But isn't there an argument that this isn't about the judiciary, this is about Federalism. "We the People"--who are often exalted around these parts--elected the officials in New London, Conn., and those elected officials decided that pleasing corporate interests are more important than a few people in their old houses.

It's the triumph of capitalism, of Federalism, of "we the people" having their decisions affirmed by the courts. If the interests of the majority are more important than the interests of the minority--in this case homeowners--isn't that consistent with a lot of the things praised here?

I don't know if I've even got the mental energy, tonight, to trace that thinking. Somehow "corporate interests" become a voting majority! (N.B., The interest in having security with respect to the property that a person owns is hardly confined to the travails of a single household that is being uprooted.)

I haven't had the time to thoroughly research the KELO case (which is one of a mounting number of cases deserving a march on the judiciary), but it seems to me that the federalist argument is that the Supreme Court didn't need to step in, on this one.

Even so, my point is not — nor has it ever been — that government must be constructed according to a single, bounded principle to the exclusion of other considerations (e.g., federalism, majority rule). Indeed, from the Constitution on down, I would argue, much of the work of government theory is creating a structure that causes more of the correct decisions to be made. And in that respect, the frightening observation is that the Supreme Court is managing to fall on all the wrong sides. At least consistency would result in a 50% correct rate!

I'm interested in what Res Ipsa and others, who regard Rehnquist, Scalia, and Thomas as friends of the big corporates and threats to our freedoms, make of the fact that the conservative justices voted with the homeowners in the Kelo decision, while the liberal justices voted in favor of eminent domain. Close to home I've gotten some reactions which can only be described as pretzel logic. It seems that saving the demonology comes first to many of them.

(Okay, I haven't heard Res actually say that he feels that way about Thomas, Scalia, and Rehnquist; I'm making assumptions).

It does seem like a funny idea, somehow. Conservatives just don't usually go in for angry marches -- we've got our annual peaceful pro-life march in Washington but generally when I think of protest marches I remember London on May Day (general anarchy shutting down the city center), obnoxious "demonstrators" at IMF meetings, etc, etc. I also think of Scalia's discussion in Casey of what it signifies that people would even consider picketing the Supreme Court today: the people aren't stupid, if they understand that lobbying for various viewpoints can actually influence what the law will be determined to be, they'll show up -- but if justices were more saying what the law is, instead of what elite opinion believes it should be, then there properly wouldn't be a need for the picketing in the first place.

I agree the eminent domain decision is a little topsy-turvy. I've had to explain to many liberal friends that the decision is a victory for liberal thinking about government and the law, but it is counterintuitive.

I actually think this term represented a good example of why the court is important: to act as a checks and balance on the other branches. The decisions were moderate and cautious, reinforcing the proper roles of local and federal government and reminding lower courts and legislatures not to overreach.

The Supreme Court has been compared to a monarchy, oligarchy, dictatorship and what have you. But the court lacks one thing that every absolute ruler insists on -- the power to choose their own successors. The choosing of new justices is an extemely politicized process, and involves both elected branches of government (President and Senate).

It could be that the court is still influenced by popular opinion because they know that extremely unpopular decisions will result in "backlash appointments". The nine justices have to work with each other every day, and none of them probably likes the idea of having to deal with an appointee who was chosen primarily to reverse their own prior decisions.

That said, I still think it's a bad idea for the Supreme Court to have the last word on controversial cases that broadly affect future public policy. That power belongs in Congress, or maybe a special public referendum should be held in such cases.

I can't imagine anything worse than a public referendum or Congressional override. The law should not be dictated by the whims of the majority. The court serves as a check on democracy and totalitarianism.

The majority of the electorate is no more predisposed to whims than is the majority on the court.

Actually, I think the electorate may be much less whimsical given the various ways in which different minorities (not racial, but minorities of voters) can greatly influence decision-making of both legislators and executive officials. The "compromise" of a handful of "moderates" in the battle over nominations to federal courts, take that as at least one prominent and recent example.

What is the check on the judicial lawmaker who helps form a majority on the bench on any given issue?

Self-restraint. And the lack of that points to a great deal of whimsy amongst the Justices today.

Conservatives won't march on the US Sup Ct because we are interested in building cilization rather than destroying it. The problem is not stopping the current court, but figuring out what to replace it with. Conservatives don't have a coherent plan yet. My suggestion is a constitutional amendment:

"On approval by two-thirds of each house, the Congress may vacate any decision by any federal court, or remove any federal judge from office."

Res Ipsa: "The law should not be dictated by the whims of the majority."

We aren't talking about whims. If your complaint is that majorities are whimsical, then design a system that is somber enough for you.

But I suspect that what you really mean is: The law should not be dictated by the majority, because they're a bunch of ignorant hotheads. Many liberals seem to believe that constitutions exist to allow the enlightened minority to thwart the ignorant majority. And that view, clearly understood, is what so enrages conservatives. That view is the opposite of representative government, the opposite of government by the people.

Woohoo! Another "by the people" debate!

What I'm particularly confused about is the attacks of whimsy that the court is being accused of. While I've been disappointed with some of the recent decisions the court has made, I'd hardly call them whimsical and unrestrained.

If we look at what Harris uses as his examples, I'm becoming more convinced the man is a partisan hack, spouting rhetoric:

For example, the right of privacy, though nowhere explicitly recognized by the Constitution of the United States, is the basis of the woman's right to abort her child, despite the fact that we have known for some time now that a woman's child is in fact the product of both the male and the female. This same right of privacy, however, does not extend to the rights of a cancer victim to smoke pot in his bedroom, even when it has been prescribed by a physician, and even when the state in which he lives had passed a law that permitted the usage of marijuana under such circumstances.

Ok, first of all, Roe and Raich were separated by nearly forty years! I'm not great with my Supreme Court history but were any of the current justices on the bench then? Maybe Reinquest? That's like saying the executive is whimsical because Bush doesn't act like Carter. But even worse than that, Harris conflates Raich (I'm assuming that that is what he's alluding to) with privacy. That was not what the court was deciding. It was specifically addressing the extent of Congress's power over commerce. A wrong decision, in my mind, but in absolutely no way contradictory of Roe, even ideologically. He's spouting nonsense.

I won't go on much further, but it seems that in certain circles "lack of restraint" is merely "decisions I don't agree with". And Kelo is not as bad as I first thought it was; the decision relied heavily on New London's well thought out economic plan. And decisions aren't binary, they aren't either/or. If I were on the bench, I would have dissented, but because the SC said that economic development *can* be valid public use, it is not absolute. One could easily see a future court saying that Kelo doesn't grant the local government a carte blanche to seize anyone's property. Sure, it's an assault on property rights, but as far as I checked we still have the fifth amendment.

The problem with this proposal is its arrogance and disrespect for the law. Ultimately, you are suggesting "We should be able to do whatever we want and no one should be able to stop us." Why bother with a constitution or a set of laws if we are just going to put everything up to a vote.

If the good people of Alabama try to reintroduce Slavery and Congress, afraid of angering the bigots back home, support it, who cares what the constitution says. It's popular rule, you know.

I think you should look at it from the perspective of having minority or unpopular views (I know that's a stretch). Imagine in 30 years when states, angered at the role religion is playing in our lives, decide to pass referendum taxing churches. The backlash from the theocracy movement of 2005 is so strong that even after the Supreme Court says the laws are unconstitutional, Congress overrides the decision and starts tossing out judges.

Who is going to protect your religious rights when "we the people" are fed up with pseudo-theocracy and decide to override courts that try to enforce the First Amendment???

I'm not great with my Supreme Court history but were any of the current justices on the bench then? Maybe Reinquest? That's like saying the executive is whimsical because Bush doesn't act like Carter.

Well, no, it's not. The assumption, with the judiciary, the reason justices are not elected and are appointed for life, is that they'll apply the law. In other words, it really shouldn't matter so dramatically who is on the Supreme Court, because the only thing that should change the outcomes of their decisions is a change in the law.

Which brings us to something that'd be humorous if it weren't so dangerous: the law that changes, allowing the court to make "progressive" decisions, appears increasingly to be that form of law created by the judiciary (e.g., since we decided X, we now can decide Y).

But of course the judiciary isn't supposed to create law, which leaves us with the reality that the law is the law, whether forty years or forty days separate decisions.

Maybe I'm just tired, Res, but your last post seems absolutely without sense. What's your point? That I'm supposed to be concerned with the future backlash against theocracy? Huh?

Regarding Ben's proposal, again, what's your point? Since when is the First Amendment a "decision by any federal court"?

What is particularly ludicrous with your sort of argument, coming from liberals, is that it's akin to a corrupt mayor telling citizens not to take steps to restrain him because one day, when somebody is being corrupt on their behalf, they'll have no choice but to end the corruption.

But they are applying the law. You just don't like how they are applying it. There is a difference. The decision in the eminent domain case was based on "the law" and a specific analysis of the jurisprudence. Just because you don't like the outcome doesn't mean it wasn't based on the law.

And truthfully--and feel free to call me an elitist--I would rather trust legal scholars to determine what the "law" is than trust the members of Congress who are only interested in appeasing their constituents and getting reelected.

How is the formation of a majority on the bench any less whimsical than the decision-making process that operates in the legislative and excutive branches? Just examine the choices made in what to review and not review.

Compare that with any given issue decided by the legislative and/or executive branches.

In any case, I am doubtful that even marchers in the millions would have a lasting effect on men and women whose opinions routinely declare the bench to be above and beyond the political system of a self-governed people.

My point, Justin, is that before you decide to gut the judiciary, it may be worthwhile for people to step back and wonder what the U.S. will be like when the rights they hold dear no longer have the backing of "we the people" and they are unable to look to the courts to protect their Constitutional rights.

The courts exist to protect the Constitution, regardless of what the angry majority believes or wants. You are angry now, so you want things changed because the courts don't agree with you. But what happens when the majority becomes angry and what is threatened is your self-interests?

Res Ipsa: "Ultimately, you are suggesting "We should be able to do whatever we want and no one should be able to stop us." Why bother with a constitution or a set of laws if we are just going to put everything up to a vote."

How else would we decide anything? Where do you think our statutes and constitutions came from?

This is a point that liberals seem to have a very difficult time with: Where did the 14th amendment come from? Did God etch it on a mountainside? Did a scientist discover it in a laboratory? Did a mathematician prove it with formal logic?

The 14th amendment came into existence through a vote, of the people or their representatives. Every word in the US Constitution is there for the same reason. Every word in the entire United States Code got there the same way: the people or their representatives voted. Sneer at it all you like, but voting is the way this country works.

My Constitutional Law professor was fond of saying: “There’s nobody here but us people.” He used this to drive home the point that every decision in law is made by some person or group of people. The question is: Which people? I say: Let them all vote. Let every citizen have an equal voice in government, subject to rules that provide for adequate deliberation. Your system seems to be: Let the smart people (like yourself) make the key decisions, and ensure that the stupid, evil people (like the people you disagree with) have no voice.

Silencing the supposedly ignorant majority is an old idea, drenched in blood. Many governments in the past have ruled as the enlightened over the benighted masses—and they haven’t ended prettily. I suggest that you read a bit of history before accusing me of “arrogance and disrespect for the law.”

The courts exist to protect the Constitution, regardless of what the angry majority believes or wants.

Any group of people, large or small, can be corrupted by absolute power. We prevent that corruption with checks and balances, so the question is how to check the power of a group that is a majority, by pure numbers, in the voting population.

Judicial review is one such check on majority power; however, some feel that judicial power is itself not sufficiently checked. The usual conservative solution is to suggest that Congress or some other body should be able to overrule the court, limit their jurisdiction, etc. by simple majority. But that solution is flawed -- it checks the power of the court, but in so doing removes checks on the power of majority groups.

A better solution is to require a large supermajority in order to overturn Supreme Court decisions, whether it is in Congress or in a referendum. This requires a broader consensus in the population than a simple majority vote. Effectively, minority groups become a check on the power of majority groups, because the two must form a coalition in order to overrule the court.

But of course the judiciary isn't supposed to create law, which leaves us with the reality that the law is the law, whether forty years or forty days separate decisions.

I think you missed my point. Harris claims that the judiciary is whimsical and inconsistent (you concurred in your post and above). He then compares Roe and Raich as his examples. Ideological I can understand how one might think that a single person shouldn't be able to believe abortion a private matter but smoking pot isn't. But the the Supreme Court? When in the latter case they weren't addressing the issue of privacy? His point is completely nonsensical, from a judicial perspective.

As for the judiciary creating laws, I have yet to see a concrete example of the judiciary actually legislating anything. "Progressiveness" and "restraint" aren't all that well-defined. You say "the law that changes, allowing the court to make "progressive" decisions, appears increasingly to be that form of law created by the judiciary (e.g., since we decided X, we now can decide Y)." I still maintain that this has everything to do with what you think are right decisions and what are wrong decisions. Can you trace a path of Supreme Court decisions that actually created laws from your exampled reasoning? Complete with citations? Because I just don't buy it. Precedent doesn't work that way. It's complex. And it's never absolute.

What most people think of as the judiciary "creating" laws is their dislike for actual decision. When two laws conflict, someone has to decide which one is higher.

Michael,

I'm a bit too busy to offer an analysis of judicial activism replete with charts and catalogues. But I've written such things in the past, noting specific decisions that made no (or very scarce) reference to law that was actually legislated. This, however, is interesting:

Ideological I can understand how one might think that a single person shouldn't be able to believe abortion a private matter but smoking pot isn't. But the the Supreme Court? When in the latter case they weren't addressing the issue of privacy?

It seems to me that — in a way not unlike media bias — what "issues" the court chooses to "address" in a particular case constitutes a large part of the subjectivity. Given the time and resources of a Supreme Court justice, I could produce any ruling on any matter based on which aspects of the case I choose to consider.

And this sliding legal mechanism is the problem not just in specific rulings, but in the use of precedent, as well. Again, although I must plea time constraints, I know I've addressed, in the past, the selective use precedent to apply issues considered in previous cases to other cases that have very little in common, except the desired result.

Res Ipsa: “And truthfully--and feel free to call me an elitist--I would rather trust legal scholars to determine what the "law" is than trust the members of Congress who are only interested in appeasing their constituents and getting reelected.”

Then you don’t like self-government, Res. You’re in the wrong country. Maybe you should live in Cuba or China for a while, and see if you like it better. Of course, even there they pretend to let the people vote, which might annoy you. But you’ll take comfort in knowing that those votes are meaningless, which seems to be your goal for this country, too.

Res Ipsa: “The courts exist to protect the Constitution, regardless of what the angry majority believes or wants. You are angry now, so you want things changed because the courts don't agree with you. But what happens when the majority becomes angry and what is threatened is your self-interests?”

You’re assuming that I’ll do anything to protect my self-interests and see my preferences enacted as law. You’re assuming that, if I were in the minority, then I would run crying to the courts, hoping to persuade them to find some penumbra in the Constitution that will thwart the popular will—rather than try to convince my fellow Americans of their error.

You’re wrong. I love my country. I would never try to undermine it to achieve some short-term victory. I believe that this country is more important than I am. Its long-term survival is far more important than my happiness or anguish at seeing my policy preferences win or lose at the ballot box.

Go ahead, Res. Try to take away our votes and put a committee of politically connected lawyers in charge. And I’ll try to stop you. I’ll try to protect the country from people like you. I’ll try to protect our right to self-government. You try to take it; I’ll try to protect it. Let’s see who wins.

But don’t delude yourself into thinking that the sides are equivalent. I’ll always support self-government. It sounds like you’re prepared to attack or support that principle, depending on which way the wind is blowing.

I'm a big fan of representative democracy . . . and a judiciary that keeps it from overreaching.

"I'm a big fan of representative democracy . . . and a judiciary that keeps it from overreaching."

That's how it works in Cuba. The legislature votes, and then Castro decides whether they've done it right. I guess Castro is just as much of a fan of self-government as you are.

Actually, that's how it works in the U.S. and why new democracies have modeled their systems on ours. They understand the importance of a judiciary that's independent from the legislature and the executive branch so there is a checks and balance.

If the legislature want's to overrule the judiciary, they can try to pass a Constitutional amendment, which is appropriately rigourous and arduous.

And yet when the legislature does put forth a referendum on a constitutional amendment that passes by popular vote, you and others whine about how the representative democracy is over-reaching. That's all very circular Res. In order to get anywhere other than back where we started, we have to move in a non-circular fashion.

Again, although I must plea time constraints, I know I've addressed, in the past, the selective use precedent to apply issues considered in previous cases to other cases that have very little in common, except the desired result.

I know time constraints all too well. If you have a second, though, I'd appreciate being pointed in the direction of an article (yours or others') that addresses this.

Smm, you are missing the point of a democracy. If you want to try to pass a constitutional amendment, fine. Opponents, in a democracy, are free to criticize and lobby against it, pointing out every single flaw in the idea and work their hardest to prevent the necessary votes.

If you can still get your constitutional amendment passed after the opposition has argued how dangerous it is, you win and the constitution is amended. If you can't do that, then you lose and we all live to fight another day.

Res,
I take your reply to mean that you don't actually approve of the Nebraska Marriage Amendment being overturned then? I'm floored.

See, we are talking about two separate things. I have no problem with that amendment process, but I also believe it the proper role of the federal court to determine if the states are violating the U.S. constitution. Otherwise, we will have 50 states doing what they wish in complete ignorance of the Constitution.

Under your approach, if the people in Utah decide to pass a constutional amendment backing polygamy or the people of N.J want to pass a constitutional amendment taxing the Catholic church, there shouldn't be some way for the federal courts to intervene and question the constitutionality. Is that what you are suggesting, that the people of NJ should be able to pass a constitutional amendment taxing churches and that there be no federal challenge available for churches?

I was speaking more of the federal constitution and amendments.

Res: Amend the Constitution, you say? That would work just fine--if the decisions of the US Sup Ct were in any way based on it. Maybe we could repeal the part of the US Constitution that mandates a right to abortion, or that forbids criminalizing homosexuality. Which sentence should we repeal?

Once upon a time, the US Sup Ct bothered to pretend that their decisions were rooted somewhere in the emanations of the Constitution's penumbras. Now they hardly bother. If the Left doesn't care what the Constitution says, why should the Right?

Amend the Constitution, you say? That would work just fine--if the decisions of the US Sup Ct were in any way based on it. Maybe we could repeal the part of the US Constitution that mandates a right to abortion, or that forbids criminalizing homosexuality. Which sentence should we repeal?

Why does an amendment need to repeal anything? Amendment 28: Every embryo conceived of a citizen is himself/herself a citizen, with all the rights, privileges and immunities guaranteed by the constitution. Amendment 29: The privileges or immunities granted by Amendment 14 of this Constitution shall not be construed to include any sexual acts or sexual orientations. Or something like that.

There. Go get them ratified.

I would rather trust legal scholars to determine what the "law" is than trust the members of Congress who are only interested in appeasing their constituents and getting reelected.

Then I suppose you want only economic experts telling us what to produce, buy and sell and to set the price. And career counseling experts telling us what job we are to do. Sounds like communist Russia. Being a "legal scholar" does not grant one any special charism on whether a particular law is good or bad or should/should not be enacted. That is what common sense is for (something seriously lacking on the Left).

Michael: "There. Go get them ratified."

So this is how you see the game: The US Sup Ct can invent radical doctrines of law, blaming them on a few poorly written sentences composed in the late 19th century. And our 'balance' against that is to march through the entire laborious amendment procedure? And what then? Obviously, the court can invent some other ridiculous, radical doctrine, like SSM, say. And then the rest of us have to go through the entire ordeal again?

Sorry, Michael. That's a silly game. We aren't required to jump through hoops everytime our council of black-robed overlords finds some new subject that they claim is magically exempt from representative government. We aren't required to line up dozens of state legislatures to fix the problem every time O'Connor has another fit of indecision, or every time Souter hallucinates another secret, hidden constitutional right. You might as well say that the Cuban people have no legitimate complaint against Castro, as they can rise up in revolution against him if they're really so unhappy.

Here's a strange idea: What if the people or their representatives wrote the laws, and then the courts were confined to the job of applying those laws to specific cases, and interpreting the laws to unexpected cases in accordance with the intent of those who wrote the laws? I know it sounds crazy, but it just might work!

Res Ipsa said:

I have no problem with that amendment process, but I also believe it the proper role of the federal court to determine if the states are violating the U.S. constitution. Otherwise, we will have 50 states doing what they wish in complete ignorance of the Constitution.

The problem is that being a judge in the federal court system does not preclude the judge from doing what he wishes in complete ignorance of the Constitution, as in the Nebraska Marriage Amendment case. The bench is not insular to bad judgement, and not ever intended to be insulation from the people's will.

It is too bad that you cannot substantiate how the Nebraska Marriage Amendment violated or contradicted the U.S. Constitution.

It is too bad that you cannot substantiate how the Nebraska Marriage Amendment violated or contradicted the U.S. Constitution.

The second clause of Section 29 prohibits domestic partnership-like arrangements between same-sex couples, but not opposite sex couples. If the intent of the amendment (and some people here practically fetishize intent) was to protect heterosexual marriage, then why didn't it prohibit domestic partnership-like arrangements between same-sex couples? It is a violation of equal protection that gays cannot petition in the same manner as straights for protections for their family.

Remember, too, that there were two clauses and the court did not strike down the amendment because it defined marriage as between a man and a woman. In fact, the AG had the opportunity to separate the clauses and he didn't. The court found the second part unconstitutional for violation of equal protection (as I stated above) as well as first amendment right to petition for redress of greivances (because it singles out gays). Because the second part was unconstitutional, the first part had to be struck down. If Nebraska feels so strongly about marriage they can pass a new amendment that protects marriage without leaving loopholes for heterosexuals only.

So just because you can't see that the second sentence of Section 29 violated the first and fourteenth amendments doesn't mean that it didn't. I think it's been pretty well substantiated.

Michael,
Merely stating that the Nebraska amendment violated the First and Fourteenth Amendments of the U.S. Constitution does not substantiate that it does indeed violate them. If it is so obvious then it shouldn't require much effort on your part to successfully point it out. I've not seen any proof that your right to petition the government has been deprived. I've not seen any proof yet that you are not protected equally by the same law as I am.

These debates between conservatives and liberals about the meaning of the law are like trying to fish with your bare hands: everytime you think you have a solid grasp on it, the "fish" wriggles back into the water. I'm not sure I can articulate it very clearly, but a common theme I always see lurking in the background is that conservatives tend to have the assumption that there are certain foundational principles to which the law must conform itself, whereas the liberals tend to be focused on the process, but don't ever address what underlying principles the process is based upon. It's not exactly that they always argue in favor of their preferred outcome, since sometimes the process reaches a conclusion they disagree with, it's that they seem to place their ultimate trust in the process, rather than in some immutable principles which the process must conform to in order to be legitimate.

When conservatives complain that the process needs to be fixed, because it is violating fundamental principles, the liberals argue that changing the process would itself be a fundamental violation. The question is, a violation of what? What, exactly, would be violated by restricting the power of the judiciary? A vague claim that "checks and balances" will be out of kilter begs the question, since the argument is not that we shouldn't have a judiciary, but that it is usurping powers not delegated to it - that is, the checks and balances are already out of kilter, and should be put back into their proper relationship. The question is, what is the standard by which we judge whether the process is off kilter or not? What standard do we use to determine the appropriate reach of the judiciary? And, based upon that standard, why is it appropriate for the federal judiciary to have the final say on whether one can grow pot for medicinal use, or whether the Boy Scouts can choose who they want to be their scout leaders? Harris's essay isn't directed at the outcomes of particular cases, it's directed at the process itself.

Res's comment, "I would rather trust legal scholars to determine what the "law" is than trust the members of Congress who are only interested in appeasing their constituents and getting reelected" is a perfect example: he trusts the current process, whereby the legal profession decides what the law is, without explaining the foundation for this trust. There are smart lawyers, and dumb ones; honorable ones, and venal ones; those committed to the law as written, and those committed to their own preferred outcomes. What is the basis for giving them the ultimate deciding power, just because they have technical knowledge about the legal system? Does it make sense to give scientists ultimate decision-making power, just because they have technical knowledge about how to do science? How about military experts making military decisions? Why is the law different?

Mike S, I've asked a similar question about competency, lawyers, and policymaking.

http://opine-editorials.blogspot.com/2005/06/competency-lawyers-and-policymaking.html

I've not seen any proof that your right to petition the government has been deprived.

Well, what do you mean by proof? If you and I, two unmarried men living with our partners, go down to the capital and petition to be granted hospital visitation rights (which are not granted to the unmarried), you (whose partner is a woman) have to convince the legislature to pass a law granting that right (normally reserved for the married) to you. I (whose partner is a man) must overcome a constitutional amendment. Isn't that proof enough? Or do I have to go down to Nebraska to do it? Or are you just going to say that those aren't two identical rights?

Again, Michael, what's unequal are the obstacles to getting action on your grievances, not your right to petition. You are confusing categories here. There is no Constitutional guarantee that everyone must have an equal ability to have their desired change in the law enacted. This does not mean that everyone does not have an equal right to petition.

Hospital visitation was part of a bundle of things that the Nebraska legislature addressed for non-married adults. This was done after the amendment.

What you appear to want, Michael, would be what the first part of the amendment clarified: you want to discard the man-woman criterion of marital status by attaching some new relationship status, civil union, to all that marriage is in Nebraska. The amendment protects the special status of marriage and the Vermont-style civil unin status would equate this alternative to marriage.

How is that proof Michael? Your right to petition does not grant or guarantee immediate acceptance or have any bearing on ease of getting your petition granted. Let's refocus your example, shall we. Up until a handful of years ago, if I wanted to preserve the full range of marital benefits specifically to opposite sex couples, all I had to do was petition the legislature. At that point it was of equal ease for you to seek those benefits for yourself. Eventually, it became apparent that my petition would prevail over yours. From then on, with the help of activist judges, SSM proponents have made it necessary to overcome them with an amendment. It appears that you have put us in the same position as the Nebraska amendment put you. Would you now say that our right to petition the government is abridged? No, you would not. If our right is not abridged, then neither is yours.

In the post (s?)he linked to, Chairm said, "But legalism is not necessarily the best filter through which to view family formation and marriage."

This is the deep-seated problem with our society (of which SSM is only a part) that Harris is getting at - we revere the law, and that reverence has been transferred to those who practice/interpret the law (i.e. lawyers and judges), who have (collectively) abused the position of trust that society has given them by not exhibiting any fidelity to the law themselves. But our society is in a state now where the default method of settling disputes is to have the courts do it. This is partly driven by liberals who cannot get their policies enacted legislatively, and thus turn to the courts where they have a more sympathetic hearing, but it goes beyond that. A large fraction of the population has simply absorbed the idea that disputes get settled by the courts. Perhaps a confluence of events (SSM, Kelo, 10 commandments, etc.) will force enough people to wake up enough to do something about the situation. But it's hard to be optimistic, since people's attention spans are so short, and changing the cultural mindset takes a long time.

QUESTION: Who is Nancy Pelosi?

"I would oppose any legislation that says we would withhold funds for the enforcement of any decision of the Supreme Court no matter how opposed I am to that decision. And I'm not saying that I'm opposed to this decision, I'm just saying in general.

"It is a decision of the Supreme Court. If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken. It's an elementary discussion now. They have made the decision."

As Ramesh Ponnuru noted on The Corner, "Pelosi twice misunderstands the issue. Nobody is talking about withholding funds from the Court or from enforcement of the Court's decision. What is being discussed is limiting the use of a governmental practice that the Court considers constitutional."

And as K Lopez noted: "Someone should ask her if she agrees with: Bush v. Gore, Dred Scott, Lochner (which Janice Rogers Brown was berated for even mentioning)."

ANSWER: The blind leading the blinder.

R.K.:
Again, Michael, what's unequal are the obstacles to getting action on your grievances, not your right to petition.

And you don't see that as a problem? Imagine there were a law that said only white people can be police officers and then Nebraska passed a constitutional amendment saying that, by definition, a police officer was white and no law enforcement-like job could be given to an Asian. Well, blacks could petition the legislature to create some law enforcement like jobs for them but Asians would have to overcome an amendment. You don't see this a putting a burden on one class of people? Placing obstacles for one group of people to acheive THE SAME RIGHT as another group of people is unconstitutional.

Now, I suppose if you believe that non-marital rights of opposite sex couples and same-sex couples are different rights, then you would disagree with me. But my hypothetical was clear-cut. If that were the case, would you agree with me or would you still think that different obstacles for different groups of people effect the right to petition and should be allowed?

Chairm:
Hospital visitation was part of a bundle of things that the Nebraska legislature addressed for non-married adults. This was done after the amendment.

And if we're talking of the same thing, the AG advised that it would be unconstitutional because it would be open to same-sex couples as well. You see, the amendment left open the possibility of addressing thing like hospital visitation for opposite-sex couples only. And how does that "protect marriage"?

What you appear to want, Michael, would be what the first part of the amendment clarified: you want to discard the man-woman criterion of marital status by attaching some new relationship status, civil union, to all that marriage is in Nebraska. The amendment protects the special status of marriage and the Vermont-style civil unin status would equate this alternative to marriage.

Well, I don't want anything; I don't live in Nebraska (thank God). I personally would like to see that, but I also personally beleive that it is within the rights of a state legislature to define marriage as between a man and a woman. I have no problem with the constitutionality of the first part of the amendment (the sentiment, yes, constitutionality, no). I have a problem with the constitutionality of the second part; the one that burdens one group of citizens more than another group of citizens.

smmtheory:
Would you now say that our right to petition the government is abridged? No, you would not. If our right is not abridged, then neither is yours.

No I would not, but neither is your right. You see, the opposite of that would be for me to petition the government to enshrine marital benefits for same-sex couples only. And I would have to go throught the same amendment process.

>> Michael: "You see, the amendment left open the possibility of addressing thing like hospital visitation for opposite-sex couples only. And how does that "protect marriage"?"

There is no alternative relationship status, such as cohabitation, for opposite-sex couples in Nebraska.

The amendment clarifies that marriage has a unique status in that state.

The creation of alternative relationship statuses has not been done in Nebraska for any variation of the two-sexed combination. Since it is a hypothetical, not an actual, your objection to the second part of the amendment can be compared to the practicalities tested by the laws recently passed AFTER the amendment was ratified.

As I said, a large host of things, like hospital visitation, were addressed in the aggregate through legislature which made access easier for a very wide range of unmarragable combinations. This was done on the basis of contract and affidavit, not the demonstration of a new relationship status as per the AG's opinion about a proposal that was stopped in committee by its own sponsors, not by its opponents.

The key here is not lawful benefits, as you might claim, but the relationship status that would be an alternative to marital status and which has been rejected by the people of Nebraska and for which there is not indication there is actual legislation on the books, on the legislative agenda, or in the gleam of the eye of the people who supposedly have denied gay lobbiests their right to petitition for legislative initiatives.

For example, the Vermont-style civil union status is explicitly the enactment of SSM, it has a same-sex criterion rather than a man-woman criterion. It is a status that is attached to the hip of marital status in all but the label. There is nothing demonstratably unconstitutional about the second part of the amendment.

The trial judge in this case strayed and I think it is not very wise to hold up his ill-reasoned opinion as a great example a court interpreting the Constitution rather than seeking a policy outcome.

Well now, Michael:

Well, blacks could petition the legislature to create some law enforcement like jobs for them but Asians would have to overcome an amendment. You don't see this a putting a burden on one class of people? ...

I also personally believe that it is within the rights of a state legislature to define marriage as between a man and a woman.

Please understand that I mean this in the most cordial, 'round-the-coffee-table way possible, but your argument is pretty ridiculous. In the case of X (civil unions), you're arguing that neither of two groups has it, but one group would have a harder time getting it, and that's unconstitutional. In the case of Y (marriage), you're arguing that — all other circumstances being equal (i.e., amendment process and all) — one group has something and another doesn't, and that that's constitutional. So tell me: would it be constitutional for the people of Nebraska to actually grant civil unions through the amendment process to heterosexuals only? Michael, I respect your integrity in arguing these matters, but I think you're trying to extend your principles too far into the advocacy.

(And besides, when did standards for judgment that apply to race — constitutionally and in regular law — become so universally applicable?)