The Supreme Court as Sitting Constitutional Convention

Debating the proper role of the judiciary.

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I was traveling most of yesterday, so missed Steven Taylor’s thoughtful post “On Constitutional Language,” which argues against my contention that the Supreme Court’s finding a right to same-sex marriage is judicial activism. As he notes in the post, it’s an issue we’ve debated in person as well as in the blogosphere numerous times over the past seventeen years.

We’re in agreement that democracy is aspirational and that our perception of even our most fundamental civil liberties has evolved substantially over the years, mostly in the direction of broader freedom for groups that were once marginalized. We also agree that, while it’s preferable for a variety of reasons for these changes to be enacted by the legislature, the judiciary has a role. The disagreement is simply over how these should be balanced.

My general sense is that the people have the right, through their representatives, to make public policy and that the Constitution serves merely to constrain the limits of public policy. First, because we’re a federal system, the Constitution guides which areas are under the purview of the central government, the governments of the several states, or prohibited to government altogether. Second, because of separation of powers, the Constitution guides how those policy areas under the purview of the central government are managed. Third, various provisions of the Constitution set forth parameters under which the central government and, in a handful of cases, the several states must operate. Because much of the language of the Constitution is subject to interpretation, the judicial branch serves, in the words of Chief Justice Roberts, as an umpire, issuing rulings when there are disputes over these areas.

While Steven and I are in agreement that the interpretation of the Constitution simply has to keep up with current conceptions of words, my preference is for the executive and legislative branches of the central government and the several states to take the lead on that front rather than the judiciary. So, for example, I note in my post that:

Congress was certainly permitted to create and fund an Air Force, despite the Constitution only mentioning an Army and a Navy and the airplane not having been invented in 1787.

Steven reasonably rejoins:

If we are going to say that the words should be bound to how the Framers themselves would have understood the terms, then I think that, in fact, we do need new language to allow for the Air Force (or, for that matter, for the owning of semi-automatic weapons).  There is simply no way to assume that the Framers could have conceived of these things.  Further, if we stick to the military for a moment, the only permanent arm of the military that the Framers envisioned was the Navy, given the need to protect trading lanes from pirates.  Armies were raised for specific purposes and wars only fought when declared.  The modern military bears no resemblance to what the Framers would have envisioned or understood (and while that is not an issue of democracy’s evolution, it is an example of how changing language influence what government does).

That’s all true. Still, I find it quite reasonable for the judiciary to interpret the Constitution’s language in this case broadly, not because I happen to be in support of fielding a modern military, but because it’s the express will of the people and there’s no Constitutional prohibition against it. The Framers clearly intended to give the Congress the power to legislate on matters related to the organizing and equipping of a military. Further, that power is constrained both by the fact that Congress is subject to election every two years and by the fact that any legislation needs the signature of the president, who stands for re-election every four years. There’s simply no reason the courts ought to get in the way.

Indeed, as a general principle, the judiciary ought to defer to the elected representatives of the people unless they’re taking action directly prohibited by the Constitution. But, of course, what precisely is prohibited by the Constitution is itself a debatable point. Steven observes,

I find the general notion that we have to get into the heads of men from the 18th and 19th centuries to interpret political questions of right in the 21st century to be unnecessarily constraining and problematic to the point that semantic arguments override the very concepts under discussion, especially when we are talking about abstract principles (e.g., freedom of speech, equal protection, due process, etc.).  (Abstract in definition, but with obvious concrete applications).

But back to the main topic:  did the authors of the 14th Amendment know what homosexuality was?  Of course they did.  Did they intend for the 14th Amendment to lead to same sex marriage?  I can’t imagine it entered their minds one little bit.  However, I don’t think that’s the appropriate test or issue here.  The question is, did they lay down a basic principle with the following words?

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.

The notions of “equal protection of the laws,” for example, is a pretty clear principle that ultimately transcends the immediate thoughts in the mind of the person who penned them.  Indeed, even if the person/persons who wrote the document did not envision the expansion of rights for Hispanics, women, homosexuals, or whomever else one might think of does not, in my opinion, obviate a deep principle that was laid down in constitutional law:  that every citizens of the United States (every citizen) deserves to be treated by the law equally.

But, again, this is mostly solved by letting the people’s representatives update the principles. There’s simply no question that the 14th Amendment applies to Hispanics, women, and homosexuals. The question is what does “equal protection of the laws” mean with respect to those groups.

The question of women is an interesting one. Certainly, the people who wrote and ratified the 14th Amendment (in 1865 and 1868, respectively) were aware of the existence of woman. Most, presumably, were married to one and all of them had mothers. Yet, rather clearly, they did not intend to confer on women the right to vote. Doing so required the passage of the 19th Amendment in 1920. Was the 19th Amendment redundant?

As recently as 1972, Congress passed  an Amendment to the effect that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” It was ratified by 35 states, 5 of which later rescinded their ratification, failing to get the required 37 states by the 1979 and then 1982 deadlines.

While the above history makes is crystal clear that the 14th Amendment wasn’t intended to nor did it even in the near term grant full equality to women, there’s little doubt that the Supreme Court could have preempted all of this debate at any time if it wanted to. Doing so was unnecessary, in that Congress has essentially done it for us. Various legislation over the years has made illegal discrimination on account of sex in almost every aspect of public policy. The handful of exceptions are relatively minor and, as with the roles available to women in our armed forces, changing with time. Congress clearly has this power under Section 5 of the 14th Amendment.

Should the courts have sped the process up for us? I don’t think so.  The Constitution manifestly didn’t require them to do so and it’s far preferable for fundamental social changes to happen organically, through the political process. It’s highly problematic that Anthony Kennedy—an unelected individual appointed to the bench as Ronald Reagan’s third choice for the job in 1986—can simply override the longstanding will of the people by claiming a Constitutional clause written 150-odd years ago supports his public policy preferences, notwithstanding that the people who wrote said clause meant no such thing.

The Framers set forth processes for amending the Constitution in Article V:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

This is, by design, exceedingly difficult. The Constitution, written in 1787 and ratified in 1789, has only been amended in this fashion 27 times. Ten of those Amendments, the Bill of Rights, were almost immediate and essentially part of the original Constitution (the 27th, interestingly, was part of the same package but not ratified until 1992). Another three (13-15) were in response to the Civil War.

Yet, the Supreme Court, often on the strength of a single Justice’s deciding vote, effectively acts as a sitting Constitutional Convention. Simply be redefining “equal protection” to encompass same-sex marriage, last week’s ruling in Obergefell v. Hodges effectively passed an equivalent of the Equal Rights Amendment, notwithstanding vehement objections in a sufficient number of states to preclude amending the Constitution.

It’s worth noting, too, that this power works both ways. While the recent trend has been for the courts to use their power to expand the rights of the previously disenfranchised groups more rapidly than would happen through the political process, it has frequently worked the other way. Most notably, the Supreme Court of the post-Civil War era effectively ignored both the plain meaning and obvious intent of the 14th Amendment in striking down the Civil Rights Act of 1875 and in its ruling in Plessy vs. Ferguson.

As a practical matter, there’s no limit to the judicial power aside from their own prudence. When the Supreme Court says the Constitution says something it clearly does not say, that only remedies are amending the Constitution or a refusal by the other branches or lower courts to enforce the ruling. The former, as noted, is nearly impossible and has only happened in direct response to a Supreme Court ruling twice (the 11th and 16th Amendments). The latter is dangerous, indeed.

FILED UNDER: General
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mikey says:

    It’s highly problematic that Anthony Kennedy—an unelected individual appointed to the bench as Ronald Reagan’s third choice for the job in 1986—can simply override the longstanding will of the people by claiming a Constitutional clause written 150-odd years ago supports his public policy preferences, notwithstanding that the people who wrote said clause meant no such thing.

    One could argue, based on the current high level of support for same-sex marriage in America, that Kennedy’s opinion didn’t override the will of the people at all, but rather the will of a politically active minority that has been able to motivate its members to vote in low-turnout elections.




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  2. James Joyner says:

    @Mikey:

    One could argue, based on the current high level of support for same-sex marriage in America, that Kennedy’s opinion didn’t override the will of the people at all, but rather the will of a politically active minority that has been able to motivate its members to vote in low-turnout elections.

    Perhaps. But our Constitution—through both the institutions of Federalism and separation of powers—enshrines the ability of a national minority to make local policy and for a motivated minority to halt grant changes at the national level.




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  3. Argon says:

    @Mikey: Exactly. I don’t think one can say that the will of the people are being overridden when it he public is 60/40 in favor, same sex marriages are available in the majority is states and we’ve got cases of dispute over benefits, children, estates and health that are up in the air and causing completely unnecessary pain while left in limbo.

    As I mentioned in a different thread, the timing is about as close to correct as one can be.

    If we take Loving v Virginia as an example that James thinks can be justified, we need to remember that the decision preceded the public’s majority ‘will’ by about 30 years. It wasn’t until the 1990s that most people accepted mixed race marriages and not until this century before the last state repealed their law against mixed race marriages.




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  4. Two initial thoughts (in two comments):

    First:

    It’s highly problematic that Anthony Kennedy—an unelected individual appointed to the bench as Ronald Reagan’s third choice for the job in 1986—can simply override the longstanding will of the people by claiming a Constitutional clause written 150-odd years ago supports his public policy preferences, notwithstanding that the people who wrote said clause meant no such thing.

    I would argue that

    a) it wasn’t just Kennedy and reducing this to Kennedy ignores that majority of states that had already legalized SSM (and the shift in public opinion on this issue). Constitutional questions had emerged over both equal protection and full faith and credit. I am not sure how the Court could have ignored these issues until the matter was resolved legislatively.

    b) To amplify the parenthetical from above: while it was the case the public opinion was opposed to SSM, that is no longer the case (and I suspect this guided Kennedy and others on this ruling). As such, it is more complicated than simply saying one unelected person (or even 5) made the decision alone–it was the the culmination of roughly twenty years of public policy debate and various political actions. (Although I do agree that legislative change would be preferable).




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  5. Argon says:

    Sorry James but the 14th does not prevent the courts from stepping in when there are obvious problems with laws specifically designed to thwart equal protection rights of individuals. I agree that in a perfect world the elected legislatures would provide constitutionally consistent input in the laws they enact but this is not such a world.




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  6. Second point:

    This is, by design, exceedingly difficult.

    I would argue that amendment is not just exceedingly difficult, it is nearly impossible and this is part of the reason we end up having to rely on the Court for these types of rulings–indeed, I would argue that the overall power of the Court is highly augmented by the fact that constitutional change is difficult.

    Moreover (and more importantly) legislating is too difficult. The ACA case illustrates this as the Court knew that if it scuttled legislation over a poorly written sentence that the legislature would be unable to address the problem.

    On top of that, the representativeness of our legislature is lousy. Too many seats are noncompetitive and the electoral system does not produce parties and legislators that do a good job of representing public views.

    All of this sums, for good or ill, to a Court that does have to function like an ongoing constitutional convention after a fashion. (This is not the optimal situation, I concur–but it is a direct result of the institutional design of the US Constitution, although not by intent–edit as it was by design, but it was not the intended outcome of that design–the Framers didn’t necessarily always understand what they were unleashing).




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  7. One last point: it does seem to me that sometimes the Court has to override majority institutions to further a specific right or principle, such as school desegregation (and SSM).




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  8. Ron Beasley says:

    I must admit up front that my opinion on this subject is closer to Steven’s than yours. That said here are a few observations many of which I have made before in comments sections and posts at The Moderate Voice.
    1) I object to the phrase “unelected judges”, The Supreme Court Justices are nominated by elected presidents and approved by an elected senate. When you vote for a president you know what sort of Supreme Court nominations you are going to get..
    2) Leaving issues of civil rights up to state legislatures will not work. If left up to the states we would see Jim Crow again in many states in the South and probably some in the North.
    3) What do we do at times like this when we have a totally dysfunctional House and Senate. The Republican Party on paper has the majority but in most cases can’t even agree with themselves. In an ideal world much of what you say might apply but this is far from an ideal world.
    4) is the Supreme Court activist? Of course it is. Their job is to interpret and by it’s very nature that is activist. The justices are tasked with determining what a word that was drafted centuries ago means today.




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  9. Tony W says:

    And again we’re back to the three wolves and a sheep deciding on dinner……. The court is absolutely within its mandate to protect minority rights and assure equal protection. We do not wait for a majority to come around – justice delayed is justice denied.




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  10. @James Joyner:

    But our Constitution—through both the institutions of Federalism and separation of powers—enshrines the ability of a national minority to make local policy and for a motivated minority to halt grant changes at the national level.

    True, but does it allow for that minority to deny citizens equal protection under the law?




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  11. argon says:

    @Steven L. Taylor:

    Constitutional questions had emerged over both equal protection and full faith and credit. I am not sure how the Court could have ignored these issues until the matter was resolved legislatively.

    Previously, James suggested that the FF&CC could apply as a solution for those same sex couples married in one state who lose protections when they move to another state that doesn’t not permit such marriages.

    In a response, I mentioned; that if one invokes the FF&CC clause then it's "game over" in favor of same sex marriage in all states. People need only marry in states that permit such marriages and return with the certificates to their home states.




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  12. OzarkHillbilly says:

    @Ron Beasley: I want to 2nd everything Ron says here, but most especially I loathe the phrase “unelected judges”, especially coming from you James. You know d@mn well why we need judges to be free of political influence and the current Republican race for President is a perfect example: Candidates whoring themselves out to the highest bidder.




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  13. Tyrell says:

    @Mikey: By that logic the judges should be elected. I would go with six year terms.




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  14. James Joyner says:

    @Steven L. Taylor: I agree that Kennedy is merely the tie-breaking vote, not the only one whose vote counts. But it’s a bit of a stretch to argue that “a majority of states had already legalized SSM” when the vast majority of those did so under judicial fiat, not the legislative process.

    @Steven L. Taylor: I also agree that the legislative process, as it currently operates, is nearly broken. But SCOTUS has been sitting as a sitting Constitutional Convention for much longer than that.

    @Steven L. Taylor:

    [D]oes [the Constitution] allow for that minority to deny citizens equal protection under the law?

    The 14th Amendment was written in 1865 and ratified in 1867. Until this past Thursday, it rather clearly allowed the citizens to define marriage as a relationship that existed between one man and one woman. Until 25 years ago, the notion that denying people of the same sex the right to marry one another was somehow a matter of “equal protection” would have been absurd. Until 5 years ago, it was very much a minority notion.

    So, while I’m part of the majority who thinks people ought have the right to marry one consenting adult of their choosing, I don’t think that opinion is somehow enshrined in the 14th Amendment.

    @Ron Beasley: @OzarkHillbilly: Yes, I understand why federal judges are unelected. But because they’re unelected, I think they should be very modest in the use of their power.




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  15. Ron Beasley says:

    @Tyrell: I couldn’t disagree more. If they were elected the Supreme Court would become just another political branch and the Justices already have enough problems leaving their ideologies at the door of the Supreme Court. I also support life time terms as it gives us some continuity. A better solution might be to require them to be at least 60 years old although there you run the risk of dementia from which Scalia is now obviously suffering.




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  16. @James Joyner:

    But it’s a bit of a stretch to argue that “a majority of states had already legalized SSM” when the vast majority of those did so under judicial fiat, not the legislative process.

    The method by which SSM was legalized doesn’t change the legal conundrum created by having some states with SSM and others without. (Yes, we can debate whether that is the way it should have come about, but that doesn’t change the real equal protection and FFC issues created by the rulings).

    But SCOTUS has been sitting as a sitting Constitutional Convention for much longer than that.

    True–but it is a consequence of the constitutional system created. And more accurately SCOTUS is a constitutional court, which means it has to arbitrate matters as to the meaning and application of the constitution. Further, ours is a common law system that relies upon judicial interpretation of the laws by definition.

    I don’t think that opinion is somehow enshrined in the 14th Amendment.

    But it does enshrine the notion that all citizens should enjoy equal protection of the laws. I still don’t see how you have actually provided an explanation as to why the phrase has to envision a particular law or policy to be applicable.




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  17. @James Joyner:

    But because they’re unelected, I think they should be very modest in the use of their power.

    As dramatic as the ruling is, I would argue that they waited to a point at which there was a critical mass in support, which actually shows some restraint.

    Public support for this ruling far exceeds support for Loving or Brown.




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  18. Ron Beasley says:

    @James Joyner:

    Yes, I understand why federal judges are unelected. But because they’re unelected, I think they should be very modest in the use of their power.

    No James – they should not be modest but do their jobs. A modest Supreme Court is a worthless Supreme Court.




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  19. @James:

    Could you elaborate on your view of when and how the equal protection clause should be applied?




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  20. Argon says:

    @James Joyner:

    So, while I’m part of the majority who thinks people ought have the right to marry one consenting adult of their choosing, I don’t think that opinion is somehow enshrined in the 14th Amendment.

    The 9th suggests there are rights not directly enumerated in the Constitution.

    FWIW, there is no inherent right to marry enshrined in the 14th, only that the state cannot deny the benefits it provides to a class of people without good reason. And all the justifications provided by anti-SSM proponents haven’t changed since they were roundly rejected by the Massachusetts Supreme Court over a decade ago.




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  21. Rick DeMent says:

    I’ve brought this up before but there is a whole body of constitutional jurisprudence regarding corporations that was midwived in the Santa Clara County v. Southern Pacific Railroad Co. decision. The was no author of the 14th amendment that envisioned that any of it would ever apply to corporations. The whole notion of corporate personhood, as it is now used to shoehorn rights on to organizations chartered by the government , was created whole cloth by a headnote, which wasn’t even a work of the court, written by a court reporter which did not even show up in the decision. Later the Chief Justice replied to a clarification by the court reporter:

    Dear Chief Justice,

    I have a memorandum in the California Cases Santa Clara County v. Southern Pacific &c As follows. In opening the Court stated that it did not wish to hear argument on the question whether the Fourteenth Amendment applies to such corporations as are parties in these suits. All the Judges were of the opinion that it does

    From the book Age of Betrayel

    But the decision didn’t even rely on the 14th amendment, it was after that when clever lawyers took it upon themselves to use this minor off had correspondence to allow corporations to argue equal protection under the law and invent out of nothing modern corporate jurisprudence. Nothing like this was even remotely envisioned by the men who wrote the 14th amendment.

    Now if anyone can defend that, then Kennedy’s reasoning is positively conservative in comparison.

    Another decision that reeks of Judicial Activism is the whole money = speech thing. Here the court decided that money was speech instead of the more precise notion that money simply amplifies speech. Limiting campaign contributions does not in any way shape or form limit an individual’s speech. Individuals are welcome to say what they want and can spend their money to do so. There is no right in the constitution that your speech be effective. What it does do is insure that whoever has the most money will be able to drown out the speech of someone with less. This to be is ground zero for the screwed up nonsense that we call elections in the country. But so many people buy it that it’s now difficult to overcome. Another ruling that makes Kennedy’s logic, and the logic of the other 4 supreme court justices, appellate court and district court judges seem well reasoned in comparison. The founders would never even considered the idea of money = speech as something to be taken seriously.




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  22. OzarkHillbilly says:

    @James Joyner: James, here is the problem I have with that phrase: It is only used to attack rulings that the commentator doesn’t like, when it applies equally well to all other rulings. It is a statement of no argumentative value that serves only to degrade people’s view of the judicial branch of our gov’t. I can say many mean but true things of Scalia, but I will never complain that he was “unelected”. That is just beside the point.




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  23. James Pearce says:

    When the Supreme Court says the Constitution says something it clearly does not say, that only remedies are amending the Constitution or a refusal by the other branches or lower courts to enforce the ruling.

    Maybe I’m mixing the timelines up in my head, but wasn’t the Constitutional Amendment option floated, fought for, and defeated during the Bush administration?

    Also, considering the amendment was for the prohibition of same-sex marriage, doesn’t this mean that the foundations of legal same-sex marriage were already implicit in the Constitution? I always took the “gay marriage amendment” as an acknowledgement of “what is not prohibited is thereby allowed.” Hence the rush by the States to prohibit it, a process complicated (and eventually ended) by court challenges.

    If the Constitution implicitly permitted same-sex marriage, do we need an amendment making that explicit? Or should a court ruling do?




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  24. Tony W says:

    @Argon:

    there is no inherent right to marry enshrined in the 14th,

    Agreed, but the 14th is very broadly written. At the time it addressed equality between people with different shades of skin tone, but its scope necessarily includes equality in the eyes of the government on any number of dividing qualities humans may possess.




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  25. stonetools says:

    @Steven L. Taylor:

    I think that if the founding fathers had foreseen that the amendment process would prove it to be so difficult, they would have made it much easier. Of course, they didn’t foresee it, or the formation of parties, judicial review, universal suffrage, etc.
    This is why the idea of of “living” or “evolving ” Constitution is not the best way to interpret the Constitution-it’s the ONLY way. It’s why “originalists” are talking out of their hat when they say, of course, the founding fathers meant for us to fund a communications satellite system but not, say, universal health insurance. The “originalists” say that because they don’t LIKe the idea of universal health insurance. Similarly, conservatives have grudgingly come around to the idea that women and racial minorities are entitled to equal rights and equal protection of the law. They don’t LIKE the idea of extending it to homosexuals so of course they hem and haw and talk about the lack of explicit language (although no such language exists there for women, or racial minorities other than African Americans).
    If we look at other modern constitutions, we note that they all make the amendment process much easier. There’s a reason for that. Frankly, if it was not for the “living Constitution” approach, I think the American political system would have either fallen apart a long time ago, or we would have seen constitutional conventions every generation.




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  26. OzarkHillbilly says:

    @James Pearce: Very good point.




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  27. James Joyner says:

    @Steven L. Taylor:

    Could you elaborate on your view of when and how the equal protection clause should be applied?

    Generally speaking, it should mean what it was meant to mean when it was written, as amended (via Section 5 authority) by the Congress. Congress very quickly made race, national origin, and previous condition of servitude protected classes and disallowed discrimination on those bases. That was diminished substantially by judicial activism and by a political bargain to settle the disputed 1876 election. More recently, women were included as a protected class.
    Certainly, sexual orientation could be added.

    If the Constitution simply means whatever 5/9 of the Supreme Court says it means on any given day, it’s not actually a Constitution at all. The power of government is essentially unlimited.




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  28. @James Joyner:

    Generally speaking, it should mean what it was meant to mean when it was written, as amended (via Section 5 authority) by the Congress.

    I would politely note that I find that unhelpful. I would return to what I wrote yesterday:

    The framers of the 14th Amendment provided a framework of if A then B (i.e., if a citizen, then equal protection). That the definition of A has changed should, therefore, alter our application of B (i,e, of the amendment itself). I honestly see no defensible reason why this should not be the case (but I am open to hearing the arguments).

    I am not sure how we ever determine what the framers necessarily intended save by inference in any event (which requires interpretation, i.e., an action by the judiciary). Maybe they never foresaw SSM, but did have a broad view of the notion of “equal protection.” Maybe they did have a vague sense about rights in general. Why use general language if the intended application was not general?

    If the Constitution simply means whatever 5/9 of the Supreme Court says it means on any given day, it’s not actually a Constitution at all. The power of government is essentially unlimited.

    That has, in some ways, been true since at least 1803 (and arguably before).

    Still, for the statement to be fully true the Court would have to be able to address any issue it wanted at any time and in any way. However, this is not the case.

    A constitution is a framework for government, rules of the game, and the game in question requires legislation to be passed, cases in controversy to emerge (often in various and different courts as well as within various states) before SCOTUS can even begin to think it can get involved. Like I noted, it has been at least 20 years (to use DOMA as a starting part for this discussion, but it started before then) to get to this point. As such, this is not just the arbitrary decision of the Court.

    I would argue that SCOTUS as the deciding point for various contradictory power points is inherent to the constitution, not the obviation of it.

    In other words, the process was not arbitrary–it was done within a constitutional framework.

    Perhaps the fundamental point of our disagreement is that you assume that it is possible for a constitution to have a fully fixed meaning, and I think that that is impossible? And, therefore, a decision process (which inherently requires interpretation and re-interpretation) is needed to determine at a given moment in time how to apply the rules (although I don’t expect you fully disagree with that).

    As a general matter rules are rarely self-evident in their application and always require interpretation (e.g., defensive pass interference or whether an “athletic move” was made). This is more so when there are multiple powers influencing a given rule, yes?




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  29. James Joyner says:

    @James Pearce:

    If the Constitution implicitly permitted same-sex marriage, do we need an amendment making that explicit? Or should a court ruling do?

    The Constitution is simply silent on the issue. The push for an amendment was to forestall judicial activism on the issue.

    @stonetools:

    It’s why “originalists” are talking out of their hat when they say, of course, the founding fathers meant for us to fund a communications satellite system but not, say, universal health insurance. The “originalists” say that because they don’t LIKe the idea of universal health insurance. Similarly, conservatives have grudgingly come around to the idea that women and racial minorities are entitled to equal rights and equal protection of the law. They don’t LIKE the idea of extending it to homosexuals so of course they hem and haw and talk about the lack of explicit language (although no such language exists there for women, or racial minorities other than African Americans).

    There’s no doubt people make specious arguments about SCOTUS rulings they don’t like.

    Still, I don’t think I’ve heard mainstream conservatives argue that it’s unconstitutional for Congress to pass universal health insurance; the arguments have instead been over the constitutionality of the mandate, as written, and over whether the national exchanges should be permitted given the sloppy wording of the law seemed to permit only state exchanges.

    Giving racial minorities, specifically African Americans, equal protection was the whole point of the 14th Amendment. It was the courts, not Congress, that opposed that. As noted in the post, it rather clearly didn’t apply to women given the need for the 19th and proposed 27th Amendments but we’ve subsequently achieved that through the legislative process.

    @Ron Beasley:

    No James – they should not be modest but do their jobs. A modest Supreme Court is a worthless Supreme Court.

    The problem with that is that “do their jobs”in this sense is entirely a matter of writing their preferred policy outcomes into the Constitution. I don’t see why that’s a good thing for society unless you happen to like their preferred policy position.




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  30. stonetools says:

    @James Joyner:

    f the Constitution simply means whatever 5/9 of the Supreme Court says it means on any given day, it’s not actually a Constitution at all. The power of government is essentially unlimited.

    A bit of the hyperbole there, James. You’re right in that the way we amend the Constitution these days is to appoint Supreme Court judges of a particular political persuasion and have them interpret the Constitution a particular way. Conservatives grasped that back in the 1960s and have been relentless in pursuing that strategy in a way that liberals were reluctant to until recently. However, that process is slow and uncertain.Conservatives thought they had gotten it right when Nixon appointed four SCOTUS judges, then they thought they had it when Reagan appointed Kennedy and Scalia, and then thought they had (finally!) got it right when GWB appointed Roberts and Alito. In each case they have been disappointed to a certain extent.
    Now I would prefer that we amend the Constitution in a clear and aboveboard way. But to do that we would probably have to make the US Constitutional amendment process clear and easy. And that would require a Constitutional convention-something no one thinks is a good idea right now.




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  31. @James Joyner:

    Still, I don’t think I’ve heard mainstream conservatives argue that it’s unconstitutional for Congress to pass universal health insurance

    I do not think that the challenge to the PPACA was a principled constitutional argument as much as it was legislative politics by a different process–a tactic that is not limited to any given partisan persuasion, I would note.

    I do think that if, say, Medicare for all was passed that some would take to the courts to stop it, and they would find a constitutional argument to do so in the hopes of getting to SCOTUS.

    It is the Hail Mary of legislative politics–especially since our legislative process makes reversal of major legislation just as hard as passing it.

    Just like I think it is problematic that a fluky super-majority was needed to pass the PPACA. I think i it is problematic that similar super-majority is needed to change it. The impasse built into Congress means that opponents of the legislation can only count on the Court (and they have tried twice and failed).




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  32. James Joyner says:

    @Steven L. Taylor:

    Perhaps the fundamental point of our disagreement is that you assume that it is possible for a constitution to have a fully fixed meaning, and I think that that is impossible? And, therefore, a decision process (which inherently requires interpretation and re-interpretation) is needed to determine at a given moment in time how to apply the rules (although I don’t expect you fully disagree with that).

    As a general matter rules are rarely self-evident in their application and always require interpretation

    I agree that rules always require interpretation and that the meaning of terms can change over time. But, to use your NFL analogy, I don’t want the referees to simply decide they don’t like the way the pass interference rule is written and make up a new one on their own; that’s the role of the Competition Committee.

    My narrow position with respect to this case is that, given that homosexuality was hardly unknown at the time—-and given that as recently at 1982, we were trying to amend the Constitution to make sex a basis for equal protection—-there’s no basis for the Court on its own authority to find a right to same-sex marriage an Equal Protection Clause written in 1865.

    But, yes, there’s a wide swath for judicial interpretation.

    Whether, for example, the limitations imposed by various campaign finance reform laws over the years violate the rather broad protections outlined in the First Amendment is inherently something that has to be decided by the judiciary. Our political and communications systems are so vastly different than those that existed at the times of the Framers that it’s purely a matter of interpretation. While I think the courts should give exceptional deference in making that call to the people’s elected representatives, they still have a role in decided what it means to “abridge” the right of free speech in the modern context.

    Ditto Hobby Lobby and its ilk in the context of the Free Exercise Clause.

    We agree that the definition of “citizen” could well change over time. The 14th Amendment itself makes birthright citizenship a fact but Congress can make changes around the edges. Arguably, for example, the 26th Amendment and various laws passed by Congress might render 18-year-olds citizens and thus render laws requiring attainment of a higher age to undertake ordinary activities subject to higher scrutiny under the Equal Protection Clause.

    Arguably, with respect to same-sex marriage, Congress itself could make sexual orientation a protected class under the 14th Amendment using its powers under Section 5. That might well be a reasonable basis for the Supreme Court to invalidate state provisions on treating homosexuals differently—including on the issue of marriage.




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  33. James Pearce says:

    @James Joyner:

    If the Constitution simply means whatever 5/9 of the Supreme Court says it means on any given day, it’s not actually a Constitution at all.

    If the Supreme Court is pulling this stuff out of the ether, then we could worry about that. In this case, though, they’re just fulfilling their mandate, interpreting laws based on a whole corpus of jurisprudence. You can’t get here without “equal protection” and the court’s reasoning is legally sound.

    I’m rather reassured by the court ruling, not just because I support its result, but because this is what SCOTUS is for.

    The power of government is essentially unlimited.

    To the contrary. This is the government restraining their own power in favor of personal liberty, leaving them in the role of inert administrators rather than arbiters.

    It’s a rather nice change.




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  34. stonetools says:

    @Steven L. Taylor:

    Perhaps the fundamental point of our disagreement is that you assume that it is possible for a constitution to have a fully fixed meaning, and I think that that is impossible?

    Actually, it’s impossible for the Constitution to have a fixed meaning-so long as it is easy and straightforward for people to amend it. That’s how modern Constitutions work. But that’s not our system, for good or ill.




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  35. stonetools says:

    @James Joyner:

    Arguably, with respect to same-sex marriage, Congress itself could make sexual orientation a protected class under the 14th Amendment using its powers under Section 5. That might well be a reasonable basis for the Supreme Court to invalidate state provisions on treating homosexuals differently—including on the issue of marriage.

    This Congress, James?
    To do what you suggest, we would have to :

    1.Un-gerrymander the the congressional districts in 2020.
    2. Have a huge Democratic wave election in 2024, including electing not only a House majority but a filibuster proof Senate majority.
    3. Pass the legislation in 2025

    That would mean postponing SSM on the hope that the Democrats could do the equivalent of performing a double backflip and somersault through flaming hoops and sticking the landing. It’s a lot to ask of our gay fellow citizens.




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  36. stonetools says:

    @stonetools:

    Actually, it’s impossible for the Constitution to have a fixed meaning

    Sorry, that should be POSSIBLE for the Constitution to have a fixed meaning.




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  37. SKI says:

    With all due respect to James, I’ve got to say that his take on deferring to majority will strikes be as inherently and inescapably rooted in white Christian male privilege with no consideration to those who have been impacted by the discrimination that he also opposes.

    As Steve pointed out, the reality is that SCOTUS did NOT rewrite the Constitution. They simply answered basic questions that compelled the conclusion in light of the Constitution as it exists.

    Simple questions like:
    Are gays citizens?
    Do we provide benefits for people that are married?
    Is there a compelling reason to deny them the right to be married?

    It isn’t complicated. And it shouldn’t require legislation to protect the rights of minorities. We have trod that path before and it isn’t pretty.




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  38. Jack says:

    @Tony W:

    And again we’re back to the three wolves and a sheep deciding on dinner……. The court is absolutely within its mandate to protect minority rights and assure equal protection. We do not wait for a majority to come around – justice delayed is justice denied.

    I’m glad you so wholeheartedly agree.

    So I expect you will be first in line to stand up for nationwide reciprocity when it comes to my gun rights.

    Since everyone agrees that

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.

    applies to marriage rights throughout the nation, then gun rights apply too. 36 states have reciprocity with my license…the same number that had already enacted gay marriage. The will of the people has spoken on this one.

    To paraphrase what Associate Justice Anthony Kennedy said about same-sex marriage, “no right is more profound than the right of self-preservation, and under the Constitution, all citizens should be able to exercise the right of self-defense anywhere in the country. It disparages their ability to do so, and diminishes their personhood to deny the right to bear arms they have in their home states when they are visiting other states.”

    State drivers’ licenses are universally recognized, and with today’s high court ruling, same-sex marriage must now be recognized in all 50 states as well. It not only stands to reason, but common sense demands that the concealed carry licenses held by more than 11 million citizens across the country should now be valid in every state without question.

    I’m so happy liberals those that support gay marriage will now stand and support gun rights.




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  39. anjin-san says:

    @ James

    My general sense is that the people have the right, through their representatives, to make public policy

    My specific though is that the people, do not have the right, through their representatives, to relegate a subset of their fellow citizens to second class status.




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  40. stonetools says:

    @James Joyner:

    Whether, for example, the limitations imposed by various campaign finance reform laws over the years violate the rather broad protections outlined in the First Amendment is inherently something that has to be decided by the judiciary.

    You see, this is where the entire “originalist” conceit becomes absurd. My understanding is that not only that the founding fathers would have never thought about campaign finance, but they would have most likely have opposed that idea, if they had thought about it. Yet, according to conservatives, not only would the founders have been in favor of campaign financing, but they would have been OK with billionaires and giant corporations funding the candidate of their choice with unlimited amounts of money through a byzantine secret process. If they can swallow that, then extending 14th Amendment protections to the gays seems a simple step. Seems apt that Kennedy wrote both opinions.




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  41. James Joyner says:

    @Steven L. Taylor:

    I do not think that the challenge to the PPACA was a principled constitutional argument as much as it was legislative politics by a different process–a tactic that is not limited to any given partisan persuasion, I would note.

    I do think that if, say, Medicare for all was passed that some would take to the courts to stop it, and they would find a constitutional argument to do so in the hopes of getting to SCOTUS.

    Sure. As SCOTUS has inserted itself into our process more and more over the years, it has become the venue of first resort for the minority and the venue of last resort for those who lose in the legislative process. I do think the original case on the mandates was legitimate and that Roberts really strained to find a way to make it constitutional. (That is, the mandate as written was clearly unconstitutional in that Congress doesn’t have the power to require that citizens purchase anything from private parties. Roberts reasoned, correctly, that Congress could have achieved the same effect by passing a health care tax and then offering a rebate to those who brought their own. That, therefore, the mandate was simply a tax was bizarre.)

    @anjin-san:

    My specific though is that the people, do not have the right, through their representatives, to relegate a subset of their fellow citizens to second class status.

    Except when they do! From time immemorial, children have been denied all manner of rights that adults have. By the Court’s reasoning Thursday, they could simply decide one day that 12-year-olds are full citizens and therefore any restriction on their conduct is unconstitutional, notwithstanding longstanding cultural norms.

    @Jack: I’m not all that familiar with the case law on the 2nd Amendment beyond a handful of landmark cases. I don’t understand how, for example, the Full Faith and Credit Clause wouldn’t allow me, a resident of Virginia, to travel across state lines with guns in my car.

    @stonetools: You’re arguing, essentially, that because it’s hard for a minority to pass legislation that it likes, it’s up to the courts to ignore the will of the people’s representatives and simply pass their preferred policies into law.




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  42. Erik W says:

    @Jack: at risk of reinforcing your attempt to beat your horse on gun control, I will say, as a liberal, that if the Supreme Court rules that your interpretation of gun rights is correct I would not talk about ignoring that ruling due to “activist unelected judges legislating from the bench” or any of the other rationalizations or arguments I have heard from those opposed to this ruling. I would also not bring up a situation that has not been ruled on as an excuse to avoid stating clearly that I would support the implementation of the ruling at hand. I might disagree with the Juctices that the Second Amendment enshrines the right to conceal carry, but I would not support local jurisdictions refusing to honor your permit, nor refusing to issue a permit to someone who, previously, could not have obtained one in that jurisdiction.

    Are you willing to reciprocate on SSM?




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  43. James Joyner says:

    @stonetools: As noted in the OP and the previous posting on the matter, I take as a given that the Constitution has to be elastic enough to cover changes in technology that the Framers could not have foreseen. The First Amendment was there to maximize expression, political in particular. So it’s not unreasonable to argue that it extends to television, the Internet, etc. But given that Congress has an inherent need to regulate those media, it comes down to the judiciary to decide how to balance the two.

    @Erik W: Just to be clear: my ” refusal by the other branches or lower courts to enforce the ruling” was not an endorsement of that approach. I think that’s dangerous to rule of law. That’s a fundamental reason why I think SCOTUS has to tread lightly in imposing its view on society through reimagining the Constitution.




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  44. stonetools says:

    @Jack:

    Er, I’m all for equal protection of the laws. What I’m against is writing a right of self-defense into the Second Amendment. The words “self defense”, or “self preservation” do not appear in the Second Amendment, or anywhere else in the Constitution, nor is there any language limiting “arms” to “semi automatic handguns”.
    In fact, Heller is an effective example of judicial legislation from the bench, which is why conservatives should give up any further talk of “judicial activism” as the rank hypocrisy it is.
    At this point, the only way for liberals to reverse Heller is to elect a Democratic President and a Democratic Senate majority, and wait for at least one conservative Justice to die. This is not optimal, but till then we’re stuck with Heller. At least we are honest about it, and don’t go on yammering about “only appointing Justices that will show the proper judicial restraint.”




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  45. SKI says:

    @James Joyner:

    Except when they do! From time immemorial, children have been denied all manner of rights that adults have. By the Court’s reasoning Thursday, they could simply decide one day that 12-year-olds are full citizens and therefore any restriction on their conduct is unconstitutional, notwithstanding longstanding cultural norms.

    That argument is incredibly flawed.

    Yes, children are denied rights, but only because there was/is A compelling governmental interest.

    Pray tell, what is the compelling governmental interest that allows mile of rights for gays to be married?




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  46. Tony W says:

    @James Joyner:

    Arguably, with respect to same-sex marriage, Congress itself could make sexual orientation a protected class under the 14th Amendment using its powers under Section 5.

    We understand that you wish to minimize constitutional protections to as few classes as possible, for some reason. Given that stance, what then is your remedy for unpopular minorities to receive equal protection?




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  47. Tony W says:

    @Jack: To be honest, I don’t give a damn about your guns. Carry ’em, don’t carry ’em. I have bigger fish to fry.




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  48. michael reynolds says:

    Interesting debate. It’s a bit like listening to people debating English. You have the sticklers who argue that words must be clearly defined and mean specific things, and that those words must continue to mean what they’ve always meant. And then you have people who point out that the flexibility and adaptability of the English language explains its survival and dominance in the world.

    It’s a cool, hip, happening kind of exchange. I’m down with it. Rock on, peeps.

    The year 100,000 BC, Gort and Bort discuss the lack of available prey animals. Gort points out that the wildebeest have always come this way in the past so the smart move is to wait for them. Bort says, no, if they were coming they’d have come by now, so they should move the tribe across the river and try over there. Gort points to the cave painting done by his grandfather which clearly states that wildebeest come this way. Bort points to actual wildebeest across the river.

    Both valid points of view, conservative and liberal. Maybe the tribe stays put and starves to death. Then again, maybe in attempting a river crossing half of them are drowned.

    What strikes me as odd is that we have so many conservatives in this of all countries. We are after all the people who went clear across the Atlantic looking for wildebeest. And then clear across the continent. We are not descended from fearful men, as Edward Murrow said.

    In order for Americans to go on being bold and forward-looking and optimistic, our government has to keep pace. Relying on the principals of the Founders is good. But we need to be able to adapt.

    Imagine sitting down with Thomas Jefferson, a brilliant and forward-thinking man, and showing him your iPhone. Imagine how many dozens of layers of science and technology, but also social change, you’d have to walk him through before he could come close to understanding its use and significance. Then ask him to draft a document covering the proper use of said phone. He’d start with obvious rules of etiquette, among which would be that you must never call a stranger without a proper introduction, or at any time other than prescribed hours, and calls must be between social equals, and certainly under no circumstances should a gentleman telephone a lady.

    We do not live in Mr. Jefferson’s world. 1787 was a long, long time ago. The Founders were not psychics. They did very well indeed for men of the 18th century, but they were just dudes doing their best. They weren’t gods.

    Adapt or die. And if the pace of change outruns the prescribed mechanism of adaptation as it clearly has? Then the rule remains, adapt or die.

    The Supreme Court is assisting us in adapting. The wildebeest are plentiful.




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  49. Mikey says:

    @James Joyner:

    But our Constitution—through both the institutions of Federalism and separation of powers—enshrines the ability of a national minority to make local policy and for a motivated minority to halt grant changes at the national level.

    It does. And sometimes that is a great thing. But when the motivated minority is motivated to limit the right of other Americans to equal protection under law, the Constitution also enshrines the ability of the Supreme Court to step in and ensure that right is preserved.




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  50. michael reynolds says:

    @Jack:

    no right is more profound than the right of self-preservation, and under the Constitution, all citizens should be able to exercise the right of self-defense anywhere in the country

    .

    Exactly why we should shun guns and exclude gun owners from decent society. A man with a gun is by his very nature a threat to self-preservation. It’s why you buy guns: to threaten. To bully. To make yourself large and important when you have no real accomplishments to claim. The gun is a short-cut to significance, the way cocaine is a short-cut to brilliance. Both equally false, both addictive to those with weak minds.

    Buy all the guns you want. You’re still nobody.




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  51. Andy says:

    Nice to see a refreshingly sincere and well argued debate here in the comments section for a change.

    Just up front I think the SCOTUS ruled correctly on the gay marriage case. I acknowledge the problems that James points out, but I think this ruling comes with enough legitimacy that it will not be divisive in the future as, for example. Roe V Wade was.

    On the PPACA I don’t think they should have taken the case to begin with. Since they did, I think they probably made the least-bad ruling they could have, but I don’t think it’s something we should celebrate. For too long Congress passed its duties and responsibilities to the Executive on a whole host of policy questions and now SCOTUS is jumping in. In a normal world Congress would amend the law but that is too politically risky for either side, so it gets dumped on the courts to figure it out.

    Process matters and people who celebrate the ends achieved by court action should consider the long-term consequences of Congress punting its duties to the Executive and Judiciary.




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  52. anjin-san says:

    @James Joyner:

    Except when they do! From time immemorial, children have been denied all manner of rights that adults have. By the Court’s reasoning Thursday, they could simply decide one day that 12-year-olds are full citizens and therefore any restriction on their conduct is unconstitutional, notwithstanding longstanding cultural norms.

    I have gay friends who have suffered grievously under the second class status that they were relegated to until the other day. Perhaps you think that trivializing this serious issue is somehow amusing, but I am not seeing it.




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  53. Jack says:

    @James Joyner:

    I’m not all that familiar with the case law on the 2nd Amendment beyond a handful of landmark cases. I don’t understand how, for example, the Full Faith and Credit Clause wouldn’t allow me, a resident of Virginia, to travel across state lines with guns in my car.

    As of today, effectively all states north of NY are landlocked by NY. You cannot decide to say…drive across county with your guns unloaded in the trunk of your car and go through NY. If stopped, with a weapon, you will be prosecuted to the fullest extent of the law.

    While Federal Law (FOPA) says I should be able transport from anywhere it is legal to anywhere it is legal, NY, DC, NJ frown on that concept and treat this federal provision as an “affirmative defense” that may only be raised after an arrest.

    However, my post was about carrying. I have a license to carry, that license should be honored by the remaining 49 states.




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  54. Rick DeMent says:

    @James Joyner:

    Generally speaking, it should mean what it was meant to mean when it was written, as amended (via Section 5 authority) by the Congress.

    … and yet you still think that the entire body of corporate jurisprudence that has come to pass citing the 14th amendment is sound and should stand is baffling to say the least. There is no way you can square that circle; none at all without resorting to the very same kind of jiggery-pokery you accuse your opponents of on this issue.




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  55. Jack says:

    @Erik W:

    I would not talk about ignoring that ruling due to “activist unelected judges legislating from the bench” or any of the other rationalizations or arguments I have heard from those opposed to this ruling.

    You may not. But many said those exact word after Heller and Miller. Why? Because they don’t understand the gay gun culture




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  56. Jack says:

    @michael reynolds:

    A man with a gun is by his very nature a threat to self-preservation.

    Is that why the military and police issue weapons?

    You ignorance is showing…again.

    You simply do not like the idea of self protection. You are all about the collective. I don’t live in a collective.

    This country was set up for maximum individual freedom….NOT the best interest of the collective. It is what makes us different.

    We’re talking about law-abiding citizens who have gone through background checks, and in many cases, state-mandated training programs. To continue treating their Second Amendment rights as second-class privileges seems unconscionable after today’s ruling.




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  57. James Joyner says:

    @michael reynolds:

    We do not live in Mr. Jefferson’s world. 1787 was a long, long time ago. The Founders were not psychics. They did very well indeed for men of the 18th century, but they were just dudes doing their best. They weren’t gods.

    On this I concur. I’ve noted conditions under which the language should be interpreted in light of present conditions. I just contend that something logically can’t be fully permissible under the Constitution for 150 years and then suddenly be unconstitutional without an amendment to the Constitution.

    The Supreme Court is assisting us in adapting.

    Except when they’re thwarting our attempts to adapt by finding laws they don’t like unconstitutional.

    @Rick DeMent:

    yet you still think that the entire body of corporate jurisprudence that has come to pass citing the 14th amendment is sound and should stand is baffling to say the least.

    It’s your pet issue, not mine. Corporate personhood isn’t a fundamental Constitutional issue and wasn’t one that I studied when I was taking Con Law classes. From what I’ve gathered since, the concept has roots going back centuries, long predating our Constitution and well understood by the Framers. That it’s evolved substantially since then through judicial ruling doesn’t concern me and the logic of, say, Hobby Lobby strikes me as a reasonable interpretation of the Free Exercise Clause. But I don’t have strong views on the case law in general.




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  58. stonetools says:

    @James Joyner:

    But given that Congress has an inherent need to regulate those media, it comes down to the judiciary to decide how to balance the two.

    Then, to a certain extent, what are we arguing about, James?The founding fathers drafted the First Amendment in a world where no written communication travelled faster than a horse, gentlemen did not campaign for political office, and the notion of universal suffrage was at best a gleam in Thomas Paine’s eye.The Supreme Court has managed to update the hoary words of the First Amendment in a way that it applies to today’s world. Without such updating, it would probably have faded into irrelevance-and indeed, it was irrelevant for much of our history. I would say that prior to 1932, the First Amendment was little more than words on paper for most Americans. It was Supreme Court decisions, starting in the 1940s, that made the First Amendment into the broad grant of freedom of expression it has become for all Americans.
    In the same way, it’s up to courts today to update the Constitution for modern Americans. The difference is we liberals are comfortable with this and honest about it, where conservatives are reluctant and hypocritical about re-interpreting the Constitution. In other words, both sides both it-but one side is open about it.




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  59. Erik W says:

    @Jack: I couldn’t possibly speak to why everyone who used such an argument after Heller or Miller did so, but then again neither can you so ascribing all those arguments to simply not understanding gun culture is very likely wrong–there are assuredly many motives and reasons for doing so.

    Regardless, I invited you to lead by example and state support for the same application of full faith and credit that you advocate for gun laws to the ruling on SSM. Will you do so?




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  60. Rick DeMent says:

    @James Joyner:

    It’s only a “pet issue” due to it’s outlandish nature. The concept with it’s roots is absolutely irrelevant to an amendment that was not in any way shape or form written with any intent to extend rights to corporations. There is nothing that maps the 14th amendment to a corporation… full stop. None of the writers envisioned it, no one would have ever thought at the time it was being passed that is had anything to do with corporations yet in the years following the ratification of this amendment it was cited overwhelmingly in cases involving corporations not the people it was written for.

    Not only that but all of the decisions that have come down using that logic at it’s very core including the right of corporations to be involved in campaigns and lobbying. The Hobby Lobby case is especially relevant here due to all the things I have brought up, one would think this idea should be retreating not expanding. Yet you’re attitude is “oh well, water over the bridge”, can’t worry about it now while telling other that they should care about judicial activism in the Same sex marriage case? I’m just interested in hearing how anyone can, with a straight face, hand wave all that away and then turn around and get indignant about this Supreme Court decision.

    It’ not as much a pet issue as an explanation as to why were are all Judicial Activists now. No one really cares except to whine over a decision that went the other way.




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  61. Jack says:

    @Erik W: I do (no pun intended).




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  62. Lit3Bolt says:

    The conservative argument to “let progress occur organically, through the legislative process” is specious. It essentially boils down to “if it will happen, it will happen sometime.” The parenthetical to that is (not in MY lifetime).

    150 years ago the first incredibly brave women suffragettes were advocating against the traditional gender roles of virgin, whore, spinster or mother. It took them 50 years to drum up support for the 19th amendment. The Equal Rights Amendment was proposed almost immediately afterwards, in 1920, and was defeated by 1980 because Phyllis Schafly was making dire predictions of women in the military and unisex bathrooms (I guess she never flew an airplane or used a porta-potty). Women are currently denied healthcare, equal pay for equal work, and safety from sex discrimination/threats based on their gender today, and I guarantee the ERA would have gone a long way making these current issues into non-issues.

    It took 150 years for women to be regarded as human beings, as equal citizens and as fellow countrymen, and we’re still not yet completely there. 150 years! There’s your legislative process in action James. There’s “organic” change, which is basically the rest of us waiting for the Scalias to die every generation.

    Denying gay people equal rights boils down to observing the tyranny of a pluarlity, and some Biblical gobbledegook and hemming and hawing about “tradition.” The only reason it’s an issue is government policies regarding marriage and spousal rights. None of that is in the Constitution. Is divorce explicitly mentioned in the Constitution? Does it need to be for us to adapt and apply basic rights of property and due process to all citizens?

    SCOTUS does tread lightly. They are well aware of their limited power. They can also see where things are going to end up.




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  63. Argon says:

    James, if you think the full faith and credit clause is sufficient to get a state like Texas that does not allow SSM to extend marriage coverage to those of its same sex residents that were granted out-of-state licenses, does that not effectively allow SSM to exist in states like Texas?

    Is that the sort of Constitutional argument you would accept or is that outside the bounds of the Constitution’s framers?




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  64. Gromitt Gunn says:

    I think that your argument would hold greater weight had we inherited civil law jurisprudence from our former colonial power, rather than the common law jurisprudence that we did l, in fact, inherit.

    One of the big problems with Originalism is that it presumes that the Framers had never heard of stare decisis.




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  65. Gustopher says:

    @James Joyner:

    My narrow position with respect to this case is that, given that homosexuality was hardly unknown at the time—-and given that as recently at 1982, we were trying to amend the Constitution to make sex a basis for equal protection—-there’s no basis for the Court on its own authority to find a right to same-sex marriage an Equal Protection Clause written in 1865.

    Unless you don’t believe women are persons, then not including them in the Equal Protection Clause is just obviously wrong. Section 2, laying out voting rights, uses the word “male”, but Section 1 uses the word “person”

    However, just because something is in the constitution doesn’t mean courts will side that way, which has two possible remedies — clarifying with another amendment, or changing the makeup of the courts. Both were pursued, the latter was successful.

    So the ERA, and its failure to get ratified, doesn’t demonstrate anything other than women, in practice, not being equal to men for a century after the 14th Amendment was passed.

    I don’t think the definition of person changed since the civil war era — it even included gays! — but the understanding of the implications of “equal protection of the laws” changed.




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  66. James Pearce says:

    @Jack:

    To continue treating their Second Amendment rights as second-class privileges seems unconscionable after today’s ruling.

    In addition to preserving the 2nd amendment and legalizing gay marriage, Obergefell also legalized marijuana.

    Or did it?




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  67. michael reynolds says:

    @James Joyner:

    I just contend that something logically can’t be fully permissible under the Constitution for 150 years and then suddenly be unconstitutional without an amendment to the Constitution.

    But we’ve always ignored the strict letter of the Constitution when necessary. As pointed out above, we have standing army, we have an FCC, we have Constitutional interpretations of rules governing entire industries that would have been inconceivable to the Founders.

    The Constitution is like the Bible: everyone’s soapbox, everyone’s excuse.

    We have to ask ourselves what principles and needs and desires undergird the Constitution. Surely a desire to avoid overweening government. But also the fundamental will to survive, to maintain a continuous government across generations. Hence a standing army and air force. Hence regulations on environmental waste. Hence rulings requiring reasonable treatment of employees with far less flogging and shackling and imprisoning than once would have been permissible (unless you work for Wal-Mart.)

    In the Founders’ day restraint of trade wasn’t even an issue, neither was, say, dumping nuclear waste. They became issues, so we passed laws and the SCOTUS found that such laws – explicitly outlawing what had once been permissible – were fine. They looked at the Constitution and “discovered” that no, your property rights which just last week allowed you to dump toxic chemicals, now says you can’t.

    Rule #1: survive. Rule #2: everything else. We cannot survive long as a country if 50 individual legislatures are passing conflicting laws governing behavior. Power must inevitably flow to the center and we must inevitably make decisions based on the will of the majority with a decent regard for the rights of minorities because nothing else works.

    In a better world the Congress would be the engine of adaptation, not the court. But we have a tripartite government in part so that a system failure in one branch could be compensated for by the remaining branches. The difference between a single engine plane and one with multiple engines. The Congress has gerrymandered and “reformed” itself into a state of collapse (with a great deal of remarkably stupid “help” from the court.) Seeing its power slip and be defaulted to the executive and judiciary should motivate Congress to be less corrupt, less less careerist and more functional. Or not. But either way, the compelling needs of survival and adaptation still hold sway.

    What’s happened with SSM and Obergefell is that various states said, “Yeah, you can get married.” Other states said, “No, you can’t, and if you move here you will be magically un-married.” This is untenable. You cannot run a country where people can be unmarried by virtue of stepping over a line. Congress is unable to manage the issue, so the court did. Maybe eventually the court will recognize that it helped to cause that very paralysis and revisit its own disastrous decisions on campaign finance. But in the meantime, life has to go on.




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  68. MBunge says:

    @michael reynolds: A man with a gun is by his very nature a threat to self-preservation. It’s why you buy guns: to threaten. To bully. To make yourself large and important when you have no real accomplishments to claim.

    As berserk as the NRA has become, the above is just as much responsible for why we can’t have reasonable gun control policies in America. Beyond all the legitimate concerns, too many liberals have made it too clear they hate guns and they hate people who like guns. It’s an expression of a white, male, upper middle class urbanism that equates guns with rural primitivism.

    Nothing has done more to enable the extremism of the gun nuts than liberals who really do want to take guns away from people.

    Mike




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  69. Gustopher says:

    @Jack:

    So I expect you will be first in line to stand up for nationwide reciprocity when it comes to my gun rights.

    I can’t speak for what’s-his-name (forgot to read who you were replying to, and writing on an iPad makes scrolling back up and finding it a nuisance), but I don’t think all that many people care about your guns.

    Honestly, I expect that with the current makeup of the Supreme Court, you will soon be able to bring your gun nearly everywhere you can bring your black friends. I expect you’ll be able to take your black friends on airplanes and in courthouses and a few carefully proscribed other places where you can’t take your guns. Private businesses will probably get to decide whether you bring a gun onto their premises or not.

    But, I don’t care. You are culturally irrelevant. Your kind will be shunned, and rightly so. By all means, enjoy your guns.

    (We will, of course, work to reduce the classes of gun you can have, so as to minimize the danger you pose to people around you)




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  70. MBunge says:

    It should be remembered that long before our current legislative dysfunction, lawmakers and activists have be turning more and more to the courts to deal with issues that should have been resolved legislatively. Judges have been both easier to persuade and easy to blame.

    Mike




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  71. stonetools says:

    @Gustopher:

    Honestly, I expect that with the current makeup of the Supreme Court, you will soon be able to bring your gun nearly everywhere you can bring your black friends. I expect you’ll be able to take your black friends on airplanes and in courthouses and a few carefully proscribed other places where you can’t take your guns.

    In fact, because the gun nuts are insisting that they want to carry guns everywhere, the Supreme Court is already beginning to walk back Heller. The logical extension of Heller is that a “law abiding” person should be able to open carry an AR15 into courthouses. I’m sure that Kennedy and Roberts, at least, see where the train is going and want to stop that, which is why they’re joining with liberals in refusing grant cert on cases involving state laws restricting storage and carrying of guns.I expect that after a few more church and school massacres, you’ll see even more such laws.
    anyway, I don’t want this to become a gun control thread, so let’s move back to safer territory-gay rights ( Did I really type that? Shows how things have changed).




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  72. Ron Beasley says:

    It should be noted that Jefferson thought the Constitution he helped draft would only last for about 50 years and then be redone. The reason we still have the same Constitution is because of many amendments and the Federal Court system’s reinterpretation. The country is so divided at this point that amending it is out of the question. That leaves the Federal Court system.




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  73. michael reynolds says:

    @MBunge:

    It’s an expression of a white, male, upper middle class urbanism that equates guns with rural primitivism.

    Certainly not male per se, rather the contrary, but yes, it is fundamentally an urban/suburban mind-set. Because it really is rural primitivism and we are no longer a rural country. Just 19% of the American population is arguably rural, the remaining 81% are not. And of course the 19% travel in and out of urban and suburban areas, they aren’t isolated in the countryside.

    Pretending that things are other than what they actually are, is a problem. Gun nuts who willfully ignore the danger they pose in an urban/suburban environment are being aszholes.

    It’s much like the confederate flag – a relic that might have made sense to some folks in the past and now is just out of place, irrelevant, divisive and clearly dangerous.

    I don’t care about laws that nibble at the edges. They won’t accomplish much, if anything. It’s the mind-set that has to go. You have to weaken the confederate mind-set before they’ll take down their flag. You have to subvert prejudices before a country will accept gays as equal citizens. It’s a hearts-and-minds battle. I’m not out to force Jack to give up his arsenal, I’m out to stigmatize and isolate him for anti-social, bullying, loutish behavior that has no place in modern civilization.




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  74. Gustopher says:

    @stonetools: I wouldn’t be entirely surprised if gun owners were a protected class before too log. Maybe not on the federal level, but I can see some of our more “conservative” states doing so.

    Kansas. Kansas would do it. And Louisiana. Maybe Walker will try to shove it through in Wisconsin.

    Why isn’t Brownback running for President? Pictures of corn fields, with hard-working white man on tractors, talking about the Kansas Miracle and Common Sense Solutions…




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  75. Gustopher says:

    @Ron Beasley: If he had really meant for that to happen, wouldn’t he have put an expiry on the constitution? It would need to be ratified every 50 years or so?

    I think he just liked to talk big about the whole scrapping everything every generation. Just like he liked to talk big about liberty and freedom while owning slaves.




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  76. James Joyner says:

    @michael reynolds:

    In the Founders’ day restraint of trade wasn’t even an issue, neither was, say, dumping nuclear waste. They became issues, so we passed laws and the SCOTUS found that such laws – explicitly outlawing what had once been permissible – were fine. They looked at the Constitution and “discovered” that no, your property rights which just last week allowed you to dump toxic chemicals, now says you can’t.

    But none of those were done by judicial fiat but rather by the people’s representatives. And the courts, quite reasonably, found these new rules to be within the broad power of the legislature to regulate interstate commerce.

    In a better world the Congress would be the engine of adaptation, not the court. But we have a tripartite government in part so that a system failure in one branch could be compensated for by the remaining branches. The difference between a single engine plane and one with multiple engines.

    It’s difficult to defend our current, broken legislative system. But I don’t agree that the solution is to have the unelected branch serve as a de facto legislature under the guise of Constitutional interpretation.

    @Gustopher:

    Unless you don’t believe women are persons, then not including them in the Equal Protection Clause is just obviously wrong. Section 2, laying out voting rights, uses the word “male”, but Section 1 uses the word “person”

    However, just because something is in the constitution doesn’t mean courts will side that way, which has two possible remedies — clarifying with another amendment, or changing the makeup of the courts. Both were pursued, the latter was successful.

    So the ERA, and its failure to get ratified, doesn’t demonstrate anything other than women, in practice, not being equal to men for a century after the 14th Amendment was passed.

    I don’t think the definition of person changed since the civil war era — it even included gays! — but the understanding of the implications of “equal protection of the laws” changed.

    I think that, rather clearly, the history indicates that the 14th Amendment was not intended to grant full legal equality to women. As late as the 1990s—and to a very limited extent, even this very day—there’s a healthy debate about whether women ought be “protected” from certain rights and obligations that men have, notably service in the combat arms.

    The best vehicle for establishing that society has changed its mind on what such things as “equal protection” mean is for the people’s representatives to change the laws accordingly.




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  77. SKI says:

    @James Joyner:

    The best vehicle for establishing that society has changed its mind on what such things as “equal protection” mean is for the people’s representatives to change the laws accordingly.

    Again, only someone who isn’t being told to wait to experience equal rights can afford the luxury of such a casual attitude towards fixing problems.

    James, you have to grapple with the reality that waiting punishes those with the least power.




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  78. michael reynolds says:

    @James Joyner:

    Actually, legislation was involved. In this case the Supremes were deciding in effect between laws outlawing gay marriage, and laws allowing gay marriage. The SCOTUS is charged with making those calls, right? As a practical matter we can’t have marriages legal or illegal depending on whether you’re in Wyoming or Colorado. They were performing their necessary function, keeping the system working.

    If they got there in a way that doesn’t quite jibe with your notions of the Constitution, then it’s because the Constitution is imperfect and sometimes requires someone with an oil can to come along and lubricate the moving parts. The alternative is allowing ourselves to be paralyzed whenever some bunch of state legislators gets their panties in a twist. What do we do next week when idiot legislators in 25 states decide to outlaw the owning of pets, and 25 other states require pet ownership? Is there an explicit mention of pet ownership in the Constitution? Are we to let state troopers in Massachusetts arrest people crossing into the state with their Schnauzers, while Vermont troopers are tossing random cats into passing vehicles?

    Paralysis would be the greater danger in that it would quickly become apparent that the Constitution itself is out of date and no longer up to the job. I would think the more conservative approach would be to allow the minor adjustment rather than revealing the inadequacies of the larger system. Personally, I don’t want a constitutional convention.

    Marbury isn’t in the Constitution, it’s power grabbed by the Supremes because it was necessary for the system to function. Right there you have the Constitution being rewritten by the court because there was no practical alternative. If you want to keep a 228 year-old document relevant there’s going to have to be some jerry-rigging. This isn’t Sharia, it’s not the inerrant word of God, it’s a tool we use to achieve practical means.




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  79. OzarkHillbilly says:

    @michael reynolds:

    Just 19% of the American population is arguably rural, the remaining 81% are not. And of course the 19% travel in and out of urban and suburban areas, they aren’t isolated in the countryside.

    Michael, I agree and yet disagree. (i know, great shock, eh?) Out here, guns serve a purpose, maybe even a necessity. We feel they do, especially when the fox or coyote is trying to cull our chickens/sheep/goatscalves/etc. But I am with you 100% when it comes to carrying all the time, especially in town. I recently had a conversation with a guy about the wild pigs, said he always carried when he came out here. I said, “Bro? I live out here and I don’t carry.”




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  80. @James Joyner:

    But, to use your NFL analogy, I don’t want the referees to simply decide they don’t like the way the pass interference rule is written and make up a new one on their own; that’s the role of the Competition Committee.

    To further the analogy: the rules committee has said that all citizens should be afforded equal protection of the laws. The refs did not simply make up that rule.




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  81. @Jack: If SCOTUS ruled as you suggest, I would see it as more or less valid reasoning. I am less convinced than you that concealed carry rights are enshrined by the Second Amendment, but that is a different debate.

    I assume this means you are on board with the SSM ruling?




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  82. @Gromitt Gunn:

    I think that your argument would hold greater weight had we inherited civil law jurisprudence from our former colonial power, rather than the common law jurisprudence that we did l, in fact, inherit.

    This is actually very important. The basis of a common law legal system assumes, as the saying goes, “judge made law” and certainly envisions judicial interpretation.




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  83. @James Joyner:

    I take as a given that the Constitution has to be elastic enough to cover changes in technology that the Framers could not have foreseen.

    But then why not also allow it to be elastic enough to allow for changes in our understanding of what “citizen” means? Not only do I see no logical contradiction in doing both, it strikes me as more important to take changes in our understanding of citizenship than to account for technological changes.




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  84. al-Ameda says:

    @Jack:

    I’m so happy liberals those that support gay marriage will now stand and support gun rights.

    Of course, I’m very happy to support the Second Amendment. You know, the very same Amendment that includes the phrasing “A well regulated Militia, being necessary to the security of a free State … “




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  85. stonetools says:

    @Steven L. Taylor:

    Let’s face it, Jack is concerned with just one thing: total freedom to play with his toys. Nothing else matters. Gun cultists are like this.
    Now if only his toys weren’t killing machines…




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  86. michael reynolds says:

    @OzarkHillbilly:

    I am very open to reasonable accommodations. I don’t think a farmer’s shotgun is the problem. I even think there are situations – a stalking ex-husband, for example – where the authorities should issue a concealed carry permit.

    The problem is not that guns exist, but the fact that they saturate this society, so that incidents that start out as fist fights turn into gun battles, and children reaching into their mother’s purse end up shooting their sibling, or that people suffering depression in a moment of despair have an all-too-easy exit route.

    The gun cult moved way, way beyond any rational use arguments. They’ve decided that a “right” is the same as an obligation, as if the right to eat required you to consume 10,000 calories in a sitting. This is madness. The motive behind the madness is clear: profit. The NRA isn’t defending rights, the NRA is pushing guns to funnel profits into the hands of a handful of manufacturers and retailers. People like Jack with personality disorders and outright mental illness bankrupt themselves to feed their need, piling up arsenals and trying to justify it as self-defense. Then these psychos stew in their own madness until one day they decide it’s time for a murder spree.

    In fact, it’s the hunger for profit that creates the reaction. Had guns remained a tool to be used by rational folks with specific needs, I’d have no objection. But no one owns a 44 magnum to shoot snakes, there’s a not a snake alive that won’t die just as fast from a 20 gauge shotgun or a 22. And no one needs an extended clip in a military assault rifle to “defend” their home. The NRA has joined paranoia to sexual fetish and created the Jacks of the world, preying on their weakness the way a drug dealer preys on a junkie.

    Australia reacted to mass shootings by largely removing guns from civilian hands. And yet Australia has varmints that put to shame anything an Arkansas farmer has ever encountered, and somehow they’ve survived. There are ways forward, but not until the NRA is broken and the profit-by-murder racket of the gun manufacturers is rendered less profitable. To do that we have to change perceptions. We have to make owning an arsenal, owning weapons in the absence of need into the public health and mental health problem it is.




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  87. stonetools says:

    @Steven L. Taylor:

    The difference between liberals and conservatives: liberals think the Constitution should be interpreted flexibly, to take into account the changes in society.
    Conservatives: the Constitution should be interpreted flexibly to take into account the changes in society that conservatives like. And we shouldn’t tell anyone that, but rather tell them that we are doing exactly as the founders intended.
    Clarence Thomas is the classic example of it. He is completely on board with the Supreme Court decision in Loving vs. Virginia. Gay marriage ? That’s a step too far. The gays should wait for the legislatures to come around.




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  88. Jack says:

    @Steven L. Taylor: As a libertarian, I have no problem with SSM. Live and let live.




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  89. Jack says:

    @stonetools: I am a one issue voter much like gays. You have a problem with that?




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  90. Jack says:

    @michael reynolds: Fact :I didn’t invent the gun but as long as they are in existence in this world I gotta keep the playing field equal.

    When you tell all the people, good, evil, crazy, and stupid; to leave their guns home, only the good people comply, leaving the crazy, stupid, evil people as the only ones armed.

    Wow, look at that…a liberal screaming “Look at the NRA!”. At least try to be original. Put some thought into it. Wait, I did say that you are a liberal. Disregard.




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  91. michael reynolds says:

    @Jack:

    par·a·noi·a
    ˌperəˈnoiə/
    noun
    a mental condition characterized by delusions of persecution, unwarranted jealousy, or exaggerated self-importance, typically elaborated into an organized system. It may be an aspect of chronic personality disorder, of drug abuse, or of a serious condition such as schizophrenia in which the person loses touch with reality.
    synonyms: persecution complex, delusions, obsession, psychosis




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  92. HarvardLaw92 says:

    @michael reynolds:

    Why do you even bother? You know he’s crazy and a one track pony – all guns and vitriol, all the time.

    As for the discussion above, glad it was polite, but I’m reminded why I generally can’t stand libertarians.




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  93. Tony W says:

    I am honored that James has not even attempted to respond to my question about his ideas for assuring equal protection for unpopular minorities.

    If justice delayed is good enough for him, then I know his filter is too clogged to learn and grow.




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  94. James Joyner says:

    @michael reynolds:

    In this case the Supremes were deciding in effect between laws outlawing gay marriage, and laws allowing gay marriage. The SCOTUS is charged with making those calls, right? As a practical matter we can’t have marriages legal or illegal depending on whether you’re in Wyoming or Colorado. They were performing their necessary function, keeping the system working.

    We can and do have differential rules on marriage from state to state. There’s a reasonably wide berth on the minimum age, most notably. Additionally, some states allow cousins to marry and others don’t. Some have covenant marriage, some don’t. Divorce laws are fairly divergent as well. The Full Faith and Credit Clause, as interpreted by the courts, requires all states to recognize most of these marriages and divorces performed by other states, although I gather some public policy exceptions are permitted.

    @Tony W:

    I am honored that James has not even attempted to respond to my question about his ideas for assuring equal protection for unpopular minorities.

    The Constitution ensures all manner of rights for all manner of unpopular minorities. Laws restriction the freedom of expression of gays would clearly be unconstitutional. So would denying them due process of the law, a jury trial, the right to vote, etc.

    My narrow point here is that the Court has taken a provision of the Constitution passed for one purpose in 1867 to reach a conclusion that would have been anathema then and would have been unfathomable even five years ago. I happen to like the outcome but think it’s clearly judicial activism.

    If justice delayed is good enough for him, then I know his filter is too clogged to learn and grow.

    To the extent this outcome is “justice,” it has been “delayed” during the entire 239 history of our Republic and, indeed, most of human history. President Obama was against this, at least publicly, until 3 years ago. So were Bill and Hillary Clinton.

    I’m glad that we’ve reached this point but I nonetheless find it absurd that the same Constitution that allowed anti-sodomy laws until the same Supreme Court reversed a 1986 ruling in 2003 suddenly requires the recognition of same-sex marriage.




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  95. wr says:

    @James Joyner: “I’m glad that we’ve reached this point but I nonetheless find it absurd that the same Constitution that allowed anti-sodomy laws until the same Supreme Court reversed a 1986 ruling in 2003 ”

    Which brings up an interesting (to me) question: Do you believe that people should be serving time in Texas prisons for private, consensual sexual activities? Because following your reasoning here, that right was suddenly discovered after hundreds of years and shouldn’t have been pronounced by the courts but should have waited untll the legislature changed the law?




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  96. James Pearce says:

    @James Joyner:

    but I nonetheless find it absurd that the same Constitution that allowed anti-sodomy laws until the same Supreme Court reversed a 1986 ruling in 2003 suddenly requires the recognition of same-sex marriage.

    Placed in context, it’s not so sudden. Sullivan’s famous article appeared in 1989, which was closer to Stonewall then than Sullivan’s article is to us now. A courtcase in Hawaii scared everyone enough in 1993 to lead to the passage of DOMA 3 years later. DOMA, of course, did not survive 2013.

    This has been a long fight, with the pro-gay marriage side consistently appealing to Constitutional principle, and the other side scrambling to create new laws and constitutional amendments to head off the legal challenges.




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  97. SKI says:

    @James Joyner:

    I’m glad that we’ve reached this point but I nonetheless find it absurd that the same Constitution that allowed anti-sodomy laws until the same Supreme Court reversed a 1986 ruling in 2003 suddenly requires the recognition of same-sex marriage.

    If so, then the entire history of the Supreme Court and American jurisprudence (and the common law before that) is one of absurdity.

    Having our understanding of reality improve over time is a prime feature of humanity. Why on earth would you find doing the same thing in our jurisprudence absurd?’

    You think Bowers should have remained good law?
    Should Adler have not been overturned?
    Should Loving have gone the other way and not reversed Pace?

    Really, James?

    Steven was correct. The “magic” of the Constitution is its broad language setting out ideals.

    Those ideals get blunted, over and over again, by the prejudices and ignorance of each age with those following on sharpening the message by carving away the crap we humans have overlaid.




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  98. James Joyner says:

    @wr:

    Do you believe that people should be serving time in Texas prisons for private, consensual sexual activities?

    I don’t. Nor does the Constitution speaks to the issue.

    @SKI:

    You think Bowers should have remained good law?
    Should Adler have not been overturned?
    Should Loving have gone the other way and not reversed Pace?

    Loving is the easiest of the cases, in that the 14th Amendment and the various Civil Rights Acts rather clearly prohibited racial discrimination. It was an activist judiciary that thwarted both the Constitution and the Congress in upholding Jim Crow.

    I think Adler was wrong based on the plain meaning of the 1st Amendment but probably consistent with the intent of the Framers, who passed the Alien and Sedition Acts shortly after passing the Bill of Rights.

    Bowers was inconsistent even in 1986 with the privacy jurisprudence the court had erected decades earlier, notably Griswold and Roe. I think that whole body of law was constructed out of whole cloth by the Court, however.




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  99. SKI says:

    @James Joyner:

    I think Adler was wrong based on the plain meaning of the 1st Amendment but probably consistent with the intent of the Framers, who passed the Alien and Sedition Acts shortly after passing the Bill of Rights.

    Two thoughts:

    1. Your “plain meaning” is only apparent to you today, in the current context with today’s social constructs and expectations. It likely isn’t the same meaning to a James Joyner in 1952.

    2. Why can’t you also acknowledge that the “plain meaning” of equality today includes homosexuals as full citizens with all rights – regardless of whether or not they thought it was a mental disease or abhorrent back in the day?

    Loving is the easiest of the cases, in that the 14th Amendment and the various Civil Rights Acts rather clearly prohibited racial discrimination. It was an activist judiciary that thwarted both the Constitution and the Congress in upholding Jim Crow.

    Except Loving overturned Pace – an 1883 case issued after the 14th A. and at a time where, presumably, those deciding it were well aware of the 14th A.’s passage and what it meant.

    On a side note, calling the Pace Court “activists” doesn’t say anything – particularly when you also call the Obergefell Court “activists”. It means nothing if you use the same terms for refusing to strike down a bigoted law as striking down such a law. You can think they both got it wrong but calling them activists doesn’t explain why. Maybe once, though I doubt it, the term had some helpful meaning but today all it signifies is disagreement with the result.




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  100. James Joyner says:

    @SKI:

    On a side note, calling the Pace Court “activists” doesn’t say anything – particularly when you also call the Obergefell Court “activists”. It means nothing if you use the same terms for refusing to strike down a bigoted law as striking down such a law. You can think they both got it wrong but calling them activists doesn’t explain why. Maybe once, though I doubt it, the term had some helpful meaning but today all it signifies is disagreement with the result.

    Again, I agree with the result, just not the process. The outcome doesn’t determine whether the court was “activist,” the process does. So, the Dred Scott court was very restrained in reaching a horrible result consistent with the Constitution as it stood in 1857 but the Pace Court was activist in upholding a law plainly inconsistent with both the letter and spirit of the 14th Amendment just years after it was passed. The Obergefell court was activist in the other direction for striking down laws plainly consisted with the spirit of the 14th Amendment when it was passed.




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  101. Matt says:

    @michael reynolds:You’re not being accommodating when you’re demanding all guns be banned. Fienstein sure wasn’t being accommodating when she wrote the last assault weapon ban in a way that would of banned a farmer’s shotgun as an “assault weapon”. The bill would of even banned most if not all bolt action rifles as being assault weapons too. It’s clear that you and your cohorts have no real interest in honest negotiation. Banning is all that will satisfy you.

    I find it interesting that part of your anti-gun rhetoric is that a gun allows for too easy of an exit route for those in severe pain. I guess at that point we should ban rope, plastic bags, NO2 and helium. Maybe ban all medications too? Have you ever seen the fatality rates on medicine? Non-steroidal anti-inflammatory drugs like aspirin kills a bit over 8000 people a year. That is about the same number of people who were murdered last year with a gun. Why are you not demanding that we ban over the counter NSAIDs?

    I could do this all day as murders using guns are a tiny percentage of yearly deaths in the USA.

    Australia is mostly vacant land with few people actually living where those varmints are. Not a comparable situation at all.

    It’s kind of amusing to me that we’re still fighting over gun control in a world where people can easily and relatively cheaply print fully functional guns. In less then a decade that technology will be within the reach of all hobbyists. What are we going to do then?

    What will we do if the drug cartels decide that $64 billion in profit isn’t enough and start making their own guns? Or if we’re successful at rolling back the war on drugs what will we do if the drug cartels decide that supplying guns is a viable alternative business venture?




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