I would agree. However instead of a “Don’t ask, don’t tell” policy I think there should be a subsituted “no relationship” policy between two members who serve together in the military.
So two guys in the 1st Brigade of the 10th Mountain Division having a relationship would be a no-no. A guy from the 10th Mountain Division having a relationship with someone 82nd Airborne, not a problem per se.
Well, there are already regulations prohibiting sexual relationships and such between people in the same chain of command or assigned to the same unit, as far as I know. So, I’d assume those would stay in place.
Anyone who bases their view of the powers and duties of the Supreme Court on a high school civics class is guaranteed to get everything wrong. That’s not your fault, Martin, because you’re a victim just like the rest of us. But everything I learned about the Court is high school is bullshit.
You can feel free to take the position that the Court’s pronouncements are defined as correct, but don’t expect anyone else to accept it just by your fiat.
For myself, I think the opposite view is plainly correct, because otherwise no decision could ever be overruled – even if wrong when decided, by the impiratur of the Court it would have become CORRECT and, therefore, the Court would have no power to revise it.
–Cliffy
And, remember, the regulations under don’t ask, don’t tell doesn’t even require evidence of homosexual activity to trigger discharge proceedings. In fact, it’s easier to discharge gays and lesbians now than it was under the old policy. This also, in some ways, makes it more chilling, because under the old policy, people could be discharged for what they did (homosexual sodomy, pretty much), while under the new policy, a person can be discharged for what he is.
I reject this view. Yes, the practical consequences of this decision are clear. But just because the Supreme Court says something is constitutional or not doesn’t make it so – it makes it the official policy of the government that it’s so. That’s not the same thing. The Court gets stuff wrong, and by doing so, they don’t suddenly make it right. They just make it the way things are (until the next case comes along).
–Cliffy
I was going to post a facetious hope that principled deans of the great law schools would rise as one and say “we piss on your stinkin’ money”
How gratifiying to discover it is not a mere fantasy…I may have to re-evaluate my boycott of my own alma mater secondary to it’! really deplorable choice of faculty (“Fuck Me???Fuck Yoo!”)
Well, from a practical standpoint he’s right, if just because the Supremes are the court of last resort. If they say that a law that says that “Failure to recite the Pledge while standing on one foot upon request of a law enforcement official is punishable by 90 days in jail” is constitutional, then, if you don’t say the Pledge on one foot when a cop asks you, you better bring your toothbrush, because you’ll be stuck in jail.
Of course, none of this means that the court’s reasoning can’t be boneheaded, or that their understanding of the law is correct, or that the Supreme Court won’t someday reverse itself. But until the Court does reverse itself, you’re in the position of being right, and it not mattering a damn bit that you’re right, which is an uncomfortable position to be in.
In other words, Homer Plessy was no doubt on the side of right, but for the rest of his life, he still had to sit in the back of the train.
Dont ask dont tell=–Fat Bill’s gift that keeps on giving. hijack disclaimer:that was the first of a long series of back stabs delivered to his water carriers once the bastard had the election in hand.
There’s a difference between an incorrect decision and something being constitutional.
Factually speaking, if the court says something is constitutional, until that gets overruled, it IS constitutional.
And personally my High School civics class was excellent. It certainly didn’t prepare me to be a constitutional scholar but it introduced the basic fact that the Supreme Court can decide what is constitutional and what is not, and that their rulings are definitive. Until they are overruled that is in fact the situation.
Do you hold that segregation wasn’t constitutional from the point of Plessy v. Ferguson up until Brown v. Board? Because it was, however the court in Brown decided it shouldn’t be anymore. Constitutionality isn’t something etched in stone, it is as it is at the time. Right now abortion is constitutionally protected in the 1st and 2nd trimesters (or pre-viability), if Roe v. Wade were overturned, it would no longer be unconstitutional to prohibit abortions pre-viability. That’s simple fact.
And I don’t expect anyone to accept it based on my fiat. But a lot of racists in the South learned that you do have to accept it based on their fiat.
This is only true if you posit that there’s some sort of vacuous concept of “constitutionality” that exists separate from government.
There is none that I can see. Constitutionality is defined by government, it isn’t a whole other body, so to speak. Although there is a popular fiction that it is.
Glad to see that you are contributing to this unfortunate cycle.
As for the rest of your post, none of that opposes what I said.
Nitpick: 8-0. Alito abstained-- he was not on the court when the oral arguments were heard. I guess we’ll never know how he would’ve voted. 
Eh, I’m as human as the next guy. What I try to do however is refrain from using the word “unconstitutional” when the phrase “should be unconstitutional” is more apt.
I don’t think abortion rights are unconstitutional, I think they should be.
Just to make sure I’m reading this correctly. Bricker, is it your assertion that Congress’s power to “provide for the common defence… etc” allows congress to legally require all schools to accept the presence of a military recruiter regardless of whether or not Federal funds are received?
Would this apply to wholly private schools that receive no Federal or, for that matter, State funding?
Would this apply to private businesses? For instance, would Microsoft be required to allow a military recruiter in it’s offices or in the lobby? Another poster mentioned required viewing of recruitment videos in private homes.
Now, from my scant knowledge of law it seems like the answer to all those questions would be yes. However, I still find the idea extremely unsettling. Other then the inability to billet soldiers in private homes, what constituational checks are there against extended the “constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping” to apply to almost anything?
My immediate feeling is that other than a potential [likely] voter backlash congress’s powers are not checked in this area by much in the Constitution. As I said, my knowledge in this area is fairly limited.
On a side note [Alert!! Not at all proposing a realistic scenario] and this just occured to me so I’m sure there are major problems with it; well beyond being largely suitable only as movie premise. Would it be legally possible for congress to institute a limited draft; for example, limited to alleged hostiles/disloyal citizens and after conscripting them have them serve their “duty” in a tidy jail cell?
Once again, I’m not proposing this as any sort of slippery-slope, just a neat Cafe Society-style idea that occured to me.
Just to clarify, from what I’ve read the ruling only stipulated that schools that accept Federal funding also must accept recruiters. Did they in fact rule that all schools can be made to accept military recruiters? If not, is it your assertion that, were Congress to require this, it would be constitutional?
They said in the ruling that Congress could directly require it.
Bricker, I understand that Congress has the ability to pass laws to help military recruiting. My earlier question was: if the first amendment is not a check on who the government can require schools to associate with, what check is there?
The first claim I won’t dispute, but your second claim is bullshit. Our military is all too often not a force for good in the world, but a force of greedy american interests getting their way through a policy of “might makes right.” Which perhaps makes sense from a purely hedonistic standpoint but is still morally bankrupt.
Right. And this is why “Constitutional” is not synonymous with “good,” “wise,” or “right.” Rumsfeld v. FAIR does say that Congress could directly require schools to accept military recruiters, regardless of federal funding. And that makes perfect sense. If Congress can require a draft, and legally force people to serve even if they don’t want to, Congress can certainly require organizations to briefly host military recruiters, a much less onerous obligation.
We will have to agree to disagree. You and I obviously do not share a common authority for determining if an action is, or is not, morally bankrupt.
As a general principle, the First Amendment does provide a check on the government’s forcing of association. However, the opinion points out that this is a very limited matter of “association” – the government is not forcing the schools to employ military recruiters – just to permit them on campus as visitors for the limited purpose of interviewing people for jobs, just as they already permit other third parties to do.
And the opinion points out that the military is not simply any third party – Congress has broad powers with the military that it does not have with respect to any random third party.
Dubious:
SCOTUSBlog thinks it could, yeah.