Sean Hannity and listeners, a confederacy of hypocrites.

[Dewey_Cheatem_Undhow]

@Apos

You’re jumping from one extreme to another in an attempt to make something reasonable look arbitrary. If the legislature passes a bill that claims that there is be equality for all under the law, they can’t whine about “gotcha” when a court reads the law and notes that, rationally, as stated, it applies to Jews and the Irish. If a law says that rights cannot be limited only to particular groups, the legislature can’t slap its head and say “oh, but we forgot to add, except gays!”

Well, if in the course of passing that law they were talking about ethnicity, of course they can’t then say it doesn’t apply to Jews and the Irish.

However, I think they can get upset if, say, that law is used by the courts to say that the state cannot treat children differently from adults. Again, legislatures ought to be able to rely on the courts to consider context and intent when construing broad language.

@Apos

Again, time is irrelevant. The problem with moral principles having broader applications than their authors anticipated exists from the moment a law is passed and signed off on. Again, consider Unger’s argument about everyone having a duty to save a person in need. It seems innocuous, but if that really IS a moral duty, end stop, then it is clear that we are all of us constantly in greater failure of that moral duty than the single instance of a man that coldly watches a child drown for want of extending a helping hand. The only way to avoid this conclusion is to make up a whole bunch of caveats after the fact. That’s the direct problem of declaring moral principles.

Well, the issue here isn’t really so much the existence of caveats as it is how those caveats are determined. The founders undoubtedly did not intend for free speech to mean the protection of libelous statements; even though that caveat isn’t present in the text, we consider it valid because it accords with the understanding of the framers at the time they drafted the first amendment.

@Apos

So? What is the point of bringing this up if you aren’t going anywhere with it?

Just an observation.

@Apos

I don’t see the difference. A historical inquiry will always tell us what the framers each individually claimed the law accomplishes or says.

Which can be extrapolated to reach a reasonable conclusion as to what they intended in toto. No, this is not a mathematically precise operation. As I’ve noted (again and again and again), there can be good-faith disagreements as to how the drafters of a law meant for that law to apply to a given set of facts. I would expect even a court comprised entirely of the strictest of strict constructionists to have dissenters in various cases. They key isn’t that judges reach the same conclusion, it’s that judges apply constructionist analysis in good faith in reaching those conclusions.

[Dewey_Cheatem_Undhow]

@Hamlet

Equally clear, or clear? I’ll admit a specific enumeration of a right in the Constitution may be more clear than one that isn’t. But that doesn’t make the rights any less “clear”.

Yes it does. If you were to hand the Constitution to an alien from another planet, would he conclude that, say, marriage is a protected right?

I think you’re confusing “clear” with “something I really, really want to believe is in there.”

@Hamlet

Well, it seems to me that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” seems a pretty clear statement by the founders that the Constitution is not the sole list of what rights exist. Many of the fathers were terrified of the point of view you seem to be advocating. And stating that there must be some pre-existing textualist enumeration in state constitutions or statutes before the founders considered something a right is… well wrong. The secondary sources you obviously have read, almost without fail indicate that there exist rights beyond those put down in writing. Seems pretty clear to me, I don’t know why you have a problem with it.

Canned post time (yeah, we’ve discussed this before):

The Ninth Amendment exists to prevent the argument that the existence of the Bill of Rights invalidates other legal sources of rights (e.g., statutory rights and state constitutional rights). It prevents, say, opponents of the Massachusetts gay marriage decision from arguing that the decision is invalid because the federal constitution’s enumeration of rights is exclusive. It is not itself a source of substantive rights.

Even libbies with law degrees like minty green understand this.

We’ve discussed this point many times. Among other places, it’s buried in these threads:
Rights? What’s a Right?
Is Scalia Nuts?
Supreme Court hears challenge to Texas Sodomy Ban
Conservative dopers vs. gay sex decision
Democrats oppose Hispanic judge: “he’s too competent!”
Strict constructionists: How about adding a constitutional “right to privacy”
A moment of your time, please, Justice Scalia
What do the Ninth and Tenth Amendments really mean?
And not a 9th thread, but just for fun: Dewey! Minty! Come a runnin’!!

@Hamlet

Of course it is different. Marriage is a fundamental right. Although the Constitution does not specifically say “Congress shall enact no law infringing upon the freedom to marry”, I think you’d be hard pressed to say it isn’t.

Why? I think the decisions finding such a right in the constitution are incorrectly decided. While such a right exists as a practical matter simply because the Supreme Court is the final arbiter of constitutionality, that doesn’t mean the courts are correct in finding such a right in the constitution.

@Hamlet

In addition, there’s Loving, and other precedent, that hold that it is.

I agree with the holding in Loving on its equal protection grounds, but disagree with the holding insofar as it relies on a substantive due process right to marry.

@Hamlet

The Mass. Supreme Court followed precedent, and, without being “activist” made a ruling clearly in line with that, and other, precedent.

The notion that Goodridge is just a neutral application of precedent is silly. No court has gone so far as to extend marital rights (such as they are) to gays. No court outside of Vermont and possibly Hawaii (neither of which, of course, can speak to the meaning of Massachusetts law) has even come close.