly not legislating from the bench.
What you call legislating is simply overturning traditional precedent. There is currently in our system, a lot of laws that will not be completely consistent with our codified set of ideals (ie the constitution). Because of bias, prejudice, etc, these inconsistencies can become codified in our law for long periods of time. It is not legislating from the bench just because you don't like the outcome. It is the recognition that the ideals and protections in our constitution do not always match.
Oberfell was the recognition that those values were not being applied correctly. The courts did not legislate demanding how States have to implement that decision, they just have to provide that equal protection. There was no mandated rules about how States had to implement this, States are perfectly capable and allowed to remove all marriage laws if they want.
I feel like your being purposely obtuse. Honestly, I see this all the time in fundamentalist church I grew up in too. Everything they interpreted in the Bible was an obvious application, or plain reading, but liberals were always just wanting to read whatever they wanted into Scripture.
Fundamentalism whether it is the Bible or Constitution, does not offer a superior version of reading or interpretation. You simply end up reworking your conclusions into a pseudo-historical/textual argument. What one side calls "you're just making things up" the other will say "no, I'm simply applying what was always there."
The slippery slope you get with originalism (and actually happened!) was the Plessy v Ferguson case. Where the court used an argument from original intent that the constitution doesn't explicitly speak out against "separate, but equal" so therefor is constitutional. You may feel that "originalism" has protected you from irrational thinking, but it is much more likely that holding onto "originalism" is actually just a rationalization of what you already believe.
I am not the one being obtuse. And I recognize you are not purposefully being obtuse. But you keep coming at the constitution from a "what do I think is right" perspective. It's a fish can't see the water problem. You can't seem to envision any other way of approaching it because 99% of the time when people are talking about the constitution, unless they are of a particular intellectual/philosophical bent, that is the subconscious position they are arguing from. Pretty much everybody initially is bothered when something obviously bad or stupid is constitutional (which happens a lot) or when something they believe to be good and smart is unconstitutional (which also happens alot, although obviously good or smart ideas are much, much more rarely unconstitutional than obviously bad things being constitutional). But once everybody openly embraces the idea that the constitution is just there to support their preferred policy positions, you can't have effective separation of powers.
You say this, but just ended up ignoring what I wrote, and used the exact fallacious argument that I said fundamentalists use.
You are speaking as though your interpretation/ "originalism", is the baseline. The irony being that "originalism" is not a solid foundation of logic or reason that you think it is. In fact, it does the opposite. It is actually preventing you from considering and interpreting our founding principles. It demands that whatever prejudices the authors had must be inherited in our interpretation. It becomes a hypocritical foundation of clamoring at others "you're just doing whatever you think is right!", all the while, writing reasoning from your preconceived conclusion.
I am not the one ignoring what other people are writing. I am not the one that has trouble understanding the other person's point of view. Originalism does not prevent me from considering our founding principals. It does prevent me (in all but the close cases) from substituting my judgment for what has actually gone through the ratification process, either through the original constitution or the amendment process. It doesn't demand that whatever prejudices the authors have must be inherited in our interpretation. It does require accepting that the constitution is a protection against the worst excess of government, not a mechanism for legislating the best policy. There is a reason the same sex marriage (and a practical universe of other issues) are not addrsesed in the constitution. Had somebody convinced the authors of the original constitution or the 14th amendment to address same sex marriage, they almost certainly would have addressed it by banning it. It's good that they did not take such issues out of the legislative process. We should be happy that gay people didn't have to overcome a constitutional prohibition against recognizing same sex marriage.
I'm not saying that all my interpretations are correct, and I'm sure you can admit the same. But you're presenting yourself on a pedestal of thought and reason that really has no foundation. All justices use a mixture of original intent, modern circumstances, and creativity. Scalia included. Since there's no way to prove original intention, you end up filling in the gaps with your own preconceived ideas. You may even admit this saying that "sure we all do this, but originalism is the ideal, even if perfectly unattainable". But that's just the thing. "Originalism" is all well and good as a piece of an argument, but you can't hide behind it. Once you've preserved your mind behind the wall of "originalism" you've started doing more harm than good, and you'll find that you've really only tricked yourself.
I am not presenting myself on a pedestal of thought and reason. I am arguing that originalism is a better approach because it is the only approach that puts some meaningful limitation on the ability of people to substitute their judgment for the constitution. The fact that there are actual close gaps where people's priors end up dictating the results (subconsciously or consciously) is not an argument that judges should not be bound by anything other than their personal preferences or judgments or values. The political process is valuable even when it gets the "wrong" result, because it increases the likelihood that we resolve issues through the political process and not through violence. Kennedy is the closest thing we have to a libertarian minded judge and he might be the judge that gets decisions I like the most, but that doesn't change the fact that it's a bad idea to get the "right" result by exceeding their proper constitutional role.
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
It's not a red herring. I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state. Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax.
Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.
How do you reconcile this to think that it is still an apt analogy?
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
It's not a red herring. I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state. Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax.
In fact, to argue that gay people should not have the same rights as straight people is a radical departure from what is laid out in the constitution, and deeply rooted in personal bias. A decision to deny gay people these rights because of these personal biases would be a good example of 'legislating from the bench' - exactly the opposite of your argument.
I don't think there is anyway you are ever going to understand a different viewpoint.
I'm not particularly emotionally invested in the discussion of gay marriage. Or marriage at all to be honest. Your tax comparison doesn't make much sense at all though . . . people can choose their income, are you contending that they can choose their sexual preference?
The point of the previous discussion was to point out that no, the Supreme Court was not 'legislating from the benches' as you alleged, in the case you mentioned. They were attempting to adhere to an originalist approach - which you seem to value as being very important. My goal was really to point out that that 'originalism' isn't really the set in stone concept you keep pretending it is. Two reasonable people can approach the same document with an originalist intent, and come away with wildly different conclusions. That's because interpretation of law is always based upon some level of preconceived ideas. In this thread you appear to be calling interpretations that you happen to agree with 'originalism'.
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To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
Not original to the constitution, but a tax based on income is pretty clearly an originalist interpretation of the 16th amendment.
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Another poster mentioned that Democrats did not turn out to vote enough in 2016. Well, HRC won the popular vote.
Justice Kennedy's son worked for Deutsch Bank and loaned DT $1BN dollars. Russian tracks seem to be all over it.
I find Kennedy's sudden resignation suspicious. Evidently, he was appointing his clerks as of a few weeks ago. Why the sudden change?
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
It's not a red herring. I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state. Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax.
Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.
How do you reconcile this to think that it is still an apt analogy?
It's been stated they are not the same without any justification of why they are not the same. SO they can choose their income (or at least choose to drop it). Why do you think it matters from a constitutional perspective? People can choose their religion. Doesn't mean you can discriminate based on choice of religion.
And people keep saying that same sex people are given different rights based on their sexual orientation, when they could legally marry the same universe of people as heterosexual people. You are starting with your conclusion and reasoning back from there.
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
It's not a red herring. I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state. Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax.
In fact, to argue that gay people should not have the same rights as straight people is a radical departure from what is laid out in the constitution, and deeply rooted in personal bias. A decision to deny gay people these rights because of these personal biases would be a good example of 'legislating from the bench' - exactly the opposite of your argument.
I don't think there is anyway you are ever going to understand a different viewpoint.
I'm not particularly emotionally invested in the discussion of gay marriage. Or marriage at all to be honest. Your tax comparison doesn't make much sense at all though . . . people can choose their income, are you contending that they can choose their sexual preference?
The point of the previous discussion was to point out that no, the Supreme Court was not 'legislating from the benches' as you alleged, in the case you mentioned. They were attempting to adhere to an originalist approach - which you seem to value as being very important. My goal was really to point out that that 'originalism' isn't really the set in stone concept you keep pretending it is. Two reasonable people can approach the same document with an originalist intent, and come away with wildly different conclusions. That's because interpretation of law is always based upon some level of preconceived ideas. In this thread you appear to be calling interpretations that you happen to agree with 'originalism'.
There is not a universally agreed upon definition of originalism, but that's not the same as saying it has no meaning. You are trying to use "originalist intent" in a manner that is contrary to any generally accepted definition of originalism.
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
It's not a red herring. I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state. Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax.
Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.
How do you reconcile this to think that it is still an apt analogy?
It's been stated they are not the same without any justification of why they are not the same. SO they can choose their income (or at least choose to drop it). Why do you think it matters from a constitutional perspective? People can choose their religion. Doesn't mean you can discriminate based on choice of religion.
Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.
I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
It's not a red herring. I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state. Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax.
Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.
How do you reconcile this to think that it is still an apt analogy?
It's been stated they are not the same without any justification of why they are not the same. SO they can choose their income (or at least choose to drop it). Why do you think it matters from a constitutional perspective? People can choose their religion. Doesn't mean you can discriminate based on choice of religion.
Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.
I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...
You are not understanding the argument. People have not given a justification for why they are making some distinctions and not others. The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more. They just think they should be different. I don't disagree, but ideally we would not have a high court that just votes on their policy preferences.
I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code. But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
It's not a red herring. I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state. Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax.
Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.
How do you reconcile this to think that it is still an apt analogy?
It's been stated they are not the same without any justification of why they are not the same. SO they can choose their income (or at least choose to drop it). Why do you think it matters from a constitutional perspective? People can choose their religion. Doesn't mean you can discriminate based on choice of religion.
Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.
I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...
You are not understanding the argument. People have not given a justification for why they are making some distinctions and not others. The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more. They just think they should be different. I don't disagree, but ideally we would not have a high court that just votes on their policy preferences.
I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code. But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.
An originalist would realize that the 14th amendment was designed specifically to protect a marginalized group of people from the unequal laws that southern racists in government created. In the words of Jacob Howard, when introducing the final draft of it:
"It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?"
People who earn more are wealthier and more influential. They are not marginalized. Clearly there is no reason to apply the 14th amendment's Equal Protection clause regarding taxation here.
People who are gay are marginalized and discriminated against in that they receive unequal treatment when married. They are being unfairly disadvantaged by laws created by religious homophobes in government. Clearly the original intent of the 14th amendment's Equal Protection clause should be applied here.
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You are not understanding the argument. People have not given a justification for why they are making some distinctions and not others. The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more. They just think they should be different. I don't disagree, but ideally we would not have a high court that just votes on their policy preferences.
I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code. But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.
You keep making the argument that somehow a Progressive tax is a violation of the equal protection clause, but this has already been decided by the courts.
Brushaber v. Union Pacific Railroad Co. decided the vaildity of the Revenue Act of 1913.
Tyee Realty Co. v. Anderson - was a complaint about Progressive taxation that was considered proven by Brushaber, and was thus dismissed without merit.
Since then, there have been no court cases on Progressive taxation and the 14th amendment, and I expect there never will be, because even the lower courts dismiss these to be without merit. The Courts have decided not to restrict the powers granted by the 16th amendment.
In fact there have been dozens or cases brought to the court challenging progressive taxation, and none have them have ever been found to be unconstitutional. The argument that you continue to use has been uniformly dismissed by literally more than a century of legal precedent. Because the court has never found that the 14th amendment applies to the equal protection of different economic classes.
So please, if you're going to make an argument, it needs to be grounded in actual legal precedent. "Equal Protection" means something, and the Supreme Court cannot and does not arbitrarily change the meaning of the word.
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
It's not a red herring. I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state. Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax.
Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.
How do you reconcile this to think that it is still an apt analogy?
It's been stated they are not the same without any justification of why they are not the same. SO they can choose their income (or at least choose to drop it). Why do you think it matters from a constitutional perspective? People can choose their religion. Doesn't mean you can discriminate based on choice of religion.
Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.
I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...
You are not understanding the argument. People have not given a justification for why they are making some distinctions and not others. The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more. They just think they should be different. I don't disagree, but ideally we would not have a high court that just votes on their policy preferences.
I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code. But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.
Yes, we have. One is part of someone's being, out of their control. The other is within their control. Why are you ignoring this?
Also, as was just mentioned, the 16th amendment is why the use of progressive taxes has been upheld in multiple supreme court decisions.
When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
So far you've made two cases for why denying same sex marriage is constitutional:
1) It's not discrimination because gay people have equal rights. They can marry anyone of the opposite sex they want.
2) It's ok to discriminate based on sexual orientation because it's ok to discriminate based on income.
I don't think you are going to convince anyone of #2 at this point. But if #1 is true, you don't need #2 anyway. Might I suggest you stick to #1?
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
It's not a red herring. I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state. Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax.
Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.
How do you reconcile this to think that it is still an apt analogy?
It's been stated they are not the same without any justification of why they are not the same. SO they can choose their income (or at least choose to drop it). Why do you think it matters from a constitutional perspective? People can choose their religion. Doesn't mean you can discriminate based on choice of religion.
Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.
I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...
You are not understanding the argument. People have not given a justification for why they are making some distinctions and not others. The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more. They just think they should be different. I don't disagree, but ideally we would not have a high court that just votes on their policy preferences.
I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code. But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.
Yes, we have. One is part of someone's being, out of their control. The other is within their control. Why are you ignoring this?
Also, as was just mentioned, the 16th amendment is why the use of progressive taxes has been upheld in multiple supreme court decisions.
When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
So far you've made two cases for why denying same sex marriage is constitutional:
1) It's not discrimination because gay people have equal rights. They can marry anyone of the opposite sex they want.
2) It's ok to discriminate based on sexual orientation because it's ok to discriminate based on income.
I don't think you are going to convince anyone of #2 at this point. But if #1 is true, you don't need #2 anyway. Might I suggest you stick to #1?
Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.
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You are not understanding the argument. People have not given a justification for why they are making some distinctions and not others. The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more. They just think they should be different. I don't disagree, but ideally we would not have a high court that just votes on their policy preferences.
I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code. But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.
Yes, we have. One is part of someone's being, out of their control. The other is within their control. Why are you ignoring this?
Also, as was just mentioned, the 16th amendment is why the use of progressive taxes has been upheld in multiple supreme court decisions.
When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
So far you've made two cases for why denying same sex marriage is constitutional:
1) It's not discrimination because gay people have equal rights. They can marry anyone of the opposite sex they want.
2) It's ok to discriminate based on sexual orientation because it's ok to discriminate based on income.
I don't think you are going to convince anyone of #2 at this point. But if #1 is true, you don't need #2 anyway. Might I suggest you stick to #1?
That's okay, his argument #1 doesn't make any sense either. Because what this is really about are the benefits provided to married couples by the state. A state that only recognizes marriages of heterosexual couples is limiting those benefits to heterosexual couples. Trying to say that those benefits are available to any individual is just wrong. There's no way for an individual to file taxes jointly for instance (are they going to file them jointly with themselves?). So no, a gay male individual cannot gain the benefits of marriage by marrying a female. That would just be another case of a heterosexual couple gaining the benefits of marriage when homosexual couples are locked out of those same benefits.
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You are not understanding the argument. People have not given a justification for why they are making some distinctions and not others. The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more. They just think they should be different. I don't disagree, but ideally we would not have a high court that just votes on their policy preferences.
I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code. But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.
You keep making the argument that somehow a Progressive tax is a violation of the equal protection clause, but this has already been decided by the courts.
Brushaber v. Union Pacific Railroad Co. decided the vaildity of the Revenue Act of 1913.
Tyee Realty Co. v. Anderson - was a complaint about Progressive taxation that was considered proven by Brushaber, and was thus dismissed without merit.
Since then, there have been no court cases on Progressive taxation and the 14th amendment, and I expect there never will be, because even the lower courts dismiss these to be without merit. The Courts have decided not to restrict the powers granted by the 16th amendment.
In fact there have been dozens or cases brought to the court challenging progressive taxation, and none have them have ever been found to be unconstitutional. The argument that you continue to use has been uniformly dismissed by literally more than a century of legal precedent. Because the court has never found that the 14th amendment applies to the equal protection of different economic classes.
So please, if you're going to make an argument, it needs to be grounded in actual legal precedent. "Equal Protection" means something, and the Supreme Court cannot and does not arbitrarily change the meaning of the word.
I'm not making the argument that the equal protection clause prohibits progressive taxation. I'm pointing out that it doesn't, and it doesn't for the same reason the equal protection clause doesn't (or at least wouldn't if the judiciary was staying within its lane) mandate recognition of same sex marriage.
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AK was often the tie breaking vote.. Now Trump will install a right wing whack job no doubt.
How do we think that will affect the next attack on the ACA or other "entitlement programs"??
Kennedy was a no vote on the ACA mandate, so his support doesn't matter. And in any case, there is no more mandate, so the whole reason to throw out the ACA has been obviated. And entitlement programs are not the purview of the Court.
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A Democratic President expands the Court.
I hate the fact that it has come to this, but at this point this really is our only option. That or impeach Gorsuch. Without the Supreme Court, progress is impossible.
God forbid progress goes through the democratic process and within constitutional constraints.
While I agree that impeachment should only be warranted for someone who is corrupt, it is perfectly fine to expand the Court. All that would be needed is majority rule. The conservatives are trying to SHAME everyone into thinking that somehow 9 is a magic number. The bottom line is that with regards to the judiciary, it is THERMONUCLEAR WAR.
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It seems unlikely but millenials outnumber boomers and boomers are dying. When the court is way out-of-sync with the populace, the populace makes the court fit.
I hope. But I watched Idiocracy again last weekend and I am not so convinced that it's a generational thing. Bread and circuses, and history keeps repeating.
I'm Not Sure about this ...
:)
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
It's not a red herring. I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state. Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax.
Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.
How do you reconcile this to think that it is still an apt analogy?
It's been stated they are not the same without any justification of why they are not the same. SO they can choose their income (or at least choose to drop it). Why do you think it matters from a constitutional perspective? People can choose their religion. Doesn't mean you can discriminate based on choice of religion.
Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.
I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...
You are not understanding the argument. People have not given a justification for why they are making some distinctions and not others. The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more. They just think they should be different. I don't disagree, but ideally we would not have a high court that just votes on their policy preferences.
I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code. But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.
Yes, we have. One is part of someone's being, out of their control. The other is within their control. Why are you ignoring this?
I'm not ignoring this. I'm waiting for somebody to explain why it matters if they are doing something other than just deciding what they think the result should be and then coming up with a justificaiton after the fact.
Also, as was just mentioned, the 16th amendment is why the use of progressive taxes has been upheld in multiple supreme court decisions.
The 16th amendment authorizes an income tax; it doesn't specifically authorize a progressive income tax.
When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
The equal protection clause was exactly about race. If it covers anything at all, it covers race. Religion is expressly covered by the estalbishment clause and free exercise clause. I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination. I assume since you are pointing it out, you do?
So far you've made two cases for why denying same sex marriage is constitutional:
1) It's not discrimination because gay people have equal rights. They can marry anyone of the opposite sex they want.
2) It's ok to discriminate based on sexual orientation because it's ok to discriminate based on income.
I don't think you are going to convince anyone of #2 at this point. But if #1 is true, you don't need #2 anyway. Might I suggest you stick to #1?
I will cop to not being able to get on people's level sometime. But I have reread my posts and you coming up with #2 is not on me.
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Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.
I'm sure you can provide a cite where I've weighed in one way or another and you are not just pulling things out of your ass?
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I see no silver lining and no way of stopping this.
A Democratic President expands the Court.
It seems unlikely but millenials outnumber boomers and boomers are dying. When the court is way out-of-sync with the populace, the populace makes the court fit.
Only after Congress and the president amend 28 U. S. C. §1
The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.
(June 25, 1948, ch. 646, 62 Stat. 869.)
When Garland was being denied confirmation, I considered the scenario in which only when the POTUS & Senate control were of the same party would new justices be added - with the result that the Court would dwindle in size until the next time when such unitary control were to happen again. It seems that once the number drops to 5, there is no quorum, and thus no Court.
Of course, this law will be updated to be 11 (or 13, etc.).
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When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
The equal protection clause was exactly about race. If it covers anything at all, it covers race. Religion is expressly covered by the estalbishment clause and free exercise clause. I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination. I assume since you are pointing it out, you do?
So you believe that there is no equal treatment for women under the constitution?
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And do you believe that Brown v Board was a bad interpretation?
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When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
The equal protection clause was exactly about race. If it covers anything at all, it covers race. Religion is expressly covered by the estalbishment clause and free exercise clause. I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination. I assume since you are pointing it out, you do?
So you believe that there is no equal treatment for women under the constitution?
Women are explicitly allowed to vote, so have equal treatment in that area. That's it though.
I mean, unless you believe that the equal protection clause should apply to more than just race. Which the Supreme Court did in the 70s Reed v. Reed case.
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Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.
I'm sure you can provide a cite where I've weighed in one way or another and you are not just pulling things out of your ass?
https://forum.mrmoneymustache.com/off-topic/patronizing-businesses-who's-owners-hold-different-beliefs/msg2028872/#msg2028872
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Women are explicitly allowed to vote, so have equal treatment in that area. That's it though.
I mean, unless you believe that the equal protection clause should apply to more than just race. Which the Supreme Court did in the 70s Reed v. Reed case.
The 19th amendment granted all women the right to vote in 1920. This indicates that the equal protection clause of the 14th amendment was not used to protect against laws that differentiated between citizens based on sex. In light of the 19th amendment, an originalist view of the 14th amendment probably ought to hold that the equal protection clause is only intended to prevent racial discrimination. Of course a textualist view can easily interpret the 14th amendment as providing protection against discrimination based on other characteristics as well as race since race is only part of the historical context of the amendment not the text.
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Women are explicitly allowed to vote, so have equal treatment in that area. That's it though.
I mean, unless you believe that the equal protection clause should apply to more than just race. Which the Supreme Court did in the 70s Reed v. Reed case.
The 19th amendment granted all women the right to vote in 1920. This indicates that the equal protection clause of the 14th amendment was not used to protect against laws that differentiated between citizens based on sex. In light of the 19th amendment, an originalist view of the 14th amendment probably ought to hold that the equal protection clause is only intended to prevent racial discrimination. Of course a textualist view can easily interpret the 14th amendment as providing protection against discrimination based on other characteristics as well as race since race is only part of the historical context of the amendment not the text.
So you've been arguing that the 14th obviously can't extend to protect other classes because it was written for a specific purpose, and that since we had to ratify the 19th, obviously an idea like the 19th amendment is not covered in the 14th so you can't extend the 14th to include things like homosexual marriages.
Except the 19th was written not because the 14th was deficient, but because our congressmen were deficient. We can obviously see that things such as Japanese Internment are obvious violations of the 14th amendment, but they still happen anyways. The original authors' purpose can and should be bigger than simply the original purpose of their writing.
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Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.
I'm sure you can provide a cite where I've weighed in one way or another and you are not just pulling things out of your ass?
https://forum.mrmoneymustache.com/off-topic/patronizing-businesses-who's-owners-hold-different-beliefs/msg2028872/#msg2028872
So y ou're answer is that you are pulling things out of your ass? Or that you're not good at reading comprehension?
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When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
The equal protection clause was exactly about race. If it covers anything at all, it covers race. Religion is expressly covered by the estalbishment clause and free exercise clause. I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination. I assume since you are pointing it out, you do?
So you believe that there is no equal treatment for women under the constitution?
I don't believe that the equal protection clause prohibits all sex based distinctions if that's what you are asking. For example, it is constitutionally permissible to have single sex bathrooms and prisons and to not put women in combat roles and to imprison men but not women for not being able to support their children (although I think doing that to begin with is impermissible for other reasons).
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Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.
I'm sure you can provide a cite where I've weighed in one way or another and you are not just pulling things out of your ass?
https://forum.mrmoneymustache.com/off-topic/patronizing-businesses-who's-owners-hold-different-beliefs/msg2028872/#msg2028872
So y ou're answer is that you are pulling things out of your ass? Or that you're not good at reading comprehension?
Sorry, dude, but when you actually write things like "With a homosexual customer, lots of people identify as different things through their life, so arguably it's not who that customer is he's discriminating against"... well, it's pretty hard to not comprehend that you're considering homosexuality as something you can sort of put on or take off as your moods change.
They're your words. At least stand by them. Personally, I find them pretty gross.
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Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.
I'm sure you can provide a cite where I've weighed in one way or another and you are not just pulling things out of your ass?
https://forum.mrmoneymustache.com/off-topic/patronizing-businesses-who's-owners-hold-different-beliefs/msg2028872/#msg2028872
So y ou're answer is that you are pulling things out of your ass? Or that you're not good at reading comprehension?
Sorry, dude, but when you actually write things like "With a homosexual customer, lots of people identify as different things through their life, so arguably it's not who that customer is he's discriminating against"... well, it's pretty hard to not comprehend that you're considering homosexuality as something you can sort of put on or take off as your moods change.
Not withstanding the fact that I was talking about somebody else's argument, the fact that people identify as different things doesn't say anything regarding whether they choose their sexuality or not.
They're your words. At least stand by them. Personally, I find them pretty gross.
I think it's pretty gross that you think there is something wrong with some people having a changing view of their sexuality over time. Why do you think you should get to criticize people who are attracted to same sex people and opposite sex people at different times in their life? Or that they are being somehow disingenuous or hypocritical or whatever it is that you think is so wrong about it?
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Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.
I'm sure you can provide a cite where I've weighed in one way or another and you are not just pulling things out of your ass?
https://forum.mrmoneymustache.com/off-topic/patronizing-businesses-who's-owners-hold-different-beliefs/msg2028872/#msg2028872
So y ou're answer is that you are pulling things out of your ass? Or that you're not good at reading comprehension?
Sorry, dude, but when you actually write things like "With a homosexual customer, lots of people identify as different things through their life, so arguably it's not who that customer is he's discriminating against"... well, it's pretty hard to not comprehend that you're considering homosexuality as something you can sort of put on or take off as your moods change.
Not withstanding the fact that I was talking about somebody else's argument, the fact that people identify as different things doesn't say anything regarding whether they choose their sexuality or not.
They're your words. At least stand by them. Personally, I find them pretty gross.
I think it's pretty gross that you think there is something wrong with some people having a changing view of their sexuality over time. Why do you think you should get to criticize people who are attracted to same sex people and opposite sex people at different times in their life? Or that they are being somehow disingenuous or hypocritical or whatever it is that you think is so wrong about it?
Thanks, man. You're just proving my point.
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When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
The equal protection clause was exactly about race. If it covers anything at all, it covers race. Religion is expressly covered by the estalbishment clause and free exercise clause. I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination. I assume since you are pointing it out, you do?
So you believe that there is no equal treatment for women under the constitution?
I don't believe that the equal protection clause prohibits all sex based distinctions if that's what you are asking. For example, it is constitutionally permissible to have single sex bathrooms and prisons and to not put women in combat roles and to imprison men but not women for not being able to support their children (although I think doing that to begin with is impermissible for other reasons).
Then I no longer understand your argument. You say not "all sex-based distinctions"? You literally just said that the 14th amendment should be so restrictive that it doesn't even include religion. So why are you making these exceptions for sex?
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
It's not a red herring. I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state. Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax.
Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.
How do you reconcile this to think that it is still an apt analogy?
It's been stated they are not the same without any justification of why they are not the same. SO they can choose their income (or at least choose to drop it). Why do you think it matters from a constitutional perspective? People can choose their religion. Doesn't mean you can discriminate based on choice of religion.
Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.
I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...
You are not understanding the argument. People have not given a justification for why they are making some distinctions and not others. The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more. They just think they should be different. I don't disagree, but ideally we would not have a high court that just votes on their policy preferences.
I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code. But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.
Yes, we have. One is part of someone's being, out of their control. The other is within their control. Why are you ignoring this?
I'm not ignoring this. I'm waiting for somebody to explain why it matters if they are doing something other than just deciding what they think the result should be and then coming up with a justificaiton after the fact.
It matters because you're trying to use an analogy to justify something but the thing being presented as analogous has this glaring difference.
Also, as was just mentioned, the 16th amendment is why the use of progressive taxes has been upheld in multiple supreme court decisions.
The 16th amendment authorizes an income tax; it doesn't specifically authorize a progressive income tax.
When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
The equal protection clause was exactly about race. If it covers anything at all, it covers race. Religion is expressly covered by the estalbishment clause and free exercise clause. I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination. I assume since you are pointing it out, you do?
No, but that wasn't my point. You're right, religion is protected from discrimination by a separate clause and therefore is a poor analogy here. just like taxation.
So far you've made two cases for why denying same sex marriage is constitutional:
1) It's not discrimination because gay people have equal rights. They can marry anyone of the opposite sex they want.
2) It's ok to discriminate based on sexual orientation because it's ok to discriminate based on income.
I don't think you are going to convince anyone of #2 at this point. But if #1 is true, you don't need #2 anyway. Might I suggest you stick to #1?
I will cop to not being able to get on people's level sometime. But I have reread my posts and you coming up with #2 is not on me.
I'm not saying that you believe either of these two things, but rather that your arguments depend on them. Why are you using progressive taxation as a defense of unequal laws for homo and heterosexuals?
To clarify, progressive taxation is discrimination. We've determined that it is acceptable discrimination and I would agree with that. But if #2 is not the argument you're making, then please explain what was you're point in bringing up progressive taxation?
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https://quillette.com/2018/07/04/the-new-york-times-comes-out-against-free-speech/
It appears that Free Speech is increasingly a conservative viewpoint. So a more conservative court may be a blessing in disguise.
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https://www.washingtonpost.com/opinions/with-judicial-nominees-democrats-have-only-themselves-to-blame/2018/07/05/2225c65c-8067-11e8-b660-4d0f9f0351f1_story.html?noredirect=on
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https://www.washingtonpost.com/opinions/with-judicial-nominees-democrats-have-only-themselves-to-blame/2018/07/05/2225c65c-8067-11e8-b660-4d0f9f0351f1_story.html?noredirect=on
Lol.
Yeah. McConnell’s blatant refusal to have hearings for a sitting president’s nominee doesn’t matter at all.
Also... Obama packing the court with liberal judges? Seriously? He proposed people, as is his right. They got in. That’s how it works.
FFS.
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https://quillette.com/2018/07/04/the-new-york-times-comes-out-against-free-speech/
It appears that Free Speech is increasingly a conservative viewpoint. So a more conservative court may be a blessing in disguise.
There are so many holes in that editorial hit piece that it might as well be considered Swiss cheese.
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https://quillette.com/2018/07/04/the-new-york-times-comes-out-against-free-speech/
It appears that Free Speech is increasingly a conservative viewpoint. So a more conservative court may be a blessing in disguise.
There are so many holes in that editorial hit piece that it might as well be considered Swiss cheese.
https://mobile.nytimes.com/2018/06/30/us/politics/first-amendment-conservatives-supreme-court.html
The title is "How Conservatives Weaponized the first amendment".
It does seem that conservative view points are increasingly the ones being censored. And that the attitude on the left is moving away from first amendment absolutism.
But why was the other one a hit piece?
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So Trump nominates for SCOTUS a judge who believes the President should be above the law while in office. Hmmm.
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So Trump nominates for SCOTUS a judge who believes the President should be above the law while in office. Hmmm.
When he saw that he said to himself "we have a winner".
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I'm not looking for a hypotehtical. The oberfell decision was an obvious overreach, people just agree with the result. Again, what you are calling "using common sense" is just legislating from the bench. "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense". A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law. it's a bad idea to take questions like that out of the normal political process.
You keep saying this, but that doesn't make it true.
Rights were previously granted to married straight couples that were denied to gay couples. The supreme court decided that this was a violation of the 14th amendment. That's not "legislation from the bench", it's a judgement made based on original intent of the constitution. That's not overreach.
I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
It is overreach if you accept some form of originalism as the right approach. You can certainly argue that originalism is not the right approach. What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically.
If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position. But those people shouldn't be complaining about Garland not getting a vote. That's just politics if we are explicitly accepting that judges not only are political actors but should be.
The 14th Amendment clearly states that all people are to be granted equal protection of the laws. Gay people were not being granted equal protection. That's about as originalist as you can get.
To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman. That's not original to the constitution.
To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income. That's not original to the constitution.
OK? I mean, that's a nice red herring and all, but we weren't talking about a head tax. We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench". I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.
It's not a red herring. I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state. Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax.
Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.
How do you reconcile this to think that it is still an apt analogy?
It's been stated they are not the same without any justification of why they are not the same. SO they can choose their income (or at least choose to drop it). Why do you think it matters from a constitutional perspective? People can choose their religion. Doesn't mean you can discriminate based on choice of religion.
Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.
I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...
You are not understanding the argument. People have not given a justification for why they are making some distinctions and not others. The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more. They just think they should be different. I don't disagree, but ideally we would not have a high court that just votes on their policy preferences.
I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code. But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.
Yes, we have. One is part of someone's being, out of their control. The other is within their control. Why are you ignoring this?
I'm not ignoring this. I'm waiting for somebody to explain why it matters if they are doing something other than just deciding what they think the result should be and then coming up with a justificaiton after the fact.
It matters because you're trying to use an analogy to justify something but the thing being presented as analogous has this glaring difference.
Also, as was just mentioned, the 16th amendment is why the use of progressive taxes has been upheld in multiple supreme court decisions.
The 16th amendment authorizes an income tax; it doesn't specifically authorize a progressive income tax.
When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
The equal protection clause was exactly about race. If it covers anything at all, it covers race. Religion is expressly covered by the estalbishment clause and free exercise clause. I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination. I assume since you are pointing it out, you do?
No, but that wasn't my point. You're right, religion is protected from discrimination by a separate clause and therefore is a poor analogy here. just like taxation.
So far you've made two cases for why denying same sex marriage is constitutional:
1) It's not discrimination because gay people have equal rights. They can marry anyone of the opposite sex they want.
2) It's ok to discriminate based on sexual orientation because it's ok to discriminate based on income.
I don't think you are going to convince anyone of #2 at this point. But if #1 is true, you don't need #2 anyway. Might I suggest you stick to #1?
I will cop to not being able to get on people's level sometime. But I have reread my posts and you coming up with #2 is not on me.
I'm not saying that you believe either of these two things, but rather that your arguments depend on them. Why are you using progressive taxation as a defense of unequal laws for homo and heterosexuals?
To clarify, progressive taxation is discrimination. We've determined that it is acceptable discrimination and I would agree with that. But if #2 is not the argument you're making, then please explain what was you're point in bringing up progressive taxation?
The point is you can't just say "this is the government treating people differently, so it's a violation of the equal protection clause." The government permissibly makes distinctions all the time. I think it would be better to have justices try to stick to the original meaning of the constitution, as modified by amendments. Other people think that courts should just get the "right" result, as long as their result isn't explicitly prohibited by the constitution. But apparently even more people can't even tell the difference between the two approaches.
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When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
The equal protection clause was exactly about race. If it covers anything at all, it covers race. Religion is expressly covered by the estalbishment clause and free exercise clause. I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination. I assume since you are pointing it out, you do?
So you believe that there is no equal treatment for women under the constitution?
I don't believe that the equal protection clause prohibits all sex based distinctions if that's what you are asking. For example, it is constitutionally permissible to have single sex bathrooms and prisons and to not put women in combat roles and to imprison men but not women for not being able to support their children (although I think doing that to begin with is impermissible for other reasons).
Then I no longer understand your argument. You say not "all sex-based distinctions"? You literally just said that the 14th amendment should be so restrictive that it doesn't even include religion. So why are you making these exceptions for sex?
I did not say that the 14th amendment should be so restrictive that it doesn't even include religion. I said I was not aware of a case where it had been applied to religion. And I have not made any exceptions for sex. I am pointing out instances where the equal protection clause does not prohibit distinctions based on sex. I haven't done the research to know how the 14th amendment does and does not apply to distinctions based on sex. That's the entire point. It's not as easy as saying (or it shouldn't be as easy as saying if the courts are going to actually act as judges), "I think this is the right/good result, so this is what the constitution must mean."
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When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
The equal protection clause was exactly about race. If it covers anything at all, it covers race. Religion is expressly covered by the estalbishment clause and free exercise clause. I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination. I assume since you are pointing it out, you do?
So you believe that there is no equal treatment for women under the constitution?
I don't believe that the equal protection clause prohibits all sex based distinctions if that's what you are asking. For example, it is constitutionally permissible to have single sex bathrooms and prisons and to not put women in combat roles and to imprison men but not women for not being able to support their children (although I think doing that to begin with is impermissible for other reasons).
Then I no longer understand your argument. You say not "all sex-based distinctions"? You literally just said that the 14th amendment should be so restrictive that it doesn't even include religion. So why are you making these exceptions for sex?
I did not say that the 14th amendment should be so restrictive that it doesn't even include religion. I said I was not aware of a case where it had been applied to religion. And I have not made any exceptions for sex. I am pointing out instances where the equal protection clause does not prohibit distinctions based on sex. I haven't done the research to know how the 14th amendment does and does not apply to distinctions based on sex. That's the entire point. It's not as easy as saying (or it shouldn't be as easy as saying if the courts are going to actually act as judges), "I think this is the right/good result, so this is what the constitution must mean."
The whole reason we've gone down this rabbit hole is because you believe the liberal justices made a decision on Obergfell based on nothing more than adding additional meaning to the 14th amendment.
I have to ask if you've read Kennedy's paper on that case. He certainly makes an emotional appeal in it, but has a lot of legal precedent and reasoning in it as well. Unless you have something that you personally disagree with in Kennedy's essay, it sounds like you just don't want to read or understand the constitutional reasons for marriage equality.
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https://quillette.com/2018/07/04/the-new-york-times-comes-out-against-free-speech/
It appears that Free Speech is increasingly a conservative viewpoint. So a more conservative court may be a blessing in disguise.
I don't know if that is true. But I agree with the decision to not force a religious org to provide information they don't believe in. That was the wrong approach.
I think the right approach clearly was to force them to advertise their guidance as being based in religion not medicine. Organizations dealing with matters of public health should never be allowed to masquerade as medical advice.
It is a clear effort to suppress free speech when the right tries to blur the lines of medical advice and religious advice by drowning out the advice of a non religious medical clinic with their message.
To attempt to trick or force non-religious people to hear their advice can range from an innocent plea to out right harassment and potentially life threatening ignorant advice.
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It is really just hilarious how transparent an asshole this President is. Pick the one nominee who thinks its wrong to indict a sitting president.
If anything, this president has shown us this country could run without a president. So you can't really harm the country by over stressing a president.
The reality is even if a Republican who was a decent person won this election we would still be getting f'ed with another conservative justice if you are liberal.
Odds we will still see yet another appointment under Trump. So some states will have to deal with some back ass-wards religious laws for the next few decades. I guess you have to make people feel some pain to get them to vote against people trying to harm them.
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When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
The equal protection clause was exactly about race. If it covers anything at all, it covers race. Religion is expressly covered by the estalbishment clause and free exercise clause. I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination. I assume since you are pointing it out, you do?
So you believe that there is no equal treatment for women under the constitution?
I don't believe that the equal protection clause prohibits all sex based distinctions if that's what you are asking. For example, it is constitutionally permissible to have single sex bathrooms and prisons and to not put women in combat roles and to imprison men but not women for not being able to support their children (although I think doing that to begin with is impermissible for other reasons).
Then I no longer understand your argument. You say not "all sex-based distinctions"? You literally just said that the 14th amendment should be so restrictive that it doesn't even include religion. So why are you making these exceptions for sex?
I did not say that the 14th amendment should be so restrictive that it doesn't even include religion. I said I was not aware of a case where it had been applied to religion. And I have not made any exceptions for sex. I am pointing out instances where the equal protection clause does not prohibit distinctions based on sex. I haven't done the research to know how the 14th amendment does and does not apply to distinctions based on sex. That's the entire point. It's not as easy as saying (or it shouldn't be as easy as saying if the courts are going to actually act as judges), "I think this is the right/good result, so this is what the constitution must mean."
The whole reason we've gone down this rabbit hole is because you believe the liberal justices made a decision on Obergfell based on nothing more than adding additional meaning to the 14th amendment.
I have to ask if you've read Kennedy's paper on that case. He certainly makes an emotional appeal in it, but has a lot of legal precedent and reasoning in it as well. Unless you have something that you personally disagree with in Kennedy's essay, it sounds like you just don't want to read or understand the constitutional reasons for marriage equality.
What paper or essay are you talking about? His opinion? I've read his opinion. It cites prior legal precedent but nothing that supports an originalist view that the right to same sex marriage is a fundamental right found in the constitution. His opinion explicitly says it is relying on new insight. I am not arguing against his reasoning. I more or less agree with his reasoning. I am disagreeing that it's the job of the supreme court to take new insights and come up with new interpretations. This isn't a situation where say technological advances present a new issue and people can in good faith disagree about how to apply the constitution. This is a situation where in the roughly forty years since it took the supreme court one sentence to say same sex marriage didn't raise a substantial federal question, society's views on homosexuality and same sex marriage have evolved, and rather than let those evolving views be fleshed out through the democratic process, 5 ivy league educated jurists have decided that they have and should exercise the power to come up with a new constitutional provision.
I understand people thinking "yea, that's bad, but I'm willing to make the trade-off for the result." But I would argue that people who aren't at least a little uncomfortable with what they did lack the imagination to think of what it would be like if there were five justices who not only disagreed with them politically, but felt the could permissibly make new policy when their views evolved due to new "insights".
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In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring. Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection. So, are you deeply disturbed by this decision as well?
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The point is you can't just say "this is the government treating people differently, so it's a violation of the equal protection clause." The government permissibly makes distinctions all the time. I think it would be better to have justices try to stick to the original meaning of the constitution, as modified by amendments. Other people think that courts should just get the "right" result, as long as their result isn't explicitly prohibited by the constitution. But apparently even more people can't even tell the difference between the two approaches.
What paper or essay are you talking about? His opinion? I've read his opinion. It cites prior legal precedent but nothing that supports an originalist view that the right to same sex marriage is a fundamental right found in the constitution. His opinion explicitly says it is relying on new insight. I am not arguing against his reasoning. I more or less agree with his reasoning. I am disagreeing that it's the job of the supreme court to take new insights and come up with new interpretations. This isn't a situation where say technological advances present a new issue and people can in good faith disagree about how to apply the constitution. This is a situation where in the roughly forty years since it took the supreme court one sentence to say same sex marriage didn't raise a substantial federal question, society's views on homosexuality and same sex marriage have evolved, and rather than let those evolving views be fleshed out through the democratic process, 5 ivy league educated jurists have decided that they have and should exercise the power to come up with a new constitutional provision.
I understand people thinking "yea, that's bad, but I'm willing to make the trade-off for the result." But I would argue that people who aren't at least a little uncomfortable with what they did lack the imagination to think of what it would be like if there were five justices who not only disagreed with them politically, but felt the could permissibly make new policy when their views evolved due to new "insights".
Can I just very explicitly agree to a few points so that you can stop repeating them over and over again?
1. There is no "right to same sex marriage" anywhere in the constitution.
2. The 14th amendment does not say anything about the government making "distinctions".
For bonus points I also happen to agree that Kennedy's reasoning in the Obergfell case was horrible. He should have relied on the equal protection clause not the due process clause.
It seems to me like the main disconnect here is that you are trying to replace the word "equal" in the equal protection clause with the word "same". The two words are not interchangeable like that. For instance, the equation "2+2" is equal to the equation "1+3" but they are not the "same" equation. This seems to be why you keep talking about single-sex bathrooms as if they are not providing "equal" protection. Because what you seem to mean is that they are not providing the "same" protection. This is why everybody who understands the difference between the two words is confused by your arguments.
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I think no other man is more responsible for the politicisation of the court than McConnell. No better way to declare the Court a political body than to deny a supreme Court nominee to make it an election issue.
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In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring. Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection. So, are you deeply disturbed by this decision as well?
"I am an originalist as long as I don't personally feel the effects of discrimination."
/s but...maybe not /s?
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In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring. Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection. So, are you deeply disturbed by this decision as well?
FYI, 1971 is after 1964. So yes, the democratic process had said something about discrimination against women in the workplace, so no, I'm not deeply disturbed by a decision where the court applied a statute in a pretty straightforward manner.
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I think no other man is more responsible for the politicisation of the court than McConnell. No better way to declare the Court a political body than to deny a supreme Court nominee to make it an election issue.
I recently saw (maybe last night on twitter) someone say that Obama should have just nominated Garland and sworn him in after the Senate refused to vote. It would have been interesting to see what McConnell would have done then.
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The point is you can't just say "this is the government treating people differently, so it's a violation of the equal protection clause." The government permissibly makes distinctions all the time. I think it would be better to have justices try to stick to the original meaning of the constitution, as modified by amendments. Other people think that courts should just get the "right" result, as long as their result isn't explicitly prohibited by the constitution. But apparently even more people can't even tell the difference between the two approaches.
What paper or essay are you talking about? His opinion? I've read his opinion. It cites prior legal precedent but nothing that supports an originalist view that the right to same sex marriage is a fundamental right found in the constitution. His opinion explicitly says it is relying on new insight. I am not arguing against his reasoning. I more or less agree with his reasoning. I am disagreeing that it's the job of the supreme court to take new insights and come up with new interpretations. This isn't a situation where say technological advances present a new issue and people can in good faith disagree about how to apply the constitution. This is a situation where in the roughly forty years since it took the supreme court one sentence to say same sex marriage didn't raise a substantial federal question, society's views on homosexuality and same sex marriage have evolved, and rather than let those evolving views be fleshed out through the democratic process, 5 ivy league educated jurists have decided that they have and should exercise the power to come up with a new constitutional provision.
I understand people thinking "yea, that's bad, but I'm willing to make the trade-off for the result." But I would argue that people who aren't at least a little uncomfortable with what they did lack the imagination to think of what it would be like if there were five justices who not only disagreed with them politically, but felt the could permissibly make new policy when their views evolved due to new "insights".
Can I just very explicitly agree to a few points so that you can stop repeating them over and over again?
1. There is no "right to same sex marriage" anywhere in the constitution.
2. The 14th amendment does not say anything about the government making "distinctions".
For bonus points I also happen to agree that Kennedy's reasoning in the Obergfell case was horrible. He should have relied on the equal protection clause not the due process clause.
It seems to me like the main disconnect here is that you are trying to replace the word "equal" in the equal protection clause with the word "same". The two words are not interchangeable like that. For instance, the equation "2+2" is equal to the equation "1+3" but they are not the "same" equation. This seems to be why you keep talking about single-sex bathrooms as if they are not providing "equal" protection. Because what you seem to mean is that they are not providing the "same" protection. This is why everybody who understands the difference between the two words is confused by your arguments.
The main disconnect is that many people don't see the virtue in justices following the constitution and/or don't understand why viewing applying the constitution as a matter of mere wordplay effectively leaves the supreme court unconstrained by anything other than a concern for political backlash.
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The point is you can't just say "this is the government treating people differently, so it's a violation of the equal protection clause." The government permissibly makes distinctions all the time. I think it would be better to have justices try to stick to the original meaning of the constitution, as modified by amendments. Other people think that courts should just get the "right" result, as long as their result isn't explicitly prohibited by the constitution. But apparently even more people can't even tell the difference between the two approaches.
What paper or essay are you talking about? His opinion? I've read his opinion. It cites prior legal precedent but nothing that supports an originalist view that the right to same sex marriage is a fundamental right found in the constitution. His opinion explicitly says it is relying on new insight. I am not arguing against his reasoning. I more or less agree with his reasoning. I am disagreeing that it's the job of the supreme court to take new insights and come up with new interpretations. This isn't a situation where say technological advances present a new issue and people can in good faith disagree about how to apply the constitution. This is a situation where in the roughly forty years since it took the supreme court one sentence to say same sex marriage didn't raise a substantial federal question, society's views on homosexuality and same sex marriage have evolved, and rather than let those evolving views be fleshed out through the democratic process, 5 ivy league educated jurists have decided that they have and should exercise the power to come up with a new constitutional provision.
I understand people thinking "yea, that's bad, but I'm willing to make the trade-off for the result." But I would argue that people who aren't at least a little uncomfortable with what they did lack the imagination to think of what it would be like if there were five justices who not only disagreed with them politically, but felt the could permissibly make new policy when their views evolved due to new "insights".
Can I just very explicitly agree to a few points so that you can stop repeating them over and over again?
1. There is no "right to same sex marriage" anywhere in the constitution.
2. The 14th amendment does not say anything about the government making "distinctions".
For bonus points I also happen to agree that Kennedy's reasoning in the Obergfell case was horrible. He should have relied on the equal protection clause not the due process clause.
It seems to me like the main disconnect here is that you are trying to replace the word "equal" in the equal protection clause with the word "same". The two words are not interchangeable like that. For instance, the equation "2+2" is equal to the equation "1+3" but they are not the "same" equation. This seems to be why you keep talking about single-sex bathrooms as if they are not providing "equal" protection. Because what you seem to mean is that they are not providing the "same" protection. This is why everybody who understands the difference between the two words is confused by your arguments.
The main disconnect is that many people don't see the virtue in justices following the constitution and/or don't understand why viewing applying the constitution as a matter of mere wordplay effectively leaves the supreme court unconstrained by anything other than a concern for political backlash.
Continuing to repeat a belief over and over again does not make it true.
Edited to clarify: This position that you keep trying to attribute to people of not wanting the supreme court to be constrained by anything is not one that I have heard anybody state and is definitely not my position. My disagreement with you is entirely about what the original meaning of the 14th amendment is. You just keep declaring that what you think the original meaning was is the original meaning without providing any proof or even good arguments in support of your position. I disagree and have provided multiple arguments in support of my position which you have decided to ignore.
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In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring. Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection. So, are you deeply disturbed by this decision as well?
FYI, 1971 is after 1964. So yes, the democratic process had said something about discrimination against women in the workplace, so no, I'm not deeply disturbed by a decision where the court applied a statute in a pretty straightforward manner.
Wait, wait, wait.
Why is the civil rights act of 1964 considered a democratic process allowed to reinterpret the constitution, but the 2008 passing of legislature in Colorado that specifically grants gay people protected class status (as with sex/race) not considered the democratic process?
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In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring. Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection. So, are you deeply disturbed by this decision as well?
FYI, 1971 is after 1964. So yes, the democratic process had said something about discrimination against women in the workplace, so no, I'm not deeply disturbed by a decision where the court applied a statute in a pretty straightforward manner.
Wait, wait, wait.
Why is the civil rights act of 1964 considered a democratic process allowed to reinterpret the constitution, but the 2008 passing of legislature in Colorado that specifically grants gay people protected class status (as with sex/race) not considered the democratic process?
The Civil Rights act of 1964 isn't "allowed" to reinterpret the constitution. Since this is following up in the reference to Phillips v. Martin Marietta, I'm not sure if you're not getting the difference between the constitution and statutes or if you are switching to an argument over why the Civil Rights Act of 1964 wasn't declared unconstitutional (at least with respect to discrimination between private parties) like the Civil Rights Act of 1875.
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In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring. Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection. So, are you deeply disturbed by this decision as well?
FYI, 1971 is after 1964. So yes, the democratic process had said something about discrimination against women in the workplace, so no, I'm not deeply disturbed by a decision where the court applied a statute in a pretty straightforward manner.
Wait, wait, wait.
Why is the civil rights act of 1964 considered a democratic process allowed to reinterpret the constitution, but the 2008 passing of legislature in Colorado that specifically grants gay people protected class status (as with sex/race) not considered the democratic process?
The Civil Rights act of 1964 isn't "allowed" to reinterpret the constitution. Since this is following up in the reference to Phillips v. Martin Marietta, I'm not sure if you're not getting the difference between the constitution and statutes or if you are switching to an argument over why the Civil Rights Act of 1964 wasn't declared unconstitutional (at least with respect to discrimination between private parties) like the Civil Rights Act of 1875.
The Civil Rights Act explicitly expanded the rights of a group of people (women) that are not guaranteed in the constitution. This is exactly what the legislation passed by Colorado did . . . it expanded the rights of a group of people (gay couples) that are not guaranteed in the constitution. You were saying that using the former to make decisions in the Supreme court is OK, but using the latter to make decisions in the Supreme Court is overreach and 'legislating from the bench' . . . I'm trying to understand your logic for this position.
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In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring. Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection. So, are you deeply disturbed by this decision as well?
FYI, 1971 is after 1964. So yes, the democratic process had said something about discrimination against women in the workplace, so no, I'm not deeply disturbed by a decision where the court applied a statute in a pretty straightforward manner.
Wait, wait, wait.
Why is the civil rights act of 1964 considered a democratic process allowed to reinterpret the constitution, but the 2008 passing of legislature in Colorado that specifically grants gay people protected class status (as with sex/race) not considered the democratic process?
The Civil Rights act of 1964 isn't "allowed" to reinterpret the constitution. Since this is following up in the reference to Phillips v. Martin Marietta, I'm not sure if you're not getting the difference between the constitution and statutes or if you are switching to an argument over why the Civil Rights Act of 1964 wasn't declared unconstitutional (at least with respect to discrimination between private parties) like the Civil Rights Act of 1875.
The Civil Rights Act explicitly expanded the rights of a group of people (women) that are not guaranteed in the constitution. This is exactly what the legislation passed by Colorado did . . . it expanded the rights of a group of people (gay couples) that are not guaranteed in the constitution. You were saying that using the former to make decisions in the Supreme court is OK, but using the latter to make decisions in the Supreme Court is overreach and 'legislating from the bench' . . . I'm trying to understand your logic for this position.
The Civil Rights Act is a federal statute. The supreme court applied it in Phillips v. Martin Marietta because they are a federal court. Had their been a question raised as to its constitutionality, they would have been obligated to address such question (once they granted cert, unless they kicked it down on another ground and so didn't have to address the constitutional question). So essentially, we became more enlighted, and Congress, being subject to negative or positive response of their constituents, rightly passed legislation essentially reflecting a conclusion that it is wrong to discriminate in employment on the basis of sex.
That's a massive difference from taking an area of law that previously had been almost exclusively in the purview of the states (except that DOMA dictated how the federal gov't treated marriage for the purposes of federal law, such as with SS benefits), and having 5 justices with lifetime appointments and insulated from any political process other than impeachment, deciding that they had new "insights" and therefore states not rewriting or reapplying their state statutes to include a newly found right would be violating substantive due process and the equal protection clause.
I'm not sure what your referencing by "the legislation passed by Colordao". I would assume the antidiscrimination law at issue in the cake baking case, but in context maybe you're talking about them legalizing same sex marriage? Either way, that's a colorado state law that won't be before the U.S. Supreme Court unless there is a constitutional question they want to address. In the cake baking case, there was a question over whether it violated by first amendment by mandating expression, and the court punted on that question and instead just ruled that in that particular instance, the colorado commission exhibited such hostility and bias that they had to start the process over. If you're talking about legalizing same sex marriage, there is no constitutional question for the federal courts raised by Colorado legalizing same sex marriage (don't think there was a colorado plaintiff in the Obergfell case, FYI), unless maybe a full faith and credit issue came up if they later moved to or were traveling to another state where it became an issue.
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In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring. Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection. So, are you deeply disturbed by this decision as well?
FYI, 1971 is after 1964. So yes, the democratic process had said something about discrimination against women in the workplace, so no, I'm not deeply disturbed by a decision where the court applied a statute in a pretty straightforward manner.
Wait, wait, wait.
Why is the civil rights act of 1964 considered a democratic process allowed to reinterpret the constitution, but the 2008 passing of legislature in Colorado that specifically grants gay people protected class status (as with sex/race) not considered the democratic process?
The Civil Rights act of 1964 isn't "allowed" to reinterpret the constitution. Since this is following up in the reference to Phillips v. Martin Marietta, I'm not sure if you're not getting the difference between the constitution and statutes or if you are switching to an argument over why the Civil Rights Act of 1964 wasn't declared unconstitutional (at least with respect to discrimination between private parties) like the Civil Rights Act of 1875.
The Civil Rights Act explicitly expanded the rights of a group of people (women) that are not guaranteed in the constitution. This is exactly what the legislation passed by Colorado did . . . it expanded the rights of a group of people (gay couples) that are not guaranteed in the constitution. You were saying that using the former to make decisions in the Supreme court is OK, but using the latter to make decisions in the Supreme Court is overreach and 'legislating from the bench' . . . I'm trying to understand your logic for this position.
The Civil Rights Act is a federal statute. The supreme court applied it in Phillips v. Martin Marietta because they are a federal court. Had their been a question raised as to its constitutionality, they would have been obligated to address such question (once they granted cert, unless they kicked it down on another ground and so didn't have to address the constitutional question). So essentially, we became more enlighted, and Congress, being subject to negative or positive response of their constituents, rightly passed legislation essentially reflecting a conclusion that it is wrong to discriminate in employment on the basis of sex.
That's a massive difference from taking an area of law that previously had been almost exclusively in the purview of the states (except that DOMA dictated how the federal gov't treated marriage for the purposes of federal law, such as with SS benefits), and having 5 justices with lifetime appointments and insulated from any political process other than impeachment, deciding that they had new "insights" and therefore states not rewriting or reapplying their state statutes to include a newly found right would be violating substantive due process and the equal protection clause.
I'm not sure what your referencing by "the legislation passed by Colordao". I would assume the antidiscrimination law at issue in the cake baking case, but in context maybe you're talking about them legalizing same sex marriage? Either way, that's a colorado state law that won't be before the U.S. Supreme Court unless there is a constitutional question they want to address. In the cake baking case, there was a question over whether it violated by first amendment by mandating expression, and the court punted on that question and instead just ruled that in that particular instance, the colorado commission exhibited such hostility and bias that they had to start the process over. If you're talking about legalizing same sex marriage, there is no constitutional question for the federal courts raised by Colorado legalizing same sex marriage (don't think there was a colorado plaintiff in the Obergfell case, FYI), unless maybe a full faith and credit issue came up if they later moved to or were traveling to another state where it became an issue.
By 'legislation passed in Colorado', I'm referring to all of the legislation passed guaranteeing equal treatment of gay people (among other protected classes). This includes marriage, employment discrimination, adoption, military service, housing discrimination, general discrimination, etc.
The Civil Rights Act expands the rights of women beyond what is written in the constitution. The legislation passed in Colorado expands the rights of gay people beyond what is written in the constitution.
You were arguing that in the Obergfell case, judges were 'legislating from the bench' . . . despite the fact that much legislature has been passed already in the country regarding gay marriage. Is your argument that the Supreme court can only consider federal legislature when making decisions about things not covered by the constitution? I'd argue that it's a pretty good example of the democratic process having said something about discrimination against gay marriage".
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By 'legislation passed in Colorado', I'm referring to all of the legislation passed guaranteeing equal treatment of gay people (among other protected classes). This includes marriage, employment discrimination, adoption, military service, housing discrimination, general discrimination, etc.
The Civil Rights Act expands the rights of women beyond what is written in the constitution. The legislation passed in Colorado expands the rights of gay people beyond what is written in the constitution.
And both are and should be applied by the relevant courts, subject to constitutional limitations.
You were arguing that in the Obergfell case, judges were 'legislating from the bench' . . . despite the fact that much legislature has been passed already in the country regarding gay marriage. Is your argument that the Supreme court can only consider federal legislature when making decisions about things not covered by the constitution?
The Supreme Court should only be able to interpret and apply law. For the vast majority of the times, the U.S. Supreme Court is going to be applying the U.S. constitution or federal law. Federal district courts may interpret and apply state law regularly, the circuit courts less regularly (and they're more likely to certify a question to the relevant state supreme court if it's a significant issue), but I don't think most cases requiring an interpretation of state law are going to make it to the U.S. Supreme Court because they take so few questions.
I'd argue that it's a pretty good example of the democratic process having said something about discrimination against gay marriage".
That's a good example of a state legislature making state law, which is what it's supposed to do. That's not a reason to force another state to change the law within their jurisdiction. But I wasn't intending to imply that the Supreme Court should make new legislation after it had taken a survey of state laws. I meant that they should leave the legislating to legislative bodies. Congress for federal law and state legislatures for state law.