Do you understand the difference between the constitution and the courts? The court does not invent rights, nor should it. It is the federal government’s responsibility to codify rights, and it is the courts responsibility to affirm them.
Separate but equal was precedent for a long time as well, would you be arguing the same for that?
You're ignoring what I said, which is that a right established by the highest court, and ten times affirmed by the highest court, including as recently as 6 years ago, just obliterated that entire history in a ruling that is guaranteed to carry a toll in human health and human lives.
"The court does not invent rights, nor should it."
It has established many specific rights that are not articulated in the Constitution or codified in laws. Most still stand.
"Separate but equal was precedent for a long time as well, would you be arguing the same for that?"
I'm confused, how many vulnerable women died as a result of that?
You've mistaken my argument. If you follow the thread from the beginning, I'm merely using DC v. Heller as an example of how the court can set precedent to reinterpret a fundamental right under the constitution despite a 200+ year history of the opposite. This was in response to being told
> Hundreds of years of case law in the Anglosphere contradict your view
While that is true currently, it doesn't mean SCOTUS can't come along and decide things differently. It also doesn't change history if they were to do so.
> At bottom, this isn't a right flowing from the dictates of the Constitution. Nobody in 1789 would have said that gay marriage is a fundamental right. We acknowledge the right today for the same reason we acknowledge many other rights we did not acknowledge then--society as a whole has agreed to recognize the right
Looking at just the legal aspects, in 1789 (and 1776) we did recognize that 'all men are created equal' and equal protection (and due process might apply too). From those rights flows the idea that a right conferred to some, such as marraige, should not be denied to others.
> It is important that the Court not act ahead of society.
I wonder how much of this is due to the Court being unable to act far ahead of society. The Court has no real power of enforcement; for example, when the Supreme Court ruled for Indians whose land was siezed in Georgia, President Andrew Jackson (now on your $20 bill) famously said "[Chief Justice] John Marshall has made his decision, now let him enforce it."
If they rule and are ignored, they lose credibility and influence and gain nothing. I wonder how often judges take than into consideration (especially judges in lower courts, such as municipal courts).
You make excellent points and make them well. I would add: Let's not take the arguments entirely at face value. People facing defeat in federal court have long tried to hide behind states' rights (used for segregation and abortion, for example) and that any court decision that overturns legislation is democratically illigitmate.
> "regardless of what we think of marriage equality, who are we to override the decisions of the people?"
The courts were created, intentionally, as a check on the legislature and executive. Also, the will of the people as expressed in the Constitution, that all citizens are due equal protection and due process, is as democratically legitimate (and overrides) their will as expressed through the legislatures.
At the same time, as you say, there are legitimate concerns about the limits of judicial power, and they should be examined and advocated for, even if the advocacy is, as usual, for political convenience and not for principle or public good.
This seems to be a sort of "gotcha" question, wherein you pose points of precedent breaking for which I am likely to support the outcome but not the process.
And you are right.
I absolutely support both same-sex marriage and the casting out of the vile separate-but-equal doctrine.
And I think both would have been better done as legislation.
When the supreme court struck down 50 years of precedent supporting the right of women to use abortion as a tool in reasonably controlling whether they would choose to go through the dangers of pregnancy, they showed precedent alone is not a dependable bulwark for the rights of the citizenry.
I also admit I find it far more reasonable for the courts to expand rights and protections than I do seeing it strip them away.
You might argue this is an expansion of rights for those that would prefer to be unhindered by regulatory oversight while destroying, polluting and mismanaging the wetlands now under their control, and I suppose it is. Though I doubt any good will come of it.
What exactly do you think the supreme court’s job even is? You seem to have it exactly backwards. The framers spent enormous amounts of time and ink creating this system of separation of powers. Obviously it’s the job of the Supreme Court to police that. Much more so than finding new “rights” in emanations from penumbras.
Scalia's argument is not new and goes back to before the civil rights era. It was wrong-headed then and it's wrong-headed now.
> there's no way the federal court system would start mucking around with marriage.
And maybe if fed and state governments hadn't felt the need to placate the angry mobs by passing super discriminatory laws, the court never would have had the demonstrable harm necessary to step in and make a ruling.
> For a fundamental issue like this, it's not a good thing that nobody knows even whether it's relevant to the court or not.
That's kind of the hitch though, isn't it? We wouldn't even need the courts if there weren't always fairly smart people (smart enough to get elected, at least) who disagree that minorities should have Rights.
Court decisions to confer Rights are tricky because the procedural question is exactly the substantive question -- if Gay people have a Right to marry, then the court has no choice but to step in. And if they don't, then the court has no choice but to stay hand off. And whether they have that Right depends, basically, on your opinion. As Kennedy pointed out, the due process and equal protection clauses were written in an intentionally non-explicit way.
Edit: For example, it would be absolutely insane today for us to imagine the equal protection clause not providing a basis for banning discrimination based on race. Obviously, either our constitution forbids that practice under the Fourteenth Amendment or else our Constitution is seriously, seriously flawed. Right? Right. Now, go read the Plessy v. Ferguson decision.
Constitutional rights are defined in large part by case law. It’s incoherent to say that SCOTUS’s rulings are violating people’s Constitutional rights.
You bring up a good point about the US Supreme Court. My limited understanding as a US citizen is that they are there to interpret laws, not make them. I don't know how well that works in practice so I'm willing to be swayed on that stance if someone with more legal experience can present compelling arguments.
Chief Justice Roberts brought this issue up on his dissent on the Obergefell vs Hodges case few years ago. The constitution never addresses the topic on the legality of gay marriage and thus the court should not be the vehicle for delivering that decision; that responsibility falls squarely upon the legislative branch.
Maybury v. Madison is one of the key examples for my position[1], as it is a ruling in which the Supreme Court usurped for itself the power to decide the constitutionality of laws. The constitution doesn't grant them that power.[2] So, no the constitution doesn't vest that authority with the supreme court. Unless I'm mistaken, all the constitution says is that the supreme court shall be the highest court in the land.
Regarding the track record of my argument, I will not disagree, it is not encouraging.
If it were encouraging, I might believe that a just government were possible.
Unfortunately the track record you point out only serves to confirm the theoretical argument that I've been slightly making, which could be:
tl;dr: Power corrupts, and the corrupt seek government power.
[1] It should also be noted that in this ruling ,the Supreme Court also rightly ruled that any law passed that was in violation of the constitution was null and void the moment it was passed, and it did not need the supreme court to rule as such for it to be null and void. Further, they are correct that when two "laws" are in conflict it is right for them to judge which one holds, their key error is in thinking that one of the laws they can decide to very rule is the constitution.
[2] I'm open to quotes from the constitution itself, or the framers that disagree with this perspective, but I'm not likely to debate it much further.
At the end of the day, most people have this perception that the supreme court is "naturally" or "rightfully" the decider of whether things are constitutional or not, and my opponent above seems to think that the documents meaning can change over time. I can't dissuade people of that belief... but I can only point out that if that is the case, the inevitable result is eventually tyranny.
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Consider this. How can any law, morally, that is not enumerated in the constitution as a power granted to the federal government, even if passed by the congress unanimously, signed by the president, and upheld by the supreme court as "constitutional"-- be legitimate?
The very existence of these institutions is created by the constitution.
They must rely on the constitution to claim any legitimacy at all.
Thus it matters not, logically, even if all three of them agree to do something, if that something is not authorized by the constitution, its not authorized at all.
I know this is essentially irrelevant because all three have simply chosen to ignore the constitution for the most part.
I just want to address the theoretical argument that the supreme court, or any of the other branches, or all three together, can decide to ignore the constitution and have any legitimacy.
You understand of course that it's awfully hard to have a discussion about Constitutional Law with someone who rejects most of its concepts from first principles. You, for instance, seem to literally reject outright the concept of judicial review, despite the fact that judicial review is a process that was established during the time of the founding fathers, indeed in a dispute between Adams and Jefferson.
I respect your strong feelings on this matter, but you aren't arguing from US jurisprudence at all.
You do this thing, when you write, where you take what you're trying to argue, and presuppose it as correct. You've done this in a number of places.
First, you start by presupposing I even said "This interpretation of this part of the Constitution", which isn't actually what I said at all. Had I actually written something like that, you'd be correct, but I didn't. The disagreement we're having revolves around that fact, but instead of actually arguing the point, you simply assumed it to be what you said, and then continued to draw conclusions. Every conclusion you've made on that topic after you presupposed what I said as something I didn't actually say is therefore incorrect. If you want to argue, then the point you'd be arguing is whether or not I said "This interpretation of this part of the Constitution". The rest of your argument hinges on it, and I don't believe I said that at all.
Then, you begin talking about "judicial precedence". I don't think you know what this phrase means, because you keep using it interchangeably with the word "law". A judicial precedence is, as far as these [0][1][2][3][4] sources tell me, is more or less when a judge hands down a ruling on a section of law that stands as a guideline for future judges to rule against that law. This is not, as you keep saying, a "rewriting" of any kind of law - constitutional or otherwise. This topic has nothing whatsoever to do with the ratification of constitutional amendments. A ruling may interpret a particular part of a law or the Constitution in a certain way, but it doesn't literally or figuratively "rewrite" said law. Furthermore, judicial precedence can change over time, or be superseded by a higher court's ruling. THIS is where time matters, not in the laws as written themselves.
Which brings me to my third point, your misunderstanding of how laws are written. There aren't "revisions" of laws, where you have to know which law was passed when. There is one set of laws. This set of laws gets changed over time - rewritten, modified, redacted, etc. There is, at any given time, only one body of text that constitutes federal law[5], and one body of text that constitutes state law[6]. Again, when a law is appended to these bodies of text, this has nothing to do with how or when rulings on these laws are passed down. When a law is passed, and when it's first ruled on (setting precedence, as in judicial precedence), are completely irrelevant.
Then you start getting confused, and go on a bit of a rant. You're in the middle of talking about judicial precedence, and you seem to kind of mold that in with Jurisprudence, which deals with the constitutionality of laws. It seems to me you think they're related? They're not, just to be clear. You also don't seem clear on what happens to a law when it's found unconstitutional. You say, "It would not even be a law at all" which isn't true. It'd be a law. Just an unconstitutional one, at least until a higher court rules, or another court of equal level rules differently.
And then we get to the part of the comment where you act like my observations are without cause or justification.
Here's the thing - you seem to believe, with a high (very high) level of certainty, that you're educated on this topic. It's that very certainty that undermines your credibility, however. People who are actually educated on the topic of constitutional law don't have your confidence. It's not a very consensus-oriented topic, even among experts. I think you know where I'm going with this, but in case you don't, here are some links: [7][8][9]. Suffice it to say, you share all the hallmarks of a fanatic. And I know you think this is a personal attack, and not relevant, but I just urge you to do more than you usually do for this specific belief.
Edit: I can't reply any further (no 'reply' message appears), but it genuinely frightens me that you've written laws. I'm going to live on the assumption that you've just lied about that.
The essential response from Kennedy et al. was two-fold:
1. Marriage is a Right because the due process and equal protection clauses were designed to be interpreted broadly as society came to "understand" liberty in new ways. I think this is actually pretty damn accurate -- I have no doubt that some of the founding fathers had slavery on their minds, even though at the time the amendments we're interpreted in that way.
2. Rights are not subject to the "vicissitudes" of public opinion -- the democratic process doesn't get to take away rights.
Roberts and Scalia mostly disagreed with (1), but there was very little substance to their argument. Read through the four justifications given by Kennedy. Roberts and Scalia doesn't respond to these. They just sort of complain about a slippery slope to tyranny. But this court is by far less activist than previous courts and we have yet to devolve into a dictatorship-by-SCOTUS. So I'm sceptical of the veracity of their slippery slope argument. It would have been more compelling if that had talked more about this specific case.
Roberts and Scalia also made some more practical arguments, e.g. that democratically selected policies are more robust protections because they can hash out the details. I mostly believe that's a false dichotomy because there's very little evidence that courts conferring Rights upon groups of people actually shuts down legislative action or debate on either side of the question. Look at abortion or civil rights. Ultimately, I find this argument extremely ahistorical and massively empirically denied.
(As an aside, I think Scalia's "o'weening pride will be our fall" thing was a pretty dickish thing to say, given the overloaded connotations associated with pride in this case.)
Separate but equal was precedent for a long time as well, would you be arguing the same for that?
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