Excellent point. The passion liberals have for the constitution is directly proportionate to the success they have had redefining it. A constitutional law professor described the Declaration of Independence as analogist to a companies charter and the Constitution as its governing document and the Bill of Rights it bylaws.
I hope to live to see a day (soon) when conservatives control the Supreme Court – when that day comes, the long love affair with are living constitution will come to an abrupt end.

"Theocracy does not describe a particular set of policies — or even the moral authority that informs them. It describes the civil authority that determines them: those acting as God's explicit representatives."

That's an excellent point, Justin.

Justin,

Even for you, my friend, that post was exquisite.

The terms of masterful and excellent both seem understatements.

Well and truly done.

What is it about Andrew Sullivan ... whatever he says, I immediately disagree with, even if I thought I would have agreed with him before. Justin, your critique of Sullivan's essay is right on the mark. Guess I will have to do some reevaluating of my own position ...

A fine post Justin.

--

As with constitutional amendments, judicial review must meet the criteria of the Preamble. Appropriate deference to the elected branches of government, and to the text ratified by The People, does not translate into abolishment of judicial review. Rather it reinforces the constitutional role of the Judiciary.

That goes to the heart of Sullivan's primary theme.

>> US Constitution, Preamble: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

--

>>Justin: "That Sullivan has now gone so far as to suggest that the Constitution establishes a "civil version" of — and replacement for — religion reveals how much closer those of his political persuasion are to theocracy than are the "conservatives of faith" whom they oppose."

An amendment to the written Constitution needs to meet the criteria of the Preamble which declares that the framework for self-government is arranged not by the authority of a collection of state governments or appointed experts, but by The People of the states united.

1. Form a more perfect union of the states
2. Establish justice in the United States of America
3. Insure domestic tranquility within our borders
4. Provide for the common defence of our national society
5. Promote the general welfare domestically
6. Secure the blessings of liberty for American citizens

What flows from these criteria are the framework and the process of self-government and not its content and outcomes. The rest of the text provides for the checks and balances that express the Preamble's criteria -- not in legislation, not in statute, but in the pre-eminent law of the jurisdiction established by The People.

At this level, then, it seems rather obvious that our Constitution follows in the tradition of Covenants between The Creator and The People. What misdirects many folks, especially "living document" adherents, is the temptation to 1) imbue The People with the mysterious direct authority of The Creator, 2) divest the Constitution's text of its enduring intent, and 3) supplant The People with a favored ideological priesthood.

Note: the enduring intent was front and center in the Preamble, "ourselves and our Posterity."

The first temptation is most tempting because our framework of self-governance does assume that The People are guided by a moral force greater than the particularized wisdom of mere mortal individuals but also subject to the immediate desires of factions of citizens. The remarkable attention to checks and balances made this fairly obvious. It was signaled in the Preamble by resting on the combined blessing of the founding generation and those that would follow.

The ratification process drove that assumption home in a blustery initiation of pragmatic politics. Political minorities shaped the text in many ways -- most telling, of course, with the Bill of Rights. At the time, it was thought to be almost entirely superfluous and useful mainly as a pallative for citizens who feared the force of a new level of government that would be distant from the governed. As the history of our youthful country has demonstrated, The People sort things out through ratification of amendments. We reinvest in the text.

The various Biblical Covenants are written down and together form a line of progress from Eden to Moses and to Jesus (and beyond). What is universal remains unless it is overturned by God. Figuring out this stuff has long been the inspired work of religious authorities who looked to both human nature and to revelation through human hands.

Now, on the Constitution, we have the priesthood of lawyers and activists -- both in the courtroom and in the backroom -- divining the will of The People, not so much from the written text as from temptations #2 and #3. That disconnect needs to be resolved. All three branches of government were established as interpretors of the Constitution itself. The People did not establish a form of government by a committee of supreme diviners.

This point is interesting:

By what historical standard is two hundred years and change evidence of durability? People who live among monuments to their cultures that date back millennia might be hard-pressed to stifle a chuckle.

The same reasoning can argue against holding too much reverence for ANY written cultural tradition. After all, recorded human history (~5,000 yrs) is just a blink of an eye compared to the age of our biological species (>1,000,000 yrs). Even more so in comparison to geologic or astronomical time scales. So it could be that human civilization is still in its infancy.

Allow me to jump on the bandwagon.

A great post and right on the mark. Both you and Jonah Goldberg did a great job in pointing out the many fallacies in Sullivan’s argument and agenda in having the constitution ‘compete’ with the Bible or any theological document. (Torah, Koran, etc.)

I am confused by what Chairm was ultimately trying to say. The Constitution is not a ‘living’ document but, unlike scripture, it is amendable. It’s use and even purpose is different. That is one of the reasons why Sullivan’s attempt to compare them is so off base.

Yet when Chairm wrote, “All three branches of government were established as interpreters of the Constitution itself.” ----- that is not true. The specific role of the judiciary is to interpret the constitution or, more to the point, to make sure the acts of the other two branches fall within the guidelines set by the constitution.

Matt, I agree with Justin here. In attempting to say that the constitution has shown its durability relative to any other historical record is silly. It is true that over time, all historical contexts ranging from ones created yesterday to the constitution to the Old Testament may be considered dated one day. But Sullivan seems to be attempting to say that the Constitution is superior based on its durability, among other irrelevant reasons such as popularity. I happen to think that his attempt to compare them is absurd but if he is going to do that using durable as some standard, then Justin is right and justified in pointing out the fallacy in that reasoning.

Mark,

"to make sure the acts of the other two branches fall within the guidelines set by the constitution."

That doesn't mean that the executive and legislative branches aren't supposed to interpret the meaning of the Constitution. The courts are supposed to interpret how a given law applies in a particular situation. The Supreme Court is charged with determining whether a given law violates the Constitution. However, the SC can be mistaken - it is not the final arbiter on what the Constitution says (a common misunderstanding these days, held by many in the political class, including many conservatives). In theory, if the SC oversteps its bounds and/or gives a grossly wrong ruling, the other two branches should take actions to counteract or correct that ruling, to the extent possible. The classic case of this is Dred Scott, where Lincoln did everything he could to counter the ruling without actually directly violating the rule of law (that is, he construed the law as narrowly as possible). We are starting to see signs of this now (about 30 years late), with talk of removing certain laws from the courts jurisdiction, which Congress has the power to do.

Matt, I agree with Justin here. In attempting to say that the constitution has shown its durability relative to any other historical record is silly.

I'm not sure what you're getting at -- I agree with Justin's assertion too.

But in the case of Dred Scott, the Supreme Court was the arbiter of what the Constitution meant and the executive and legislative branches were unable to change that. It wasn't until the Supreme Court acted again was there a significant step to counteract the ruling.

It's a slippery slope indeed for Congress to go around deciding certain laws shouldn't fall under the jurisdiction of the courts. It is one step closer to tyranny and dictatorship.

Matt,

Sorry, I interpreted your comment as responding to Justin's comment by saying that holding reverance for any cultural tradition based solely on time is not right. And I was saying that Sullivan opened that door, not Justin. In any case, my mistake.

Mike S.,

I never said that the other branches aren't supposed to interpret the constitition. But the specific role of the judiciary is different than the others. And the role of judicicary is specifically related to intepreting the constitution. This is why when judges are up for office, one of the questions asked of them is about how they will do just that. Rarely is a congressional or presidential candidate asked how they will interpret the constitution.

And while Congress can pass specific laws that deny judicial review, until that happens, the SC is the final arbiter on what the Constitution says. That does not mean that there is no recourse. But in practical terms, congress makes law and the courts arbit albiet each's authority-checking functions.

It's a slippery slope indeed for Congress to go around deciding certain laws shouldn't fall under the jurisdiction of the courts. It is one step closer to tyranny and dictatorship.

Res, I don't believe there is much risk of dictatorship in modern-day America. If I understood right, that's what Justin argued by distinguishing between theocracy and democracy, where the electorate happens to be religious. If we really headed full throttle down the slippery slope you fear, Middle America would be appalled and quickly vote the would-be dictators out of office.

I wonder...

You know how we're always hearing the likes of "don't lecture me about the sanctity of marriage when half of all them wind up divorced"? How long before we get something like "don't lecture me about 'constitutionality' when abortion is a 'right of privacy', when 'free speech' applies to porn but not to religion, and when 'search & seziure' means we'll auction your house to the highest bidder (so the sherrif can buy more machine guns for his SWAT team) if you grow certain weeds in your backyard."?

Like bowling pins, you can set them up, and then you can knock them down. So much for "durability".

Res:

It's a slippery slope indeed for Congress to go around deciding certain laws shouldn't fall under the jurisdiction of the courts. It is one step closer to tyranny and dictatorship.

Ah, yes. Dictatorship is imminent when the government branch made up of hundreds of directly elected representatives begins restricting nine unelected judges-for-life.

Justin,

My friend.......WHY don't they hire you on at National Review?

Best

You have a lot more faith in a bunch of elected representatives than I do, probably because those elected representatives affirm your needs. You'd be less enthusiastic about elected represenatives as the arbiters of the Constution if the tyrannical majority consistently undermined your rights and life and future.

I'd say let's undermine the judiciary. And in 20 years, when things have changed and suddenly people are fed up with living in a quasi-religious state, those same legislators will start choking off your rights and give you no outlet in the courts. Imagine what life will be like when you can't go to court to prevent the U.S. from taxing the Catholic church, or you can't rely on the First Amendment to protect your right to have a gun.

Mark,

Yet when Chairm wrote, “All three branches of government were established as interpreters of the Constitution itself.” ----- that is not true.

I never said that the other branches aren't supposed to interpret the constitition.

If you say so...

I meant the 2nd Amednment.

But none of that will matter when the legislature gets to make decisions about the Constitution instead of the courts. A majority of legislatures gets fed up with gun violence and suddenly the Second Amendment will be meaningless and we won't have the courts to protect your handgun.

res,

Imagine what life will be like when you can't go to court to prevent the U.S. from taxing the Catholic church, or you can't rely on the First Amendment to protect your right to have a gun.

You comedian, res! Is it the legislative branch, or the judicial branch that is more interested in abrogating the 2nd amendment?

You keep missing the point - what will keep us, collectively, from voting out congress if they do things we don't want them to? And, if a majority of people don't want to vote them out, doesn't that mean they are carrying out the will of the people?

And who said anything about abolishing the judiciary? We just want them to do their job properly.

Get off the crack pipe, homey.

For now, Mike, you may be right about the Second Amendment. But things change. In 20 years, gun control advocates could control Congress and decide they don't want the courts standing in their way. Then you can kiss your rights goodbye, because you would have set the precedent of the legislature taking laws away from the court.

And no one will vote out, because they will be reflecting popular will. The tyranny of the majority will strip you of your gun rights, or religious rights. It could easily happen, and you will have no one else to blame because the courts won't be able to protect you.

"All three branches of government were established as interpreters of the Constitution itself.”

"I never said that the other branches aren't supposed to interpret the constitition. But the specific role of the judiciary is different than the others. And the role of judicicary is specifically related to intepreting the constitution."

Mike, I'm just not inclined to have to further explain the distinction between the two to an intelligent guy such as yourself. Figure it out.

We are starting to see signs of this now (about 30 years late), with talk of removing certain laws from the courts jurisdiction, which Congress has the power to do.

Actually, Congress does not have the power to do that. Art III, Sec 2.1 begins "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority..." All Congress can do is decide who has appellate jurisdiction, which is what they did most recently with the Schiavo case. I would also be very wary of this if they tried. I don't think it's wise to have a legislative body that can make laws that no one is allowed to question.

I guess "with such Exceptions, and under such Regulations as the Congress shall make." has no meaning any more, eh Michael?

I guess "with such Exceptions, and under such Regulations as the Congress shall make." has no meaning any more, eh Michael?

A point which would support your case if it had appeared in the clause about the fact that the judicial power "shall extend to all cases". It's in the following clause about when the supreme court has appellate jurisdiction and when it has original jurisdiction.

"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Congress can change who has jurisdiction, but the fact that some court has to have jurisdiction as outlined in III.2.1, remains, regardless of exceptions congress can make to *who* has jurisdiction, as laid out in III.2.2.

I'm sorry, but "The judicial Power shall extend to all Cases" doesn't leave much wiggle room.

Michael, stop letting details get in the way of using political motivations to circumvent the courts and the constitution. We can't rely on legal scholars and judges to do that work because exterminators and prosecutors and ministers have a much better grasp of the Constitution and law.

They were elected, don't you know, so they have been endowed with wisdom in such areas (as long as it pleases their constituents back home).

Tell me res, what do you propose to do if the Supreme Court circumvents the Constitution? Or is that not even possible? Has it ever happened, in your opinion?

Michael,
You keep forgetting that the final arbiter in all cases is not the Supreme Court, but is in fact "We The People" that have given them the authority to handle all cases of the types listed. If "We The People" want them to keep their noses out of certain cases, there is very little they can do about it. If "We The People" want to reverse a decision made by those justices, there is very little they can do about it. The framers of the constitution placed a great deal of trust in the Lord to guide the people of the U.S. Personally, I don't think they were unfounded in this, and it makes me sad (among other things) that the Supreme Court justices have been abusing that trust. Ultimately (and much to Res Ipsa's chagrin I imagine), it is up to all of us to interpret the U.S. Constitution, and as good citizens to defend it.

You have a lot more faith in a bunch of elected representatives than I do, probably because those elected representatives affirm your needs.

Not to put words in Justin's mouth (though I substantially agree with everything he says, specifically the point that caused this retort), but ...

Not at all. Very simply because tyranny of the majority needs, well, the assent of a majority. If a whole society is thoroughly corrupt, there are very few remedies (and no democratic ones). The tyranny of the courts needs (mechanically) only the assent of a handful of judges and (architecturally) only the corruption of a given class. Those are far easier technical tasks and more within the ordinary cycles of politics than the corruption of a whole society.

In politics, give me majority rule over any clerisy. Every time.

You keep forgetting that the final arbiter in all cases is not the Supreme Court, but is in fact "We The People" that have given them the authority to handle all cases of the types listed. If "We The People" want them to keep their noses out of certain cases, there is very little they can do about it. If "We The People" want to reverse a decision made by those justices, there is very little they can do about it.

What you are describing is not how this country operates. You are describing mob rule, not the rule of law. You are correct that if "We The People" want to take authority away from the courts, "We The People" can do that. But not through Congress. Through an amendment process. Mike S. said originally that Congress had that power. It patently does not. So get out there and start a grass-roots movement for an amendment to change one of the fundamental aspects of our government. But don't for a second think that 500 elected men and women have the authority to that.

Ultimately (and much to Res Ipsa's chagrin I imagine), it is up to all of us to interpret the U.S. Constitution, and as good citizens to defend it.

Interesting that you say that. When I interpret the very vague language of the fourteenth amendment to grant me and my partner the right to get married, I'm told I'm "inventing" rights. And yet somehow you have the right to interpret the very plain, specific language about the basic make-up of the government, in a way that no semi-literate human being can logically interpret it.

Victor: The tyranny of the courts needs (mechanically) only the assent of a handful of judges and (architecturally) only the corruption of a given class.

That is exactly why we should make structural changes to the Constitution. For example, why not allow Supreme Court decisions to be appealed to Congress?

There is precedent for Congress acting as a judicial body, namely in the impeachment process. Similarly, the House might decide to hear appeals by simple majority, with the Senate voting to overturn the high court's ruling by 2/3 supermajority.

Michael,
So now you are telling me I have no 'right' to interpret the Constitution (ostensibly because I interpret something totally differently than you do, or maybe because you consider me semi-literate)? I think you are confusing rights with responsibilities, but hey, what does this semi-literate and illogical person know about rights and responsibilities?

Michael,

Well, let me just say that you are, indeed, "inventing" rights if you're taking that argument from the 14th Amendment, and anyone who's aware of the history regarding that amendment, as I am, would reply back to you that you are, indeed, "interpreting" it "in a way that no semi-literate human being can logically interpret it."

In any event, you are correct that the correct process is the amendment process (notice the actual word "amendment" of the 14th Amendment).

So, why not go out and start a gay marriage amendment, and you'll get no argument from me, no matter how much I may disagree with your views or lifestyle.

Don't end-run around the real constitutional option with a vague, and wrong, interpretation of the 14th Amendment simply because you don't want to do the heavy lifting involved in a democratic republic.

Write what you will about the substance of any amendments regarding same-sex "marriage" on the contra side, they at least are pursuing the real constitutional option.

That's how it's done (or, rather, that's how it SHOULD be done) in this wonderful, still amazing, free and, in most cases, just, constitutional democratic republic, and non-theocracy, that we call the United States of America.

So now you are telling me I have no 'right' to interpret the Constitution (ostensibly because I interpret something totally differently than you do, or maybe because you consider me semi-literate)? I think you are confusing rights with responsibilities, but hey, what does this semi-literate and illogical person know about rights and responsibilities?

Oh, you have every right to interpret every sentence of the Constitution however you want. You could also be wrong. There are limits to how interpretable certain parts of the constitution are. The fourteenth amendment? Vague and highly interpretable. Article III, Section 2.1? Pretty specific.

Consequently, you have a responsiblity to interpret the Constitution logically. If you were to say that the founders did not intend for the Supreme Court to strike down Law X so therefore we can ignore Article III.2.1 in that instance, then I would say that that is a pretty loose interpretation of the Constitution.

So, here's a direct question: Do you believe that the Constitution can be interpreted as giving Congress the authority to remove judical review over certain laws? And can you support your answer with direct textual evidence.

Well, let me just say that you are, indeed, "inventing" rights if you're taking that argument from the 14th Amendment, and anyone who's aware of the history regarding that amendment, as I am, would reply back to you that you are, indeed, "interpreting" it "in a way that no semi-literate human being can logically interpret it."

The particulars of the 14th amendment were not the point of my statement. The point was that you have to go through some significant explanation, including historical reasoning, to show that I am "inventing" rights. And even then, a case can still be made that the phrase "deny to any person within its jurisdiction the equal protection of the laws" applies to gay marriage regardless of the historical reasons for the amendment. Because it's a relatively vague statement.

But I challenge you to show me how Article III (and I'll let you use all of it) can be interpreted to mean that Congress can take away judicial review from any law it feels like. Because the entire article is fairly specific.

There's interpretation and then there's interpretation.

I understand that. They were the point of mine.

Not really. I can apply the same, correct, standard to you that you're asking of smmtheory: support your answer with direct textual evidence.
Absent that, you are, indeed, inventing rights that weren't there, and were never contemplated, when the 14th Amendment was drawn up, submitted, voted upon, and subsequently ratified.

A case can indeed be made (not historically, not with textual evidence), and it can be made with a specific process: the amendment process. This is true whether the amendment's wording, or any amendment's wording, is vague or quite explicit.

I never wrote that it did, but, if we're being so faithful, as we should, to the actual text and meaning of the Constitution, then gay "marriage" in any form has to be ruled out (see any Founding Fathers's statements on virtue and morality).

Yes, and there's judicial shortcuts and then there's......the actual amendment process.

I know which one is correct, on both ends of this argument.

The way I learned about Constitutional structures (and strictures) was that the three branches are, in a very real and legally binding sense, equal.
Trinitarian, you might say. The rise of what Gore Vidal so piquantly calls the National Security State (since '45 or thereabouts) has caused the Executive branch to metastasize to an extent that would cause A. Lincoln (that noted extraConstitutional despot) to whimper with envy.
Most of what the general public would describe as 'government' for the last forty-plus years has consisted of Executive and Legislative in a cage match, with Judiciary serving as referee.

The idea of the Legislative decreeing "we're going to pass a law and Judiciary _can't do anything about it_, even if they determine that it's unconstitutional" is a great axewhack at the base of the Tree of Liberty, in my not so humble opinion. When the Nine Old Men starting whacking FDR with sticks over the New Deal programs, he would have dearly loved to issue an Executive Order declaring the programs off limits to judicial review - but that would have been tyranny. I can't see how the Leg. doing the same thing would be anything else.

It's been a while since I've done the reading, so busy as I am, I normally would have skipped this debate, but, Michael, I'm not sure why you're so confident about the Constitution and the judiciary. For one thing, I don't see the words "some court must have jurisdiction" in my copy of the Constitution. So much for specificity.

It is Congress that creates lower courts, so it would seem contrary to the Founders' sense of balance to give Congress power over lower courts' existence and then to allow Congress to vest authority for a particular matter in an inferior court. It just makes no sense. In contrast, it doesn't not make sense that the Founders would write one clause laying out the default authority, and a second clause detailing the application and restrictions on that authority.

The thing that people are far too quick to forget — an amnesia that Res Ipsa has taken to ridiculous lengths — is that citizens vote for their representatives. If Congress were to pass the Nyaa, Nyaa, Can't Overrule This Act of 2006, first, the President would have the opportunity to veto it, and second, the politicians in both involved branches would face the judgment of the voters.

The relative distance from possible tyranny between Congress and the other two branches is stunningly far, and I can only opine that it is the double-sided coin of fear of exclusion/desire to dictate that leads so many reasonable people to distrust it. Suppressing that tendency, however, does it really make sense, from the Founders' point of view, to put Constitutional amendment on one side of the scale and a declaration from the Gang of Nine on the other?

Not really. I can apply the same, correct, standard to you that you're asking of smmtheory: support your answer with direct textual evidence.
Absent that, you are, indeed, inventing rights that weren't there, and were never contemplated, when the 14th Amendment was drawn up, submitted, voted upon, and subsequently ratified.

I have no idea how we got here, but...

What you're asking of me and what I'm asking of smmtheory are two different beasts.

You're asking me to prove that a right to gay marriage is enshrined in the words "equal protection under the law." I'm asking him to prove that two sentences in two different clauses, referring to two entirely independent things, are linked. Textually. Within Article III of the Constitution.

Well I can't prove that "equal protection under the law" extends to gay marriage any more than you can prove that it doesn't, using only the Constitution. In fact, you need to do a lot of interpretting and extratextual reading in order to define "equal protection", which is an extremely vague statement. There's not much extratextual reading or interpretation necessary to understand the exact meaning of "the judicial power shall extend to all cases..."

For one thing, I don't see the words "some court must have jurisdiction" in my copy of the Constitution. So much for specificity.

Justin, you need to reread the Constitution then. Article III, Section 1 says "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

This establishes where the judical power lies and how Congress can create and dissolve lower courts as it sees fit.

But Section 2, Clause 1 states "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority..."

So if Congress were to attempt to remove as judicial review from a law, I fail to see how the "judicial Power" "extend[s] to all Cases, in Law and Equity" when clearly there would exist a case of law that that judicial power fails to extend to. You can't get much clearer than that. I have rephrased that to say "some court must have jurisdiction".

Suppressing that tendency, however, does it really make sense, from the Founders' point of view, to put Constitutional amendment on one side of the scale and a declaration from the Gang of Nine on the other?

Actually, it does make sense. The Founders distrusted the common man more than you think they did. And this "Gang of Nine" that you refer to are essential to the operations of our government. And we're talking about stripping one of the branches of government of part of its vital authority, so I think that an amendment is indeed the correct balance. They are the advocates for public. And they help protect you just as much as they help protect the gays.

And the Supreme Court is unbelievably restrained, something I think that many people out to get the judiciary fail to recognize.

Michael,

So what, precisely, do you think the "exceptions" clause gives Congress the power to do? Simply to give the Supreme Court original jurisdiction on a matter for which it would normally have appellate? That seems a limited reading of the following:

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

If you answered "yes" to my question, then what sort of "regulations" could Congress possibly put the Supreme Court's application of its newly minted original jurisdiction?

No doubt, the Supreme Court is "essential to the operations of our government." If it did not exist, state courts would pose a serious threat to the union, and cases arising out of federal law would go unjudged, fostering violence as a resolution.

But it's curious that you appear to mean, more or less exclusively, the judicial power of review, which appears to be granted, in the Constitution, in the form of jurisdiction over "Controversies to which the United States shall be a Party." That statement of jurisdiction, however, is not the most prominent, and frankly, in context it appears to be targeted more at ensuring that a state or foreign court doesn't deign to decide cases involving the U.S. government.

I'd also remind you to check Article I, Section 6, addressing the legislature's power as follows (emphasis added):

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Honestly and truly — and not just because I'm an evil theocrat out to close doors on homosexuals — I fail to see why, if the Founders wanted the judiciary to have such strong, untouchable powers of review, and if this were meant to be the lynchpin power of the judiciary, it is not more prominently expressed or more specifically described. Furthermore, it makes sense to have a branch of government that is removed from the ebbs and flows of politics; it does not make sense, however, for that branch to be have powers beyond correction by either the people or the elites whom the people elect to office.

Michael,

You and smmtheory, I'm sure, can work out your own debate.

As for our disagreement, my position is not to "disprove" that gay marriage is extended under the 14th amendment to the Constitution; I've read the relevant caselaw, the relevant history, and the relevant debates in the US Congress.

You seem to be hung up on the fact of the relative merits of proving or disproving something that is, in your words, "vague."

I assure you, it was not vague (the 14th Amendment) in any sense of the word in the dictionary when it was debated, submitted, voted on and ratified (make a mental note of those four "action verbs:" - debated, submitted, voted on and ratified). It also was attended by much controversy, but none because of vagueness, despite its modern connotations.

My main point with you is this (I'll write it as many times as I have to to get it across): if you believe, as I believe you do, that gay marriage is a fundamental right in our country, you could, of course, go the same route as those who are advocating an amendment to protect traditional marriage: through the constitutional amendment process (which you referred to before as being the real constitutional option in this country).

In other words, do the heavy lifting required of citizens that you advocated in previous posts with different folks.

That's all.

Michael,

You and smmtheory, I'm sure, can work out your own debate.

As for our disagreement, my position is not to "disprove" that gay marriage is extended under the 14th amendment to the Constitution; I've read the relevant caselaw, the relevant history, and the relevant debates in the US Congress.

You seem to be hung up on the fact of the relative merits of proving or disproving something that is, in your words, "vague."

I assure you, it was not vague (the 14th Amendment) in any sense of the word in the dictionary when it was debated, submitted, voted on and ratified (make a mental note of those four "action verbs:" - debated, submitted, voted on and ratified). It also was attended by much controversy, but none because of vagueness, despite its modern connotations.

My main point with you is this (I'll write it as many times as I have to to get it across): if you believe, as I believe you do, that gay marriage is a fundamental right in our country, you could, of course, go the same route as those who are advocating an amendment to protect traditional marriage: through the constitutional amendment process (which you referred to before as being the real constitutional option in this country).

In other words, do the heavy lifting required of citizens that you advocated in previous posts with different folks.

That's all.

The structure and processes in the Constitution were designed for political decision-making. The big controversial decisions were supposed to be subject to popular support and popular opposition. Its the essence of the framework.

It has never been a purely legal constitutionalism with the text of the Constitution treated as if it were just another type of ordinary law. The Founders, and subsequent generations, did not establish republican government only to undermine it by delegating the Constitution entirely to the Judiciary.

Constitutional limitations are not just those enforced by the judiciary, for instance, but very much based on the powers delegated to the elected representatives. The legislators and executives have always operated in tension with each other and with the judges. The judges were not raised above other federal officers when it came to questions of balancing different governmental powers.

In simple terms that can be understood by the governed, the Constitution's primary objective is to secure self-government. Deference to the legislative branch on social policy, for instance, is implicit in the framwork that is built for democratic conditions and democratic solutions. Judicial review is supposed to prefer the will of the People, not the will of the individuals seated on the bench.

As a solid point of reference, consider Madison's memorandum, "the vices of the political system of the U. States’’, in which he identifies the problems of self-government that he had experienced in Virginia and under the Articles of Confederation. He was, afterall, a problem-solver and an active, pragmatic, inspired politician. Ask yourself what problems he sought to solve in establishing a new form of government.

As Justin highlighted in his post about what Goldberg had to say in response to Sullivan, the conservative way is not an "either-or" but a "both-and" philosophy and practice. Essentially, Madison's memorandum is a beautiful illustration of a conservative's approach to revolution. It always makes me smile to see just how thoroughly the text of our Constitution describes American conservativism.

At one time in our not-too-distant history, it also captured the spirit of liberalism. Again, think "both-and". For instance, the Renquist Court has, in effect, ill-advisedly asserted judicial sovereignty but is typically criticized by the Left as ideologically conservative.

Sorry, hit post too quickly. That was an incomplete thought in the last paragraph.

--

At one time in our not-too-distant history, it also captured the spirit of liberalism. Again, think "both-and".

The legalistic treatment of our Constitution has skewed the proceses of governance. Legislators have ceded too much and have increasingly become sloppy in writing laws. "Let the courts sort out the big decisions," seems to be the default position of too many elected representatives.

For instance, the Renquist Court has, in effect, ill-advisedly asserted judicial sovereignty but is typically criticized by the Left as ideologically conservative. Even though he thought it was an unconstitutional measure, President Bush signed the McCain law that restricts freedom of expression during elections. During elections. And the Democratic party, as a whole, has claimed to be in favor of the man-woman criterion of marriage but has looked to the Courts to decide for society and has demonized majority rule.

This needs to be resolved with the reassertion of self-governance and renewed respect for the text of the Constitution as unordinary law.

We await comments.

Aaron,
I don't know that any further debate can be made if Michael is unwilling to concede any meaning to the exceptions clause even though it comes on the heels of a reference to the previous section in Article III.

Justin, Chairm, et al.,

I did not intend, nor do I want, to get into a discussion about judicial abuses or the state of the judiciary or the intentions of the 14th amendment.

This is not to say that I think that the Founders intended, or that I believe, that the judiciary be untouched. I believe that Article III.1 states that judges should be in "good Behaviour" and that there are ways of impeaching federal judges. Do I believe that more judges should be impeached? On that I have no opinion; however I believe it is an appropriate measure to check judges.

The question is not whether or not the founders wanted the judiciary to be weilding as much power as many claim it has, but whether or not the legislature has the ability to remove an entire branch from certain laws. I doubt that this is what the exception clause of Article III means; and I seriously doubt anyone who would think that it is a good idea.

I have two specific points I'd like to address. First, Justin, you seem to claim that the amendment process is insurmountable compared to the opinions of the Supreme Court. I disagree. It takes an awful lot for an issue to get to the Supreme Court and they generally behave rationally. I'd like you to tell me one Supreme Court decision that was radical, rash, and unreasonable.

Second, Chairm says: "Judicial review is supposed to prefer the will of the People, not the will of the individuals seated on the bench." This is both wrong and misinformed. Our elected representatives should are supposed to prefer the will of the People; the judiciary is supposed to prefer the fair and equal treatment of the law.

Here is a far-fetched example of what could happen if your reading of the exemption clause were true: A narrow majority of the legislature drafts a law reinstating slavery. The president does not veto it and signs it. A secondary clause of the law states that no court will have jurisdiction to review that law. Anybody can see that that law clearly violates the 14th amendment and yet, one branch of government is now completely cut out. The executive branch can't cut out another branch. The judiciary can't do that. You may think that they are capable of that, but the People always do have the final say, if they want it badly enough.

Lastly, Aaron: "My main point with you is this (I'll write it as many times as I have to to get it across): if you believe, as I believe you do, that gay marriage is a fundamental right in our country, you could, of course, go the same route as those who are advocating an amendment to protect traditional marriage: through the constitutional amendment process (which you referred to before as being the real constitutional option in this country)."

My right to gay marriage is already, I believe, enshrined in the constitution. It doesn't need an amendment. And even if it did, you are are forgetting that small minorities cannot effectively leverage any political weight, especially when up until recently it was considered a crime to identify yourself with said minority. By cutting off the judiciary, like H.R. 3313 tried to do last summer, by saying that no court could preside of questions of constitutionality of DOMA, minorities are left without the only branch of government that can protect their rights.

Oh, and one last thought; if a Republican Congress could hold that kind of power, what do you think a Democratic Congress would do?

Michael,

It takes an awful lot for an issue to get to the Supreme Court and they generally behave rationally. I'd like you to tell me one Supreme Court decision that was radical, rash, and unreasonable.

That depends upon what you mean by "rationally". (You're also hiding a lot in that "it takes a lot", but I'll let that go for now.) What they are supposed to do is interpret laws in light of the Constitution - specifically, the text of the Constitution and any relevant historical understanding of the text. Conservatives aren't outraged because the Court has acted irrationally, they're outraged because it has become completely unmoored from the Constitution itself. Is it irrational to look at the laws of other countries in determining our own laws, as Justice Ginsberg would have it? No, not on it's face - the question is whether it is appropriate for the Supreme Court to do so (it manifestly is not).

Roe v. Wade is the archetype of a radical, rash, and unreasonable decision, and has in fact corrupted our lawmaking and jurisprudence, not to mention our politics and social harmony, ever since. It was radical, in that no state granted complete license for abortion throughout pregnancy at the time. It was rash, since the states were in the process of working out their abortion laws legislatively when it was handed down. And it was unreasonable because it had to make up a rationale out of whole cloth. The word "privacy" doesn't appear in the Constitution anywhere. Saying that abortion is protected by a supposed right to privacy begs the question - nobody thinks that killing one's child or spouse is protected by a right to privacy - the question is whether an unborn child deserves the protection of the law or not. And constructing an artifical trimester system is patently absurd (and as I read somewhere recently, is indicative of the kind of deal-making that occurs in pork-barrel bills, not Constitutional law). There is nothing significant that occurs at the boundaries of the first and second, or second and third, trimesters, and those boundaries cannot be determined precisely anyway. The trimester system was constructed precisely to obfuscate and mislead - Blackmun wanted people to think they were granting a limited license to abortion, when in fact, due to Doe v. Bolton, they were granting unfettered license to abortion, as subsequent decisions have shown.

Robert,

The idea of the Legislative decreeing "we're going to pass a law and Judiciary _can't do anything about it_, even if they determine that it's unconstitutional" is a great axewhack at the base of the Tree of Liberty, in my not so humble opinion.

If the Judiciary would stay within the bounds of the Constitution, we wouldn't have this problem (and yes, both liberals and conservatives have done this - just right now its liberals who are doing it). When they repeatedly stray from those boundaries, remedies must be sought out.

When the Nine Old Men starting whacking FDR with sticks over the New Deal programs, he would have dearly loved to issue an Executive Order declaring the programs off limits to judicial review - but that would have been tyranny. I can't see how the Leg. doing the same thing would be anything else.

I don't understand why you guys can't get this through your heads: IF THE LEGISLATURE OR THE EXECUTIVE BRANCH DOES SOMETHING THE PEOPLE DON'T LIKE, THEY CAN BE VOTED OUT OF OFFICE!! If you can remove a leader who does something you don't like, that is not tyranny! Judges are appointed for life, and there is no direct recourse for rejecting horrendous decisions like Roe. That's why we use the term "judicial tyranny".

There is a proposal out there to amend the Constitution to make judicial appointments of a fixed term of 18 years. I think this is an excellent idea, though its not clear if it will be able to generate enough attention/interest to get it passed. But it's a nonpartisan, nonideological way to circumscribe the courts power. Judges will be seated for longer than any electoral cycle, so they will be insulated from immediate political passions. But their terms will be shorter than the current average of 25+ years, which means each appointment is of less significance, thus reducing the stakes for judicial appointments. It also would allow a more direct feedback loop between judicial overreach, political movements to elect Presidents and legislators in line with the people's views, and subsequent appointment of judges who won't overreach. Conservatives have been trying for 40 years to play by the rules and get more conservative judges appointed. Now that they actually have the Presidency and the Congress, the Democrats have changed the rules, arguing that now you have to have 60 Senators to confirm judges, not 50. But if the term limits had been in effect, Reagan, Bush I, and Bush II would have had more opportunities for appointments , so the court would have moved more to the right already.

Michael, the Roe example is apt. Blackmun lobbied for a deal among the Justices. It was as if he led a legislative committee rather than a judicial review of the law in light of the Constitutional text he was appointed to interpret and protect.

As for turning the tables, I have already pointed out how the current situation has contaminated the work of lawmakers. I support and like GWB very much but he signed a law he openly conceded was probably unconstitutional and thus passed the buck to the USSC. Legislators do this far too often -- many don't read the text they enact and hope the courts will figure it out for them. This makes the concept of determining the intent of the lawmakers even more confuddled than previous USSC Justices had made it by the time of Roe.

The framework of our Constitution did not replace the rule of a distant monarch, and distant parliament, with the domestic rule of a supreme couhncil of legalists. The USSC is simply not equipped nor well-positioned to decide social policy matters on behalf of we lowly masses.

The upshot is that the Constitution was written for the express purpose of establishing self-government. That depended on a self-governing process empowered by a people confident in their authority to make law and to engage in democratic politics to decide controversies.

That's how a majority of men ratified the extension of the franchise to women. And how a majority of non-slaves made citizenship available to former slaves. It is how the country works.

As far as the fear that elected representatives need to be restrained, I guess we differ on what ought to be the restraining element. I choose the ethos of liberal democracy over the imposition of judicial supremacy.

Consider -- SSM-friendly countries like Canada have explicit constitutional provisons that empower the legislative branch to over-ride Supreme Court rulings. This extends to both the state (or provincial) governments as much as to the national (or federal) government. Our Constitution does not bar similar provisions evolving out of our liberal democratic ethos.

But the flow of change in our framework is most definitely from the People to the government, not from the government (i.e. the USSC) to the People. The Court is not empowered to generally amend the Constitution subject to an over-ride by the People through the arduous task of ratifying a repudiating amendment.

That is what I meant by the observation that judicial review is supposed to defer to the will of the People, not the will of the individuals who sit on the Court.

Conservatives aren't outraged because the Court has acted irrationally, they're outraged because it has become completely unmoored from the Constitution itself.

In what way? In what way is it unmoored from the Constitution to rule that, while the word "privacy" may not be in the Constitution itself, the word "liberty" is. And how is it unmoored from the Constitution to rule that "liberty" cannot be had without a right to "privacy". Or that the idea of "privacy" isn't precisely what the 4th amendment was intended for?

And you have in no way addressed my real question which is, even if the courts are getting as bad as you claim they are (and by the way, not all "conservatives" are outraged; I'd say myself I'm a bit concerned but that's about it), is stripping of them of their jurisdiction an appropriate action? And would you feel the same way if the Democrats were talking about doing that in order to make a law guaranteeing that no court would ever again question an abortion law?

Oh, and by the way, I agree that with Doe v. Bolton, the court overstepped its bounds, but Roe v. Wade was a very restrained and well-reasoned decision, based on a lot more than the "opinions" of nine people.

Michael,

In what way? In what way is it unmoored from the Constitution to rule that, while the word "privacy" may not be in the Constitution itself, the word "liberty" is. And how is it unmoored from the Constitution to rule that "liberty" cannot be had without a right to "privacy". Or that the idea of "privacy" isn't precisely what the 4th amendment was intended for?

Well, here's the 4th amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The idea that the people who passed the Bill of Rights meant that no laws could be passed restricting abortions is fantastical. Nobody ever said that it did until Blackmun came along.

Clearly you don't think that liberty means that the government is not allowed to ban any type of behavior. For example, do you think police have the right to keep someone from committing suicide? Does the government have the right to ban heroin? It regulates all kinds of drugs and medical procedures - do you think it doesn't have the right to do this?

Other unmoored examples include the recent affirmative action cases. O'Connor explicitly said that in 25 years affirmative action policies might be unconstitutional. Also the recent death penalty case.

(and by the way, not all "conservatives" are outraged; I'd say myself I'm a bit concerned but that's about it)

I don't consider you a conservative, based upon your positions on a variety of issues. I would call you a libertarian.

is stripping of them of their jurisdiction an appropriate action?

Yes. Juridiction stripping is legitimate, no matter what the law under consideration. That doesn't mean that I think any laws should be placed out of reach of the judiciary, just that and law could be. If the legislature passed your slavery bill, we could vote them out of office and get new legislators to overturn it.

Roe v. Wade was a very restrained and well-reasoned decision, based on a lot more than the "opinions" of nine people.

And your evidence for this is...

Mike S: If the legislature passed your slavery bill, we could vote them out of office and get new legislators to overturn it.

Mike, I am starting to agree that, in general, the common sense of the majority is deterrent enough against "tyranny of the legislature", if you will.

However, there is one class of laws that is more dangerous ... those that control voting rights. For example, say that a law was passed requiring payment of a huge poll tax in order to vote. The people who are harmed by that law would be unable to vote against the legislators who passed it, since their ability to vote has been taken away.

I can't see any purely democratic way out of that dilemma. It's not quite so far-fetched as it sounds on the surface either -- both parties have tried to do something similar in congressional redistricting.

Matt,

I can't see any purely democratic way out of that dilemma. It's not quite so far-fetched as it sounds on the surface either -- both parties have tried to do something similar in congressional redistricting.

How can you not see a way out, when such a situation already occurred and was dealt with in our country?

You have to put your faith somewhere if you want to have a healthy democratic republic - there is no perfect system.

I agree that gerrymandering/redistricting is a problem. If people don't pay enough attention to what politicians do, they suffer the consequences. I can certainly imagine a situation where being ruled by benevolent autocrats would be beneficial to being ruled by the people. But we're not in that situation right now, and those situations inevitably end up with someone becoming not-so-benign. There's no getting around the fact that there are negatives to every form of government - the question is what kinds of negatives are you willing to put up with. After all, under Stalin the trains ran on time...

Mike S: How can you not see a way out, when such a situation [gerrymandering] already occurred and was dealt with in our country? You have to put your faith somewhere if you want to have a healthy democratic republic - there is no perfect system.

You're right in that our democracy has historically always worked its way out of such dilemmas. And one of the ways democracy works is by having a few annoying, cranky voters who complain a lot :P

It's a softball that I'm not going to pulverize for you to keep lobbing that "if the Republicans..." rhetoric at us. I think you'd do well, though, to turn it around on yourself. Look at the following text that you've written:

A narrow majority of the legislature drafts a law reinstating slavery. The president does not veto it and signs it. A secondary clause of the law states that no court will have jurisdiction to review that law. Anybody can see that that law clearly violates the 14th amendment and yet, one branch of government is now completely cut out. The executive branch can't cut out another branch. The judiciary can't do that. You may think that they are capable of that, but the People always do have the final say, if they want it badly enough.

Immediately after you posit circumstances in which the two elected branches of our government reinstate slavery, you allude to vague and indirect means in which the people can leverage power over the judiciary "if they want it badly enough." Well, they don't have to want something nearly so badly in order to correct problems in the other two branches.

Which leads me to believe that you favor the judiciary simply because it is the branch that you think will effect the changes that you want. Well, how about this: what if the Supreme Court looked on a course to define marriage as between a man and a woman, as a Constitutional matter, and even to declare homosexual relationships as beyond the rights of our government to recognize, let alone approve? I don't imagine you'd be content with the legislative remedy of Constitutional amendment.

By the way, I've never said that I think jurisdiction stripping is the "appropriate" response to the judiciary. I just believe that it's a Constitutional option.

Your question doesn' t make sense, Justin. Why wouldn't someone be content with a legislative remedy of a constitution amendment if you don't like the course the judiciary has taken.

I have no problem, for instance, with people trying to pass the Federal Marriage Amendment. It's a reasonable response to a perceived problem. Now, I think the amendment is idiotic, narrow-minded, bigoted and irresponsible, but the process is fine with me. Thankfully, it has litte chance of passing, but bully for taking it to the people.

Res,

You misunderstood my question. The hypothetical is a situation in which the Supreme Court is in the process of restricting homosexuals' rights based on its reading of the Constitution. The question is whether you would accept Constitutional amendment as your only course of remedy.

Michael,

You seem to be at war with yourself.

Let's review some statements:

"Oh, you have every right to interpret every sentence of the Constitution however you want. You could also be wrong. There are limits to how interpretable certain parts of the constitution are. The fourteenth amendment? Vague and highly interpretable. Article III, Section 2.1? Pretty specific."

Later, Michael writes:

"The point was that you have to go through some significant explanation, including historical reasoning, to show that I am "inventing" rights."

Then:

"Well I can't prove that "equal protection under the law" extends to gay marriage any more than you can prove that it doesn't, using only the Constitution. In fact, you need to do a lot of interpretting and extratextual reading in order to define "equal protection", which is an extremely vague statement. There's not much extratextual reading or interpretation necessary to understand the exact meaning of "the judicial power shall extend to all cases..."

"My right to gay marriage is already, I believe, enshrined in the constitution. It doesn't need an amendment. And even if it did, you are are forgetting that small minorities cannot effectively leverage any political weight, especially when up until recently it was considered a crime to identify yourself with said minority. By cutting off the judiciary, like H.R. 3313 tried to do last summer, by saying that no court could preside of questions of constitutionality of DOMA, minorities are left without the only branch of government that can protect their rights."

But, this all falls against this original dispute with ssmtheory with this one, small challenge:

"And can you support your answer with direct textual evidence."

Let's review, shall we.

Your "belief" that there's a right to gay marriage is, in fact, NOT extant in (1) The Constitution explicitly written; (2) Subsequently interpreted; and *****(3) In the extant written record, both in terms of the debate, vote, submission, and ratification of the 14th amendment.

So, the above should answer your "And can you provide direct textual evidence" challenge.

You state, unequivocally, that there are limits to certain interpretable parts of the Constitution. This does happen to be true, but not because you state it, nor do you get to choose which parts of the Constitution can be strictly construed or loosely construed.

You mentioned Roe V. Wade. Now, if that's not an abomination against the Constitution, I don't know what is. It is neither prudent, Constitutional, rational, or in any way supported by either the facts of the specific case, the prior case law, or even the prior American history or jurisprudence.

Norma McCorvey, Roe herself, has urged that "her case" be overthrown. Not modified; not re-examined.

Overthrown. (She never did have an abortion, by-the-way. She was basically used as a prop for Sarah Weddington to further her own career).

You seem to be stating that, unless the Founding Fathers would have explicitly stated that gay marriage was forbidden (and, reminder, everyone, he still has no textual evidence to back up his 14th Amendment "belief"*** - mark this parentheses down), it's up for grabs.

Shorn of all of the words in between, the fact is that, in your thinking, such as it is, unless it's specifically forbidden, it's on the table.

All of the other words are for show, folks.

The fact is that gay marriage will have to be judicially-mandated in a patently unconstitutional way, because the gay marriage movement will not do the heavy lifting required to gain societal acceptance the real way, legislatively and culturally.

Michael won't answer his own challenge to others to show "direct textual evidence" for his own beliefs; the core of his "beliefs," as well as Andrew Sullivans (let's not be sidetracked here) DEPEND UPON them (not necessarily Michael himself, but Sully and many, many others) making anyone out who:

(1) CAN show the direct, textual evidence of the Constitution does not show DIRECT, or even INDIRECT, support for gay "marriage;"

(2) CAN defend those propositions honestly, in democratic forums, not hand-picked judicial ones;

as theocrats.

That's what this whole post was about. It was about Sully calling conservative Christians in this country, basically, "theocrats" in line with Al-Qaeda.

That's the argument, and I write this with no animus at all.

I just recognize the conflict.

Folks such as Michael and Sully will never be happy unless they have gay marriage. They sincerely want it so much that they will "judge-shop" to get it, long after this post, and so many thousands of others, are long deleted from cyberspace (and, people's minds).

Others, such as myself, and Justin, and others, sincerely will fight them so long as they go the non-democratic route, disarming all of the flimsy, non-textual shibboleths along the way.

And, we're not theocrats to do so.

We are the real democrats.

We are Americans as much as Michael, Sully or anyone else who disagrees with us.

Everybody, have a good day.

Justin, I would have no problem with that being my only option. I respect the courts and the judicial process, so I have to put my faith in that system.

Aaron:
Michael won't answer his own challenge to others to show "direct textual evidence" for his own beliefs

Ah. Yes. Well, I never contended that I actually had "direct textual evidence" for my belief that the 14th amendment protects my right to get married. I merely stated that I have as much textual evidence *within the actual wording of the Constitution* to support my reading as there is to support yours. Which is ZERO. Show me a sentence where it explicity says that equality of the law does not extent to homosexuals getting married and I will concede that you have more textual evidence. The real point was that Article III.2.2 does not refer to the fact that judicial power must extend to all cases of constitutional law and fact. I was contrasting the level of interpretting we can do in the two cases.

Justin:
Which leads me to believe that you favor the judiciary simply because it is the branch that you think will effect the changes that you want.

I don't favor the judiciary. I favor each branch equally. But I feel that the judiciary does an important job to balance the powers. I am particularly fond of the judiciary because it is the branch that helps protect my interests the best; I am fond of the executive branch right now, for the most part, because it is keeping my country safe. I am unfond of the legislative branch because it is filled with a bunch of fearmongering nutjobs. But I wouldn't want to restrict any of its power.

I also don't believe that a constitutional amendment is an appropriate, or even necessary, step for curbing threats from the judiciary. I believe that impeachment by congress can, and should be used more, if congress truly believes that the court has erred (not just made a decision they didn't like). Or term limits. Or some other solution that's not jurisdiction stripping. I'd hate to think that these goals are primarily motivated by politics, because they can always come back to bite you in the ass. If the Republicans get rid of the filibuster, it might get them a little more power, but it does nothing to help them when they are no longer the majority party. And while I was deeply crushed by all the state constitutional amendments barring gay marriage, I would never in a million years advocate any procedural changes that would benefit me, personally.

Mike S.:
Yes. Juridiction stripping is legitimate, no matter what the law under consideration. That doesn't mean that I think any laws should be placed out of reach of the judiciary, just that any law could be. If the legislature passed your slavery bill, we could vote them out of office and get new legislators to overturn it.

Well, you have more faith in the people than I do. But thank you for being honest. My slavery bill supporters would probably be voted out of office; but a bill stripping homosexuals of all protective rights, well I'm not so confident about that one.

I don't consider you a conservative, based upon your positions on a variety of issues. I would call you a libertarian.

I'll accept that, as long as you don't lump me in with the Randians. There's "libertarian" and then there's "crazy".

If the Republicans get rid of the filibuster, it might get them a little more power, but it does nothing to help them when they are no longer the majority party.

The amount of mis- and disinformation that is out there about this is astounding. We're talking about "filibusters" (which are not real filibusters, since nobody has to hold the floor indefinitely, it's just a procedural matter) of judicial appointments, not of legislation. Which have never previously been used. Never. Fortas doesn't count, because he couldn't have been confirmed by the full Senate. The Democrats just unilaterally decided that it was appropriate to require a supermajority to confirm judges, when the minority objects on ideological, not professional grounds. This is unprecedented - removing the "filibuster" from judicial appointments will be maintaining the status quo ante 2000. Republicans in the minority should not be able to filibuster judicial appointments by a Democratic president, either.

I'll accept that, as long as you don't lump me in with the Randians. There's "libertarian" and then there's "crazy".

OK, I'll call you a sane libertarian. ;)

This is off-topic, but I've often wondered if the current state of the Libertarian party isn't a case study of the results of the libertarian philosophy applied to large groups.

Michael,

Then, your contention that the Constitution 14th amendment, bereft of direct textual evidence, does in fact confer same-sex marriage is no more valid than ssmtheory's EQUAL belief in Congress limiting the jurisdiction of courts.

You have no direct textual evidence at all to support your theory. He has no textual evidence, according to you, to support his theory.

Whether you claimed it or not is immaterial; you threw out the challenge to him, but you won't accept the challenge aimed back at you.

In a sense, friends (I'm writing to all but Michael here), this whole post has to do with an extreme view of the Constitution, that of a "living" document (else, we wouldn't be having this conversation).

Sullivan, and Michael, WANT to show the Constitution as guaranteeing same-sex marriage, from emanations and penumbras, in the 14th amendment.

The plain text, extra-textual, debate, voting and ratification history belie that belief.

No matter.

He and Sully will "judge-shop" (count on it) until they find a judge who believes, in spite of all the evidence arrayed against it (notice how Michael never returned to his "restrained opinion" tack of Roe V. Wade?).

When he writes that he doesn't "favor the judiciary," don't believe it for a second.

He may defer.....for a while. But, unless he goes the Constitutional amendment route, or tries to do things democratically (changing hearts, minds and actual legislation), the pressure will be too much, and he will cave.

The truth is not the issue. Power. Judicially-imposed, non-democratic, non-constitutional power.

That is the goal.

We non-theocratic, pro-democratic, pro-Constitution Americans who care about this need to fight yet this latest Constitutional perversity.

All you non-theocrats and real democrats, you all have a good day.

How can a right to privacy establish a right to ssm? SSM requires the PUBLIC act of state recognition of a certain marital condition. How can state recognition be a matter of privacy?

SSMTHEORY,

My friend, I haven't returned to this post for a couple of days, but I HAVE done some preliminary research on your contention of Article III and Congress's legislative power vis-a-vis judicial review.

First off, you may be correct!

In fact, Marbury v. Madison was the exact opposite of what everyone believes (I'm quoting from an actual LAW PROFESSOR, David Forte, at Cleveland State University).

"Chief JUstice Marshall was not making a grab for power. That is the greatest historical calumny to be placed upon the man, a libel that continues to this day. Rather, his point in Marbury v. Madison was to demonstrate that the constitutional obligations of those in power to be restrained in the exercise of their office.

Look at the facts. Marshall didn't invent judicial review. The framers presumed it would exist, the Court practiced it in the 1790s (even though they hadn't yet struck down a law of Congress), and the Jeffersonians accepted it. That is why the Republicans delayed the Court's session throughout 1802 so that the justices would not have a chance to review the 1802 Judiciary Act before it had gone into effect.

(Here's the key paragraph, SSM Theory):

"What did the unanimous Court's act of judicial review accomplish? In substance, it said to Congress that you cannot add to your original jurisdiction (which is a miniscule part of its jurisdiction anyway), but you can remove appellate jurisdiction from us as you wish. In other words, it left all the power with Congress to determine what cases the Court could hear under the federal jurisdiction provisions of Article III of the Constitution. It was precisely the opposite of a grab for power."***

(My asterisks - Aaron).

****
(Now, look at this one also, SSMTheory):

"When Marshall finally came to declare that the grant of original jurisdiction was improper in this case, he did not state that his view of the Constitution was superior to Congress's. Instead, he states that as a moral matter, he could not enforce a law that was not a law. His guide was the Constitution and the oath he made to God to support it."

Now, here's a quote from Marshall himself in Marbury v. Madison, SSMTheory, Justin, and all of you others:

" 'It is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of the courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!'"

Folks.....Chief Justice John Marshall himself, in Marbury v. Madison ITSELF.

And, this is not my interpretation. This is an actual law professor.

Wow.

Those Framers of the Constitution knew PRECISELY well what they were doing.

It seems, however, that the "living Constitution" folks, revisionists and, frankly, unserious law professors and activists of all stripes, have been tarnishing the great man's (Marshall's) image, as well as the decision (Marbury v. Madison) without knowing *****WHAT THE HECK THEY WERE TALKING ABOUT ALL ALONG!!!

Everybody have a good day.

Aaron

A few additional and useful sources:

Courting trouble: only a frontal assault on the power of the courts can restore America's constitutional balance

Robert P. George and Ramesh Ponnuru
National Review
August 17, 1998

http://www.findarticles.com/p/articles/
mi_m1282/is_n15_v50/ai_21123125

>> Excerpt 1: "They [social conservatives] have tried to combat judicial usurpation by appointing originalist judges and by proposing constitutional amendments. Neither strategy has worked. That's not surprising: the courts' excessive power is a structural problem not amenable to piecemeal solutions. The problem, that is, is less that liberals sit on the bench and make bad decisions than that they have a largely unchecked power to do so."

>> Excerpt 2: "But the Founders never intended to give the federal courts a monopoly over the interpretation of the Constitution. Marbury v. Madison, often cited in support of a monopoly, actually stands for a far more modest claim, namely that courts must apply the Constitution; nowhere does it deny that the other branches must do the same according to their own best lights. It stands, in other words, for constitutional supremacy, not judicial supremacy.

>> Excerpt 3: "[As] Justice Felix Frankfurter repeatedly warned, that the only ultimate protection for our rights is a general public commitment to them --a commitment eroded when the task of protection is entrusted solely to an unelected elite."

>> Excerpt 4: "But raising the temperature of judicial politics is not a bad thing. By their actions, the judges have put themselves squarely in the political arena, and until they withdraw they are the proper subject of political battles. The goal of conservatives should be to provoke a constitutional crisis -- or, more accurately, to expose the one that judicial usurpation has already created."

---

First Inaugural Address of Abraham Lincoln
MARCH 4, 1861

http://www.yale.edu/lawweb/avalon/presiden/inaug/lincoln1.htm

>> Lincoln (1): "I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court.... At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers.... Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes."

>> Lincoln (2): "This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it."

>> Lincoln (3): "Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world? In our present differences, is either party without faith of being in the right? If the Almighty Ruler of Nations, with His eternal truth and justice, be on your side of the North, or on yours of the South, that truth and that justice will surely prevail by the judgment of this great tribunal of the American people."

>> Lincoln (4): "By the frame of the Government under which we live this same people have wisely given their public servants but little power for mischief, and have with equal wisdom provided for the return of that little to their own hands at very short intervals. While the people retain their virtue and vigilance no Administration by any extreme of wickedness or folly can very seriously injure the Government in the short space of four years."

>> Lincoln (5): "If it were admitted that you who are dissatisfied hold the right side in the dispute, there still is no single good reason for precipitate action. Intelligence, patriotism, Christianity, and a firm reliance on Him who has never yet forsaken this favored land are still competent to adjust in the best way all our present difficulty."

While the people retain their virtue and vigilance....

Intelligence, patriotism, Christianity, and a firm reliance on Him who has never yet forsaken this favored land are still competent to adjust in the best way all our present difficulty

And therein lies the rub - none of the above applies to 21st century America. In particular the last two.

Are you suggesting that because you believe (erroneously in my opinion) 'none of the above applies' that we might as well leave extra-constitutional power in the hands of nine people who are not directly answerable to "We the People" C. Matt?

Pardon me, but I thought one of the reasons behind the American Revolution was lack of representation, and you think we ought to go back to lack of representation?

No comments from Michael?

None whatsoever?

Waiting....

c matt, it seems to me that we live in a virtuous society that is, if nothing else, is self-governed by a citizens who are diligent in the exercise of their liberty.

The characteristics you said do not apply today, it is unclear if you mean the country as a whole or certain factions.

For instance, did you mean that the proponents of radical reform are unintelligent? Unpatriotic? Unchristian? Or was your remark aimed at those who disagree with the would-be reformers?

--

Ramesh Ponnuru & Robert P. George: "Thinking seriously about judicial independence, and the state of our courts."

http://www.nationalreview.com/issue/
ponnuru_george200505100809.asp

--

Paul Mirengoff (Powerline): "Judicial independence and pragmatism"

"Ponnuru and George deny that judicial independence means that the courts' say on constitutional meaning cannot be challenged, or that it is fixed for all time. Nor does it mean that the only legitimate methods of checking the power of courts are through appointment and amendment (as Chief Justice Rehnquist has suggested). Other checks, in particular limiting federal court jurisdiction, can be applied without limiting judicial independence, properly understood. Whether Congress should resort to this check (and others) depends on its efficacy and on whether the courts are acting abusively."

http://powerlineblog.com/archives/010422.php

Groan. Typos galore. Apologies.

c matt, it seems to me that we live in a virtuous society that, if nothing else, is self-governed by a citizenry diligent in the exercise of our liberty.

No comments from Michael?

None whatsoever?

Waiting....

Mighty impatient, aren't we. Some people have jobs, you know.

Then, your contention that the Constitution 14th amendment, bereft of direct textual evidence, does in fact confer same-sex marriage is no more valid than ssmtheory's EQUAL belief in Congress limiting the jurisdiction of courts.

If you want the "exceptions and restrictions" to apply to III.2.1, then why was a clarifying second sentence in III.2.2, which is about original and appellate jurisdiction? I'm sorry, but they are not EQUALLY plausible interpretations.

The plain text, extra-textual, debate, voting and ratification history belie that belief.

So the 14th Amendment doesn't protect Arabs? Because the plain text, extra-textual, debate, voting and ratification history have nothing to do with anything other than correcting the wrongs of the slavery of Africans.

He and Sully will "judge-shop" (count on it) until they find a judge who believes, in spite of all the evidence arrayed against it (notice how Michael never returned to his "restrained opinion" tack of Roe V. Wade?).

Oh please. Judge-shop? Paranoia much? These cases get thrown on a docket and when a judge's name comes up, it comes up. Not all judges are activists.

And I have explained my position on Roe v. Wade elsewhere on these comment boards; but I will briefly clarify. It was a restrained decision because it attempted to balance the protection of women and of their rights to autonomy (which they were still struggling with since suffrage) with the state's interest in protecting the innocent. The court made its decision based on previous common law, medical, and religious treatments of abortion, the beginning of life, etc. And it did so in a narrowly framed way.

As for Marbury v. Madison, I have no idea what you're rambling on about, and because you didn't provide a link, I can't tell what context your quoted paragraphs are taken from; it seems to me, however, that all it's addressing is whether or not the Supreme Court had original jurisdiction; i.e., it's not practical for everybody who has a problem with anything to be able to take it to the Supreme Court. That's what the lower courts are for. But to read the exception clause as claiming that congress can remove original jurisdiction from ALL courts is quite a loose and liberal reading.

I challenge you to find a quotation from a credible law professor that says, specifically, that Congress has the ability to take away ALL jurisdiction.

Lastly, I'm curious to see what you think about this. As you probably know, Congress just passed the "Real I.D. Act". Part of the whole bill gives the Secretary of Homeland Security the "authority to waive... all laws such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of barriers and roads under this section". Furthermore, "no court shall have jurisdiction... to hear any cause or claim arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1)"

Now, for those of you who fear the "robed masters", tell me, in what way is it better for our country to allow Congress to give sole power to ignore "all laws" to one UNELECTED individual; ONE PERSON, not nine or a whole circuit of judges, ONE individual to waive laws as he sees fit with NO judicial jurisdiction. ONE individual who is as "unelected", and in some cases more so, than the judiciary.

This is NOT FICTION. And so much for the Rule of Law, if Congress can pick and choose who gets to obey the laws and who doesn't have to.

You don't think he'll get fired if he messes up? Does he have that position appointed for the rest of his life? Let's compare apples to apples here Michael, not apples to oranges.

Michael,

I think you're exaggerating this provision of the Real I.D. Act. Based on a quick look, it appears only to allow the Secretary of Homeland Security to waive laws having to do with roads and barriers on the U.S. border. That's a pretty narrow provision in an area (homeland security) in which the full panoply of litigious options can trip up actions to save millions of lives.

Michael, smmtheory is correct. Also the Secretary serves at the pleasure of the elected President and serves during that President's term in office. In addition to confirming his appointment, the legislative branch can censure and/or impeach the Secretary "for, and conviction of, treason, bribery, or other high crimes and misdemeanors." In the meantime, the Secretary's budget is subject to the legislative approval of Congress.

And, of course, the authority that Michael cites would be enacted by legislation which also will be subject to legislative improvement, restriction, and/or repeal. For instance, the bill can be revised (as I think has already been proposed in detail by the House) to provide expedited federal judicial review of allegations that the Secretary's actions violate the Constitution. Those actions, of course, would be in securing the border against the assessed threat of terrorism. The legislation requires such assessments to be submitted to Congress which is empowered to authorize appropriations for such things as "construction of barriers and roads".

Your analogy is rather thin anyway, as Justin pointed out.

The example shows how the legislative process works when the lawmakers take care to interpret the Constitution in light of the judicial role. For instance, the legislation is meant to address the abuse of delay tactics used in (not by)_the courts arising from construction along a short stretch of the border that provided the impetus for the very provision that Michael has cited. But regardless of the merits of this particular provision, it seems to me that it provides a good example of how such measures are scrutinized by elected representatives, public commentators, leaders of this or that faction, and by common citizens on this side of the border. If goes awry, it can be corrected.

It is not a perfect system. But this is not an example of the supremacy of the Secretary of Homeland Security. More like the supremacy of sausage-making. Heh.

Michael,

Nice to hear from you again.

Yes, I have a job, too.

So, because you CANNOT find anything in the 14th Amendment that explicitly supports gay marriage, you change the subject (and, you still don't answer, in any detail, other than remarking that you've "already posted" on Roe V. Wade, how it is that Roe V. Wade is restrained when, clearly, the plaintiff in said case wants that case overturned) to Arab-Americans.

It would work....for someone who didn't get out of the first grade (which, fortunately, I have).

I do love it, though. You explicitly challenge smmtheory to provide an example of what he means, with direct references, by his provision of what Congress can or cannot do vis-a-vis Article III, and you don't accept his presumption at face value, yet you yourself "believe" that the 14th Amendment confers the explicit right of gay marriage that is absolutely void in the historical, textual, voting, submission, and ratification record, and.....we're supposed to take your word for it.

Chutzpah!!! I salute it, but it's dishonesty on the level of the Hitler Diaries.

Well, I DID quote an actual law professor about Marbury V. Madison (the improperly understood progenitor of your veiled judicial activism, as well as that of all modern "liberal" judicial activism, not the least of which is the new belief in the overturning of marriage by creating gay "marriage"), and if you'd like a link, no problem!

Here it is:
www.claremont.org/writings/crb/winter2003/forte.html?FORMAT=print.

Also, I have another link, posted just today on National Review Online, which speaks to the question of the "originalist" intent of the 14th Amendment.

It's at www.nationalreview.com/script/printpage.asp?ref=/comment/whelan200505110758....

Now, if you'd be so kind to please provide some "direct, textual evidence" for the presumption of gay "marriage" contained within the 14th Amendment......

After all we've learned with smmtheory, according to you, "belief" in something is just not enough.

What's good for the goose should be good for the gander, Michael!

Waiting for those text references..... (along with some more elaboration on the "moderation" of Roe V. Wade).

Waiting (and working)..........

I just read the Whelan piece, and it's a great rebuttal of those (some of whom lurk around here) who like to point to Brown as the raison de'etre for judicial activism.

Justin:
I think you're exaggerating this provision of the Real I.D. Act. Based on a quick look, it appears only to allow the Secretary of Homeland Security to waive laws having to do with roads and barriers on the U.S. border. That's a pretty narrow provision in an area (homeland security) in which the full panoply of litigious options can trip up actions to save millions of lives.

And if he can waive those laws, based on a misreading of Article III, then what is there to stop the executive branch from confering the waving of other laws without judicial review? I find that more of a plausible slippery slope than SSM-->polygamy.

Chairm:
It is not a perfect system. But this is not an example of the supremacy of the Secretary of Homeland Security. More like the supremacy of sausage-making. Heh.

No, but it's an example of the supremecy of Congress. I am aware that there are ways to get rid of the legislature and the secretary if he screws up. But what if he does and the people don't? What if the people kind of like taking away laws from judicial review because it makes the immediate goals easier to acheive. Stop to think about that for a second: You are advocating making certain people above the law because its expediant. If you've got a problem with judges, formulate a better impeachment process or appoint term limits. Those are the (constitutional) ways to gain more control over the judiciary. But cut them out completely? Make one person above the law because it's convenient? The Rule of Law must be protected. Period.

Aaron:
yet you yourself "believe" that the 14th Amendment confers the explicit right of gay marriage that is absolutely void in the historical, textual, voting, submission, and ratification record, and.....we're supposed to take your word for it.

No. We're supposed to DEBATE it. I've already told you I have no direct textual evidence that the 14th amendment applies to gay marriage; but you have no textual evidence that it doesn't. From simply the text of the 14th Amendment, there is no way to say for sure what equality under the law means and who is supposed to benefit from it. Article III, however, is very clear as it outlines certain rules for the judiciary, in specific clauses. I want smmtheory to show me why he thinks the second sentence in clause 2 refers to the first sentence in clause 1. Which is a substatantly different question.

Well, I DID quote an actual law professor about Marbury V. Madison (the improperly understood progenitor of your veiled judicial activism, as well as that of all modern "liberal" judicial activism, not the least of which is the new belief in the overturning of marriage by creating gay "marriage"), and if you'd like a link, no problem!

Uh-huh. And I read it. And I STILL don't see how it argues that Congress can remove ALL judical review. I agree (and never said otherwise) that Marbury v. Madison never justified judicial activism. But it certainly doesn't nullify judicial review. But maybe that's the point you were trying to make.

Waiting for those text references..... (along with some more elaboration on the "moderation" of Roe V. Wade).

Wait all you want. I've already said a gazillion times I don't have them. But you don't either.

And I don't have time right now to elaborate on Roe, although I thought my three sentences pretty much summed it up. Balancing the rights of women with the rights of the unborn. Everything that happened after Roe is a different story.

Mike S.
I just read the Whelan piece, and it's a great rebuttal of those (some of whom lurk around here) who like to point to Brown as the raison de'etre for judicial activism.

Except his slip was showing; he accepts faulty jusicial reasoning in Brown because he believes that the ends were moral. He doesn't accept it in Lawrence. And yet I believe, and many others, that the ends were just as moral. Nor is it absurdly postmodern to believe that freedom and liberty include the concept of one's own existence; that's basic freedom of religion.

Sorry, I was referring to his earlier piece outlining why originialist jurisprudence doesn't rule out reaching the result obtained in Brown. (here, which is linked to in the piece Aaron posted.)

Except his slip was showing; he accepts faulty jusicial reasoning in Brown because he believes that the ends were moral. He doesn't accept it in Lawrence. And yet I believe, and many others, that the ends were just as moral.

What article did you read? The whole point was that despite the fact that a just and legally correct result was reached in Brown, the methodology employed to reach the decision was seriously flawed, and has been repeated in several subsequent decisions. He accepts the result in Brown, but not the judicial reasoning. The question is not whether the end result was moral, it is whether it was based upon sound Constitutional jurisprudence. The fact that you think the Lawrence decision supported a moral end is irrelevant - there is nothing in the Constitution that says a state cannot ban particular sexual acts if it so chooses.

Nor is it absurdly postmodern to believe that freedom and liberty include the concept of one's own existence; that's basic freedom of religion.

First of all, it's not that freedom and liberty 'include' the concept of one's own existence, it's "at the heart" of liberty. Second, it's not just the 'concept of one's own existence', it's 'one's own concept of existence, of meaning, of the universe, and of the mystery of human life.' This is exactly the postmodern mantra: reality is determined by the individual - there is no external fixed standard of reality that we can rationally discern, and that we are limited by, let alone have a duty to conform to. If you can explain how this rationale for deciding which laws are constitutional and which are not can result in anything but whimsical pronouncements from the Suupreme Court, go right ahead. As Whelen said, "What this infamous "mystery" passage really means, of course, is that five justices will consult their own whims and preferences to define for all Americans which legislated crimes will be magically transformed into constitutional rights."

Finally, you're conflating "freedom of religion" (i.e., freedom of conscience) with "freedom to behave as I wish". Your simplistic analysis would disallow a ban on any kind of behavior if someone claimed that their religious beliefs held that such behavior was integral to their understanding of the mystery of human life. Obviously, if your understanding of the universe involves human sacrifice, or slavery, or that women are evil temptresses and must be forced to wear burqas, your liberty can legitimately be curtailed.

I'm curious to see how your legal reasoning here can be used to support a ban on polygamy.

>> Michael: "But cut them out completely? Make one person above the law because it's convenient? The Rule of Law must be protected. Period."

I'm not sure 'convenience' does over-ride accountablility. How is the security of the border improved by the procedural tactics that have abused the courts? What is the solution you'd favor in this case? I don't see how impeachment of a lower court judge helps much in securing the border or our liberties.

The proposed legislation does not cut-out the judiciary. It would expedite the involvement of the judiciary.

The rule of law applies to the actions of the Secretary who is charged with executing approved projects against assessed and acknowledged security threats on specified portions of the border. It does not place the Secretary above the law. It places much greater emphasis on the oversight by Congress and by the President. If the court system had not been abused (I mean really abused) in this area, then, it would have been fairly straight forward to entrust the court system to knock the ball back into the political fora in the first place.

Before you go further, Michael, take another look at the context of the provision and the legislative process that has addressed (and will continue to monitor) the very concern you have raised.

Or perhaps describe the concrete example that has led you to your continued opposition to this proposed legislation. Is the legislative process (including the ample oversight) or the narrowing of judicial review that leads to stamping out the rule of law?

If you can explain how this rationale for deciding which laws are constitutional and which are not can result in anything but whimsical pronouncements from the Suupreme Court, go right ahead.

If a law restricts a private action between consenting adults, it is unconstitutional.

Obviously, if your understanding of the universe involves human sacrifice, or slavery, or that women are evil temptresses and must be forced to wear burqas, your liberty can legitimately be curtailed.

All of your example involve the sacrifice of liberties of another party. If my understanding of the universe involves sodomizing you against your will, then that liberty can legitimately be curtailed; if, however, it involves consensual sex between me and my partner, then no it cannot be legitimately curtailed.

I'm curious to see how your legal reasoning here can be used to support a ban on polygamy.

Very simply, a polygamist's liberty to marry is not being curtailed; just his liberty to marry as many people as he wants. I think it is perfectly in the right to define marriage as between one man and one woman and that marriage rights for gays may be curtailed. But sodomy? Not a chance.

"If a law restricts a private action between consenting adults, it is unconstitutional."

So, I guess laws banning the sale of heroine are unconstitutional. And laws banning prostitution. And bans on polygamy.

In any case, you're only rationale for that statement is your own personal preference for what you want the law to be - you don't have any basis in the text of the Constitution for that assertion.

"All of your example involve the sacrifice of liberties of another party."

But the "mystery of life" passage doesn't mention other people's liberties, or define how to balance individual liberty with public mores.

"Very simply, a polygamist's liberty to marry is not being curtailed; just his liberty to marry as many people as he wants. "

Again, where is the number of people involved in the "mystery of life" passage?

I refer you again to Justin's post:

That zealots for individual license traverse a dim alleyway to tyranny is evident in their conviction that their preferred policies — from abortion to same-sex marriage — are subjects of Constitutional guarantee.

Even those supposed "theocrats" who would go so far as to argue for mandatory prayers in their local public schools don't argue that the judiciary ought to find that the Constitution requires them.

...zealots for individual license traverse a dim alleyway to tyranny...

How can there be a tyranny of individual license? The two concepts are contradictory. Zealots for political correctness, androgyny, or something like that would be more accurate.

Matt,

I'm not sure how to explain if the whole passage that Mike quoted doesn't suffice. Put aside the idea of inherent tyranny in a society founded on individual license; I would argue that it exists, but we don't even have to get that involved. What I'm speaking of is that the zealots for individual license are all to eager to disenfranchise the rest of us, removing the fundamental civil right of having a say in our own government.

What I'm speaking of is that the zealots for individual license are all to eager to disenfranchise the rest of us

Well, I see what you mean, if you're referring to a certain double standard, as in "the law should let me do what I want, and it should let you do what I want too." Such a position isn't really committed to a principle of individual freedom; it just hides a lust for power beneath a cloak of liberty.

Put aside the idea of inherent tyranny in a society founded on individual license; I would argue that it exists, but we don't even have to get that involved.

Actually that is an interesting idea. In an individualistic or libertarian society, one who defines himself in terms of his country and community might indeed feel a sense of tyranny. The actions of others may not directly affect his person or property, but they change the society of which he feels a part, forcing him to alter his self-concept. This is the underlying theme of the argument that SSM redefines marriage for everyone, not just those who actively participate in SSM.

Michael,

But, your side is judge-shopping to make sure that a thorough, honest, open debate never happens. Maybe not you personally, but engaging the American people in a democratic process is NOT the way your side is conducting this "debate."

The way to have a proper debate is to take the position to the people, and let them see what your position is. Then, if you feel like you've made progress (again, not you personally, but a generic "you"), then you craft legislation through the democratic process or, if you have to, go through the amendment process.

Well, yes, you did allude to it, but you always, ALWAYS, end your statement stating this next statement:

Oh, I'm QUITE familiar with the historical circumstances of the period. Specifically, I think I have a very good grasp of the historical legal precedents, arguments, primary documents, speeches, votes, and ratification history to know, beyond a shadow of a doubt, that the 14th amendment was never, ever, ever intended to ever go anywhere beyond enforcing the rights of the newly-freed slaves (read the links again, as the two law professors have made the case more eloquently than I ever could).

So, yes, I have a vast accumulation of evidence that 19th-century legislators, who the vast majority considered homosexuality a grave sin, as well as a criminal offense (read the accounts of the day) that the reasoning behind the 14th amendment is what I laid out above, and diametrically opposite to what you "believe."

Michael, you are entitled to your own opinion, but not your own facts.

You are CERTAINLY not entitled to read 21st century notions of morality into 19th century constitutional processes.

Vis-a-vis Marbury v. Madison, I gave that link to help in the debate between yourself and smmtheory. Now, even if smmtheory is incorrect in his formulations, he is FAR CLOSER to the thinking of the Founding Fathers, according to this article, than you are to your "belief" of legislators three generations later with the 14th amendment.

I'm fairly certain that the Founding Fathers would have agreed to make sure that Congress would be the pre-eminent branch among the three. And, had they lived long enough to see the mockery of the law that the Court has made for lo these many decades, I can predict they would have said, unequivocally, "start over." (Meaning, fire all of those damn-fool judges who are adding things we never could conceive that a country would add and subtract from things we explicitly told you not to subtract from).

So, you and smmtheory can debate that. I was merely trying to add information, allowing for the debate that you sa