|
|
Wednesday, August 04, 2004
|
|
skippy RESPONDS TO HIS COMMENTERS, PART TWO
In the comments to my post answering Kilgore's question on gay marriage, I've had a debate going with Karl.
Wouldn't 3313 have no relevance to racial matters because of the 14th ammendment?
And I ask again: Why is this a judicial issue? Where does the constitution address buttsex? Or any sex, for that matter? Oviously this is merely a theoretical question, but I remain one of those quixotic dreamers that would like to imagine a day when our judges rediscover the 10th ammendment.
-Karl
Karl,
The issue is a Constitutional one on the grounds of privacy. As I mentioned last week, Griswold and Roe established that right. Loving further established a right to marry on 14th Amendment grounds.
And while 3313 doesn't impact on race issues, in and of itself, it does open up a precedent by which the federal courts could be prohibited from addressing those cases as well. And the anaysis of the 14th Amendment only addressing race issues is narrow. More broadly, it is intrepeted as an equal protection issue. As such, and with the the case law cited above, it easily is applicable to same sex marriage.
-skippy
Griswold, schmizwold. My legal reasoning rests on a constructionist foundation. Given the nature of the courts today, of course, that is rather pollyanna-ish of me. Also, given the way precedent is currently cited, you are correct in analyzing the way the our system would *probably* treat the case.
Of course, that doesn't make it right!
-Karl
Right, schmight!
I'm far more interested in what is likely to happen as opposed to what SHOULD happen. I view politics and law much as most peple view sports. Looking at it through this prism will give you a very different view. Add to that the fact that I'm not American probably makes me a little more dispassionate in my analysis.
-skippy
Other than his comments here, I know absolutely nothing about Karl. He's not a chat buddy of mine, I do not know him personally, nor does he have a blog of his own that I'm aware of. Therefore, I'm going to have to make some assumptions on his political and legal philosophies based entirely on his comments here. I understand that that's superficial and probably unfair. But such is life. I have every confidence that he'll correct any misimpressions I lay out here.
Karl, from the tenor of his above comments, appears to be what is known in American legal circles as a "strict constructionalist." This is a long, storied and perfectly honorable tradition. I happen to disagree with it, but I do not disparage it.
Constructionalists believe that any Constitutional issue should be viewed through the prism of "original intent." This is to say that if a right was not specifically included in the Constitution by the Founders, then it does not exist. Constructionalist theory came to prominence, particularly in the Republican party, following a series of decisions by the Warren (1953-1969) and Burger (1969-1986) Courts, most notably Griswold and Roe.
Those two cases established an implied right to privacy under the Ninth Amendment. It is on this Constitutional footing that the decriminalization of abortion rests upon. Abortion drives conservatives insane. Following Roe, Republican presidents have insisted on appointing "strict constructionalists" to the courts.
I should note that the first president to do so was Nixon, before the Roe decision. Conservatives then were obsessed with the Warren Court's ruling on the rights of criminal defendants as epitomized in Miranda v. Arizona (1966). Miranda established the right of those in custody to remain silent and to be advised of their right to an attorney under the Fifth Amendment. As I write this, you would be hard-pressed to find anyone who disagrees with the principle, but in the chaotic Sixties, it was a HUGE deal.
My problem with the concept of constructionalism is pretty basic. The philosophy makes social progress of almost any kind virtually impossible. Under this Constitutional theory, changing public morality may only be addressed through the amendment process. Such a philopsophy makes the idea of civil war more, rather than less, likely. Viewing the document through "Founder's intent" bears some examination. When the Constitution was ratified, slavery was a perfectly acceptable social practice. Most of the people were denied the very right to vote. Genocide was not uncommon. Late eighteenth century America would not be viewed as a "democracy" by anyone when viewed through twenty-first century eyes. Society progressed and the interepration of the Consitition progressed with it. Most Americans do not feel that the right to vote should not be restricted to white, property owning males. As controversial as Miranda was at the time, most Americans would not revert to the practices that preceded it. Most Americans feel that segregation was both morally and legally wrong. Again, society evolves.
The constructionalist arguement also seems to fly in the face of Marbury v. Madison, which made the Supreme Court supreme. They also seem to take issue with the doctrine of seperation of powers, at least as it relates to the judicial branch. One should note that the first people to scream about "judicial activism" were, in fact, Democrats who were outraged by Brown v. Board of Education (1954).
The constructionalist arguement is also political and wildly inconsistent. The very people who were outraged by
United States v. Nixon (1974) were glee-filed by the ruling in Clinton v. Jones (1996), although both concerned precisely the same principle, the limitation of presidential privlige, and were consitently decided.
Conservatives are completely free to resolve the issue through the Constitutional amendment process, as they have recently attempted to do in issues like same-sex marriage and flag burning. However, doing so has only reinforced that - at least on Constitutional issues - theirs is a minority viewpoint. They may also effect change through their nominations to the Court. In the event that the president is re-elected, he will have as many as four vacancies to fill in his second term. Should liberals dislike the rulings of a more conservative court, they may elect liberal presidents who will appoint liberal justices and reverse conservative decisions.
And ultimately, that's what democracy is about.
Jesus, I'm getting horribly boring. I should take a break from this shit and write about jerking off for awhile.
Permalink
|
|
|
| |
