The gay marriage issue – I started out opposing same-sex marriage, and ended up changing my mind and admitting that I had been wrong.
Ina thread on the 2000 election results, I sarted out claiming there was a particular Florida law requiring votes to be cleanly and clearly punched, and then acknowledged it was merely a set of instructions that appeared on a ballot, not a Florida law.
There are three examples in which I have acknowledged error.
Okay, okay. I’ll give you an answer. (But this is why I usually avoid the GD issues - I don’t always have the time to keep up. I’m amazed and impressed by the ability of Bricker and others to follow and respond to these kind of threads on a daily (if not hourly) basis, despite real jobs and other responsibilities.)
First, I don’t pretend to be a 14th amendment scholar, and I haven’t read all of the cases in the area. Second, I’m not entirely comfortable with the reasoning of those cases that I have read.
That said, I will say the following:
The 14th amendment controls, to the extent it contradicts the 11th amendment or any original Constitutional provision, because it was enacted after both.
The history surounding the enactment of the 14th amendment supports a conclusion that it was intended to limit/reduce state authority.
The 14th amendment provides, in relavent part:
These two sections of the amendment have little meaning if a person deprived of his Section 1 rights by a state has no judicial remedy.
I was hoping that we’d get the OTHER crickets quieted first, before the thread charged on, the underlying issue with ElvisL1ves’ answer became even more moot, and he escaped - as always - having to actually acknowledge anything approaching error.
Ah, well.
Yes, I agree with that, because the sections of the Constitution must be read in pari materia with each other, giving full effect to each and reading them in harmony. When there is an apparent conflict, the specific overrides the general, and the later amendment overrides the earlier, because Congress and the state legislatures knew what the earlier amendments said when they wrote and approved the later ones.
Section 5 of the Fourteenth gives Congress the power to enforce the Fourteenth Amendment’s other provisions. If the rest of the Fourteenth Amendment’s guarantees - “…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” can be enforced by Congressional legislation, how else can such legislation’s effects be adjudicated but through the judicial process of the United States, in law or equity?
Someone advocating a literal reading of the text has a problem with what you’ve said. Someone advocating a textualist approach does not.
Thanks, guys. And Random, I know how it can be not to be able to respond tout suite; I wasn’t directing the chirpiness at you. It was just a little gentle fun with Bricker.
Textualism is necessarily contextual rather than literal; I’d agree with that, not least to the extent that a textualist has to pull out the ol’ dictionary, sometimes, to see what the legislators (or Framers) most reasonably would have meant by a certain word. But IIRC, Bricker, you don’t believe a generalized right of privacy can be fairly located within the Constitution under a textual approach. Isn’t the entire context of the Bill of Rights – at least the First, Second, Third, Fourth, Fifth, and Ninth Amendments – and the self-limiting nature of the Constitution itself suggestive of a desire on the part of the Framers to keep the federal government out of personal affairs? Why can’t this be contextualized in the way state sovereign immunity has been? That is, whether the specific outcomes in Griswold or Roe were palatable to you, isn’t the concept that a right of privacy can be directly inferred from the Constitution a reasonable one.
For example, take the Second Amendment debate. One side says it was intended to secure individual rights, the other side says it was intended to protect state militias as against the federal government. I’ve always thought it was a fair possibility – whether supported by historical fact, I’m unsure – that both sides were right, and both wrong: that the Framers of the BoR simply accepted the notion that every individual has a natural right to keep a gun as his property as so self-evident that it didn’t need to be put into words, like the right to contract or the right to marry, and thus the Second Amendment was targeted at the ability of militias to be armed because the individual right to own a gun was uncontestable and needed no explicit securing. shrug Again, this may be ahistorical – I’m not well-versed enough in the way each Framer thought – but it’s at least plausible and another illustration of how contextual textualism (assuming people can agree on the underlying historical records, which is a big assumption) ends up not so far away from notions of a right of privacy to be judicially enforced against the federal government and, if the Fourteenth Amendment is read with broad-ish purpose, the states.
I’m also interested to get your take on representation reinforcement – to what extent should the court’s countermajoritarian role (if you agree it has one) play a role in its approach to constitutional interpretation?
When I discussed state sovereign immunity, I noted that the assumption was necessary to give effect to a specific power granted to Congress. I have no problem with decisions that make similar assumptions: since the Fourth forbids unreasonable searches and seizures, giving effect to that specific result is fine with me. But to say that there is a generalized Constitutional right to privacy jumps too far: it is unfounded. Why not simply say that what the Fourth says - in context - is what it means?
Maybe. For what it’s worth, I wouldn’t quail at a decision limiting the right to bear arms to a militia context, if supported by historical context… that’s what it says.
I do object to throttling the Second Amendment in that way while simultaneously giving effect to generalized rights from penumbras and emanations found in other Amendments.
The court has a countermajoritan role, but not a counter-supermajoritan role. That is, the judiciary must be guided by the Constitution’s words; IT is the guard against flashes in the pan. Amending it - 27 times in 200+ years - is difficult enough that it’s resistant to the whim of the moment.
The Fourth, and the First, and the Second, and the Third, and the Fifth, and the Ninth. At what point do enough trees become a forest?
And is it your position that there’s no generalized constitutional right to marry? (I’m talking opposite-sex marriage, mind, the kind the Framers approved of.) I argue that it’s no greater jump to a right of privacy from each of the above-named amendments, taken together, than it is a jump to a right to marry when looking at the First, Fifth, and Ninth amendments in context.
And for my part, I’m happy to have the Second Amendment emanate along with the rest of 'em.
…But it’s precisely because the Constitution is so difficult to amend that the courts must give broad effect to its text for the protection of political minorities, let alone political superminorities. Was Dred Scott correctly decided? Let me rephrase that: had Chief Justice Taney and the rest of the court gone the other way, would they have been acting extra-judicially? I’m sure you know all about log-rolling and public choice theory and the compromises that go into the passage of any law that make it so hard to determine collective intent – this is doubly, trebly difficult, as you note, when dealing with the amendment process itself. If “equal protection” is the clearest, most specific language that Congress and the Northern states can agree on (let’s not speak of our Southern brethren, taken hostage and coerced into voting), why must the courts effectuate those words as to give the legislatures – majoritarian institutions – the greatest latitude to stunt and negate civil rights gains in future generations, as is exactly what happened at the end of Reconstruction and beyond? Moreover, what of the privileges and immunities clause, offering by far the clearest and most protective language in the Fourteenth Amendment, yet eviscerated at its birth by an unconscionably strained reading of legislative intent?
Have you been spending all this time waiting by your computer, desperately hoping I’d pay attention to you? Wow. Well, just to take pity on the contextually-challenged: When you challenged me to admit an error I’ve made, I asked you for an example we could discuss. You’ve had all this time to come up with one, but haven’t, although you apparently have nothing better to do. You’ve been told before, and you ought to know it anyway, you have to make your *own * arguments here.
This one is over. You did worse than lose this time, after having your straw OP blown away in a puff of a breeze, you had to admit you’ve never actually had an argument in the first place. That, to be kind, is contrary to the spirit of this board (or its emanations and penumbras, or “not much of a stretch” from them, or a “single jump” from them if you prefer). Isn’t it about time to get the fuck over it and learn from the experience?
Hmmm, this thread stayed under my radar for quite awhile…
Do you believe if the states elected to get out of the business of formally recognizing marriage, that such an action would be unconstitutional?
Actually, I take the position that Dred Scott is an activist decision, and a strict constructionist would have reached the opposite result.
Are you contending that you’ve never made an error in any of your posts? You can’t even think of one? Good heavens.
Of course, this is SOP for you: just declare victory, never having had to articulate an argument. I see plenty of folks participating in a serious discussion, but you aren’t one of them.
Can you clarify your question here? It seems to me that one can answer “no” to both questions* and remain consistent, just as you could substitute “baptism” for “marriage” and get the same result. There may be a constitutional right to marry, yet the government could back entirely out of the process. Or is that not what you’re getting at?
Here I agree entirely. It would be bizarre to me that Elvis thinks he’s won anything in this thread, or that Bricker’s concession of the point is anything to gloat over, except that, as you say, that’s pretty standard for how Elvis argues. It may be better to ignore the noise in favor of the signal.
Daniel
Note that the first question begins with “Is it your position”; a negative answer means that there is a constitutional right to marry.
Well, I take “right to marry” to mean a right to governmental recognition of the marital bond, not simply the right to participate in a religious ceremony that confers no state benefits.
In this latter sense, of course there is a “right to marry” under the free exercise clause, just as the free exercise clause creates a right to be baptised, take communion, attend worship services, and do whatever other things are required of you by your particular religious order. In this latter sense marriage is simply a religious ritual protected by the first amendment.
But I take the question, as I said, as meaning a “right to marriage recognized by the state.” Which, I think, is plainly false, language in some Supreme Court opinions notwisthstanding. After all, if the state can legitimately cease recognizing all marriages, then marriage is not a right protected under the constitution.
There may, of course, be equal protection arguments that prevent the state from allowing some individuals to marry while disallowing others, but that’s different from saying there is a generalized right to marry.
That makes sense, Dewey. Near as I can tell, the government doesn’t have a duty to recognize anyone’s marriage, but it does have a duty to recognize relevantly similar marriages in a relevantly similar fashion. (That is, it may choose to recognize no marriage, or to recognize OSM and SSM, but may not choose to recognize OSM but not recognize SSM).
I see what you mean, though: Gadarene seems to be suggesting that the government cannot choose to throw its hands up and refuse to recognize any marriage at all. If that’s what Gadarene means, I disagree.
Similarly, when people say you have a right to an education, that is clearly false. A state could simply dislove its educational system, and there is nothing in the constution that would prevent it from doing so. And similarly, there are equal protection issues if the state decides to deny education to certain groups, while giving it to others.
I am saying – and the Supreme Court says – that marriage is a fundamental liberty under the Due Process Clauses of the Fifth and Fourteenth Amendments. If you don’t like that example, I’ll proffer the fundamental liberty interest a parent has in the care, custody, and management of their child. Santosky v. Kramer, 455 U.S. 745 (1982). The examples themselves are ancillary to my point, which is that certain amendments, viewed contextually, have affirmed the existence of certain rights or freedoms against which the government may not trespass lightly, but which are not explicitly found in the constitutional text.
Please expound. I guess I can understand that it is considered “activist” because it apparently struck down the Missouri Compromise, but I’m unfamilar with the argument that strict constructionists would have reached a different conclusion.
Rather than reinvent the wheel, allow me to refer you to this old post of mine which describes the actvist nature of Dred Scott.
To which I respond, (1) those decisions, relying as they do on notions of substantive due process, are fundamentally activist decisions, and (2) the high court doesn’t actually mean it when they say marriage is a fundamental right, because I doubt anyone seriously believes that the court would prevent the states from declining to recognize and record marriages altogether.
Allow me to ask the question again: do you believe that the constitution forbids the states from getting out of the marital-recognition business?
Odd that you would choose this case, because although there is some throwaway language about fundamental liberty interests, the case is actually about the constitutional requirements regarding parental rights termination procedures. That is, it is fundamentally a procedural due process case, and thus one that even the strictest of strict constructionists would agree is appropariate for the court to decide.
It will surprise no one that I disagree, and that to the extent the Supreme Court has so found, they have abused their authority.
The simple fact is that the approach you advocate has no meaningful limits. You can find literally anything in a penumbra.
…Yeah, I know what the case is about, thanks. I’ve spent the last month writing an opinion for my judge on termination of parental rights stuff. And Santosky holds, as many other Supreme Court cases have done, that the care, control, and management of a parent’s child is a fundamental liberty interest for procedural due process purposes, so I’m not sure why you’re taking care to separate Santosky’s ‘fundamental liberty interest’ language from its ‘procedural due process’ language. They’re one and the same. But, o strictest of strict constructionists, what is it about the care, control, and management of one’s child that makes it so self-evidently a fundamental liberty interest, even though it’s not mentioned by name (or even alluded to by subject matter) in the constitutional text?
I’ll respond to the rest of your post later today.
Oh, one more thing: My ertswhile civil procedure professor once quipped that the phrase “[t]he simple fact is,” much like the phrase (which you don’t use, but which is illustrative) “the cases are too numerous to cite,” are almost invariably obsfucatory and almost entirely unhelpful.
Do you agree, by the way, that my proposed construction of the Second Amendment, offered supra, is plausible as an initial matter – that is, before one undertakes the necessary historical inquiry?
