A Debate Continues: ReasonFest
@Gaidheal_Alaska and I follow each other on Twitter. He’s a smart guy and though we share most political ideologies we go about that in very different ways. This brings about tons of opportunity for lively debate and discussion but with the 140 character limit sometimes things have to get all bloggy.
In a recent blog post he expounded on a discussion we’d been sort of unable to properly have within the confines of tweets. The topic is the recent SCOTUS decision which effectively forced states to not only allow but recognize marriage between any two consenting and eligible adults regardless of gender.
To begin with I think we should set the contextual meaning of some terms. Gay marriage; a more nonsensical term is difficult to think of, is a loaded word and an oxymoron. Partly it’s loaded because only people with a bent of moral philosophy that prohibits homosexuality really give a damn. Partly it’s loaded because that having of ones nose in someone else’s business and standing in judgement of them is also prohibited in these same philosophies so the people most fervently against gays being “married” is on the face of it a little hypocritical. Additionally, marriage itself is a religious practice, not a civil one and this is where the government of our country screwed itself. Permitting of marriages and recognition of only marriages performed under such permits is idiotic in the extreme. Many nations leave rites of birth, death, marriage and divorce to the church (for lack of a better and more inclusive term). The religion is the arbiter of the eligibility and the agent of the rite so only the church should have shit to say about it. If the church marries you, well the government can only think of you as being married to whomever the church said you were married to under the church’s authority. When church ceded some of that authority to grant the rite (note the spelling difference between rite and right) to the government they broke marriage. I don’t know when or why it happened but it did here at some point.
That of course means that since people are disgusting and Rule 34 is a real thing that the government must at some point start setting limits, like you can only be married to a live adult human who is capable of making their own life decisions. Well, now the mentally retarded may not end up with the right and the courts will end up involved again and bang, now Benny and Joon are getting hitched and making itty bitty Benny’s and Joon’s.
The point of the 14th amendment is the hard part for most to accept. It means that whatever your personal beliefs, you’re nothing special and every single person in the country must be treated equally under law. That means a lot of laws are going to fall over the coming years because people during the progressive era spent a lot of time sticking their legislative noses into the affairs of private citizens in a streaming self-righteous assertion of rightness.
If government has no right to make a law respecting religion then any religion defined by any set of rules is legit and thence gays can be married because Rule 34 and people are disgusting animals trying to find a niche in their environment. SCOTUS did the right thing as gross as it might be to some people. If you ask them to solve a question of law they might do it and we have to suck it up and wait for the court to change if we want to try again.
Now to the point by point response to the Obergefell and Powers of The Federal Government post linked above.
Women were given the right to vote as a constitutional amendment because the constitution actually defined men as the only critters with any legal standing. For a while it was only white men and that was in the words. Women couldn’t bring the case to the court because they had no standing to do so. They were property, not citizens according to the constitution. Shitty as that was, it was eventually undone. I’d also assert that only property owning men should vote. If someone wants to debate that issue I’m happy to but know that it makes far too much sense when you think about it.
Alcohol being banned is a weird one. It was done under pressure from interest groups and as such was not able to be done under a law because it violated the constitution in several ways. The only way to rationalize the desire of the mad old bitties and the law was to amend the constitution directly. Then the prohibition could NOT be challenged in court on constitutional grounds. I’m really surprised I have to point out these last two paragraphs to you.
Income taxes required the 16th amendment because the way that the tax was to be implemented and what was to be done with the proceeds was going to violate the constitution. Pollock v. Farmers’ Loan & Trust Company. The 16th amendment was almost a direct repudiation of Thomas Jefferson’s ideals on the matter of the growing taxation and expansion of governmental reach and that might explain why it seems so odd that it might be done. The author of the Declaration of Independence would have never accepted such a thing for sure. Good thing 16A came along almost 100 years after Jefferson.
The de-facto ban on machine guns and other Class III weapons did not happen with the NFA and it was done as a tax specifically to avoid it being a ban which would have been unconstitutional. Admittedly this is a prime example of government run amok. Using very narrowly interpreted views of law to effectively violate the constitution under the guise of “tax”. They used tax specifically because the federal government has almost complete carte blanche with respect to levying of taxes. You should know that. The real ban was the Hughes Amendment in 1986. That actually did ban machine guns from being produced for civilian consumption from there on. That actually was unconstitutional but because it was stuck in a bill called the Firearms Owners Protection Act which was hugely necessary at the time to actually protect gun owners from the government. Basically they were trying to give us a hand job but insisted that we give a reach-around and Hughes used it as a window to fuck the citizenry in the ass.
The previous 4 points have all been teetering between plain ol’ straw-man arguments and false equivalency but really they’re just broken comparisons.
The reason for the lack of constitutional amendments since 1971 is simple and many-fold. First the Sunshine Laws put public affairs much more into the open than they’d been and opened the door for really effective and voluminous lobbying efforts to get into what used to be closed markup sessions. This caused every decision to have huge and instantaneous political consequences and legislators were loathe to rock the boat lest they piss off some segement of their constituency. Second, the big problems had already been largely fixed. The constitution provides for a massively fair and equitable existence (in theory) and doesn’t need screwed with too much. Third, the important one, is you’re looking at a scale of time that’s too small. Amendments are frequently spaced decades apart. 35 years is about half as long as the longest gap in history so it’s meaningless to point out. Lastly, the Sunshine Laws not only opened up lobbying but that caused a firestorm of intra-party instability. There just wasn’t enough cohesion in either party nor enough willingness to compromise on either party’s part to accomplish something that required so much of the government to agree and which has such long lasting ramifications. This is a non-sequitur argument though and has not thing to do with the point you’re trying to make. It’s also a red herring as you’re distracting from the point of whether or not gay marriage needed an amendment and you’ve not established that it did/does. In fact SCOTUS has refuted the notion that an amendment was/is necessary at all by noting that an extant amendment already covers this. Logical fallacies are stacking up bud. They’re not good for your argument.
As far as where the answer lay, I would partially agree with you insofar as it was about the 1930’s where the government stuck their heads up everyone’s asses and started passing intrusive and back-door’d legislation which while legal under certain interpretations of law, were blatant attempts to circumvent the protections of the constitution. NFA is a prime example but prohibition is not. NFA was done back-door and then more back-door evil (GCA 68) heaped upon it and more (Hughes/FOPA 86) until we got BATFE in its current form which actually describes a string as a machine gun part. Prohibition of alcohol was done via an amendment which means it not only was legitimate but could not be well argued against. Odd then that prohibition is the one that was repealed though and NFA and GCA and Hughes are still in place.
You’re correct in that the federal government is broken. It was broken by the people demanding that it do their bidding instead of what was good for the country. People think their opinion matters or should matter to their representatives and it does and should absolutely not. You choose a member of congress indeed but, when you have done so he is no longer a member of your community. He is a member of congress and he does a disservice to you if he sacrifices his responsibility to your opinion. Sunshine Laws, direct election of senators, presidential primary elections, ballot initiatives and all of the dispersing agents of governing authority being spread amongst the people have eroded the power of the government and true power now lay in the bureaucracies that have been generated as a result of opening up of government and increasing the zones of responsibility that we expect them to take on.
It’s a sad fact that much of the time if you want something, convincing the supreme court is the route of choice but it’s only the route of choice for people with immense resources to spend on the issue. If that’s not how it is then legislation or even nullification are the preferred routes to effective policy change.
Federalism was destroyed by the Civil War and those that spend time lamenting the death of proper federalism are practicing a truly non-useful form of sentimentality. The fact is that before the Civil War each state was basically a country. The Fed had extremely limited authority and responsibility. Unfortunately in their efforts to crush the south (which will rise again) the north aggregated much of the authority of governance into the Fed and the states of the north supplicated. The south was unable to do that and their spirit of independent states acting in unison was partly responsible for their swift crushing under Sherman’s boot. After the war there was a continual lessening of the sense that one might be Georgian if from Georgia and that you were an American from Georgia and then that you were an American in Georgia. The states lost their lofty positions because they got the shit kicked out of them properly by, I must point out, the single most constitution trampling president in history who oddly gets called the Great Emancipator, Abraham Lincoln, despite the fact that he never liberated Jack or shit and that 3 constitutional amendments done through congress actually freed the slaves and made them citizens.
The next assertion that the Fed would have used a constitutional amendment in the old days to “legalize” gay marriage is simply false and displays a shocking lack of understanding between laws and rights. There was never a need to have a law directly against gay marriage until fairly recently because gays weren’t taken to really well for most of the country’s history and the permit form only had a place for “Man’s Name” and “Woman’s Name”. It was not for a very long time a law that said gays can’t get married. It was done simply through limiting the options that the form for the license would allow. Since there was no law and the religious right felt the need for one as gay rights causes started to become cause celeb during the 80’s and 90’s amendments were done to state constitutions which explicitly prohibited not being gay and married but the state from recognizing that condition. The questions asked in Obergefell are simple and basic questions of equal protection and since they address state constitutions and state laws and as such they are the province of the court system. The court system ruled. If there had been no constitutional language or law then there would no basis for a lawsuit. If it had been recognized by a constitutional amendment then that amendment would be the law of the land but it would be unnecessary because the issue is settled in extant amendments, to whit the 14th.
Justice Kennedy wasn’t the only judge in the room and he’s not the one that made the decision. The full SCOTUS banc did. The follow-up paragraph of 1868 straw-man’ness is nifty but irrelevant. To quote,
The intent behind the 14th Amendment was to put blacks on an equal legal status as white people before the law. That was the intent because that was what was going on at the time….
Does anyone seriously think that the people who passed that amendment were in effect authorizing same sex marriage? To assert that it doesn’t matter what they thought is to in effect repudiate the whole notion of self government. The people who passed the 14th Amendment had certain outcomes in mind. To twist that amendment to mean totally unrelated and unintended outcomes is corrosive to the whole notion of government by consent of the governed which was the key foundational concept in the Declaration of Independence. According to the Declaration, when a government no longer operates by the consent of the governed, then the people have to right alter or abolish said government.
Not, it absolutely doesn’t matter what they wanted the extended ramifications to be. The fact is that the protections clause is fair on the face of it. Your assertion that the morality and desires of the writer of the 14th cared to carve out some protections but not others which he thought were icky is absurd. The idea that equal protections being applied equally repudiates the intent of the 14th is the most amazing kind of double-think. The idea that rights must be arbitrarily restricted among classes of people is corrosive is a plain jane slippery-slope fallacy and a statement of fact without a shred of evidence. Your consent isn’t necessary, the other 379,999,999 people in the country gave theirs. Consent in governance is the entirety of time that there is not an active revolt in progress.
We are at a place where the plain meaning of many parts of the Constitution are ignored and meanings nowhere to found are substituted in their place. We are at a place where the Constitution means what five men in black say it means.
Sure enough. Some really questionable decisions have been handed down and each and every time it happens it’s the Federal Government being sued by someone else about something that the Fed decided to do which are either prohibited directly or not expressly granted to the Fed by the constitution. Things like Obamacare (Oh! Bummer! Crap! was my response to the name.) being said to be not unconstitutional because it was a tax despite exactly not being a tax and instead being a law forcing me individually to engage in commerce which I may not need or want. So you’re right that SCOTUS is abused and frequently is too full of cowards and those ignorant of law and history and logic to make the right decision and it is in fact corrosive to the country every time they spill their idiocy. It’s a good salve that the SCOTUS has done a generally acceptable job of enshrining our rights. I think we can pardon them the occasional mistake since the country is supposed to be here forever and all. Perhaps we can fix the errors a little later and laud our accomplishments for the moment.
To say that the constitution doesn’t grant the exact power that it does to whom it does is a false statement. I expect better from you. They have life tenure, they are appointed and then confirmed. They can accept or refuse to hear any case they want and their decision is final. Dred Scott was a case of SCOTUS behaving exactly like they did with Obamacare and is a decent demonstration that nothing is perfect but does nothing to bolster your point that they lack authority.
As far as self-government, perhaps we have different definitions. Self government means that the people pick who will lead them, not what those people will do individually by virtue of having been picked. That’s delegation and perhaps a quick refresher on delegata potestas non potest delegari will clarify the role of government.
You do not need to win a right that already exists and which is being suppressed by politics. Politics is the domain of compromise not of hard and fast rules. Rights are the domain of courts. Simple as that. The false equivalency fallacy and conflation of the two is harming your argument more than your misunderstanding of how government works and for whom it does so.
San Francisco didn’t make gay marriage legal. Gavin Newsome actually broke the law in a bellwether movement which is characteristic of classical California politics. He recognized that the demographic in his area actually not just had the right but now had a legitimate and urgent need to have that right recognized and defended. California didn’t impose jack on the rest of the country or even itself. As far as gay marriage in California went, Gavin Newsome’s actions in 2004 were more or less a non-factor. In fact all of the marriage licenses issued to gay couples under his 2004 silliness were invalidated and were basically not worth the paper they were printed on. 4 years later the religious right sponsored by the Mormon Church pushed Proposition 8 which passed but was almost immediately struck down as unconstitutional. That created a path for SCOTUS to get into the issue since it would cause a circuit court split eventually as Obergefell came up.
… a gentleman who best embodies what the remedy should be when the Federal government exceeds its authority: John C Calhoun. He is regrettably also famous for being a champion of slavery and it is unfortunate that resistance to the Federal government is so often associated with slavery. It has a much broader pedigree than that. In fact, one of the finest examples of resistance to Federal authority are those who refused to go along with the Fugitive Slave act. The Fugitive Slave act though federal law and as such the law of the land was reduced to a dead letter in many areas of the North by people simply refusing to comply with the law. And it wasn’t just people. The Wisconsin Supreme Court at one point declared the federal law unconstitutional! The phrase ‘law of the land’ fell on deaf ears in many areas of the North with respect to the Fugitive Slave act.
Summing up with a statement that intellectual fail-sauce John C. Calhoun is the example we should be looking to to deal with the problem of capricious, ineffective and overreaching government is just hilarious and terrifying. Calhoun was a political apostate of the highest order, he had no allegiance to any single political doctrine nor a useful understanding of one. He never gave any idea enough effort or time to work. Calhoun started out as a big government, centralized power, nationalist, modern economic terrorist. Within a few years of trying to make his incautiously developed political theories pay off with greater national wealth, cohesion central power and benefits to be delivered to our posterity Calhoun discovered that people are dicks and threw his hands and mind up in the air. His subsequently evolved positions are the highest form on nonsensical bullshit. Nullification for one. Nullification is nothing but crying “wahhhh” and promising to do it anyway when your parents say you can’t go outside and play. It’s not a way to deal with issues which require compromise. Hysterical crybaby bullshit is what it is. Calhoun’s ideas amounted to the abrogation of everything that the government had accomplished up to his time and presage a poor understanding of both people and politics. What he understood was power corrupts and he’d like to be pretty goddamned corrupt if at all possible. If he’d have been alive another 20 years it would be hilarious to see his reaction. A man whose primary solution to any fork in the road is to leave the road entirely would have shit his pants watching the US recover from the Civil War with all the forks and twists in the path that arose. He almost certainly would have been at the head of many riots, insurrections and other treasonous acts because his solution to not agreeing with a law was to violate the shit out of it and just ignore it. Nullification works only insofar as the federal government doesn’t get their panties in a twist about what you’re doing. If they do you can bet your sweet ass that they’ll come down hard and huge on widespread violations of federal law. If the government really doesn’t give two shits like with marijuana; because almost everyone in the country has by now tried it at some point in their lives. The people and the government can’t be too big a hypocrite about it where state laws attempt to nullify federal law. We only get so far. The DEA still raids the odd pot club. The change that comes from modern nullification is that the fed looks at usually VERY OLD rules and considers that society is changing and allows society to change while they back away slowly and try to pretend that they were never against it in the first place.
I count 4 distinct straw-men, 1 slippery slope, 1 false equivalency, 2 red herrings and countless factual errors and misrepresentations. I really expect better from you. Politics is about compromise, not conversion. Part of compromise is willingness to not have it all your way.