At least I’m honest enough, when the Massachusetts ruling is brought up, to state that I am not familiar enough with the history shaping the text of the Massachusetts constitution to say definitively one way or the other whether that ruling is truly activist. But I’d wager dollar to donuts that an investigation into that history would show anything but an understanding by the framers that the text used in the ruling was designed to encompass gay marriage.
And, lest I hijack, let me say that one of the (many) things that disturbed me about Republican actions regarding the Schiavo case was how quickly they abandoned judicial restraint as a guiding principle. Because as near as I can tell, the courts in this case followed the law strictly, and the folks who wanted them to require the reinsertion of the feeding tube were actually agitating for activism.
Well, now, here’s how the story was related to this country boy…
The Massupremes didn’t say the legislature intended to legalize gay marriage. But the law refers to “persons”, not “a man and a woman”. I don’t think anyone is suggesting with a straight face anything different, of course the legislature didn’t intend to legalize gay marriage, but whose fault is that? If you say persons can marry persons, and that’s all you say, you can’t claim later that you intended to exclude Episcopalian Aleuts.
If you hate Hannity you must really loath Michael Savage. That guy makes SM sound like Carville. I heard him in the car the other day and couldn’t help but think “someone needs to get that man a shot of Haldol.”
There’s a deeper issue here, however, which is whether laws that make what purport to be moral statements or principles can really be held back by “well, the framers never would have imagined this outcome!” The problem is that actually trying to apply morals and principles (in the way the law at least pompusly pretends to ask you to do!) can very easily take you to a place you never expected when you reason them out more fully in situations you hadn’t thought of. And yet, since the moral principle claims to be universally applicable, then you really have no right to object that you couldn’t have forseen this or that thing to which you’d want to make an exception.
This was demonstrated to great effect by the philosopher Peter Unger in his discussion of how we will condemn someone who lets a child drown for want of getting his clothes wet, and yet won’t condemn people who let millions of children die from diarrhea for want of like, a fraction of what it costs to wipe our asses on nice toilet paper. In response, trying to avoid his conclusions, people have had to rush in with all sort of badly photoshopped caveats about their previously nice, proudly simple moral principles.
So which is it? Are laws that promise things like equality just meaningless boilerplate? Or are judges supposed to take them at face value? Or are they supposed to, instead, not take them at face value and pretend that there are all sorts of unwritten caveats in the law that make it really mean what the framers might have intended?
In the Schiavo case, the courts rightly complained that what they have at the end of the day is the bill as written. Trying to read intent out of a contentious democratic argument is in some sense futile, because it was a compromise, not anyone’s unfettered intent.
Dewey, since we’re in the Pit, may I cordially request you to Kiss my ass!
You are perfectly entitled to be an original intent-ist and argue that that is how the constitution (federal or forum state) and statutes should be construed.
You are not entitled to self-righteously demand that everyone accept that as the only reasonable perspective.
Or else, I expect you to start a Great Debate in which you reasonably set forth the argument that the United States Air Force is unconstitutional and should be abolished or turned over to the states, because the Founding Fathers never intended that the Federal government have one.
I decline the invitation, and note that even in the Pit such a request is a pretty good indicia that you have the worst of the argument.
Of course, you’re the one who said you had demonstrated that the Massachusetts ruling was a “clear example” of judicial restraint. You’re the one who is suggesting your view of things is dispositive.
In fact, if you’d bothered to read my post, you’d have noticed that – far from “self-righteously demanding” everyone accept my perspective, I in fact noted that I do not know enough about the Massachusetts founding to even say if that decision was activist under a strict constructionist viewpoint (though I do have my suspicions).
So spare me your indignation. You’re the one claiming to have all the answers. Not me.
I’ll answer this one right here, since GD is a place for grownups and this is a child’s argument.
For starters, the constitution allows for the maintenance of “Armies,” the Air Force is an army (note it started its life as a division of the Army), and is therefore constitutional even without turning to ordinary strict constructionist intrepretational principles.
Second, strict constructionists, of both the originalist and textualist varieties, would be looking at context and historical meanings (originalists would add, the intent of the drafters). And certainly “army” would be understood in 1787 as an organized fighting force of some kind, regardless of technology. Calvary used to mean men on horses; that doesn’t mean an army today can’t constitutionally use heavy armor.
Third, the constitution doesn’t specifically mention the Marines, either, but they existed in 1787. It takes a particularly perverse, cartoonish view of strict constructionism to suggest it demands such an interpretation.
This mode of interpretation would lead to absurd results. As I’ve noted in the past, the plain text of the federal equal protection clause would lead to disaster if it was applied without interpretation: the government classifies people and treats them differently according to those classifications every day. Incarcerated criminals are treated differently than the law-abiding. Children are treated differently than adults. And so on and so forth.
So those provisions demand interpretation, and judicial restraint demands deference to the lawmakers who drafted those provisions when they are interpreted.
The Massachusetts decision was premised on the Massachsuetts equivelants of due process and equal protection clauses. While it is theoretically possible that the Massachusetts framers intended those provisions to encompass gay marriage – again, I don’t know enough about the Massachusetts founding to say – somehow, I doubt that is the case.
“American Government” was a required class in my high school. Ya had to take and pass it in order to graduate. Post graduation, a fellow graduate of mine was yapping at me about what her life was going to be like that fall. She was going to move to Florida, and go to school and so on, mentioning that she was going to register to vote in Florida, but keep her Michigan registration too. She seemed totally shocked when I told her she couldn’t do that, legally.
So, folks certainly could have seen, taken and even passed a civics class and still remain clueless about certain major aspects of American civics, IME.
Surely you can allow some deference to those of us who believe the Founding Fathers both wanted and expected the country and its society to develop past the culture and mores of the late eighteenth century, now that we’re in the twenty-first. They were a more forwardminded, liberal bunch than you’re giving them credit for - *your * version of proper constitutional interpretation is “particularly perverse [and] cartoonish”.
And it has to have a good reason to do so based on keeping society functional. Nowhere is there any basis to find that gays are one of the officially-discriminatable-against classes. But you can keep up the bluster if you wish.
In the words of John Hancock, “You’re utterly missing the point”. They didn’t envision automatic assault weapons either.
Of course they did. And that is why we have a legislature to enact laws (which change over time) and a clearly defined process to amend the constitution.
Who says society can’t evolve past the culture and mores of the late eighteenth century without the intervention of the judiciary? The ordinary political process remains open, as does the process of constitutional amendment.
No, your understanding of it is cartoonish. My propensity for deferring to legislative majorities honors that forwardminded, liberal bunch of old dead white guys; it pays homage to the system of government they envisioned – one truly, in the words of a later president, of the people, by the people and for the people.
Nowhere is there any basis to say they aren’t. The framers of the fourteenth amendment were concerned with the treatment of blacks; there is little principled reason to extend it beyond race, beyond “I really, really want it to be so.”
They could envision cannons, which I’d wager I could buy if I had the money in 1787. The founders were pretty laissez-faire about civilian arms ownership.
(BTW, FTR, in the interests of fighting ignorance, automatic weapons (assault or otherwise) have been effectively disallowed for civilian use since the 1930s, and I really doubt the founders would have a problem with people owning scary-looking semi-automatic weapons.)
And look how well that worked. We only had to fight a civil war, wait 80 years, and fight in the courts about it for another 150 to get black people the same rights as white people. Maybe in another 100 years, the legislatures will deign to recognize gay people as full human beings too.
Cute, but that completely dodges the question of what a court is supposed to do when confronted with a moral principle written into the law, and a situation for that principle that the framers could not have forseen. Do such principles have any real meaning? Or are they just meaningless boilerplate?
Well, what exactly were the courts doing during that time? Are you suggesting that if the Supreme Court had ruled slavery unconstitutional in, say, 1850, that the Civil War would have been averted? No chance.
The legislature represents the will of the people. Sometimes the will of the people goes against what you or I might want. THat’s the downside of democracy. Got a better system?
Of course, all of that is pure speculation. I was merely pointing out that relying on the will of the majority does not always work. I used the the horrid treatment of blacks and the current treatment of gays as examples where a purely democratic system leads to horrible injustice. I find abiding horrible injustice in the name of
We’ve been through this before, and, oddly enough that was, almost word for word, your exact response last time too. My responses have not changed since then, and there’s really no point in repeating myself again to someone who won’t listen.
I have no problem with a broad principle being applied to new facts in accord with the founders understanding of that principle. The founders could not have foreseen wiretaps and the like, but the principle the founders enshrined in the fourth amendment can be properly applied to require warrants for them.
What I object to is expanding the moral principle beyond what the founders intended, because then it isn’t the majority enshrining a principle into law, it’s a judge substituting his own personal principles in place of the law. “Equal protection” is best understood as a principle opposed to racial discrimination, and nothing more.
Indeed, one of the big reasons I’d like to kick Tom DeLay, Bill Frist, and a host of others square in the nuts is because they’ve embraced activism with the Schiavo case. What they essentially wanted the courts to do was to embrace a moral principle that simply wasn’t enshrined into the law those courts were ostensibly interpreting.
Agreed: relying on the will of the majority to ensure justice does not always work. Part of the problem being, of course, that there is not a universal agreement on what constitutes justice. Unfortunately, the only alternative to the will of the majority is the will of the minority. Which do you think will produce a better result more often?
So, when you repeat the same thing and I don’t agree, I’m not listenning, but when I repeat the same thing and you don’t agree, you ARE listenning? I think a better response is that we’ll simply have to agree to disagree.
But you cannot ignore simple logic: either you go by the will of the majority or you go by the will of the minority. There are no other choices, regardless of how much you’d like for there to be any.
Or, the will of the majority, as evinced by a legislative body, checked and balanced with the constitutional oversight of a judicial branch, which is meant to protect the rights of the minority from the tyranny of the majority. It’s crazy enough it just may work!
