Constitutional "Originalists" and Slavery

Great Debates
101

Okay. Cite? I have no problem taking your word for it that it was the universally-held convention but it doesn’t really matter either way. Is the common law not subject to revision? I bet there are a lot of common laws that have been forgotten by history.

Well, even assuming that *was *the definition of legal marriage (and not just a latter-day attempt to hold back the tide - note the suddenness of the efforts circa 1998-2010 to formally define marriage by gender, as if legislators were abruptly realizing the oversight and hastily trying to correct it), you’re missing the point. Why does marriage even *have *a gender requirement? Does it need one? Does a corporation need a gender requirement? A legal partnership?

Feel free to join a church or religious group that steadfastly maintains that gay marriages are not real marriages in the eyes of God or whatever. Nobody’s going to stop you and by the terms of the First Amendment, nobody legally can. Legal marriage remains, however, a useful legal structure in the U.S. that has evolved over the last century and accumulated a great many facets that were simply nonexistent in the 19th century. A heterosexual couple can get these easily. A homosexual couple cannot… just because of their genders. It may not have mattered all that much in the 19th century, but it certainly matters now, i.e. making a next-of-kin decision to keep a stricken spouse on life-support was a moot decision before the modern medical ability to maintain life-support.

Side note - I speculate that had the medical technology existed in 1865, say, and Abraham Lincoln could have been kept nominally alive on a ventilator even after suffering the head wound from Booth’s bullet, the sexism of the time wouldn’t have let Mary Todd Lincoln have the decision whether or not to discontinue life support. The call would be left to their son, Robert Todd Lincoln.

I don’t care in the least about how you view traditions and such. I invite you to pick out any aspect of legal marriage and explain to me why it can only work properly with a heterosexual couple and not a homosexual one. Inheritance laws? Pensions? Medicaid? Adoption? Surname changes? Anything from this list?

Please pick adoption. I could use a good laugh.

It would be fair, I recognize, for you to respond that you don’t have to prove why marriage need be defined to exclude homosexuals, but it’s enough that a majority of society and their elected legislators want marriage to be defined to exclude homosexuals (you can spare me the fatuous note that homosexuals are free to enter heterosexual marriages). If that desire was strong enough to get a constitutional amendment defining marriage in that fashion, then I admit that would pretty much be the end of the discussion, barring a later constitutional repeal (for which there is precedent; the 21st over the 18th, for example) which I would casually and consistently support. In the meantime, if you feel judges have overstepped their authority, well… suck it up, buttercup. Try voting for the really anti-gay Republican next time.

102

Can’t speak to the common law in the States, but in Canada, the courts relied on a definition of marriage from the English Probate and Divorce Court: Hyde v Hyde (1866), LR 1 P&D 130, at p. 133.

This definition was cited in all the Canadian cases on same-sex marriage as the common law definition of marriage. However the courts consistently held that it did not meet the equality requirements of the Charter, and has not been followed.

See the wiki article on Hyde: Hyde v Hyde - Wikipedia

103

If you don’t need a cite, don’t bother asking.

Sure, it can be. Legislators do it all the time. That’s their job. Judges don’t, at least under the US Constitution, and when the judges are performing their duties.

Nope, not missing the point at all. Marriage does have a gender requirement. The decision whether it needs it or not is made by legislators, or the people by referendum or things like that.

Just to reiterate - this is wrong. Any homosexual couple can get the benefits of a legal marriage by entering into a legal marriage.

Again, you are missing the point rather badly. A majority of society and legislators did want to define marriage as the union of one man and one woman. The burden of either changing the laws, or amending the Constitution, lay (licitly) with those who wanted to change the law. Unfortunately, there were enough Justices who were willing to violate their duty to the Constitution and the country that it didn’t happen that way.

You’re Canadian, IIRC. Thus your concerns are given the weight they deserve.

Regards,
Shodan

104

Hardly. You should go back and read Article V again. Legislatures ratifying an amendment is not the same thing as the people doing so. (And if you’re going to try the ‘state conventions’ argument, that process has been used exactly once, to repeal Prohibition, and is highly unlikely to happen again.)

Heh some originalist…

105

Cool. The definition did exist, but its flaw was obvious and worthy of correction, not something to cling to with whitened knuckles, just because.

106

That’s effectively identical to saying any black person need not have been subject to the Jim Crow laws, if he or she was just willing to undergo daily skin-bleaching. It raises the question of why the Jim Crow laws are even necessary, to people who don’t blindly adhere to the “but we’ve always done it that way” principle.

Well, if that’s what you want to call it. It was more like respecting the constitution instead of violating it. Do you favour an actual constitutional amendment defining marriage as hetero? Hey, good luck with that.

Anyway, this has gotten pretty far afield from discussing slavery, but I guess it’s a natural transition from one form of “fuck *those *people” to another.

107

Which was actually upheld by the SCOTUS in Robertson V. Baldwin!

IOW, the court ruled that ancient and accepted practice has a standing against novel applications of the Bill of Rights; and afaik this has never been explicitly overturned. :eek:

I’m surprised no one brought this up during the gay marriage court cases.

108

For SSM or against? If the latter, how do you establish the necessities of a gender requirement for marriage?

I’m pretty sure there’s been ample opportunity to describe and justify such necessities, if they exist. I’ve asked after such a few times, myself.

109

I’m not sure what you mean by necessities; I was saying that anyone who wanted to claim that “marriage” had since time immemorial universally been understood to mean between a man and a woman, they could have pointed to Robertson v. Baldwin as a precedent for conservative interpretations of the law.

110

You are misunderstanding the case. The proposition is that the Bill of Rights did not add anything to the common law, but simply codified what we already “inherited from our English ancestors.” Since we did not inherit same sex marriage from our English ancestors (and in fact, inherited the common law male-female definition of marriage) it is not proper to point to a provision in the Bill of Rights and say, aha!, that one says we must have same sex marriage.

The exceptions based upon necessities were exceptions to the freedoms outlined, not exceptions to any general rule which granted more freedoms. For example, freedom of speech seems pretty absolute until you look at the common law and say that obscenity, libel, threats, and the like can be prohibited.

111

You don’t “must” have same-sex marriage but it would be consistent with your 14th Amendment. Can you you supply a reason other than “we’d always done it that way” to oppose same-sex marriage?

112

Framing the question that way- “oppose same sex marriage”- turns the debate on its head and is in fact a clever bit of legal/debating jiu-jitsu. Conservatives would claim its not up to them to “oppose” anything, its up to progressives to justify imposing something new and radical on the rest of the public. The debate isn’t over “allowing” gay marriage, gays can do whatever they want; the real debate is over forcing the rest of society to respect their married status, and punishing people (wedding cake bakers, etc.) who refuse to. Put that way, gays suddenly look less like poor victimized minorities and more like strident radicals forcing their beliefs down everyone’s throats.

113

It would be if it had been implemented in ways that didn’t otherwise violate the part of the Constitution that says that legislators make laws, not judges.

But you are correct - we don’t “must” have same-sex marriage under the 14th. As Lumpy points out, it is an attempt to shift the burden of proof. If a law says what it says, you go to your legislators and get them to change the law. You don’t simply get the Supreme Court to change it, or at least you shouldn’t.

Regards,
Shodan

114

Except when the law in question violates the constitution. Surely you’d be OK going to the SCOTUS to overturn a law that made gun ownership illegal, no?

Perhaps you meant “the constitution” instead of “a law”.

115

It’s not clever - it just stems from a philosophy of “all things should be permitted, unless forbidden for a good reason” (the opposite of “all things should be forbidden, unless permitted for a good reason”).

Certainly the people arguing for a change in the law (and/or how the laws should be interpreted) to recognize legal same-sex marriage had the burden of proof. That burden is relatively easily met, though, if one doesn’t have preconceived notions about homosexuals.

Example:

  1. Many American citizens enjoy that status of legal marriage and the thousand or so legal and financial privileges it incorporates.
  2. We are American citizens who happen to be homosexual.
  3. We wish to form, and homosexuality is no barrier to forming, life-long pair bonds.
  4. We wish to have access to the thousand or so legal and financial privileges mentioned in part 1, that many millions of our fellow Americans citizens can now enjoy obtain with little more than a rubber stamp.
  5. If the concept of equal treatment under the law is meaningful, we ask that the law be extended in this fashion to ensure equal treatment to a greater number of American citizens.

…or something along those lines.

Well, it’s hard to have it both ways, i.e. they describe it as “radical” and not have to back that up in some fashion. The potential impact of gay marriage was certainly described in stronger terms, sometimes apocalyptic terms, but also not really justified. I don’t doubt there was much anti-abolition rhetoric of the time describing horror scenarios where emancipated blacks would do all kinds of negative stuff, with “they’ll want to fuck our daughters!” being high on the list, I’m sure.

Well, if “legal marriage” has any meaning (I personally define it specifically as the government-sanctioned status that carries a number of legal privileges and responsibilities, and as opposed to generic “marriage”, which could included religious ceremonies that are only of significance to member of a particular faith), then in the spheres of commerce - yes, the recognition is required. An insurance company cannot choose to refuse to recognize a legal marriage. A hospital cannot refuse to recognize a legal marriage in order to deny a spouse next-of-kin decisions.

Privately, heterosexuals can do whatever they want - they can go on message boards or tell their church groups or lecture their social clubs or raise their children with the repeated message that gay marriages are not real marriages. They’re free to refuse invitations to gay marriages, even free to protest gay marriages, but if they want to conduct business in America, a whole bunch of rules apply about when and how they can refuse particular transactions. Right now, some Americans are challenging those rules, as is their right.

Gays shouldn’t look (or pre-Obergefell, should not have looked) like poor victimized minorities - they should have looked like American citizens who were not getting equal treatment under the law, and *that *should have made other Americans angry, if the ideals of “America” meant more to them than just the occasional wave of a flag.

The big hurdle, I guess, is that one first has to view American homosexuals as fellow Americans. Tricky, I’m sure. Of relevance to slavery, the big hurdle was to view Negroes as actual human beings. After that, equal treatment under the law becomes a pretty straightforward exercise.

116

No, I meant “a law”. The Constitution doesn’t define marriage, and the 14th refers to the equal protection of the laws. Laws that don’t exist don’t violate the Constitution.

Of course I would - the right to keep and bear arms is enumerated in the Second Amendment. I would also be fine if the SCOTUS overturned a law saying that only blacks could keep and bear arms because that violates the 14th as well as the 2nd. I am also fine with SCOTUS overturning a law denying blacks the right to enter into the union of one man and one woman because that violates the 14th.

I would not be fine with a SCOTUS decision saying that the Second Amendment guaranteed my right to enter into a SSM. Because the right to keep and bear arms is a different legal concept from entering into the union of one man and one woman.

If someone believes that it does, it is up to them to convince their legislators to change the legal definition of keeping and bearing arms to “marrying your boyfriend”.

Regards,
Shodan

117

Well, they did and it worked, so that’s the system you’re operating under. I suppose as a purely hypothetical thought exercise on how the legislative review process should work, this might have seemed like an end-run (same for Brown v. Board of Education? Miranda? Roe?).

I remain curious about reasons why gay marriage specifically should not have been legalized, if you know of any. An expected increase in pharyngitis, perhaps, from all that throat-stuffing?

118

If by “pretty straightforward” you mean amending the Constitution, then why didn’t SSM proponents take that straightforward path?

Regards,
Shodan

119

For fifty percent of the American population, “marrying your boyfriend” was just fine. For some reason, it was important to make sure the other fifty percent were prevented from doing so, though ninety-plus percent of that fifty percent would never consider it anyway.

Why is a gender distinction important in this case, when gender distinctions in law have largely faded away? Still unclear.

120

That is not what I meant. I suppose before the 14th was ratified, that might have been what I meant, but that ship sailed 150 years ago. Since the time that idealized concept (equal protection under the laws) was put on paper, you’ve discarded a great many superstitions and pseudo-scientific notions about race, gender and sexual preference. Americans are just now struggling with gender identity. As you mature as a nation, I suppose it’s good that your laws and how you apply them matures as well.