Well, but this isn’t really true. The question is one of who makes what decisions. Let us take the case of Jim Crow laws. During segregation, governments (in this case white majorities), made a great many decisions regarding what blacks could and could not do. After segregation was found to be unconstitutional, it did not become the case that the black minority made any decisions as to what the majority could and could not do (even if we suppose, contrary to fact, that there was no constitutional basis for those decisions). It simply became the case that individuals became more autonomous. If you want an example of true minority rule you have to look to apartheid-era South Africa, or somewhere similar. The removal of the government’s boot from the neck of a minority does not entail that the minority is now somehow ruling the majority. To think that it is is much akin to the plaintive wailing by religious conservatives that Lawrence imposes on them by not allowing them to imprison the sodomites. There is no imposition. Gays in Texas haven’t gained any new powers over straights. It’s simply the case that now all individuals have more say over their own conduct than they did before.
But you are:
Now I’ll admit, I had presented my suggestion in a sketchy fashion. But your characterization of it here is utterly offbase, nor was that the only time you have levelled similar charges against me. I await your withdrawal of the accusation.
It seems to me that to call a viewpoint which has been, in broad terms, shared with numerous Justices of the Supreme Court, as well as a host of moral and legal theorists, “not consonant with the Constitution or our particular form of government,” is more than a little self-indulgent on your part. I have a really, really hard time seeing how suggesting that the Constitution ought to be interpreted as establishing broad rights of liberty, and placing the burden of justification on the state, generally speaking, is incompatible in any way with your system of government. Indeed, it’s rather more consonant with your system of government than with ours - at least pre-1982 (i.e., pre-Charter of Rights and Freedoms).
I’m afraid I don’t understand your example here. Are you suggesting that the decisions against segregation run contrary to your strict constructionist viewpoint? I should have thought that in this case, you would admit that the courts were acting properly in enforcing the Constitution.
Look, in short, my position is simply that there are some things that the government currently legislates that it has no right to legislate. Should the courts rule in accordance with this position, they would simply be removing the power of governments to legislate in that fashion. That does not grant the courts any more power than they currently have - it’s not like the courts then get to legislate those matters. It simply places a further restriction on a sometimes overbearing government. If the courts say, look, you can’t treat gays and straights unequally with regards to marriage, they do not thereby gain the power to regulate marriage themselves. The power to decide who will get married formerly exercised by the state devolves not to the courts, but to individuals who will now be able to decide for themselves whether they want to wed where formerly they were forbidden.
I explained what I believe to be their reasoning in a post addressed to Rick somewhere above. To wit:
If Dewey were gay, he would not hold the legal views he does. Specifically, he would not oppose court decisions affirming the right of gays to marry. Hence takes the recognition of his own rights to be more important than the recognition of ours, which is just to say he is a bigot.
Upon further consideration, I think this argument fails. But I think the fashion in which it fails is fairly subtle. Bear with me a moment. The question hangs on how the counterfactual “If Dewey were gay” is parsed. If we parse it as “If Dewey had grown up gay” then I think we must conclude that Dewey would never have developed the legal views he did. You might wish to contend this point, but I think it is on fairly safe ground. There may be a few gays who have come to your conclusions, but I know of none. It is extremely plausible to suppose that had you grown up gay, you would have come to hold a rather different worldview, and place value on different things, in a fashion which would preclude strict constructionism.
However, I don’t think that we ought to parse the counterfactual in question that way. I think we ought to parse it as “If Dewey were gay and held the views he currently does.” While I don’t see any really plausible mechanism for you to have reached such a state, I think that’s the relevant state here because, after all, what we want to know is whether the views you hold are bigotted. And I think that you would in this case actually acquiesce to the inequalities imposed upon you. Note that this is a rather high compliment. There are relatively few people who would have the conviction to willingly submit to gross injustice perpetrated on themselves simply for the sake of abstract principle, but I believe you to be one of them.
I strongly suspect that Homebrew and Otto are thinking in terms of the first variant I suggested, and if we accept that parsing, their argument is sound. I have explained why I think we should not accept that parsing, but as I said it’s a rather subtle matter. I would also suggest that even should they think in terms of the second variant, the conclusion that you would submit to inequality is a rather strong conclusion, and hence requires a high evidentiary standard, so, at the cost of repeating myself, I find it difficult to be harsh on someone who might disagree that the standard has been met.
Naturally, I may be wrong about their reasoning. If I am, they may correct me.
