Au revoir, Mr. W. Nice to bandy words with ye.

Ah, so tyranny is okay as long as the percentages are low.

> I said “Sigh.” Because

Well, then you should have said more. Anyway, what do you want, a treatise?

> His timetables are hysterical.

I won’t try to crunch the numbers, but all that amounts to, “don’t worry, the sky is falling, but it is falling slowly.” The point I was raising doesn’t change because it will take longer for it to happen.

> They will just change it again, or ignore it.

It beats the hell out of living on the whim of 5 judges.

> We can _say_ whatever we like

Yes, you can, but only certain statements are consistent with your previous positions.

> Now you’re dodging. :^)

Not at all. Show me where it is not enough.

> Yes.

No.

> > Wait, are you suggesting that there wasn’t proper respect for the law?

> Yes.

Except that is precisely what you are fostering with your views.

> Someone has to have the last say. Per Marbury, apparently, that someone is the Judiciary.

Wrong. Per Marbury, the constitution does. Indeed, under Marbury, the power of the Supremes to strike down a law extends only as far as the constitution does. Once you go beyond the constitution, Marbury no longer supports you.

And here’s the other dirty secret. The same reasoning would allow the other two branches to refuse to go along with the unconstitutional behavior of the other two. So in fact, Marbury doesn’t even make it clear that the Supremes have the last say.

> You omitted an umlaut.

Possibly. But my point holds.

> Except according to you their enactments are nothing but mere suggestions, to be upheld or struck down at whim.

Not at all. Their enactments are law, mostly.

What % of laws are actually struck down by courts? (I have no data but it ‘feels’ like a relatively small number.)

> Yeah, why actually learn anything, right?

I said “Sigh.” because the only reason you proffered that you are right is that you studied it. That’s not enough. Lots of people who don’t agree with you have studied it, too. (Note: IANAL.)

> Then Mark Steyn is not such a chicken little.

His timetables are hysterical.

> And here’s somewhat of a remedy:

Not sufficient, I think. They will just change it again, or ignore it.

> This may be your high water mark. Don’t waste it.

There are probably more wins yet to come, but I agree that it is always wise not to waste good opportunities.

> If you really believed we had to be as subservient to the Supremes as you claim, then you would say, “they said it, so it must be right.”

We can _say_ whatever we like, but the truth is that the country _did_ exactly what they said.

>> And when “reading” is not enough?

>

> If you are doing it right, its always enough.

Now you’re dodging. :^)

>> He blithers on about law schools, the homosexual agenda

>

> No…

Yes.

> And, btw, I didn’t bother to correct you until now, but its PERKS. With a k.

The root term is “perquisite”, as you know. Mind your own p’s and q’s.

>> (The fact that many of them are on the same topic (racial equality) indicates exactly that perqs were not given up when required.)

>

> Wait, are you suggesting that there wasn’t proper respect for the law?

Yes.

> But the courts get the final say…

Someone has to have the last say. Per Marbury, apparently, that someone is the Judiciary. They are the accepted vehicle for legal review, so I use them.

> “judiciary, judiciary uber alles!”

You omitted an umlaut.

> I wish you’d made an answer.

That is an answer. I pointed out to equate rule by the congress with rule by the Supreme court is morally relativistic and betrays a lack of faith in democracy. If you don’t understand that this is a criticism, you are really far gone.

> The House (+ Senate) already have authority over me and the issue.

Yes, and you have a vote in both, presuming you are a citizen and not otherwise unqualified to vote.

Except according to you their enactments are nothing but mere suggestions, to be upheld or struck down at whim. Indeed, you even defend the courts making their own prospective pronouncements about what would and would not be acceptable laws.

> Sigh.

Yeah, why actually learn anything, right?

> Quite true. It’s a problem for which I know no good remedy.

Then Mark Steyn is not such a chicken little. And here’s somewhat of a remedy: 1) change the actual written constitution and 2) foster respect for the written constitution. Maybe you can’t stop the demographic trend, but you can put institutions in place to protect those who come after you. The whims of 9 judges will no more protect gay people in that future, than a piece of tissue will protect a man from a wall falling down on top of him.

This may be your high water mark. Don’t waste it.

> I will never really know [about Bush v. Gore.]

You’re dodging. If you really believed we had to be as subservient to the Supremes as you claim, then you would say, “they said it, so it must be right.” There can be no independent judgment under your theory of constitutionalism.

> And when “reading” is not enough?

If you are doing it right, its always enough.

> He blithers on about law schools, the homosexual agenda

No, he criticizes the court for sacrificing long-term principles and constitutional protections, for short term gains.

> Most of those are not about giving up perqs.

Au contraire. For instance, in England the “2nd amendment” only applied to protestants.

And, btw, I didn’t bother to correct you until now, but its PERKS. With a k.

> (The fact that many of them are on the same topic (racial equality) indicates exactly that perqs were not given up when required.)

Wait, are you suggesting that there wasn’t proper respect for the law? How hypocritical. YOU have no respect for the law, either.

> The legislature is perfectly free to make more.

But the courts get the final say, according to you, based on whatever strikes their fancy. Thus “judiciary, judiciary uber alles!”

> You sound obssessed.

Like I said, I am touchy about tyranny.

>> Please say for me what is “tyranny”? How does it differ from “rule of law”? (In both cases, the court tells you what to do, right?)

>

> That’s pure moral relativism and a fundamental lack of faith in democracy. I wish I was surprised.

I wish you’d made an answer.

> Seriously, why not give it to the house of representatives…?

The House (+ Senate) already have authority over me and the issue.

>> Why do you think you know this?

>

> Because I have studied it.

Sigh.

> The fact is people whom you view as “intolerant” of homosexuality are breeding faster than people who are “tolerant.”

Quite true. It’s a problem for which I know no good remedy.

>> I must accept [Bush v. Gore.]

>

> Yeah, I am sure you thought Bush really won, right?

I will never really know. I have my opinion. It’s the SC’s opinion that matters, however.

>> I don’t see how this connects to your defense of literalism.

>

> Easy. If all you do is read the law neutrally, then what you say is taken with weight.

And when “reading” is not enough?

> Scalia said nothing about the desirability of the outcome he advocated, only what the law said on the subject.

Not quite. He blithers on about law schools, the homosexual agenda, scoutmasters, Canada, same-sex marriage, and whatever else displeased him that day.

>> My comment about perqs indicates exactly that I believe that the Majority is never happy to share its perqs with a Minority, and putting it up to a plebiscite gets you exactly nowhere.

>

> Really? “Never,” you say? That is self evidently untrue, as attested by the 1st, 2nd, 4th, 5th, 6th, 7th, 8th, 13th, 14th, 15th, 19th, 23rd, 24th, and 26th amendments, not to mention the ex post facto clause, the contracts clause, the Civil Rights Act of 1964, the ADEA, the ADA, not to mention the numerous state laws that protect gay people (and other minorities) from discrimination, passed with the consent of the people. Your ignorance is showing.

Most of those are not about giving up perqs. (The fact that many of them are on the same topic (racial equality) indicates exactly that perqs were not given up when required.)

>> The Framers were very wise to have three different ways of composing the three branches.

>

> But according to you, one branch is “more equal” than the others. You sing “judiciary, judiciary uber alles!”

I said no such thing. I said the courts can strike laws. The legislature is perfectly free to make more.

> …a scimitar.

You sound obssessed.

> Please say for me what is “tyranny”? How does it differ from “rule of law”? (In both cases, the court tells you what to do, right?)

That’s pure moral relativism and a fundamental lack of faith in democracy. I wish I was surprised.

> But they do

No, they don’t. Seriously, why not give it to the house of representatives, if you aren’t willing to adhere to an actual constitution?

> By the way, your complaint about proportions applies equally well to all branches.

Not completely, and at least we the people can choose those branches.

> You don’t like being ruled, do you?

By an oligarchy? No.

> Why do you think you know this?

Because I have studied it. this is far from a radical view. But I get it now. You are fundamentally ignorant of history, and our constitution. That is why you thought the ERA was about women’s right to vote, and why you thought that judicial fiat alone was responsible for women having the suffrage today.

> Absolutely right. Them’s the rules of the game.

No, its not. It’s the cheat the living constitutionalists have put in, sacrificing long term security in our rights for short term gains.

> Chicken Little.

Head in the sand. The fact is people whom you view as “intolerant” of homosexuality are breeding faster than people who are “tolerant.” And they are passing down their values. And the ones who would actually have all gay people killed are reproducing the fastest of all. Only a fool thinks history only goes in one direction. Anyone who only studies the history of America during reconstruction would understand that gains once made, can be lost. The constitution demanded equality for African Americans. Terrorism and judicial activism undid our constitution’s promise during that period and put a happy face on the Ku Klux. You ignore the facts of history at your peril.

> That paragraph is utterly incoherent: first you defend my position, then you have some hyperbole, then you revert to your position. Huh?

No, I point out its inherent contradiction. Am I going too fast for you? It only sounds incoherent because I am pointing out the incoherence underlying living constitutionalism.

> I must accept [Bush v. Gore.]

Yeah, I am sure you thought Bush really won, right? Who exactly do you think you are fooling?

> I don’t see how this connects to your defense of literalism.

Easy. If all you do is read the law neutrally, then what you say is taken with weight. But if you think that the law can be ignored at whim, then you are no longer a neutral arbiter. Who would ever hire a referee known to be biased toward one team?

> I don’t pay much attention to BF’s rhetorical style so I doubt that I am emulating it.

You may not have intended to do so, but your personalizing a matter of correct procedure is straight out of his playbook. Scalia said nothing about the desirability of the outcome he advocated, only what the law said on the subject. But Frank attacked him anyone pretending he was advocating a certain policy, instead of a certain way to make the law. Ditto with you to me.

> My comment about perqs indicates exactly that I believe that the Majority is never happy to share its perqs with a Minority, and putting it up to a plebiscite gets you exactly nowhere.

Really? “Never,” you say? That is self evidently untrue, as attested by the 1st, 2nd, 4th, 5th, 6th, 7th, 8th, 13th, 14th, 15th, 19th, 23rd, 24th, and 26th amendments, not to mention the ex post facto clause, the contracts clause, the Civil Rights Act of 1964, the ADEA, the ADA, not to mention the numerous state laws that protect gay people (and other minorities) from discrimination, passed with the consent of the people. Your ignorance is showing.

> The Framers were very wise to have three different ways of composing the three branches.

But according to you, one branch is “more equal” than the others. You sing “judiciary, judiciary uber alles!”

And you do so with no concern for the future, what precedents you are setting. You will take the blindfold off lady justice and live by her sword. And die by it, too, when it becomes a scimitar.

> Yeah, I get a little sensitive when it comes to judicial tyranny and the like.

Please say for me what is “tyranny”? How does it differ from “rule of law”? (In both cases, the court tells you what to do, right?)

> To think that the judiciary represents us is lunacy.

But they do, more or less. They represent us when they enforce values that we hold dear, even if we cannot enunciate them ourselves now.

By the way, your complaint about proportions applies equally well to all branches.

> But to say that there shall not only be no guarantee of the rights… and that they will instead exist purely at the whim of 9 oligarchs, is an outrage.

You don’t like being ruled, do you?

> Yes, because they are in line with the original intent of the constitution.

Why do you think you know this?

> And your rights under Lawrence can be overturned at the whim of 5 judges.

Absolutely right. Them’s the rules of the game.

> Mark Steyn

Chicken Little.

> I mean try this little test….

That paragraph is utterly incoherent: first you defend my position, then you have some hyperbole, then you revert to your position. Huh?

> Bush v. Gore

I must accept it. To do otherwise, I must break out the muskets. (I didn’t like it, of course, but it’s not a perfect world we live in.)

> You lose the ability to trust the judiciary as a politically neutral actor.

I don’t see how this connects to your defense of literalism. The furor was that the decision gave the appearance of disenfranchising voters in FL. A re-running of the election in the affected counties would have quelled the argument.

—

Finally, w/r/t Barney Frank and Antonin Scalia:

I don’t pay much attention to BF’s rhetorical style so I doubt that I am emulating it. My comment about perqs indicates exactly that I believe that the Majority is never happy to share its perqs with a Minority, and putting it up to a plebiscite gets you exactly nowhere. The Framers were very wise to have three different ways of composing the three branches.

About AS, my difficulty with his behavior in Lawrence is that he made every effort to incite the kind of “culture war” that he decried. Hypocrisy does not sit well with me. He is, of course, entitled to his opinion, and, in fact, it is his profession to offer it.

Btw, in all the outrageous things you said, this has to be the worst:

> you, personally, are a member of a privileged class and you don’t want to share your perqs with me

This is barney frank logic. It argues that “if you don’t want it done by judicial fiat, then you don’t want it done, period”–as if there is no other way for a policy to be put into place, or as if there is nothing at all wrong with judicial fiat. So if Scalia dissents in Lawrence then he wants all gay people locked up. The idea that a judge should decide without regard to his or her personal views, or that a commenter might want judges to do so, never even occurs to you, or the esteemed representatitive from Massachusetts.

> Your knickers are in quite a twist, aren’t they? So much heated language.

Yeah, I get a little sensitive when it comes to judicial tyranny and the like.

> The men who wrote the Constitution are neither in office nor serve in any advisory capacity to the government now. Thus, it is the responsibility of we, the living people at any moment, to interpret the document in a way that clarifies the murky problems of today. This is what the Judiciary is assigned to do.

If it is on “we the people” then it is emphatically NOT the domain of “we the judiciary.” To think that the judiciary represents us is lunacy. Look at the current Supreme Court. It has one black man. That is roughly proportional. One woman. That’s not terribly proportional. No hispanics, no asians. All of them old, lawyers, and rich. None disabled or gay, so far as I know. It doesn’t exactly “look like america,” does it?

As I said in another thread, if we are going to ignore the constitution entirely, then we might as well burn it up and move the british approach: no written constitution, and the legislature runs rampant over all. At least that would be democratic (presuming we don’t try to have a house of lords). But to say that there shall not only be no guarantee of the rights for which our forefathers and occassionally foremothers literally bled and died for, and that they will instead exist purely at the whim of 9 oligarchs, is an outrage.

> Do you reject Brown vs Board of Education? There is no amendment to cover this case yet.

Yes, there is. The 14th. In fact it was judicial activism that kept that amendment from having its full intended application.

> Do you believe women should not have the vote? The ERA never passed either.

Are you under the impression that the ERA was about the right to vote? Um, read the 19th amendment. And the 14th deals with every legal equality but the right to vote.

> I bet you don’t reject these two

Yes, because they are in line with the original intent of the constitution. Indeed, the right of a woman to vote is more endangered by “livign constitutionalism” than originalism since it could not be more explicitly stated. After all, by your logic, why should we be bound by the words of that past generation? Shouldn’t the judges be allowed to make shit up as “we the people?”

> you, personally, are a member of a privileged class and you don’t want to share your perqs with me

Au contraire. I have probably faced more discrimination than you.

> the 17 years living under Bowers v Hardwick.

And your rights under Lawrence can be overturned at the whim of 5 judges. Even if we pass a constitutional amendment protecting gay rights, according to your view of the world, all of your progress is only 5 votes away from being taken away.

Now crack open a copy of Mark Steyn’s “America Alone” and you will see how utterly foolish that position is. Better that Lawrence never happened, that you instead worked to convince we the people to change our constitution, so that if God forbid, the demographic shifts which are very likely to make our country more conserative in the future occur, then the constitution would protect you from a demographic disaster. But only if you also foster respect for the founders, by urging against “living constitutionalism.”

I mean try this little test. Can you explain what gives those old geisers the right to overrule the people? What is the justification? You have tossed out the explanation that did perfectly fine by us for decades: marbury v. madison, which argued that all they were saying was that if you don’t follow the rules in the constitution, then the law passed is no law at all. Because plainly you are not talking about that written document called the constituion. To you the written constitution, with its freedom of speech, right to bear arms, all that to you is just a suggestion, not a command. So what is the justification for the rule of 9 oligarchs? Chances are it will come down to a “well, this is how we have always done it.” Which is wrong on two counts. First, this is not how we have always done it. Second, if bare tradition is a persuasive argument for judicial activism, why not also for the preservation of marriage?

Btw, I assume you also accepted Bush v. Gore, right? You accept Al Gore really lost, right? Because if living constitutionalism is okay, then by definition so was that decision. They could have shortened the opinion to “Bush wins because Gore is too much of a douche to be President,” and that, according to your so-called principles is sufficient. Indeed, the logic becomes downright nixonian: if the Supreme Court does it, it can’t be illegal. They could declare tomorrow that every month a virgin shall be sacrificed (willingly or unwillingly) on the courthouse steps and according to your logic, that’s “the constitution.”

That is not rule of law, then, but rule of man (and one woman). I don’t think our founding fathers wanted to trade one tyrant for nine.

And the rancor and hate over Bush v. Gore is the inevitable result of “living constitutionism.” You lose the ability to trust the judiciary as a politically neutral actor. Then there is no referree, no one who can come in with authority to decide politically charged matters, such as the election of the president.

Your knickers are in quite a twist, aren’t they? So much heated language.

Let’s make it real easy: The men who wrote the Constitution are neither in office nor serve in any advisory capacity to the government now. Thus, it is the responsibility of we, the living people at any moment, to interpret the document in a way that clarifies the murky problems of today. This is what the Judiciary is assigned to do.

Changes to the US Constitution (e.g., amendments) are difficult to achieve and rightly so: they pertain to the overall vision of the kind of nation we are. It is a mistake to pepper such a document with petty riders, especially when they concern relatively fleeting social issues (e.g., consumption of alcohol, medical procedures, student-teacher ratio in schools).

Do you reject Brown vs Board of Education? There is no amendment to cover this case yet.

Do you believe women should not have the vote? The ERA never passed either.

I bet you don’t reject these two, and that is because your norms have shifted to match the norms of the society in which you live. Gay civil marriage is merely the most-recent norm in flux.

So, as I said before, and I’ll say it again, you are only unhappy about VT’s decision because you, personally, are a member of a privileged class and you don’t want to share your perqs with me. The literalist doctrine you espouse is just so much conservative claptrap to cover-up that point.

Finally, as you apparently have not been paying attention, judicial decisions haven’t gone my way for a very long time. I can’t claim that Roger Taney did me any direct harm, you seem to have forgotten the 17 years living under Bowers v Hardwick.

As a constitutional matter, I think the question is far more difficult because it’s so obvious that the framers of the Fourteenth Amendment (I make no claims about state constitutions) would not have welcomed or anticipated this application of the Equal Protection Clause. To me, those expectations don’t end the case because the vague language of the Clause can quite properly be applied in ways unanticipated by the framing generation (e.g., segregation, inter-racial marriage). So in the end I’m uncertain whether the discrimination against gay couples is unconstitutional — but I am reasonably sure that it is bad, and for that reason I am glad that Vermont’s legislature took the action that it did.

> It’s only “activism” when you don’t agree with it.

That’s complete post modernist claptrap. The constitution meant something definite. That is why the wrote it down and ratified it with a supermajority–because it was meant to have a specific meaning and a binding legal effect.

But to hear you tell it, what they should have wrote was, “the constitution is whatever the Supreme Court says it is.”

Seriously, why write down specific constitutional provisions, when according to you the Supreme Court can do whatever the hell it wants?

And as for my specific point, giving the legislature an ultimatum and a list of acceptable responses is activism. They should simply strike down what is insufficient and let the legislature try to figure out what would be sufficient on its own. Seriously, what is that but an advisory opinion, something considered since the beginning of this republic to be outside the proper role of the judiciary?

> Had the decision gone the other way, you are likely to have simply said that ‘justice has been done’.

Um, yes, that is almost tautologically true. If you say the court was wrong to do X, you are implicitly endorsing a different outcome. Its hard to imagine a scenario where the Supreme Court cannot possibly reach a correct outcome.

Wow, you really showed me.

> They are specifically empowered, via careful process, to decide which laws must be taken down.

No, the constitution decides it, ideally. They are supposed to do nothing but in good faith attempt to understand what the constitution actually means. But I am sure what you offered is the same rationalization Roger Taney used before he decided that black people couldn’t be citizens of the United States and then gratuitously decided that the Missouri Compromise was illegal, a move highly reminiscent of what the Vermont Supreme Court did in regard to gay marriage.

The arrogant mistake you keep making is assuming that the activists are always going to come out your way. Its much better, smarter, if we foster a respect for the constitution as written and then we the people change the constitution to express our preferences, rather than live under the paternalistic hand of judges.

It’s only “activism” when you don’t agree with it. Had the decision gone the other way, you are likely to have simply said that ‘justice has been done’.

In point of fact, it is “activism” (or not) either way… that is what courts are for! They are specifically empowered, via careful process, to decide which laws must be taken down.

But on the other hand, if Vermonters felt that they had seen enough loving gay couples that were all but in name married that it created a sympathetic groundswell, well that is great and what democracy is all about.

I will say i honestly don’t know the answer to that question.

And i maintain that the mere fact that the VT Supreme Court told the legislature what it would and would not accept makes that original decision a laughably obvious example of activism. Yes, it is efficient, but it also rips the mask off this whole “living constitutionalism” excercise.