Unseating Judges who Legalized SSM in Iowa [Archive]

Uncle Jocko

11-02-2010, 09:13 PM

Live in Iowa. Scared by this prospect. Pissed off at the anti-SSM doofuses who came up with this campaign.

In short: Iowa's system of selecting judges is seen nationwide as a fair, mostly nonpartisan and nonpolitical affair. When a position for a justice opens, a board of various lawyerly types draws up a list of several candidates, from which the governor makes the selection. Since the 1960s, I believe, judges go on the ballot for a "retention" vote (I guess to mollify the anti-"judge for life" crowd that you hear whining sometimes). This is designed as a way to remove justices for corrupt or outrageous behavior ... not because of disagreement with a legal decision.

Well, here comes same-sex marriage! The Iowa legislature, like many other states, passed a "Defense of Marriage" law (it's still hard to write that without my eyes falling out from rolling so much) that defined marriage as between one man and one woman. Eventually, this law made it to the state Supreme Court, which (in an elegantly written and unanimous decision) ruled that it was unconstitutional, falling afoul of the state constitution's requirement for equal treatment under the law.

As you might imagine, the anti-SSM crowd was in an uproar. "Activist judges making law!" they screamed. "They won't even let you vote on it!" they hollered. "Gay people in public mocking me!" they yelled (okay, mostly in their heads, that last one). What to do? Well, let's rile up the old folks and the farmers who hate "elitists" and "queers" and get them to vote against retention of the three justices on the ballot this year.

Bob VanderPlaats, a former gubernatorial candidate (and current goober), is leader of the charge. He's getting a LOT of money from out of state, as you might imagine, and the airwaves have been clogged with "Vote No" ads. They also ponied up a ton of money for signs, which I have seen all over the eastern part of the state.

The campaign boils down to the conservatives holding their breath and throwing a massive tantrum ... "these judges were mean to me! make them go away!" Unfortunately ... it might work. The retention vote is on the back of the ballot, so it takes an extra step to get to it. All the money is on the "No" side ... there has been no such thing as judicial campaigns in Iowa, and the current justices are not about to start that trend. A pro-retention group has been set up, but it's woefully behind financially and hasn't made a lot of publicity.

We have to hope that common sense prevails here, but there's just something visceral about the anti-gay crowd that could really whip up voter turnout for their side. I fear all three of the Supreme Court justices will be voted out ... and this does not bode well for future retention votes, as the VanderPlaats crowd will see their tactics work and they will be back for more. The one small bright spot is, at least for now, the judicial selection system will remain a nonpolitical one where the most qualified candidates will be offered for the governor to choose from. But this could cause a slippery slope that might change that for the worse.

Uncle Jocko

11-03-2010, 08:00 AM

Looks like all three Supreme Court justices will be unseated, with about 55% No votes. It's a very sad commentary on Iowa in general, which has historically been a forward-thinking state in the civil rights arena.

The buzzwords of "activist judges" and "denying your right to vote" -- along with tons of out-of-state money - appear to have taken the day. Apparently the idea of an independent judiciary that protects the rights of the minority isn't that important, at least when it comes to SSM. It's majority rule, dammit! Let the people speak! Give us what we want, or we take your robes away!

I didn't think the judicial branch was supposed to be treated this way. Sad. The one bright spot is that the system to select replacement justices stays the same. For now. But the chilling affect on judges statewide has to be significant.

JXJohns

11-03-2010, 09:25 AM

I voted no, yes, yes. I feel that Ternus had some issues with her personal life that were not in line with being the Chief Justice of the Iowa Supreme court. The Chief Justice cannot host underage drinking parties at her house. I expect her to be better than that.

On a positive note, it appears that not a single judge other than the three SC's was removed. This shows to me that those voting no, no, no may not have been the neanderthals that they have been portrayed as. They didn't vote out the entire judiciary.

50265 Resident.

Uncle Jocko

11-03-2010, 11:02 AM

Wait, what? You think because the voters didn't throw ALL the judges out that they're not "the neanderthals that they have been portrayed as"? What OTHER reasons are there for voting against the Supremes, except that you don't think gays should be able to marry?

I'm using the general "you" there, JXJohns, not you specifically. I see you had a reason for voting against Ternus, and I respect that. That's what the retention vote is supposed to be for, by the way, a method to remove judges who are or may be not qualified for whatever reason. I do fear a slippery slope in the judiciary if judges have to consider the political ramifications of their decisions, rather than simply ruling on the legal grounds of any case brought before them.

I've been trying to explain this at work, to people who keep arguing over the definition of marriage, and activist judges making law, and evil black-robed brigands coming to STEAL YOUR RIGHT TO VOTE and all that ridiculous claptrap that we kept hearing in all the Vote No! ads. Seems to me the simplest description of the ruling was: Anything a heterosexual Iowan has the right to do, a homosexual Iowan also has the right to do. It's not about marrying a goat, or your sister, or five women at once, or any of those stupid responses. A heterosexual can't do any of those things either, so a homosexual doesn't have that right. But while a heterosexual has the right to marry a person (one, not plural; person, not animal) whom they love, there are many who don't think a homosexual should have that right. Even though the Supreme Court found that right quite obvious in the state constitution.

Now, the question of whether a heterosexual has the right to only marry a person of the opposite gender, which a homosexual obviously has the right to do today, is a somewhat open question. But that is yet to be determined, and I for one would hate to come down on the side of discrimination in this matter.

My marriage has nothing to fear from SSM. Nor does anyone else's.

Not picking on you, JXJohns. I appreciate your thoughts ... I always respect those who have a solid reason for their points of view, and who can back them up with data and convincing arguments.

JXJohns

11-03-2010, 11:20 AM

I believe that it shows that they actually made a choice to vote out those who they had issues with, whether right or wrong, informed or otherwise, while affirming the fact that the rest of the judiciary was doing fine. Sort of the opposite of "throw ALL of the bums out" message that I heard too often during campaign season. I honestly was concerned that the same majority would vote out every single judge on the ballot.

Not sure what your ballot looked like, but I bet I had at least 30 on there. Most folks don't vote one way or the other on those so all it would have taken was a determined few to really upset the judiciary. Since that didn't happen, I guess I still have some (misguided?) faith in my fellow Iowegians.

Really Not All That Bright

11-03-2010, 11:30 AM

So you think it's appropriate that they voted against judges based on a single issue? That's more short sighted than the "throw out the bums" vote.

Bricker

11-03-2010, 12:47 PM

So you think it's appropriate that they voted against judges based on a single issue? That's more short sighted than the "throw out the bums" vote.

This potentially much more than a single issue. In other words, judges are not legislators; presumably they didn't rule the way they did because they thought same-sex marriage was wise social policy. Right?

They must have ruled the way they did because they felt the state constitution should be interpreted using a particular method. If the voters felt that this method was not the correct one, that's not a "single issue" -- that goes to the heart of what a judge's role should be.

bup

11-03-2010, 01:16 PM

This potentially much more than a single issue. In other words, judges are not legislators; presumably they didn't rule the way they did because they thought same-sex marriage was wise social policy. Right?

They must have ruled the way they did because they felt the state constitution should be interpreted using a particular method. If the voters felt that this method was not the correct one, that's not a "single issue" -- that goes to the heart of what a judge's role should be.Can you explain that again, slower?

Judges didn't rule that way because of a belief for or against SSM. With you there (at least, one hopes they didn't).

I don't see how it follows that voters decided went through that thought process and felt that the judges were using some incorrect strategy for interpreting the constitution. I think, without cite, that most voters thought, "gays getting married is wrong. That judge will pay," or something much less sophisticated than what you're positing.

JXJohns

11-03-2010, 01:24 PM

So you think it's appropriate that they voted against judges based on a single issue? That's more short sighted than the "throw out the bums" vote.

Did I say that? I certainly don't see it in my posts. I did mention that I am glad that we don't have to replace the entire judiciary, and I'm glad that those who felt strongly about voting the Supremes out left their disdain with them. I also mentioned how and why I voted the way that I did including retaining two of the three judges.

Pretty sure I didn't use the word appropriate.

Bricker

11-03-2010, 06:47 PM

Can you explain that again, slower?

Judges didn't rule that way because of a belief for or against SSM. With you there (at least, one hopes they didn't).

I don't see how it follows that voters decided went through that thought process and felt that the judges were using some incorrect strategy for interpreting the constitution. I think, without cite, that most voters thought, "gays getting married is wrong. That judge will pay," or something much less sophisticated than what you're positing.

I'm contending they thought, "Judges shouldn't decide stuff like that."

Which is arguably true.

Zakalwe

11-03-2010, 08:11 PM

I'm contending they thought, "Judges shouldn't decide stuff like that."

Which is arguably true.Then who does? When the majority votes that niggers aren't people and don't have rights, who protects them? The courts are *specifically* there to protect against the tyranny of the fleeting majority.

Rick, I respect the hell out of you, but you've taken a weird right-wing twist over the last year that has puzzled the hell out of me. IIRC, you're married to a person that most of these tea party fucks wouldn't currently let in the country if they had an open field. We have to have some body that isn't dependent on the vote-of-the-day weirdos to keep their job or we may as well stop pretending to be anything other than a democracy.

Bricker

11-03-2010, 09:14 PM

Then who does? When the majority votes that niggers aren't people and don't have rights, who protects them? The courts are *specifically* there to protect against the tyranny of the fleeting majority.

Rick, I respect the hell out of you, but you've taken a weird right-wing twist over the last year that has puzzled the hell out of me. IIRC, you're married to a person that most of these tea party fucks wouldn't currently let in the country if they had an open field. We have to have some body that isn't dependent on the vote-of-the-day weirdos to keep their job or we may as well stop pretending to be anything other than a democracy.

I think you mischaracterize "most of the tea party fucks." So far as I can tell, most simply favor compliance with immigration law - something my wife and I had no problem doing. I'm not aware of any major tea party candidate or group arguing a complete border shutdown.

Now, you talk about the tyranny of the fleeting majority, as if to suggest that same-sex marriage had a long and noble tradition in this country, and would still be comfortably in place, but for the fleeting desires of a hot-headed mob.

But you know that's not true. It's the crowd seeking same-sex marriage rights that is working a large change in society.

It's fascinating to me that you accuse me of some recent change, and cast your whole argument as something clearly required under the law, but for the recent wash of anti-gay fervor. you know that's not true. You're the one cloaking your argument in deceit.

There are good reasons to argue that a given states' equal protection clause covers same-sex marriage, but you cannot plausibly claim it's inevitable and the only reasonable option. It's perfectly reasonable for a person to want such a change to come from the legislature, not the courts.

Zakalwe

11-03-2010, 10:35 PM

There are good reasons to argue that a given states' equal protection clause covers same-sex marriage, but you cannot plausibly claim it's inevitable and the only reasonable option. It's perfectly reasonable for a person to want such a change to come from the legislature, not the courts.But that's not how it works and you damn well know it. Suppose the Florida Legislature passes a law that left-handed people can't vote. After all, handedness is not a protected class. Should left-handed people just give up their vote until they can convince the Legislature that they screwed up? Or should they go to a court?

RadicalPi

11-03-2010, 11:29 PM

I'm so glad I'm not talking myself anymore in this thread. :)

That said, I'm not sure that removing judges for the content of their decisions is particularly wise unless these decisions demonstrate incoherence. I find this sort of thing worrisome, because the entire point of the judiciary is the taking the big-picture view, and such a perspective seems easier to maintain if one's job isn't on the line. Alas.

I wonder if it's possible to renominate the same three people to the court.

Razrak

11-04-2010, 12:38 AM

I'm embarrassed to say I'm from Iowa after I read the judge retention results today. I have a suspicion the people who voted NO on the judges retention, were voting against same sex marriage instead of voting on the merits of the judges.

From the role of a judiciary (http://www.iowacourtsonline.org/Public_Information/About_Judges/Role/):
"Some people mistakenly believe that judges make decisions based upon a personal sense of what they believe to be fair under the circumstances of a case. While a judge must always be fair in the sense of remaining impartial at all times, judicial decisions must be based upon the application of the law to the facts admitted into evidence. Sometimes the application of the law leads to outcomes that some people would characterize as "unfair." Nevertheless, judges are bound to follow the law."

ambushed

11-04-2010, 08:44 AM

Amazing! Sure, we all knew that Bricker's consummate skills in "Full Contact Origami" easily enabled him to carefully fold the Iowa Constitution in such a clever way as to render the role of the state's third branch of government into pointless insignificance, but who could have imagined he could transcend materiality completely and succeed in twisting reality itself so as to render ignorance, bigotry and hate as calm, sober reasonableness?

Look upon the following staggeringly disingenuous apologetics for bigotry, ye Doper, and despair!

This potentially much more than a single issue. In other words, judges are not legislators; presumably they didn't rule the way they did because they thought same-sex marriage was wise social policy. Right?

They must have ruled the way they did because they felt the state constitution should be interpreted using a particular method. If the voters felt that this method was not the correct one, that's not a "single issue" -- that goes to the heart of what a judge's role should be.

I'm contending they thought, "Judges shouldn't decide stuff like that."

Which is arguably true.

I think you mischaracterize "most of the tea party fucks." So far as I can tell, most simply favor compliance with immigration law - something my wife and I had no problem doing. I'm not aware of any major tea party candidate or group arguing a complete border shutdown.

Now, you talk about the tyranny of the fleeting majority, as if to suggest that same-sex marriage had a long and noble tradition in this country, and would still be comfortably in place, but for the fleeting desires of a hot-headed mob.

But you know that's not true. It's the crowd seeking same-sex marriage rights that is working a large change in society.

It's fascinating to me that you accuse me of some recent change, and cast your whole argument as something clearly required under the law, but for the recent wash of anti-gay fervor. you know that's not true. You're the one cloaking your argument in deceit...

Amazing!

Perhaps the most glaring flaw in Bricker's astonishingly naive apologetics lies with his wildly counterfactual premise that the voters who unseated all three Iowa Supreme Court justices seriously contemplated the proper role of the courts in state government!

Bricker, oh preternaturally naive Bricker! Do you live under a cup? Have you ventured outside of your hermit's cave at any time in the last 10 years? Have you never heard of Fox News? Rush Limbaugh? Glenn Beck? Never taken a peak at conservative web sites like FreeRepublic.com and Stormfront.org?

I submit that to write, as Bricker does above, that most in the Tea Parties "[i]simply favor compliance with immigration law" is much too much like writing "Mussolini simply wanted the trains to run on time". Simplicity is often a terrible enemy of truth.

But this isn't about Bricker as an individual. My objection is to the extreme degree of political denialism all around us, in all kinds of media, which pretends that the average American voter -- even those on the Right -- made some kind of informed, rational decision before casting their ballot. Bricker's words here are merely just another example of such blithely delusional thinking.

Only those who willfully blind themselves to the reality of what truly occurs at the intersection of human nature and politics could possibly imagine that the Iowans who voted out their Supreme Court had engaged in some kind of informed, rational decision-making process. The drastic denialism inherent in such a view unnerves and worries me considerably. It puts me in mind of Chamberlain's "Peace for our time" speech. Nothing good can come from mistaking fear and hate and bigotry for reasoned analysis. Nothing.

In truth, we in the U.S. today are a nation dominated by a majority of highly gullible dupes who will believe just about anything as long as it's hateful, bigoted, or false, and, as the 2010 mid-terms demonstrated, those who most fervently believe those lies are the most enthusiastic voters. We ignore this reality at our peril.

As evidence, I cite:

Anti-Intellectualism in American Life (http://www.amazon.com/gp/product/0394703170/ref=pd_lpo_k2_dp_sr_3?pf_rd_p=486539851)

The Age of American Unreason (http://www.amazon.com/Age-American-Unreason-Susan-Jacoby/dp/0375423745)

Idiot America: How Stupidity Became a Virtue in the Land of the Free (http://www.amazon.com/gp/product/0767926153/ref=pd_lpo_k2_dp_sr_2?pf_rd_p=486539851)

and: Just How Stupid Are We? Facing the Truth About the American Voter (http://www.amazon.com/Just-How-Stupid-Are-We/dp/0465014933/ref=sr_1_1?ie=UTF8&s=books&qid=1288876436)

Woe is us.

JXJohns

11-04-2010, 08:45 AM

I've heard this "I'm embarrassed" meme for the last 48 hours and to be honest, it's getting old. You are embarrassed because people in this state think differently than you? Besides Polk, Johnson, and Linn counties, what exactly did you expect? Embarrassed because people made a decision, perhaps erroneously, that differed with your own? If there was ever a case study tailor made for whether campaigns and campaign ads work, it's this one.

The NO NO NO tour spent a fortune to get the word out that now was the chance to get back at the man for not allowing people to vote on SSM. The rational side, including those who are embarrassed today, did little to nothing other than wring their hands, post on message boards, and wag fingers at those even thinking about not retaining judges. Has the judiciary been politicized? I'm not sure about that yet. After all, the judge who made the initial decision in support of SSM was retained with no problems.

I looked outside this morning and the sun is still shining, SSM is still legal with no serious threat in sight. How many other states allow SSM, and you are embarrassed of ours?

JXJohns

11-04-2010, 09:07 AM

I'm so glad I'm not talking myself anymore in this thread. :) ...

I wonder if it's possible to renominate the same three people to the court.

They cannot be appointed for two years after being unseated, per the Iowa Constitution. FYI

Bricker

11-04-2010, 09:07 AM

But that's not how it works and you damn well know it. Suppose the Florida Legislature passes a law that left-handed people can't vote. After all, handedness is not a protected class. Should left-handed people just give up their vote until they can convince the Legislature that they screwed up? Or should they go to a court?

Here's the difference: again you're touting a dramatic change, and the aggrieved people in your hypothetical are hurt by the change. They would ask the court not to make an unheard of change for their benefit, but to restore the previous status quo.

So to answer your particular example: the left-handers should go to court and ask the court to review that law as violative of the Equal Protection Clause, and evaluate the law under a rational basis standard.

But when they do that, they are not asking the court to create a new state of affair. They are asking the court to return the previous, long-standing state of affairs.

In the Iowa case, the court was asked to do something new. It's not ridiculous to say that such changes should come from the legislature, not the courts.

Bricker

11-04-2010, 09:16 AM

I'm embarrassed to say I'm from Iowa after I read the judge retention results today. I have a suspicion the people who voted NO on the judges retention, were voting against same sex marriage instead of voting on the merits of the judges.

Quite possible.

I'm pointing out, though, that a person could well have voted against the retention of those judges based on his view of their merits. In other words, a reasonable person could have concluded that Iowa's equal protection clause should be read as coextensive with the federal constitution's, and since Iowa is in the Eighth Circuit, that Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) controls ("We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.")

Or a less informed, but still reasonable person, could say, "This is the kind of question that legislatures and not judges should decide."

Enderw24

11-04-2010, 09:55 AM

Here's the difference: again you're touting a dramatic change, and the aggrieved people in your hypothetical are hurt by the change. They would ask the court not to make an unheard of change for their benefit, but to restore the previous status quo.

So to answer your particular example: the left-handers should go to court and ask the court to review that law as violative of the Equal Protection Clause, and evaluate the law under a rational basis standard.

But when they do that, they are not asking the court to create a new state of affair. They are asking the court to return the previous, long-standing state of affairs.

In the Iowa case, the court was asked to do something new. It's not ridiculous to say that such changes should come from the legislature, not the courts.

But you and I both know that the role of the judiciary is to interpret law and that's exactly what happened in this case. The Supreme Court served the exact purpose for which it was designed.

For as much as people wish in Iowa wish to rail against SSM, they are 100% wrong if they believe
1) this ruling was "judicial activism" where the Supreme Court justices created law. We both know they didn't.
2) The Supreme Court of Iowa had no right to either hear or rule on this case. We both know they did.

And your argument about how this case is different because it gives people rights they didn't previously had and that somehow makes it special doesn't pass the laugh test. Do you think Blacks had something better to fall back on when the Court struck down the Jim Crow laws as unconstitutional? No. It was exactly like this case above. Lord help us if the Supreme Court of the US followed the Missouri Plan or Earl Warren would have served just 16 months on the bench rather than 16 years. (Hey, on the plus side, Miranda would have swung 5-4 the other way and we'd never have to worry about the cascade of rights that criminal suspects have gotten that stem from that opinion).

Bricker

11-04-2010, 10:01 AM

Diogenes the Cynic

11-04-2010, 10:07 AM

Yes, the voters were motovated solely by bigotry. Let's not sugarcoat it. It is what it is. It's a great example of why the judiciary should not be subject to elections. Mobs don't make good judges.

Bricker

11-04-2010, 10:11 AM

But you and I both know that the role of the judiciary is to interpret law and that's exactly what happened in this case. The Supreme Court served the exact purpose for which it was designed.

For as much as people wish in Iowa wish to rail against SSM, they are 100% wrong if they believe
1) this ruling was "judicial activism" where the Supreme Court justices created law. We both know they didn't.

Certainly they created law. I don't know that I'd call it activism, but they certainly created new substantive law.

2) The Supreme Court of Iowa had no right to either hear or rule on this case. We both know they did.

Correct.

And your argument about how this case is different because it gives people rights they didn't previously had and that somehow makes it special doesn't pass the laugh test. Do you think Blacks had something better to fall back on when the Court struck down the Jim Crow laws as unconstitutional? No. It was exactly like this case above. Lord help us if the Supreme Court of the US followed the Missouri Plan or Earl Warren would have served just 16 months on the bench rather than 16 years. (Hey, on the plus side, Miranda would have swung 5-4 the other way and we'd never have to worry about the cascade of rights that criminal suspects have gotten that stem from that opinion).

And you'd be singing this same tune, I assume, if the Supreme Court finds a Fourteenth Amendment right to life in an unborn child, and bans states from conducting abortions? After all, they'd have a right to hear and rule on this case, and so you think blacks had something better to fall back on when the Court struck down the Jim Crow laws as unconstitutional?

No?

The Iowa courts had every right to determine what the Iowa constitution meant. The judges involved chose to expand the state equal protection clause in a new way. That's what courts do. It's not at all unreasonable.

But the Iowa voters also had every right to refuse to retain them. The voters chose to reject those judges, and that decision, too, is not per se unreasonable.

Now, I'd grant that for every voter who said, in his mind, "I'm voting 'no' because they let gays marry," THAT is an unreasonable voter.

But I also contend that every voter who said, "I'm voting 'no' because decisions of this magnitude should come from the legislature," is NOT unreasonable.

And I certainly contend that every voter that said, "Iowa's equal protection clause should be read as coextensive with the federal constitution's, and Citizens for Equal Protection v. Bruning controls," was not unreasonable.

Diogenes the Cynic

11-04-2010, 10:26 AM

They did not create law, they enforced it.

Enderw24

11-04-2010, 10:39 AM

If we both agree that the Supreme Court had every right to hear and rule on this case, but your contention is that these types of decisions should be left to the Legislature...I'm not sure how you can rectify those two statements. What would you have the Court do? Issue an opinion but put a footnote on the decision that says "For informational purposes only. Not to be used in the implementation of legal analysis."?

I do believe it's *possible* that some members of the public voted "no" on the judicial retention based upon the contention that decisions of this nature are best left to the Legislature and not because they had ill-will in their hearts for homosexuals. But I don't think it matters. If the court had the right to hear and rule on the case then the court had the right to hear and rule on the case. The court was acting properly and the Justices shouldn't be punished for performing their defined role.
Besides which, that entire last paragraph is pretty much irrelevant. Try all you want, I have Occam's Razor on my side and it says the most likely conclusion is that the majority of voters who voted no did so because they're bigots and hate homosexuals, not because of any quasi-legal analysis you might cook up.

Bricker

11-04-2010, 10:45 AM

If we both agree that the Supreme Court had every right to hear and rule on this case, but your contention is that these types of decisions should be left to the Legislature...I'm not sure how you can rectify those two statements. What would you have the Court do? Issue an opinion but put a footnote on the decision that says "For informational purposes only. Not to be used in the implementation of legal analysis."?

I do believe it's *possible* that some members of the public voted "no" on the judicial retention based upon the contention that decisions of this nature are best left to the Legislature and not because they had ill-will in their hearts for homosexuals. But I don't think it matters. If the court had the right to hear and rule on the case then the court had the right to hear and rule on the case. The court was acting properly and the Justices shouldn't be punished for performing their defined role.

Not so. "Has the right to hear and rule on it," does not translate to, "So therefore all voters must accept their decision and give it no weight in their decision to retain the judges."

An unsophisticated voter can say to himself, "I don't know about the law, but I know that this is a big change in this state, and big changes should come from the legislature." This is a position that intuitively makes sense. If judges are supposed to interpret the law as written, and the written law hasn't changed, how could it possibly be true that suddenly, 164 years after Iowa's constitution was written, it becomes true that it requires same-sex marriage? That's not in-depth legal analysis, but neither is it bigotry.

Bricker

11-04-2010, 10:46 AM

They did not create law, they enforced it.

So Iowa's constitution was adopted in 1846. At that time, according to you, same-sex marriage was mandated in Iowa.

Diogenes the Cynic

11-04-2010, 10:50 AM

Yep. Every bit as much as the US Constitution mandates the free production and distribution of scat porn. An unintended consequence of the text, but an unavoidable one.

Bricker

11-04-2010, 10:56 AM

So Iowa's constitution was adopted in 1846. At that time, according to you, same-sex marriage was mandated in Iowa.

Yep. Every bit as much as the US Constitution mandates the free production and distribution of scat porn. An unintended consequence of the text, but an unavoidable one.

OK.

So does the Fourth Amendment (text written in 1789) prevent the federal or state governments from placing a battery-powered GPS beacon on your car's inside bumper and tracking your movements for a month?

Diogenes the Cynic

11-04-2010, 11:01 AM

No. I said in those discussions that I didn't think that violated the 4th Amendment. I think your public movements in a car are free game.

Bricker

11-04-2010, 11:20 AM

No. I said in those discussions that I didn't think that violated the 4th Amendment. I think your public movements in a car are free game.

I'm not so much interested in what you think, but what it says. After all, you will die someday, and the rest of the country must continue to figure out what the Constitution says, so we can hardly rely on "This is what Diogenes thinks" as the rule, can we?

Now, as it happens the DC Circuit disagrees with you. They say that the Fourth Amendment DOES prevent the government from using GPS in that way. The Supreme Court has not spoken on the direct issue of GPS use.

So... does the Fourth Amendment say something different in DC than it does in the rest of the country? The DC Circuit -- did they create law or enforce it?

How about the Ninth Circuit? They decided the issue precisely the other way. Are they creating law or enforcing it?

Diogenes the Cynic

11-04-2010, 11:23 AM

I'm not so much interested in what you think, but what it says.
No, it doesn't say that.
Now, as it happens the DC Circuit disagrees with you. They say that the Fourth Amendment DOES prevent the government from using GPS in that way. The Supreme Court has not spoken on the direct issue of GPS use.

So... does the Fourth Amendment say something different in DC than it does in the rest of the country? The DC Circuit -- did they create law or enforce it?

How about the Ninth Circuit? They decided the issue precisely the other way. Are they creating law or enforcing it?
They're misinterpreting it.

Bricker

11-04-2010, 11:28 AM

No, it doesn't say that.

They're misinterpreting it.

Who is misinterpreting it? DC, or the Ninth Circuit?

Diogenes the Cynic

11-04-2010, 11:30 AM

DC.

Fenris

11-04-2010, 11:31 AM

They did not create law, they enforced it.

No they didn't. You're wrong.

Enderw24

11-04-2010, 11:34 AM

OK.

So does the Fourth Amendment (text written in 1789) prevent the federal or state governments from placing a battery-powered GPS beacon on your car's inside bumper and tracking your movements for a month?

What I, personally, believe? Yes it does.

But as you note, the Supreme Court has yet to rule of the issue. If it does, regardless of the decision, I wouldn't rend my garments crying "Why? How? The Constitution is OLD! How could we have a Constitutional mandate of GPS from before it was invented and surely these activist judges have no right to mandate what should be the role of Congress! Clearly the whole system is out of order!"

Fenris

11-04-2010, 11:36 AM

No, it doesn't say that.
Yes it does

They're misinterpreting it.
No they're not.

Bricker

11-04-2010, 11:37 AM

Who is misinterpreting it? DC, or the Ninth Circuit?

DC.

And I assume your answer will be the same if the Supreme Court affirms DC and overturns the Ninth, yes?

I mean, how could it be otherwise? According to you, since 1789 the Fourth Amendment has said that the government could put GPS devices in cars without a warrant, so if the Supreme Court rules differently, they are misinterpreting it - correct?

Diogenes the Cynic

11-04-2010, 11:37 AM

No they didn't. You're wrong.
You're welcome to your opinion. I'm sure you're very happy with those election results then.

Diogenes the Cynic

11-04-2010, 11:39 AM

Bricker

11-04-2010, 11:39 AM

What I, personally, believe? Yes it does.

But as you note, the Supreme Court has yet to rule of the issue. If it does, regardless of the decision, I wouldn't rend my garments crying "Why? How? The Constitution is OLD! How could we have a Constitutional mandate of GPS from before it was invented and surely these activist judges have no right to mandate what should be the role of Congress! Clearly the whole system is out of order!"

Sure. But you might look at the analytical method they used to reach their decision, and decide for yourself if it was a valid one, and resolve to appoint other judges who also use that analytical method... and resolve to NOT appoint judges that used other analytical methods.... right?

Bricker

11-04-2010, 11:45 AM

And I assume your answer will be the same if the Supreme Court affirms DC and overturns the Ninth, yes?
It won't.
I mean, how could it be otherwise? According to you, since 1789 the Fourth Amendment has said that the government could put GPS devices in cars without a warrant, so if the Supreme Court rules differently, they are misinterpreting it - correct?
Correct. That's why they won't.

Whew. Well, that's a load off my mind, especially since they're likely to grant cert because of the conflict in circuits.

But we cannot, I assume, read into what you've written here the idea that the Supreme Court never misinterprets the Constitution... right?

I mean, they said in 1986 in Bowers v. Hardwick that the Constitution (text written in 1867) DID NOT protect the right of two adults to engage in consensual, non-commercial sodomy. That was a misinterpretation, because in 2003 they said in Lawrence v. Texas that the Constitution (text still written in 1867) DID protect the right of two adults to engage in consensual, non-commercial sodomy. Or was Lawrence the misinterpretation?

So how are we to tell if, for any given decision, the Supreme Court misinterpreted the Constitution?

Diogenes the Cynic

11-04-2010, 11:50 AM

Enderw24

11-04-2010, 11:59 AM

Sure. But you might look at the analytical method they used to reach their decision, and decide for yourself if it was a valid one, and resolve to appoint other judges who also use that analytical method... and resolve to NOT appoint judges that used other analytical methods.... right?

Well, assuming Supreme Court judges could be voted out.

But the point you're trying to refute isn't one I've been making. My point was that
1) You can vote to not retain a judge because he doesn't understand the law, or fails to follow proper criminal or civil procedure, or has a huge backlog of cases due directly to his incompetance at handling them, or any of a number of other rationales that go directly to his competance at doing the job to which he was appointed. But to do so because you don't happen to like an opinion that he was fully authorized to make? Well, I don't really accept that as qualified objection. Because to do so, you really start to politicize the judicial branch and I'd like my judges to make decisions based upon the law, not popular opinion.

And

2) Occam's Razor. Dude, Occam's Razor. I'm sure there are some thoughtful, analytical, and rational voters out there. Never once did I say or believe otherwise. But you just cannot escape the fact that the most likely reason these three judges were voted out was because the voters were bigots and hate Teh Gay.

ambushed

11-04-2010, 12:07 PM

Hate and bigotry have no better ally here than Bricker, who keeps essentially arguing that the Iowa Supreme Court had no right, or should not have the right, to reach a decision based on the straightforward reading of the state's constitution if that decision changes the status quo in any significant way. What an obscene and utterly wrong-headed legal rationalization for willful injustice!

It is unequivocally evil and flagrantly repudiative of the founders' manifest will to allow people to vote on granting or removing the civil rights of any group of American citizens! It is as depraved and repulsive a crime against America and American ideals as any I can imagine, yet Bricker and JXJohns openly endorse precisely that!

Consider the disingenuous con job Bricker delivers in his response to Zakalwe's hypothetical regarding a vote denying left-handed people the right to vote:... [Y]ou're touting a dramatic change, and the aggrieved people in your hypothetical are hurt by the change. They would ask the court not to make an unheard of change for their benefit, but to restore the previous status quo.

So to answer your particular example: the left-handers should go to court and ask the court to review that law as violative of the Equal Protection Clause, and evaluate the law under a rational basis standard.

But when they do that, they are not asking the court to create a new state of affair. They are asking the court to return the previous, long-standing state of affairs.

In the Iowa case, the court was asked to do something new. It's not ridiculous to say that such changes should come from the legislature, not the courts.

Bricker's "reasoning" is, of course, quite offensive and off-base. For the analogy to be applicable, the "previous, long-standing state of affairs" would have to be one in which only right-handed people could vote, and it is only to that state of affairs that Bricker would grant the court the right to decide.

Note also the reference there to the "rational basis standard" of reviewing Equal Protection cases. Bricker and other defenders of bigotry prefer that standard over heightened standards because it allows bigots to prevail far more easily. This is because under that standard, if the court can imagine any marginally "rational" hypothetical justification for the legislature's decision to discriminate against a given group -- even if the legislature never even imagined it -- the discriminatory statute prevails.

Bricker and JXJohns and others who agree with them are being manifestly contemptuous of our ideals and system of government. No matter how much they dance around it, in the end they are flagrantly perverting the role of the third branch in the United States into passivity and impotence by arguing that the courts have no right to rule on the constitutionality of legislation if the decision might have non-trivial real-world consequences, such as if it invalidates a bigoted law.

Be not deceived: Those who argue thus do so because they know perfectly well that voters are easily manipulated into voting for evil and hate and bigotry, whereas judges are not quite so easily moved. JXJohns made this point quite openly when he wrote: ... If there was ever a case study tailor made for whether campaigns and campaign ads work, it's this one.

Bricker

11-04-2010, 12:32 PM

Yes, the Supreme Court can misinterpret law ("ceremonial deism"), I just don't think it will in this case.

Just because I said that one court interpreted a law correctly doesn't mean that I think all courts always do. That court in Iowa did not create law.

OK.

So how can we determine this difference? How can we, the public, know that the text of the Constitution says, and has always said, XYZ?

Diogenes the Cynic

11-04-2010, 12:41 PM

By reading it.

StusBlues

11-04-2010, 12:52 PM

Bricker, congratulations on your fine disassembling of Dio above.

That said, I should like to pose a question to you employing the principles you establish above, to wit, that Supreme Court judges as a rule have a greater understanding of the law than most common people--or even most attorneys.

Let us assume (and despite JXJohns's protests, I think we safely can) that Ternus, et al, were unseated because of their participation in Varnum v. Brien .

Given that Varnum v. Brien was a unanimous, 7-0 decision, and thus by reasonable definition sound law, is it reasonable to assume that the Iowa electorate, consisting almost entirely of persons untrained in the law, really didn't understand the issues involved and were voting in an ignorant, ill-informed manner? Or, more charitably, did the Iowa electorate display a flagrant disregard for the existing legal system?

I'd conclude that it's pretty evident the Iowa electorate didn't understand the law, didn't really give a damn, and unseated the judges because they didn't want gay folks to be able to get married.

JXJohns

11-04-2010, 01:20 PM

It is unequivocally evil and flagrantly repudiative of the founders' manifest will to allow people to vote on granting or removing the civil rights of any group of American citizens! It is as depraved and repulsive a crime against America and American ideals as any I can imagine, yet Bricker and JXJohns openly endorse precisely that...

Ummm you read how I voted and why, correct? You also know enough about the situation that nobody voted away anyone's civil rights, correct?

JXJohns

11-04-2010, 01:26 PM

Bricker

11-04-2010, 01:26 PM

Hate and bigotry have no better ally here than Bricker, who keeps essentially arguing that the Iowa Supreme Court had no right, or should not have the right, to reach a decision based on the straightforward reading of the state's constitution if that decision changes the status quo in any significant way. What an obscene and utterly wrong-headed legal rationalization for willful injustice!

This is what your argument boils down to. It's not enough that someone disagrees -- not even enough that someone agrees with the ultimate goal but disagrees as to method. No, no -- it's all hate and bigotry, obscene and wrong-headed wilful injustice.

It is unequivocally evil and flagrantly repudiative of the founders' manifest will to allow people to vote on granting or removing the civil rights of any group of American citizens! It is as depraved and repulsive a crime against America and American ideals as any I can imagine, yet Bricker and JXJohns openly endorse precisely that!

Bullshit.

The most basic will of the founders is: "We The People." This embodies our notion that ultimately the sovereigns of our country are not kings, divinely annointed to rule, but the collective voice of the people. WE THE PEOPLE are our own rulers. Every single piece of text that governs us is traced to an assent by the people, directly or through their elected representatives.

But you would have it differently. You would surrender our ability to govern ourselves to philosopher kings; you would give them a mission of protecting us from ourselves. "We're too stupid to rule ourselves," says Ambushed, "so please take the authority from us."

THAT is the depraved and repulsive a crime against America and American ideals. While we place obstacles in our legislative path, such as supermajorities, we do so with our own full assent. But in the end, the Constitution and every word in in is subject to the vote of the people. When the Constitution permitted slavery, we did not turn to judges and say, "Please, worthy judges, slavery is repulsive, but we lack the strength to undo it. Save us from ourselves!"

Ambushed, undoubtedly, would still be on his knees in front of his Kings-on-the-bench, awaiting salvation. But people who actually understand what the true American spirit of We the People means approved the Thirteenth Amendment, forbidding slavery. It was ratified by 3/4s of the states after passing two-thirds of Congress. That ended slavery. But some states still sought to leave former slaves unable to vote.

"Please, worthy judges, this disenfranchisement is repulsive, but we lack the strength to undo it. Save us from ourselves!" cried Ambushed's ideological brethern. But We The People knew that to be true to American ideals meant passing the Fifteenth Amendment, prohibiting race as a means to deny the vote.

"Please, worthy judges," ried Ambushed's ideological brethern again in 1918, "this disenfranchisement of women is repulsive, but we lack the strength to undo it. Save us from ourselves!"

But the judges, the kings, were not the way to solve that problem. No, We the People used our sovereign power to pass the Nineteenth Amendment.

Your base, craven willingness to surrender our sovereign power to the judges is sickening. We have the power and the responsibility to govern ourselves.

There's no question that we should end discrimination and permit same-sex marriage. But we should -- we MUST -- do it by vote.

And don't you dare whine that we can't. We have. Vermont, New Hampshire and DC have both passed, by legislature, bills legalizing same-sex marriage. It can be done. It WILL be done. But not by pusillanimous appeal to some benevolent philosopher king.

And if you don't like the sensible ideological arguments against that, let me give you a practical one: when you try to shove things down the throats of the voters by judicial fiat, it often backfires.

Bricker

11-04-2010, 01:27 PM

Bricker

11-04-2010, 01:32 PM

Bricker, congratulations on your fine disassembling of Dio above.

Thanks. Dio, like the berserkers of old, won't notice a fatal wound and will continue to fight on, but it's safe to say he's skewered.

Given that Varnum v. Brien was a unanimous, 7-0 decision, and thus by reasonable definition sound law, is it reasonable to assume that the Iowa electorate, consisting almost entirely of persons untrained in the law, really didn't understand the issues involved and were voting in an ignorant, ill-informed manner? Or, more charitably, did the Iowa electorate display a flagrant disregard for the existing legal system?

I'd conclude that it's pretty evident the Iowa electorate didn't understand the law, didn't really give a damn, and unseated the judges because they didn't want gay folks to be able to get married.

I absolutely agree that the vast majority of Iowans did not make a detailed analysis of the law.

BUT...

I also say that many of them simply said to themselves, "I don't know about the law, but I know that this is a big change in this state, and big changes should come from the legislature."

As I said above, this is a position that intuitively makes sense. If judges are supposed to interpret the law as written, and the written law hasn't changed, how could it possibly be true that suddenly, 164 years after Iowa's constitution was written, it becomes true that it requires same-sex marriage? If this is simply the straightforward application of Iowa's constitutional commands to the situation, how could it possibly have taken this long?

So I'd say that a fair chunk of those voters had no animus towards gays getting married, but didn't like the idea that judges took it upon themselves to make the decision for them.

ambushed

11-04-2010, 01:34 PM

So it seems we have these options, unless there's another I'm missing:

1. You argue that no reasonable person could have said, "Iowa's equal protection clause should be read as coextensive with the federal constitution's, and Citizens for Equal Protection v. Bruning controls, so I don't want to retain those judges."

2. You argue that no reasonable person could have said, "I don't know about all that law mumbo-jumbo, but I do know that for decisions like this, I want them to come from legislature, not judges, so I don't want to retain those judges."

3. You argue that a reasonable person COULD have said #1, or #2, but that this particular bunch of Iowa voters (or all voters) did not; en masse they were motivated solely by bigotry.

Is there another option? Or does one of those capture the essence of your argument?

Bricker, I never questioned your very considerable skills in verbal manipulations and misdirections and in crafting deviously impostrous "summaries" of people's arguments. Your years of practicing law very likely drew upon and then only heightened such skills, and, truth be told, I'd jump at the chance to hire you to represent me in court if I were guilty. As I once wrote years back of another attorney whom I found to be immensely skilled in verbal combat, I opined that he "could convince a drowning man to change his long-distance service on the way to the bottom".

I'm afraid that none of your summaries accurately reflect my post that you are responding to. Science has demonstrated quite unassailably that humans emote first and verbally rationalize their emotions later; it is quite unusual for people to engage in the kind of critical thinking necessary to countermand their overwhelmingly emotion-driven decisions. Most people just aren't cut out for it, especially conservatives-authoritarians whose impaired cognition and discomfort with nuance and subtlety make critical thinking a truly daunting, herculean task. (See, for example: Hetherington & Weiler 2009: Authoritarianism & Polarization in American Politics, Cambridge University Press).

I did not claim in my post anything akin to asserting that not one single person who voted against the Iowa Supreme Court judges engaged in any critical thinking first. That is a grotesque misrepresentation of what I wrote. Clearly, I will have to quote my own words rather than allow you to summarize them: ... My objection is to the extreme degree of political denialism all around us, in all kinds of media, which pretends that the average American voter -- even those on the Right -- made some kind of informed, rational decision before casting their ballot. Bricker's words here are merely just another example of such blithely delusional thinking... Perhaps I should have underlined that word in the original.

Science tells us it is entirely natural and instinctive for the human mind to invent high-minded rationalizations to disguise or justify fear, hate, and bigotry. That's all that you and JXJohns and the Iowa Family Policy Center and those who voted out the Iowa Supreme Court have done: You've crafted utterly spurious rationalizations to defend bigotry by flatly denying the primary role of the state's Supreme Court.

And I honestly believe you should be profoundly ashamed of that. I've been around here since just about the beginning, and in that time you have earned my respect many thousands of times. I don't know if I was fooled many of those times or if this thread represents some kind of aberration, but I am entirely sincere when I say that I very much hope for the latter.

But given the blatant viciousness of the closing shot in your reply, to wit...
So the solution, it seems, is to register even more voters, concentrating especially on poor, inner-city voters, because those are the sorts of voters that usually have the best understanding of the issues. Or.. no?
... the odds that this thread doesn't represent the real you seem increasingly remote.

StusBlues

11-04-2010, 01:41 PM

As I said above, this is a position that intuitively makes sense.

Really?

If judges are supposed to interpret the law as written, and the written law hasn't changed, how could it possibly be true that suddenly, 164 years after Iowa's constitution was written, it becomes true that it requires same-sex marriage? If this is simply the straightforward application of Iowa's constitutional commands to the situation, how could it possibly have taken this long?

Two points:

1. Had the Iowa court ever considered same-sex marriage before?

2. If your position is that judgements should only change de facto law when statutory or constitutional law itself changes, would you then also argue that Brown vs. Board of Education is bad case law? If not, what changes between Plessy vs Ferguson and Brown made this so?

So I'd say that a fair chunk of those voters had no animus towards gays getting married, but didn't like the idea that judges took it upon themselves to make the decision for them.

I live about ten miles from Iowa. Let's just say you may be overestimating their electorate by just a bit. Then again, I really don't think South Carolina seceded from the union over Article VI, either.

JXJohns

11-04-2010, 01:42 PM

...Science tells us it is entirely natural and instinctive for the human mind to invent high-minded rationalizations to disguise or justify fear, hate, and bigotry. That's all that you and JXJohns and the Iowa Family Policy Center and those who voted out the Iowa Supreme Court have done: You've crafted utterly spurious rationalizations to defend bigotry by flatly denying the primary role of the state's Supreme Court.

Lot of words being used to misstate my position. I'm impressed.

Bricker

11-04-2010, 01:43 PM

Most people just aren't cut out for it, especially conservatives-authoritarians whose impaired cognition and discomfort with nuance and subtlety make critical thinking a truly daunting, herculean task. (See, for example: Hetherington & Weiler 2009: Authoritarianism & Polarization in American Politics, Cambridge University Press).

Not sure what to do with this.

Are you suggesting that, as a matter of objective fact, we should ascribe better critical thinking skill to those who vote Democratic? I hope not.

I did not claim in my post anything akin to asserting that not one single person who voted against the Iowa Supreme Court judges engaged in any critical thinking first. That is a grotesque misrepresentation of what I wrote. Clearly, I will have to quote my own words rather than allow you to summarize them: Perhaps I should have underlined that word in the original.
... My objection is to the extreme degree of political denialism all around us, in all kinds of media, which pretends that the average American voter -- even those on the Right -- made some kind of informed, rational decision before casting their ballot. Bricker's words here are merely just another example of such blithely delusional thinking...

Your point seems plain. The average American voter does not make informed, rational decisions before casting their ballot. Yes?

So my response to you is: if this is so, what value is there is making an effort to register more voters? It seems intuitively obvious that someone who goes out of his way to register to vote is, at the very least, not less likely to make informed, rational decisions before casting his ballot. Right?

Yet the left is strongly focused on registering many people to vote, people who don't seem to me to be displaying any indicators that they would be any more likely than not to make informed, rational decisions before casting their ballot.

So -- what am I missing? Explain it to me.

Bricker

11-04-2010, 02:00 PM

Really?

Sure. We learn in elementary school that legislatures make the laws, and courts interpret them. Since no new law was made letting gays marry, it's very much counter-intuitive that a 164-year-old law meant, all along, that they had the right to marry. Yes, it's intuitive. It may not correct, but it's certainly intuitive, much more so than the idea that 164 years ago, same-sex marriage was a requirement of the Iowa constitution and no one noticed.

Had the Iowa court ever considered same-sex marriage before?

I don't know. But c'mon.

2. If your position is that judgements should only change de facto law when statutory or constitutional law itself changes, would you then also argue that Brown vs. Board of Education is bad case law? If not, what changes between Plessy vs Ferguson and Brown made this so?

Whoa. You seem to think I am arguing that Varnum v. Brien is bad case law. I'm not.

Diogenes the Cynic

11-04-2010, 02:04 PM

But two different people can read it, and come to opposite conclusions. What then?
Then at least one of them is wrong. So what?

StusBlues

11-04-2010, 02:08 PM

Whoa. You seem to think I am arguing that Varnum v. Brien is bad case law. I'm not.

Then what are you arguing? Your position is that major social change should only be brought about legislatively, yes? Brown and Varnum both brought about major social change. Should they have happened or not? Are they good case law or not?

Bricker

11-04-2010, 02:24 PM

Bricker

11-04-2010, 02:27 PM

Then what are you arguing? Your position is that major social change should only be brought about legislatively, yes? Brown and Varnum both brought about major social change. Should they have happened or not? Are they good case law or not?

No. I'm arguing that a reasonable person can feel that way without being a bigot.

My own personal opinion is that both are good law and correctly decided. Brown because it correctly recognized that race was the primary motivating factor of the Fourteenth Amendment, and Varnum because it applied intermediate scrutiny to the issue.

But I do not believe that anyone who disagrees with me is an evil bigot.

Diogenes the Cynic

11-04-2010, 02:29 PM

How are we, the public, to know which one is wrong?
By reading it. The text is the text. It's available to everyone.

Bricker

11-04-2010, 02:35 PM

OK.

So how can we determine this difference? How can we, the public, know that the text of the Constitution says, and has always said, XYZ?

By reading it.
But two different people can read it, and come to opposite conclusions. What then?

Then at least one of them is wrong. So what?

How are we, the public, to know which one is wrong?

By reading it. The text is the text. It's available to everyone.

Right. But since two people can read the text and reach different conclusions, how can we then settle the dispute?

You've said that the court here simply interpreted the law; they made no changes and were self-evidently right. But you've also acknowledged that courts can misinterpret the law. So I'm asking you how Iowa voters can judge whether the courts misinterpreted this law. You say they should simply read it, but many people have read the law and it says nothing, to their eyes, that makes same-sex marriage a right.

So when the text produces two opposite answers in two readers, what's the next step to reach the finality, the certainty, you spoke of?

Diogenes the Cynic

11-04-2010, 03:44 PM

My certainty is my own. Legally, the Court makes the calls, but sometimes they get them wrong. In the case of Iowa SSM, they got it right. If I say an official made a good call on a particular play, tht doesn't mean I must necessarily think that all plays made by all officials are always good, so I don't see what your point is with this. In Iowa, the zebras made a correct call based on a correct interpretation of the rule. They didn't write the rule, they just enforce it. Just like the officials were correctly enforcing the rule on the Tom Brady tuck play. Sure it should have been a fumble, but the rule was written the way it was written. The zebras weren't making up a new rule, just enforcing it.

The voters in Iowa can see that the correct call was made by reading the rule for themselves. If they still think the zebras got it wrong, that just means they themselves don't understand -- or don't care about -- the rule as it is actually written.

Bricker

11-04-2010, 04:37 PM

Diogenes the Cynic

11-04-2010, 04:55 PM

I don't care what Joe Iowan says. He's wrong, I'm right. Such is life. All the more reason that the judiciary should not be subject to elections. The voters are stupid.

Bricker

11-04-2010, 06:39 PM

I don't care what Joe Iowan says. He's wrong, I'm right. Such is life. All the more reason that the judiciary should not be subject to elections. The voters are stupid.

And yet despite your lack of legal training, you are right and the Supreme Court is wrong when you say it is.

In fact, that seems to be the one somewhat constant drumbeat permeating your offerings in this thread: you are right, no matter whose opinion you are arrayed against. Not only are you right, but you are self-evidently right; they are not only wrong, but unreasonably wrong.

Zakalwe

11-04-2010, 07:26 PM

And you'd be singing this same tune, I assume, if the Supreme Court finds a Fourteenth Amendment right to life in an unborn child, and bans states from conducting abortions?Except that they'd be removing a long-standing (almost 50 years now) right and per your own stated belief, that kind of change should come from the Legislature, not the Courts. You're hoist on your own petard.

Bricker

11-04-2010, 08:20 PM

Except that they'd be removing a long-standing (almost 50 years now) right and per your own stated belief, that kind of change should come from the Legislature, not the Courts. You're hoist on your own petard.

Absolutely true. *I* believe that such a change should come from the legislature, and although I am strongly pro-life, I would be appalled at such a ruling. It would be awful.

But I posed that question to someone who was extolling the virtues of the courts stepping in when the legislature doesn't. I was pointing out that his supposed love of the courts' rule would vanish in an instant when he disagreed with the the court. In short, his appreciation was not for the courts supplanting the tyranny of the majority, but merely for the courts enforcing the view he likes.

Diogenes the Cynic

11-04-2010, 08:32 PM

And yet despite your lack of legal training, you are right and the Supreme Court is wrong when you say it is.
The Supreme Court is wrong when it's wrong. It has nothing to do with what I say.
In fact, that seems to be the one somewhat constant drumbeat permeating your offerings in this thread: you are right, no matter whose opinion you are arrayed against. Not only are you right, but you are self-evidently right; they are not only wrong, but unreasonably wrong.
I have supreme clarity of mind. It's a curse.

Zakalwe

11-04-2010, 08:47 PM

Absolutely true. *I* believe that such a change should come from the legislature, and although I am strongly pro-life, I would be appalled at such a ruling. It would be awful.

But I posed that question to someone who was extolling the virtues of the courts stepping in when the legislature doesn't. I was pointing out that his supposed love of the courts' rule would vanish in an instant when he disagreed with the the court. In short, his appreciation was not for the courts supplanting the tyranny of the majority, but merely for the courts enforcing the view he likes.I think the major difference here (at least for me), is that in every hypothetical you (and I) have offered revolves around the court taking away rights. This is a case of the Legislature lagging behind in acknowledging rights that are arguably due anyway. The Court stepped in. It's a key distinction.

Bricker

11-04-2010, 09:20 PM

I think the major difference here (at least for me), is that in every hypothetical you (and I) have offered revolves around the court taking away rights. This is a case of the Legislature lagging behind in acknowledging rights that are arguably due anyway. The Court stepped in. It's a key distinction.

No, the example discussed in post #26 above has the legislature lagging behind in recognizing the right to life of the unborn, and the court stepping in to correct that lack.

Zakalwe

11-04-2010, 09:39 PM

No, the example discussed in post #26 above has the legislature lagging behind in recognizing the right to life of the unborn, and the court stepping in to correct that lack.Or removing the recognized right of a sentient woman to control her own body. C'mon, dude. That's a hanging curveball and you know it.

Spavined Gelding

11-04-2010, 09:47 PM

OK, I’ve had enough and can’t resist the compulsion to stick my nose in here. As a matter of disclosure: I am an Iowan, I am an Iowa lawyer, for a while I was an inferior court judge, I am a member of the judicial nominating commission for trial court judges in this corner of the state.

The campaign to punish the state supreme court for the gay marriage decision has been ongoing since the case was decided. Initially the campaign was the brain child of Robert VanderPlaats who ran for Governor on pretty much the sole issue of the decision, and Charles Hurley, a failed small town lawyer and briefly a member of the state parole board by virtue of his appointment by the once and future governor (when Charlie went on the parole board the word was quickly spread that anyone who wanted out of the state pen had better find Jesus and had best find Him pretty damned fast). For the last few years Charlie has been the state coordinator for James Hobson’s Focus on the Family outfit. VanderPlaats lost the GOP primary to Terry Brandstad who had served two or three terms as governor and now will be governor again. VanderPlaats declined to team up with Brandstad and pretty much devoted himself full time to seeing that the three justices up for retention were not retained and urging the repeal of the Iowa system of appointing trial and appellate judges in favor of a straight popular election. Someplace in here Congressman Steve King, who first came to popular attention by decrying Mexican and Central American packing house workers as a moral and national security threat, became an active player.

The whole thing did not come to a boil until just after Labor Day when the state was deluged by 30 second TV advertising denouncing activist judges making law and denigrating the institution of marriage. The whole thing topped off a couple weeks before the election with Congressman Steve, VanderPlaats and Charlie on a huge purple bus bedecked with portraits of Chief Justice Ternus, Justice Streit and Justice Baker with big red diagonal stripes and the word NO across them.

The Justices for their part did pretty much nothing -- presumably trusting in their own virtue and the feeble public education program (in which I participated) put up by the state bar association. After all, Iowa’s judicial appointment and retention system, in place for almost 50 years without a hint of controversy, is supposed to be non-political. The Justices and the bar, bless their hearts, found themselves in a knife fight armed with retractable ball point pens. They never had a chance.

Those of use who have lived through this little horror show know full well that this was not a fight about constitutional theory, the proper roll of the courts in society or Turnus, C.J.’s personal and family life. It was a deliberate effort on the part of cynical politicians and true believers to punish a soft target for the gay marriage decision. It was a celebration of homophobia, just that and nothing more. As much as people who were not here or who might have some private ax to grind might pretend otherwise homophobia is all there was to it.

It is not the end of the world. Iowans tend to be pretty rational although we do have our moments -- as the effort to prohibit church services in German, Norwegian, Danish and any other language than English in the years after WWI as a national security measure. We will get over this. The demographics will overwhelm the haters. The integrity and independence of the courts will be protected. Men of good will and good sense will prevail --and will have the good sense to fight back.

And also, a pox on our once and future governor who chose to stand above the fray and spoke not a word in defense or condemnation of the Iowa appointment and retention system or the three dedicated, experienced and reputable jurists whose careers have now been pretty well destroyed for the gratification of the true believers. It would have almost been kinder to have dragged them out in front of the Judicial Building in Des Moines and strung them up to a lamp post.

As a side note, if there is a reason to have sought the removal of the Chief Justice it is that she and her predecessors have been engaged in a campaign that, however well intentioned and driven by fiscal considerations, is effectively eviscerating the courts in the rural counties -- dismissal of court reporters, early closing in the clerks offices, restrictions on judicial travel (if you want to try your case you and your client and all your witnesses will have to drive two hours one way to the City County courthouse, we don’t have any judges who can go to East Harnessbuckle County -and you will have to hire a private court reported, too). There is no indication that Mr. VanderPlaats, Charlie Hurley or Representative King give a good God Damn about that.

In the meantime, I look forward to the publication of Bricker’s law review article pointing out the error of the Iowa Court’s decision. He seems to have plenty of time to pontificate here, his busy professional life notwithstanding, so there is no reason he could not put together a couple hundred pages of dense reasoning and comment on the matter. The Iowa Law Review might have an interest, thought it doesn’t pay much. But then maybe our friend can get a canned brief from the Federalist Society.

Bricker

11-05-2010, 09:21 AM

In the meantime, I look forward to the publication of Bricker’s law review article pointing out the error of the Iowa Court’s decision. He seems to have plenty of time to pontificate here, his busy professional life notwithstanding, so there is no reason he could not put together a couple hundred pages of dense reasoning and comment on the matter.

I guess your own extensive prep time for your post caused you to miss this one of mine:

My own personal opinion is that both are good law and correctly decided. Brown because it correctly recognized that race was the primary motivating factor of the Fourteenth Amendment, and Varnum because it applied intermediate scrutiny to the issue.

And of course it's blindingly obvious you missed the last line:

But I do not believe that anyone who disagrees with me is an evil bigot.

Really Not All That Bright

11-05-2010, 09:49 AM

In the Iowa case, the court was asked to do something new. It's not ridiculous to say that such changes should come from the legislature, not the courts.
It's not ridiculous to say that changes in the law should come from the legislature if the facts have not changed.

In the case of gay rights, the facts unquestionably have changed.

The mainstream medical and psychological view is no longer that homosexuality is a mental illness. The once widespread view that it is, which became enshrined in the law, no longer has any basis, and thus neither do the laws.

ambushed

11-05-2010, 10:00 AM

I'm going to limit this particular post to just addressing the first paragraph of Bricker's reply. I'll respond to the rest -- which can only have been based on either wildly unjustified assumptions or Bricker's as-yet imperfected mind-reading skills -- in a separate post...

This is what your argument boils down to. It's not enough that someone disagrees -- not even enough that someone agrees with the ultimate goal but disagrees as to method. No, no -- it's all hate and bigotry, obscene and wrong-headed wilful injustice.

Dear Bricker, your rhetorical skills in grotesque misrepresentations of my positions remain in top form, I see.

In a way, those skills form the heart of my argument: You are most probably quite sincere within the intellectual "outer skin" of your conscious identity, but modern psychological science tells us that our intellects very much tend to be the puppets of our emotions (a reality which, of course, hardly excludes myself). I claim you are -- perhaps unwittingly, an ally of bigotry -- as opposed to claiming you are a bigot yourself -- because the evidence from your posts leads me to hold that you are, probably to a considerable extent unconsciously, employing your legal knowledge and great rhetorical gifts to create an intellectual rationalization that has the effect, even if not the intended goal, of helping to whitewash a vote for bigotry.

There is so much more I must address -- particularly your astonishingly malignant attack on what you imagine to be my political philosophy based on nothing I actually wrote (but instead apparently on some kind of feverish waking nightmare) -- so I will close this post as follows:

The main thrust of my position can be summarized as saying that to argue -- as you have -- that a even a Supreme Court does not, or should not, have the full right to reach decisions that have the effect of ending discrimination against unpopular groups is to invent or propagate a spurious rationalization that has the effect of whitewashing bigotry. In the same way, to argue that only the legislature has the right to end such discrimination is to propagate another spurious rationalization with the sub rosa goal of making it more difficult -- or even impossible -- to end the discrimination against unpopular groups precisely because they are unpopular.

The issue is not whether or not those rationalizations can be made to appear intellectually sober and reasonable; they obviously can. What I contend is actually at issue involve questions such as: Are the people who propagate those arguments being intellectually honest with us and with themselves? Is there an empirically measurable correlation between those who publicly hold or propagate such arguments and the emotive-cognitive correlates of psychological biases against outgroups?

These are the kind of questions I find extremely compelling, particularly now that we've become Idiot America. Contrary to your abominable and staggeringly unjustified assumptions regarding my political philosophy, I offer no solutions. Remember, my dear Bricker, description is not prescription!

Bricker

11-05-2010, 10:17 AM

It's not ridiculous to say that changes in the law should come from the legislature if the facts have not changed.

In the case of gay rights, the facts unquestionably have changed.

The mainstream medical and psychological view is no longer that homosexuality is a mental illness. The once widespread view that it is, which became enshrined in the law, no longer has any basis, and thus neither do the laws.

Yes, that's why I agree that the court made the correct call. While I still believe that rational basis is not enough to overcome the law, the immutability of the characteristic argues for a heightened scrutiny. As I've said in earlier discussions, intermediate scrutiny makes sense, and restrictions like this fail the intermediate scrutiny test.

But for the ordinary laymen to fail to understand both that the medical and psychological views have changed AND that this is significant to the legal status of the decision is not unreasonable.

Really Not All That Bright

11-05-2010, 10:28 AM

Then why are you arguing that ordinary people applied the correct standard in voting out these judges? Obviously, they don't know what the correct standard is.

Bricker

11-05-2010, 10:33 AM

In a way, those skills form the heart of my argument: You are most probably quite sincere within the intellectual "outer skin" of your conscious identity, but modern psychological science tells us that our intellects very much tend to be the puppets of our emotions (a reality which, of course, hardly excludes myself). I claim you are -- perhaps unwittingly, an ally of bigotry -- as opposed to claiming you are a bigot yourself -- because the evidence from your posts leads me to hold that you are, probably to a considerable extent unconsciously, employing your legal knowledge and great rhetorical gifts to create an intellectual rationalization that has the effect, even if not the intended goal, of helping to whitewash a vote for bigotry.

Hoofbeats, horses, zebras.

By that I mean that modern (and not-so-modern, given William of Ockham's birth in the thirteenth century!) principles of logic suggest that of two explanations for any events, the one containing the fewest ad hoc assumptions is more likely to be correct.

So I could be driven by an unconscious urge by my emotions to post...or I could simply be rationally analyzing the situation.

It's irrelevant. In debate, you see, the object is to refute your opponent's arguments. When you attack him, or his motives, you commit the fallacy of ad hominem. So I'll thank you in advance for reserving your fascinating theories about my id, ego, and superego (or whatever the 2010 equivalents are) to yourself and instead addressing the substance of the points I have made.

Bricker

11-05-2010, 10:34 AM

Then why are you arguing that ordinary people applied the correct standard in voting out these judges? Obviously, they don't know what the correct standard is.

If I said that, I was wrong.

Where did I say that?

Really Not All That Bright

11-05-2010, 10:36 AM

Quoth you:
They must have ruled the way they did because they felt the state constitution should be interpreted using a particular method. If the voters felt that this method was not the correct one, that's not a "single issue" -- that goes to the heart of what a judge's role should be.

Bricker

11-05-2010, 11:00 AM

Quoth you:

Seriously?

OK.

Original claim: The voters were swayed by a single issue!

My rebuttal: [The judges] must have ruled the way they did because they felt the state constitution should be interpreted using a particular method. If the voters felt that this method was not the correct one, that's not a "single issue" -- that goes to the heart of what a judge's role should be.

Agreed? If the voters felt that this method was not the correct one, then they were not motivated by a single issue, but were voting on what the role of a judge should be.

This is not the same claim as "The voters were accurate in their analysis of the judges' methodology."

Nowhere did I say "Ordinary people applied the correct standard in voting out these judges." Nor do I say it now.

Seriously, do you just skim my posts for content, trying to quickly get a sense of what the post might say, or do you actually read them?

Really Not All That Bright

11-05-2010, 11:17 AM

Okay, let me clarify. You believe it is reasonable for lay people to fail to understand that the facts have changed, meaning the Court was correct in changing the law to suit. You are ascribing a level of critical analysis to the lay person I feel is unfairly low, but there it is.

However, you claim that the voters were not simply voting out these judges because they don't like gay marriage, but because they feel the judges stepped outside their proper roles.

So perhaps you don't think they applied the correct standard, but you feel they were able to apply some standard beyond "he did something I don't like".

ETA: For the record, I typically like to read every third word in your posts, skipping one extra if a word is capitalized. I find it gives them a rather more satisfying flavor.

Bricker

11-05-2010, 11:41 AM

Okay, let me clarify. You believe it is reasonable for lay people to fail to understand that the facts have changed, meaning the Court was correct in changing the law to suit.

Yes.

You are ascribing a level of critical analysis to the lay person I feel is unfairly low, but there it is.

A quick Google produced this story (http://www.capitolbeatok.com/CustomContentRetrieve.aspx?ID=3188155), admittedly about Oklahoma and not Iowa, but I have no reason to believe that Iowans are substantially better situated than Sooners in this regard.

However, you claim that the voters were not simply voting out these judges because they don't like gay marriage, but because they feel the judges stepped outside their proper roles.

No, not quite. I said that a reasonable voter could reach that result for that reason. I have not made a single claim about what actually motivated most voters, because I don't know. Neither do you.
ETA: For the record, I typically like to read every third word in your posts, skipping one extra if a word is capitalized. I find it gives them a rather more satisfying flavor.

If you wish to accurately understand and summarize my arguments, you should stop doing this.

Really Not All That Bright

11-05-2010, 12:17 PM

Then you agree that the voters of Iowa decided to vote out these judges because they don't want gays to get married? I know William of Ockham would.

Bricker

11-05-2010, 12:21 PM

Then you agree that the voters of Iowa decided to vote out these judges because they don't want gays to get married? I know William of Ockham would.

If I had to guess?

I'd say it's likely that many, but by no means all, of the voters voting 'no' on retention were motivated by dissatisfaction with that specific ruling's results.

ambushed

11-05-2010, 01:04 PM

Before responding to Bricker's not-entirely-hinged rant against me and what he recklessly imagines to be my political philosophy (with no factual basis for his opinions, of course), let's take a moment to view it in full. I can't recall any other submission from the normally much more reserved author in which he reveals so much of himself and his deep-seated anger, in this case directed at myself. In truth, I admire him a bit for letting his hair down like this, even though he missed his target every time.

Bullshit.

The most basic will of the founders is: "We The People." This embodies our notion that ultimately the sovereigns of our country are not kings, divinely annointed to rule, but the collective voice of the people. WE THE PEOPLE are our own rulers. Every single piece of text that governs us is traced to an assent by the people, directly or through their elected representatives.

But you would have it differently. You would surrender our ability to govern ourselves to philosopher kings; you would give them a mission of protecting us from ourselves. "We're too stupid to rule ourselves," says Ambushed, "so please take the authority from us."

THAT is the depraved and repulsive a crime against America and American ideals. While we place obstacles in our legislative path, such as supermajorities, we do so with our own full assent. But in the end, the Constitution and every word in in is subject to the vote of the people. When the Constitution permitted slavery, we did not turn to judges and say, "Please, worthy judges, slavery is repulsive, but we lack the strength to undo it. Save us from ourselves!"

Ambushed, undoubtedly, would still be on his knees in front of his Kings-on-the-bench, awaiting salvation. But people who actually understand what the true American spirit of We the People means approved the Thirteenth Amendment, forbidding slavery. It was ratified by 3/4s of the states after passing two-thirds of Congress. That ended slavery. But some states still sought to leave former slaves unable to vote.

"Please, worthy judges, this disenfranchisement is repulsive, but we lack the strength to undo it. Save us from ourselves!" cried Ambushed's ideological brethern. But We The People knew that to be true to American ideals meant passing the Fifteenth Amendment, prohibiting race as a means to deny the vote.

"Please, worthy judges," ried Ambushed's ideological brethern again in 1918, "this disenfranchisement of women is repulsive, but we lack the strength to undo it. Save us from ourselves!"

But the judges, the kings, were not the way to solve that problem. No, We the People used our sovereign power to pass the Nineteenth Amendment.

Your base, craven willingness to surrender our sovereign power to the judges is sickening. We have the power and the responsibility to govern ourselves.

There's no question that we should end discrimination and permit same-sex marriage. But we should -- we MUST -- do it by vote.

And don't you dare whine that we can't. We have. Vermont, New Hampshire and DC have both passed, by legislature, bills legalizing same-sex marriage. It can be done. It WILL be done. But not by pusillanimous appeal to some benevolent philosopher king.

And if you don't like the sensible ideological arguments against that, let me give you a practical one: when you try to shove things down the throats of the voters by judicial fiat, it often backfires.

Really, Bricker? "Your base, craven willingness to surrender our sovereign power to the judges is sickening"?

Yikes!

C'mon, 'fess up now: You wouldn't happen to be some kind of crypto-Freeper or the like, would you? Because if you're not, you're missing a bet. With rhetorical talents and tastes like that, you'd be their belle of the ball mighty damn quick! Here's another for the next rally: "Extremism in the Defense of Liberty Is No Vice!" Kinda catchy, no? You gotta admit it's easier to march in lockstep to than Pam Gellers' recent ACTION ALERT: Obama to Cede US Sovereignty in December!

Well.... Okay. Expressing what one believes (justifiably or not) to be righteous anger can be healthy, I've long held. And true to form, Bricker controlled himself better than most -- I have to credit him there.

But the condescension was completely out of control and slathered on egregiously thick. And his reckless, unjustified assumptions about my political philosophy and his particularly vicious and mean-spirited mischaracterizations of me as some sort of kneeling, sycophantic weakling who hates America reveal much more about himself than he suspects, yet nothing accurate about myself and my actual views at all. His hate-fueled insults and mockery serve primarily to once again deliberately misrepresent my arguments in order to evade the issues I've raised, including the scientifically established psychological mechanisms in which bigotry -- even when unconscious -- is routinely intellectually whitewashed by crafting and propagating spurious but reasonable-sounding arguments to enable and justify it, precisely as Bricker has repeatedly done in this thread.

Regarding Bricker's bizarre fantasies regarding my political philosophy, one typical example of which we see here:
But you would have it differently. You would surrender our ability to govern ourselves to philosopher kings; you would give them a mission of protecting us from ourselves. "We're too stupid to rule ourselves," says Ambushed, "so please take the authority from us."
... As I wrote in my previous reply, Bricker again and again makes the profoundly objectionable error of confusing description with prescription, a despicable and willful deception I refuse to countenance or overlook.

Is the modern American voter extremely misinformed and often even proud of this sad fact, as the books I've linked to elsewhere -- such as The Age of American Unreason and Just How Stupid Are We? -- contend? I find that the evidence for this is overwhelming, but you must read and determine that for yourselves. But as Bricker keeps despicably asserting, have I actually offered any suggestions, proposals, or changes to the American system to remedy, bypass, or work around this regrettable fact?

I HAVE DONE NO SUCH THING! Nowhere have I given even the tiniest hint upon which Bricker can justify claiming so contemptibly that I want to "surrender our sovereign power to the judges" or replace our system with Plato's horrific Republic or any other of the wretched, obscene lies he's put in my mouth!

This puts me in mind of an argument I once had with my authoritarian-conservative older brother in which I pointed out that some proposed political "solution" to some practical problem could not possibly achieve its goal, and explained why. He asked me how I would solve the problem, and when I told him I couldn't think of an effective solution myself, he kept angrily insisting that unless I could craft an effective solution to the problem myself, I had absolutely no right to challenge or criticize any other proposed solution, even if it couldn't possibly work!

In my next post, I will once more describe the critical problems I've been discussing in greater detail, but again, I will offer no prescriptions. Stop putting words in my mouth, Bricker! For when you try to shove things down the throats of Dopers by rhetorical fiat, it often backfires.

Really Not All That Bright

11-05-2010, 01:29 PM

If I had to guess?

I'd say it's likely that many, but by no means all, of the voters voting 'no' on retention were motivated by dissatisfaction with that specific ruling's results.
Fair enough. You implied on the first page that this was not the case.

ambushed

11-05-2010, 01:50 PM

Alas, other responsibilities call and thus I cannot continue here today as I'd planned. I will return and respond further...

Bricker

11-05-2010, 02:39 PM

... As I wrote in my previous reply, Bricker again and again makes the profoundly objectionable error of confusing description with prescription, a despicable and willful deception I refuse to countenance or overlook.

I don't think I did.

Here is why:

It is unequivocally evil and flagrantly repudiative of the founders' manifest will to allow people to vote on granting or removing the civil rights of any group of American citizens! It is as depraved and repulsive a crime against America and American ideals as any I can imagine, yet Bricker and JXJohns openly endorse precisely that!

Now, you may claim that this is simply descriptive, not prescriptive. But when an action is held to be "unequivocally evil" and "flagrantly repudiative" of a given philosophy, it is no stretch to infer that you advocate its ending, even though you may not offer any alternative solution to replace it.

And by advocating the end of the ultimate expression of popular sovereignty as voting, you earn the rebukes offered above. I will concede, however, that my specific accusations that you favor judge-made law in the alternative were unjustifed inference. But the gravamen of my complaint is that you reject the concept of sovereignty held, completely and utterly, by the people. Each and every constitutional provision, each and every element of the supreme law of rthe land, exists because people voted on it: yes, even "the civil rights of any group of Americans." We voted on the 13th amendment ending slavery. We voted on the 15th, 19th, and 26th amendments concerning the rights to vote of all races, both sexes, and those 18 and older. We voted on the Civil Rights Act of 1964, empowering Congress to act on violations of these rights. WE VOTED to make them all happen.

That is the way we govern ourselves. And you may not call it "unequivocally evil" without revealing your lack of understanding of the term 'evil'; you may not call it "flagrantly repudiative of the founders' manifest will" without exposing your complete lack of understanding of the founders.

Bricker

11-05-2010, 02:43 PM

Fair enough. You implied on the first page that this was not the case.

I did?

You didn't read post 26 on page 1, where I said: Now, I'd grant that for every voter who said, in his mind, "I'm voting 'no' because they let gays marry," THAT is an unreasonable voter.

But I also contend that every voter who said, "I'm voting 'no' because decisions of this magnitude should come from the legislature," is NOT unreasonable.

And I certainly contend that every voter that said, "Iowa's equal protection clause should be read as coextensive with the federal constitution's, and Citizens for Equal Protection v. Bruning controls," was not unreasonable.

Uncle Jocko

11-05-2010, 03:02 PM

Holy cow. I leave town for a couple of days to see Carol Burnett at the Civic Center, and this left-for-dead thread has turned into the Dio/Bricker Debates XXIII, Electric Boogaloo.

Despite all the legalese and unknown motives of Iowa voters, discussion of this event with others has led me to boil down the Iowa Supreme Court's decision in Varnum to the following statement (my paraphrase): "The Iowa Constitution requires that homosexuals in Iowa shall be allowed to do anything heterosexuals in Iowa are allowed to do."

Simple. Easy to understand. I can't really see why someone would have a problem with that statement, but we all (Bricker included) keep throwing the word "reasonable" around, forgetting that in truth, most people are not "reasonable" about emotional issues.

People have been ragging at me about the definition of marriage, and how next people will be marrying their sister, or their goat, or five women. Heterosexuals can't do any of those things ... why would you think this ruling opens the door for that? Turns out ... heterosexuals have always had the right to marry someone of the same gender, they just never wanted to. Just like homosexuals have always had the right to marry someone of the opposite gender, but they never wanted to, either.

Now, the one area where I might see an angle to make changes in this view of the constitution would be, yep, the definition of marriage. If Iowans only had the right to marry someone of the opposite gender, then I might see that wording passing constitutional muster. The only problem is, while most Iowans would say that's basic common sense, it's not spelled out in the constitution. There's a pesky thing in there about equal treatment for all ... probably written in there by some wild-eyed 1800's socialist in league with ACORN or something.

And as for giving Iowans the credit for thinking through their decision in this vote ... by and large, Bricker, are you kidding me? Yes, I would say there is a non-zero number of Iowans who could defend their "No" votes on historical legal grounds, and some may even know some of these cases you refer to. But I've lived in Iowa for 44 of my 47 years. I know Iowa. The vast majority of the No voters have never even heard of any of these cases or arguments. They bought into the media blitz about "activist judges" "making law from the bench" "disregarding the will of the people." As we've already discussed, judicial decisions should not be subject to the whim of the majority. Should the popular will wish to overturn such a ruling, there are avenues for that, such as constitutional amendments.

Which makes it even funnier to notice that the wild-eyed, tantrum-throwing movement led by Vander Plaats forgot to notice the ballot item regarding a state constitutional convention, which goes before the voters every 10 years. If they'd spent their time and energy on getting a "Yes" vote on that, they could whip the state constitution to fit their ends probably pretty easily. I suppose it's less of a hassle to whip people into a frenzy against something instead of for something.

(By the way, Vander Plaats' next move is apparently to ask the new/old Gov. Branstad to issue an executive order overruling the Varnum decision. Which every person I've heard of with any kind of legal experience whatever goggles at in disbelief and hysterical laughter, mocking its absolutely ridiculous unconstitutionality and complete disregard for separation of powers ... but I'd give 'em about a 15 percent chance of Branstad actually doing it.)

Really Not All That Bright

11-05-2010, 03:50 PM

I did?

You didn't read post 26 on page 1, where I said:
Um... no actually. Kind of missed that one. :o

whole bean

11-05-2010, 04:36 PM

So Iowa's constitution was adopted in 1846. At that time, according to you, same-sex marriage was mandated in Iowa.

By this (implied) logic*, any decision the result of which was to overturn any long-standing interpetation of consitutional law, like say Brown v. Board, is wrong. Are you going to join with Rand Paul in condemning that judicial atrocity?

*i.e. that because in 1864 the drafters of the Iowa constitution didn't specifcially have gay marriage on their minds when they inserted an equal protection clause

Enderw24

11-05-2010, 05:08 PM

Just like homosexuals have always had the right to marry someone of the opposite gender, but they never wanted to, either

Oh no. Plenty of people end up doing that!

Usually it's followed by the foundation of a ministry decrying the evilness of homosexuals and the perpetuation of the homosexual agenda.

And that's usually followed by ten day trips through Europe with luggage carriers met on Rentboy.

Bricker

11-05-2010, 05:21 PM

And as for giving Iowans the credit for thinking through their decision in this vote ... by and large, Bricker, are you kidding me? Yes, I would say there is a non-zero number of Iowans who could defend their "No" votes on historical legal grounds, and some may even know some of these cases you refer to. But I've lived in Iowa for 44 of my 47 years. I know Iowa. The vast majority of the No voters have never even heard of any of these cases or arguments. They bought into the media blitz about "activist judges" "making law from the bench" "disregarding the will of the people." As we've already discussed, judicial decisions should not be subject to the whim of the majority. Should the popular will wish to overturn such a ruling, there are avenues for that, such as constitutional amendments.

Which makes it even funnier to notice that the wild-eyed, tantrum-throwing movement led by Vander Plaats forgot to notice the ballot item regarding a state constitutional convention, which goes before the voters every 10 years. If they'd spent their time and energy on getting a "Yes" vote on that, they could whip the state constitution to fit their ends probably pretty easily. I suppose it's less of a hassle to whip people into a frenzy against something instead of for something.

(By the way, Vander Plaats' next move is apparently to ask the new/old Gov. Branstad to issue an executive order overruling the Varnum decision. Which every person I've heard of with any kind of legal experience whatever goggles at in disbelief and hysterical laughter, mocking its absolutely ridiculous unconstitutionality and complete disregard for separation of powers ... but I'd give 'em about a 15 percent chance of Branstad actually doing it.)[/QUOTE]

Agreed completely, except that I reach no particular decision about what percentage of Iowa voters had what particular levels of insight. I'm sure it's small, but I'm not sure I'm willing to put the unthinking Iowans at "100% minus epsilon."

Bricker

11-05-2010, 05:28 PM

By this (implied) logic*, any decision the result of which was to overturn any long-standing interpetation of consitutional law, like say Brown v. Board, is wrong. Are you going to join with Rand Paul in condemning that judicial atrocity?

Wrong implication. I was just locking Diogenes into an interpretation where he'd have to acknowledge that his "analysis" was simply "I'm right, and everyone who disagrees with me is wrong."

*MY* answer is: of course same-sex marriage was not permitted by the Iowa constitution in 1864. The meaning of laws and constitutions change as caselaw develops. The authority for what each means at any given point is the court.

Zakalwe

11-05-2010, 06:46 PM

Wrong implication. I was just locking Diogenes into an interpretation where he'd have to acknowledge that his "analysis" was simply "I'm right, and everyone who disagrees with me is wrong."Congrats for breaking a story with about the same surprise factor as stories about the Pope being Catholic, bears defecating in woods, and the sky being blue. Where in the world would we have been without your penetrating insight into this issue?

*MY* answer is: of course same-sex marriage was not permitted by the Iowa constitution in 1864. The meaning of laws and constitutions change as caselaw develops. The authority for what each means at any given point is the court.
And this is where you and I depart. My answer is: given the evident facts available today, the Iowa Constitution absolutely permitted same-sex marriage in 1864. It's the evidence that has changed, not the document.

Bricker

11-05-2010, 08:15 PM

Congrats for breaking a story with about the same surprise factor as stories about the Pope being Catholic, bears defecating in woods, and the sky being blue. Where in the world would we have been without your penetrating insight into this issue?

And this is where you and I depart. My answer is: given the evident facts available today, the Iowa Constitution absolutely permitted same-sex marriage in 1864. It's the evidence that has changed, not the document.

Really? Intermediate scrutiny existed in 1864?

Diogenes the Cynic

11-05-2010, 11:52 PM

Wrong implication. I was just locking Diogenes into an interpretation where he'd have to acknowledge that his "analysis" was simply "I'm right, and everyone who disagrees with me is wrong."
In this case that would be accurate, but it's also a fatuous point on your part, since all opinions are opinions. You are saying the same thing yourself. You're saying that your opinion about the decision is right and everyone who disagrees with you (including thos judges with greater expertise than you who made the decision) are wrong.

Bricker

11-06-2010, 10:11 AM

You are saying the same thing yourself. You're saying that your opinion about the decision is right and everyone who disagrees with you (including thos judges with greater expertise than you who made the decision) are wrong.

No, I'm not. Like RNTB, you have apparently decided not to read my posts and just comment on what you think I might decide to say:

My own personal opinion is that both are good law and correctly decided. Brown because it correctly recognized that race was the primary motivating factor of the Fourteenth Amendment, and Varnum because it applied intermediate scrutiny to the issue.

Spavined Gelding

11-06-2010, 04:23 PM

Zakalwe

11-06-2010, 07:11 PM

Really? Intermediate scrutiny existed in 1864?Did the Fourteenth exist in 1864?.

Bricker

11-06-2010, 07:45 PM

Bricker, it is difficult to scan your multiple posts on this thread and conclude that the proposition you are asserting is that the Iowa Supremes ruled correctly in the Varnum case. In fact one may read your clarification as conceding only that the Iowa Supremes applied the correct standard of review.

One may read it that only if one is not paying attention. They applied the correct standard of review, they applied it the right way, and they reached the right result. It was correctly decided. It is good law, both as a term of art meaning "applicable precedent" and as a term of common sense meaning I agree with their decision.

Because it's apparently incomprehensible to some readers that someone can agree with the result of a decision without also believing that the opposing side is irredeemably evil, let me again say that at the same time I believe the principles in the above paragraph, I also believe that a reasonable voter could take the opposite position without being a bigot.

The bulk of my posts in this thread contain lines like, "A reasonable voter could believe..."

I can only imagine that in your .. um... "scanning..." you have discarded those lines as meaningless filler, believing that when I say "A reasonable voter could..." it's code for "and therefore I do..."

In terms of the character and intent of the leaders of the Anti-judge faction, I can only say that I have known Mr. Hurley for a fair long time and have thought for that same fair long time that he is both a fool and a bigot.

OK. I don't know him, but I have no reason to believe you're mistaken.
At least on this point all three are motivated by homophobia, plain, simple and ugly.

While some people may have voted against retention of the three Justices because they didn’t like the Chief Justice’s private life, or because they wanted to protest the appointment system or because they were gripped by an irritable impulse to try to knock off a top hat with a snow ball, the organized campaign, the TV and radio ads, the big purple bus, the phone calls, the occasional sermon or homily rallying the Godly, were motivated by fear and hatred of homosexuals.

That reads as bigotry in my book.

Sure. And as I said way back on page 1, '"Now, I'd grant that for every voter who said, in his mind, 'I'm voting 'no' because they let gays marry,' THAT is an unreasonable voter."

And I am sure that many, most, voters fit that mold.

But I refuse to believe that all voters did. Some voters could reasonably think, "I don't care about gays marrying, but a decision of this magnitude should come from the legislature." A voter versed enough to know about general roles of the legislature and judiciary, but not hip to Footnote Four in United States v. Carolene Products Co. could well reach the conclusion that the court was wrong. This is not an unreasonable level of sophistication for the general public.

AGAIN NOTE: just because I say a reasonable voter could do that does not mean that *I* agree. As it happens, I am hip to Footnote Four.

ambushed

11-07-2010, 10:27 AM

It's clear I'll have to return when I can spend more time correcting Bricker's many offensive misrepresentations of my position and arguments. But for now, I wish to reiterate my main point:

I resolutely stand by my statement that Bricker has heaped such perfidious scorn upon: It is unequivocally evil and flagrantly repudiative of the founders' manifest will to allow people to vote on granting or removing the civil rights of any group of American citizens!

Why do I contend this? To put it as succinctly as possible: Any civil right that is granted by voters can be just as easily revoked by voters!

Consider Bricker's reprehensible and incredibly hyperbolic attacks on my statements, such as: ... You would surrender our ability to govern ourselves to philosopher kings; you would give them a mission of protecting us from ourselves. "We're too stupid to rule ourselves," says Ambushed, "so please take the authority from us." ... Your base, craven willingness to surrender our sovereign power to the judges is sickening.

Bricker, your base, craven willingness -- nay, outright zeal -- to grant the power to decide which rights a person or a (so-called) "discrete and insular" minority may or may not possess or exercise to majority rule is starkly obscene and even inhuman, let alone anti-American.

Astonishingly, you point to the Thirteenth, Fifteenth, and Nineteenth Amendments with admiration. Incredible! How can you not see that the fact that such were necessary or even just held to be necessary is a matter of deep national shame? Can't see that the notion that a numerical majority of voters should actually establish (and thus be equally able to rescind) the rights a numerical minority can exercise is easily the most powerfully compelling argument against democracy imaginable? Can't see that this is precisely the most important reason the United States is emphatically NOT a democracy, contrary to yours and others' despicable mobocratic rants about "shoving things down the throats of the voters"?

Be ashamed, Bricker, be ashamed!

I find it difficult to believe you're being intellectually honest with us, sir. My intuition -- based on other of your posts and threads -- leads me instead to suspect you're debating, to an appreciable extent, as would a defense attorney employing his rhetorical skills to defend a manifestly guilty client.

At least I hope that's the explanation for your particularly heinous and depraved equation of justly barring voters from deciding which civil rights minority members possess or may exercise with, in your own words: "surrendering our sovereign power to the judges"!

The mind reels!

Blalron

11-07-2010, 12:02 PM

Bricker

11-07-2010, 01:31 PM

The mind reels!

1. The Thirteenth Amendment could be repealed tomorrow.
2. Is that fact evil?

Bricker

11-07-2010, 01:34 PM

Bricker, if you had to guess what percentage of the people voting to unseat those judges actually carefully read the decision in question and rejected it on intellectual grounds as opposed to those who voted due a pure visceral reaction against gay marriage, how do you think the numbers would break down?

How about another category: those that didn't read the decision, carefully or otherwise, but based their vote on the generic concept that such big decisions should be made by legislatures and not judges?

In other words, your only two options are "carefully read the decision" or "visceral reaction against gay marriage." That's a False Dilemma.

Bricker

11-07-2010, 01:51 PM

Can't see that the notion that a numerical majority of voters should actually establish (and thus be equally able to rescind) the rights a numerical minority can exercise is easily the most powerfully compelling argument against democracy imaginable?

And just to be crystal clear, lest I seem to once again be flouting the distinction between prescriptive and descriptive:

I LIKE the idea that the Thirteenth Amendment can be repealed tomorrow.

I am not in favor of the amendment being repealed. But I am highly in favor of the system which allows the people, by exercise of their sovereignty, to alter or abolish the laws that govern them.

Blalron

11-07-2010, 05:03 PM

How about another category: those that didn't read the decision, carefully or otherwise, but based their vote on the generic concept that such big decisions should be made by legislatures and not judges?

I don't think the "generic concept" is a good enough reason, considering that these learned men spent a great deal of effort reading briefs and sifting through case law on the Iowa constitution. This is precisely the reason why judges shouldn't be elected. Popular sentiment should have no influence on a judges decision, most especially where the rights of an unpopular minority are concerned.

In other words, your only two options are "carefully read the decision" or "visceral reaction against gay marriage." That's a False Dilemma.

It leans more towards the latter, and you know it. I'd bet a million bucks that not even 10% of them even glanced at the decision before they condemned it.

Blalron

11-07-2010, 05:10 PM

There's no chance in hell that this vote was motivated by some abstract concern about judicial philosophy, as Bricker is implying. I doubt any discernable number of those voters were simultaneously against the Iowa Supreme Court decision but in favor of gay marriage being implemented legislatively.

Blalron

11-07-2010, 05:15 PM

And just to be crystal clear, lest I seem to once again be flouting the distinction between prescriptive and descriptive:

I LIKE the idea that the Thirteenth Amendment can be repealed tomorrow.

I am not in favor of the amendment being repealed. But I am highly in favor of the system which allows the people, by exercise of their sovereignty, to alter or abolish the laws that govern them.

Given your love of pure majoritarian rule, I'm wondering if you would prefer that the U.S adopt a Parliamentary system like they have in the U.K. It seems that would be more your style. Parliament can theoretically do anything they want, with no written constitution to impede them. Whatever the majority wants, they get.

Bricker

11-07-2010, 05:29 PM

I don't think the "generic concept" is a good enough reason, considering that these learned men spent a great deal of effort reading briefs and sifting through case law on the Iowa constitution. This is precisely the reason why judges shouldn't be elected. Popular sentiment should have no influence on a judges decision, most especially where the rights of an unpopular minority are concerned.

1. Then your objection is not to this vote, but to the popular election (or popular retention) of judges.

2. Do you object to voters voting on other referenda questions? In the vast majority of ballot questions, there's a complicated issue with time devoted by learned men to its substance, but in each case the uneducated voter is expected to take a position.

3. How about voters on candidates? We surely accept that voters don't study the positions taken by candidates. I suspect you would object to a proposal to limit the vote to those voters who could prove they knew objective facts about the candidate.

It leans more towards the latter, and you know it. I'd bet a million bucks that not even 10% of them even glanced at the decision before they condemned it.

I agree. But why are voters incompetent to vote in judges unless they read a decision, but competent to vote on candidates without knowing anything about the candidate?

Bricker

11-07-2010, 05:38 PM

Given your love of pure majoritarian rule, I'm wondering if you would prefer that the U.S adopt a Parliamentary system like they have in the U.K. It seems that would be more your style. Parliament can theoretically do anything they want, with no written constitution to impede them. Whatever the majority wants, they get.

Not at all. I think our system is perfect. We require supermajorities to change the federal Constitution, which helps prevent the sway of passions of the moment but retains ultimate sovereignty in the people via their elected representatives.

The idea that there are certain portions of the Constitution handed down from Mt Sinai and simply unamendable is garbage.

FE3O4ENAIL

11-07-2010, 06:47 PM

"The idea that there are certain portions of the Constitution handed down from Mt Sinai and simply unamendable is garbage. "

Which usage? 3a?

gar·bage (gärbj)
n.
1.
a. Food wastes, as from a kitchen.
b. Refuse; trash.
2. A place or receptacle where rubbish is discarded: tossed the apple core into the garbage.
3.
a. Worthless or nonsensical matter; rubbish: Their advice turned out to be nothing but garbage.
b. Inferior or offensive literary or artistic material.
4. Computer Science Incorrect, meaningless, or unwanted data.

Bricker

11-07-2010, 07:10 PM

"The idea that there are certain portions of the Constitution handed down from Mt Sinai and simply unamendable is garbage. "

Which usage? 3a?

yep.

ambushed

11-09-2010, 10:25 AM

Bricker asks me:1. The Thirteenth Amendment could be repealed tomorrow.

2. Is that fact evil?

Yes! Yes! A thousand times yes! It is unconscionably evil and utterly anti-American! I'll say it again: That possibility is as depraved and repulsive a crime against America and American ideals as any I can imagine!

You write:... the gravamen of my complaint is that you reject the concept of sovereignty held, completely and utterly, by the people...(emphasis mine).

Indeed I do, just as the founders did. It shocks me to the core that you would imagine and claim otherwise!

You continue: ... That is the way we govern ourselves. And you may not call it "unequivocally evil" without revealing your lack of understanding of the term 'evil'; you may not call it "flagrantly repudiative of the founders' manifest will" without exposing your complete lack of understanding of the founders.

Whose "complete lack of understanding of the founders"? Sacred excrement, Bricker, are we even talking about the same country and the same founders??

I repeat: How on earth can you not grasp the very, very basic notion -- as repeatedly emphasized by both Enlightenment political philosophers and our Founders alike -- that a numerical majority of voters could actually establish or rescind the rights a numerical minority can exercise is easily the most powerfully compelling argument against democracy imaginable? Can't see that this is precisely the most important reason the Founders adamantly renounced democracy for our system of government? Don't realize that they emphatically rejected "the concept of sovereignty held, completely and utterly, by the people" (as you put it) as but the intolerably monstrous "tyranny of the majority"?

Are you fucking kidding me?

Here's a very typical example of the Founders' view on the subject from a letter to Jefferson from Adams: We may appeal to every page of history we have hitherto turned over, for proofs irrefragable, that the people, when they have been unchecked, have been as unjust, tyrannical, brutal, barbarous, and cruel, as any king or senate possessed of uncontrollable power. The majority has eternally, and without one exception, usurped over the rights of the minority.

Over and over again, the Founders utterly repudiated your outrageous and despicable notions and claims, Bricker. The very last thing they wanted was to grant sovereignty, completely and utterly, to the people! That is just what they feared most; they clearly understood that there is absolutely no difference between a king or other autocrat oppressing a minority and a numerical majority doing so: they're all intolerably unjust and evil.

That is exactly why they created the United States as a constitutional republic rather than a democracy! Your assertion that the Founders granted absolute power to the people is not only factually false, it is utterly repugnant to the very concept of human liberty. The vileness of your view boggles the mind.

The Declaration of Independence need not have any legal standing in order to reflect the manifest desire of the Founders to protect the minority -- even a minority of one -- from the majority, by referencing the essentially universal Enlightenment concept of "inalienable rights". According to your arguments, no such rights exist and the Founders never intended to protect such rights against majority rule! Incredible!

Do I really need to cite The Federalist, wherein Madison and others wrote so eloquently and passionately to directly oppose the loathsome position you're taking? Do I really need to explain to you that their arguments prevailed and were thus enshrined in the Constitution? Surely I don't need to explain the extraordinary importance of Marbury v Madison to an attorney!

I submit that Hamilton was entirely correct in Federalist No. 84 (http://en.wikipedia.org/wiki/Federalist_No._84) in warning of the profound dangers inherent in creating a bill of rights. That danger has been entirely realized! The Ninth Amendment has been nothing but ignored or spat upon by the courts, and the 13'th, 15'th, & 19'th Amendments and those like them are but foul abominations whose very existence should produce not admiration but deep and abject revulsion and shame!

You've asked me questions, Bricker, but now it's time for me to ask you one:

You keep asserting that the Founders granted complete and utter sovereignty to The People, from which it follows that the Founders had to have held that individuals or groups of individuals possess absolutely no intrinsic and inalienable rights whatsoever. Justify that by citing the Founders' actual words and how that concept is enshrined in our Constitution, or admit your repeated assertions and arguments to that effect in this thread are entirely unjustified.

When you've done that we can proceed to other issues, such as precisely where the Southern Poverty Law Center's amicus curiae brief (pdf) (http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/South_Poverty_Law_Ctr_Amicus_Curiae_Brief.pdf) relating to same sex marriage errs in its legal reasoning.

Bricker

11-09-2010, 10:45 AM

ambushed

11-10-2010, 07:35 AM

Your repeated and quite contemptible evasions will not do, Bricker. I am not fooled by your politician's ploy of "answering" your own question rather than the question I actually asked you.

Again, here's the question I actually put to you: You keep asserting that the Founders granted complete and utter sovereignty to The People, from which it follows that the Founders had to have held that individuals or groups of individuals possess absolutely no intrinsic and inalienable rights whatsoever. Justify that by citing the Founders' actual words and how that concept -- that individuals or groups possess absolutely no intrinsic and inalienable rights whatsoever -- is enshrined in our Constitution, or admit your repeated assertions and arguments to that effect in this thread are entirely false and unjustified.

Since you've once again deliberately evaded the many points I've made and/or you keep pretending they have no logical probity or relevance to the root issue of whether the Founders intended to -- and did -- actually enshrine complete and utter power in The People, as you insist, or whether they held that individuals and groups of individuals possessed inalienable rights that could never be voted away, it's clear I'll have to employ the Socratic method more rigorously and present everything as a question for you to answer:
(1): Did the Declaration of Independence correctly reflect the fact that the American Founders held that humans inherently possessed certain unalienable rights -- defined as rights that are in no way contingent upon the laws, customs, or beliefs of any particular culture or government and which could thus never be revoked or repealed by a vote -- including the right to life, liberty, and the pursuit of happiness, or did it not? Yes or no.

(2): If your answer is no, please prove to us that the signatories did not represent the the predominant philosophical view of the Founders yet dishonestly signed the document anyway.

(3): Was the Ninth Amendment an attempt to address the very real fear of many thinkers at the time, such as Hamilton in Federalist 84 (http://en.wikipedia.org/wiki/Federalist_No._84), that, without it, the Constitution and the rest of the Bill of Rights could be wrongly seen to represent the horrifically evil and Anti-American view you keep espousing that individuals or groups of individuals possess no intrinsic, unalienable rights that are not explicitly specified therein and which cannot be usurped by a vote of The People? Yes or no.

(4): If your answer is no, please prove to us that the authors had no such intent.

I don't know why you're so adamant about proving yourself either incredibly stupid or a bald-faced liar, Bricker. Will you not drop this pretense, sir? You've engaged in enough deception already. Have you no sense of decency, sir? At long last, have you left no sense of decency?

twickster

11-10-2010, 02:37 PM

Your repeated and quite contemptible evasions will not do, Bricker. ...
I don't know why you're so adamant about proving yourself either incredibly stupid or a bald-faced liar, Bricker.

You're not in the Pit. Leave off the insults and accusations of lying, please.

twickster, elections forum mod

Marley23

11-10-2010, 02:40 PM

I don't know why you're so adamant about proving yourself either incredibly stupid or a bald-faced liar, Bricker. Will you not drop this pretense, sir? You've engaged in enough deception already. Have you no sense of decency, sir? At long last, have you left no sense of decency?

The rules in this forum are the same as in Great Debates. Do not call other posters liars, and do not insult them. [Also, please don't overload my sense of irony by calling annother poster stupid or a liar and then appealing to his sense of decency.]

ambushed

11-11-2010, 08:46 AM

You're not in the Pit. Leave off the insults and accusations of lying, please.

twickster, elections forum mod
I will heed your cautionary note, twickster. I trust in your sincerity and I am not skeptical of the positive nature of your motivation behind it.

I must ask, however, for you to re-examine the context and then carefully re-evaluate whether or not my comments:

"I don't know why you're so adamant about proving yourself either incredibly stupid or a bald-faced liar" and "Will you not drop this pretense, sir?
are semantically equivalent to:
"You ARE either stupid or a bald-faced liar".

I submit that a contextually just reading of my remarks simply cannot appropriately and deservedly lead to the interpretation that I called Bricker a liar or stupid. The only just interpretation of my words is such that I was actually expressing frank puzzlement about why Bricker -- who is plainly not at all stupid or a wanton liar -- would choose to engage in the pretense that he actually is those things. My comments only make sense in the context of my understanding and acknowledgment that he is no such thing.

My words can only properly be understood as a criticism of the disingenuousness and evasiveness in some of Bricker's replies and arguments. My target is not Bricker, it is the pretense involved in his arguments and statements to the effect that the Founders rejected the universal Enlightenment concept that people intrinsically possess unalienable rights that can never be stripped away by any authority whatsoever, not even "The People", contrary to his repeated assertions.

Such is not against the rules, nor should it be. I appeal to you to reconsider.

ambushed

11-11-2010, 08:55 AM

The rules in this forum are the same as in Great Debates. Do not call other posters liars, and do not insult them. [Also, please don't overload my sense of irony by calling annother poster stupid or a liar and then appealing to his sense of decency.]

(Interior struggle ensues... Can't... can't... win! Argh! No... hope. Vanity?... power-mad?... (http://boards.straightdope.com/sdmb/showpost.php?p=12525196&postcount=6)

Polycarp... believes... ... gotten over it. (http://boards.straightdope.com/sdmb/showpost.php?p=13115260&postcount=17)

Ow! Must... heed... lissener's... counsel... (http://boards.straightdope.com/sdmb/showpost.php?p=12191947&postcount=30) Reading comprehen... ouch! What was I thinking! Ludovico device needs... re-tuning...

... er, oh yes: tone... sniff butts... lower gaze... keep place...)

Why, hello there, Marley23! Nice day for it, eh? Let me just slowly come up behind you there and...

My, that really does have a fine bouquet!

You know, I just can't take my eyes off those fine new shoes of yours. Seriously, someone sagely advised me that I just shouldn't look away from them if I know what's good for me.

What's that? Really? No, I wasn't aware that the Italians made dayglo orange Crocs: You're always schooling me on the finer things in life, and believe me, I'm dosh-garned grateful for the privilege.

Just as I'm deeply honored that you took the extra time and trouble to give me a happily gratutious kick after twickster had already made the exact same point. I feel so special, even singled-out. And what better way to demonstrate your generosity of spirit than by thoughtfully adding a not-at-all insulting or condescending editorial cherry on top?

I'll just be standing way over here admiring your shoes some more... Yessiree, nice shoes, alright...

ambushed

11-11-2010, 09:12 AM

The evasional nature of your replies will not do, Bricker. I am not fooled by any politician's ploy of "answering" their own question rather than the question I actually asked...

Since you've once again deliberately evaded the many points I've made and/or you keep pretending they have no logical probity or relevance to the root issue of whether the Founders intended to -- and did -- actually enshrine complete and utter power in The People, as you insist, or whether they held that individuals and groups of individuals possessed inalienable rights that could never be voted away, it's clear I'll have to employ the Socratic method more rigorously and present everything as a question for you to answer:
(1): Did the Declaration of Independence correctly reflect the fact that the American Founders held that humans inherently possessed certain unalienable rights -- defined as rights that are in no way contingent upon the laws, customs, or beliefs of any particular culture or government and which could thus never be revoked or repealed by a vote -- including the right to life, liberty, and the pursuit of happiness, or did it not? Yes or no.

(2): If your answer is no, please prove to us that the signatories did not represent the the predominant philosophical view of the Founders yet dishonestly signed the document anyway.

(3): Was the Ninth Amendment an attempt to address the very real fear of many thinkers at the time, such as Hamilton in Federalist 84 (http://en.wikipedia.org/wiki/Federalist_No._84), that, without it, the Constitution and the rest of the Bill of Rights could be wrongly seen to represent the horrifically evil and Anti-American view you keep espousing that individuals or groups of individuals possess no intrinsic, unalienable rights that are not explicitly specified therein and which cannot be usurped by a vote of The People? Yes or no.

(4): If your answer is no, please prove to us that the authors had no such intent.

I don't know why you're so adamant about pretending that you don't know far better, Bricker. Will you not drop this pretense, sir? You've engaged in enough disingenuousness already. Have you no sense of decency, sir? At long last, have you left no sense of decency?

Spavined Gelding

11-11-2010, 10:03 AM

Just as a housekeeping matter, it does seem to me that it will be very difficult to have a forum devoted to discussing and debating the issues and personalities involved in any popular elections if the participants are not allowed to call each other names. Like it or not, a fair number of the actual participants in the elections , their supporters, financers, supporters and running dogs are in fact liars, fools, scoundrels and provocateurs, and sometimes all of that. Just as you can’t talk about manure management with out talking about bull shit, It doesn’t seem possible to discuss popular politics without invective.

Just saying…

Blalron

11-14-2010, 10:27 AM

The whole thing did not come to a boil until just after Labor Day when the state was deluged by 30 second TV advertising denouncing activist judges making law and denigrating the institution of marriage.

I call them "Freedom Judges."

Bricker

11-14-2010, 03:09 PM

(1): Did the Declaration of Independence correctly reflect the fact that the American Founders held that humans inherently possessed certain unalienable rights -- defined as rights that are in no way contingent upon the laws, customs, or beliefs of any particular culture or government and which could thus never be revoked or repealed by a vote -- including the right to life, liberty, and the pursuit of happiness, or did it not? Yes or no.

Objection. Compound question.

Did the Declaration of Independence claim that humans inherently possessed certain unalienable rights?

Yes.

Was that claim correct?

No.

If your answer is no, please prove to us that the signatories did not represent the the predominant philosophical view of the Founders yet dishonestly signed the document anyway.

Objection. Assumes facts not in evidence, calls for conclusion.

That view was held by some of the Founders. But the Declaration’s purpose was to lay out a legal justification for separating the American colonies from Britain, and not to create or define legal rights for the people living in the colonies, or the powers of the new government in the colonies.

Thirteen years separated the Declarationof Independence and the ratification of the US Constitution, and the Declaration of Independence is not a source today of any substantive law.

Was the Ninth Amendment an attempt to address the very real fear of many thinkers at the time, such as Hamilton in Federalist 84 (http://en.wikipedia.org/wiki/Federalist_No._84), that, without it, the Constitution and the rest of the Bill of Rights could be wrongly seen to represent the horrifically evil and Anti-American view you keep espousing that individuals or groups of individuals possess no intrinsic, unalienable rights that are not explicitly specified therein and which cannot be usurped by a vote of The People? Yes or no.

Objection. Assumes facts not in evidence, conclusory, argumentative.