I’ve been thinking for quite some time, and even mentioned it on this blog, that the transition of the gay rights movement from “keep the government out of the bedroom” to “get the government to insist the public comes in, watches, and claps in approval” will turn out badly for them in the long term. There are already signs that the feminists and trans lobbyists are going to throw gay men under the bus in the great game of victimhood poker, particularly if their political views are not of the approved kind. Look at the vitriol being heaped on Milo Yiannopolous at the moment: being a gay Jew with a preference for black men hasn’t stopped him being branded an actual Nazi by his opponents, including some supposedly respectable media outlets.
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Samizdata quote of the dayFebruary 8th, 2017 |
 40 comments to Samizdata quote of the day |
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“Critical Theory” or “Political Correctness” (the Frankfurt School of Marxism) does NOT care about Gay people as such.
It does not care about women or blacks as such either – it really does not.
They are all just “cannon fodder” – for the war to destroy “capitalism”.
As soon as someone is not serving this role – they will be thrown under the bus.
Someone could be black, female, lesbian, of Muslim heritage, have one leg (and on and on) and the university crowd would BURN THEM ALIVE if they thought that by doing so they would aid the cause of socialism.
Feminism?
Like the Swedish “feminists” who cover up (cover up) rapes?
After all one must not let any negative stories come out about Islamic immigrants – as they are needed.
Needed for what?
Needed for the undermining of traditional society – which the Frankfurt School see as the basis of “capitalism” – capitalism is supposed to be so hard to destroy because it is supported by a traditional culture. So one has to destroy this traditional culture first, in order to destroy capitalism.
None of this is a secret – it is the well known position of the Frankfurt School.
So if Milo was a Jewish homosexual who was working or socialism he would be supported.
As he is a Jewish homosexual who is working against socialism they would kill him without a second thought (and without losing a wink of sleep over it).
It is all quite logical.
One must not make the mistake of thinking they actually care about Gay people, or women, or ethnic minorities.
They do not really care – it is all a means-to-an-end. And if you do not serve the end – you are dead meat.
One might as well waste thought on the “legal issues” that Progressive judges face in the United States.
The Progressive judges could not care less about “legal issues” – what they care about (all they care about) is the political struggle.
Everything else is just fig-leaf-ism.
“One must not make the mistake of thinking they actually care about Gay people, or women, or ethnic minorities.
They do not really care – it is all a means-to-an-end. And if you do not serve the end – you are dead meat.”
^^^^^^^^^^^^^^^^
All within progressivism. Nothing outside of progressivism.
Nothing new to see here, move along. Pim Fortuyn was assassinated in 2002, 15 years ago. His murderer was released on parole in 2014.
Alles nicht verboten ist verpflichtet, und alles nicht verpflichtet ist verboten.
And right now, buggery is not forbidden, so get on with it you slackers.
Oft evil will shall evil mar.
The ninth circuit is giving Trump a very firm lesson – if he needed it – in the necessity of appointing the strictest originalists to every judicial position he can reach. Left to himself, Trump obviously isn’t concerned to roll back gay-rights overreach – as Cruz said, Trump has New York values in such matters. But he now knows – if he ever doubted it – that either he appoints judges so originalist that they know there are many things a president may lawfully do, or else he is not the president but just a boy shouting “I’m the president!” as the liberal kids visibly get off on telling him that when presidents are called Trump, the constitution says they can’t do anything.
It is obviously conceivable that such originalist judges will find it hard to locate the words “gay marriage is a constitutional right” in a document written in 1787 and last amended a while back. This is another way in which Tim’s speculation could prove true.
If so, I predict mere homosexuals, as opposed to affirm-me-or-else bigots, will not be negatively affected. Firstly, the restoration of decision to the individual states will result in diversity, not uniformity, on this matter (choose your honeymoon state to meet your legal taste). Secondly some comments to the previous post on this blog already argue the wisdom of using private contracts, not the idiot state, to set the rules of any marriage.
(A trusting logic would suggest that the gay community must surely have considerable experience, only recently discarded, in one-stop-shop, tick-all-preferred contracts, assertively labelled marriage contracts, for mutual inheritance, ICE contact, shared finances, change of name, etc. A logic that was more cynical about what the whole purpose of the gay marriage crusade really was would suggest that no, they probably don’t.)
Yes AmyH and yes Lee Moore.
And yes Niall Killmartin.
Although the United States Constitution has often been amended – and quite recently.
The issue, as you rightly point out, is whether the unelected judges have the right to de facto amend the Constitution.
As I frequently argue on other fora, the doctrine of judicial supremacy puts the power of the entire US government at the disposal of the judiciary. Since the lifetime tenure of judges was ‘sold’ on the premise that the judiciary is the weakest branch of government, this is clearly not what was intended.
We need the other two branches of government to end their subjugation to the Court, and interpret the Constitution as they think best, answering directly to the voters for it. It’s not an ideal solution, but it’s better than having all the power in the hands of an unelected Court that answers to no one.
They fretted in years gone by about a standing army, but not a standing judiciary. Why?
Mr. Ed:
Because in the end it if not some judge in a robe that you must fear, but the gang with the guns – be they with shiny badges, nifty camouflage uniforms, or freshly pressed brown shirts.
ZilWerks:
Have you noticed that the gangs that count are subordinated to those in robes?
Dissent. I think that’s the last thing that we need.
I remain convinced that the people who wrote our Constitution were brilliant and insightful and properly paranoid concerning how their work could be attacked and neutralized. They knew that power corrupts, and so they guaranteed that there would be a constant battle for that power between the three branches of government that they designed.
If their work had a flaw, it was in lacking some mechanism to ensure that future judges had a proper reverence for the actual words they were tasked to protect. But, in my hindsight, I can’t think of a fix for this flaw beyond what they did do – making appointments to the Supreme Court by the elected president with the Senate’s approval.
This guaranteed that the average nominees would be fairly close to mainstream in their philosophy at the time they were chosen. And, in fact, we’ve had few outrageously partisan SC Justices appointed. Some have wandered once they received their lifetime appointment, but I note that, right now, we have a fairly balanced 4-4 Supreme Court.
The lower federal courts are tilted left, due to the eight-year reign of Obama. But they were tilted right after Bush, and left after Clinton, and I’m confident they’ll be tilted right again after Trump.
So, the original plan still works, on the average. We may meander back and forth across that line, but we still basically adhere to it.
Many of the strengths of our country are directly attributable to our Constitution. If we start messing with it at a time when any one of our parties are ascendant, the result is going to skew their way. We ought to leave it alone.
I wish I could find the exact quote from Vassily Aksyonov’s book “In Search of Melancholy Baby” about moving to Washington DC in the 1980s.
He wrote about a Gay Rights march in the Adams Morgan neighborhood. The first part of the march he described as something out of a Fellini movie, he loved it. The second part of the march was ‘political’ and he described the marchers as grim faced apparatchiks. Just like the Politburo.
the doctrine of judicial supremacy puts the power of the entire US government at the disposal of the judiciary
Even more so since Baker vs Carr, and exemplified in the later Bush vs Gore, once the Supreme Court has the final say on voting outcomes, forever questioning where the ultimate balance of power lies between justice and politics.
These cases have driven at least one judge mad.
Mr Ed
… because the Court , and the individual judges, are sitting on the job.
Sitting Dates
Cheers
PersonFromPorlock, you’re arguing against Marbury v. Madison. You’re far from the first to do so, but it has been settled law for 214 years. Moreover, I don’t see how the Supreme Court could be anything more than an advisory body, let alone a co-equal branch of government able to provide a “check and balance” to the other two branches, under any other rule. And contrary to your assertion, the other branches do “interpret the Constitution as they deem best.” Congress can (and does) decline to pass bills it thinks unconstitutional, and the President can (and does) veto them on the same basis. And the Supreme Court only gets to opine on the matter if someone brings suit and they actually hear the case (the Supreme Court only hears about 200 cases a year).
Lifetime judicial tenure has nothing to do with it being the “weakest branch”; it exists to insulate (however imperfectly) judges from political pressures. But the judiciary is the “weakest branch” because its rulings are not self-enforcing; it relies on the good faith of the other branches to ensure that its rulings are carried out. Andrew Jackson tried to defy the Supreme Court with his famous line “John Marshall has made his decision; now let him enforce it!” But thankfully that example hasn’t been followed by others. There needs to be certainty about the law, and we can live with the occasional clear errors, as such are both relatively rare and usually correctable in some fashion.
I thus agree with bobby b’s argument. As to the “flaw” he pointed out, I wouldn’t characterize it as such because I don’t think there was any possible way to do what he suggested. In my opinion, the real flaw was the failure to realize that, rather that serving as a check on the other branches, the judiciary would eventually collude with them in permitting the expansion of federal power. Thus the flaw was the lack of explicit authority on the part of the creators of the federal government, namely the states, to override it when appropriate. Obviously I’m talking about state nullification here. Lacking the explicit recognition of such power, the federal government very quickly decided that it didn’t exist, notwithstanding ample evidence that the Framers assumed that it did. (See the Kentucky and Virginia Resolutions.) The resulting leviathan was as inevitable as it is dangerous.
The Sage of Kettering suggested that the SCOTUS ought to have a jury to have the final say on whether a matter is constitutional.
I’m not sure hoe it might work. The judges could write their opinions for the jury, the jurors could then hear the parties and a ‘Constitution’s Advocate’ pick over the opinions with reference to the great work, and strike through or amend the opinions. The choice of jurors might present a problem, if former Mayors of the District are anything to go by, or the voting record of Mordor-on-the-Potomac.
Perhaps they could have a (volunteer) juror from each State? All expenses of trip to and stay in DC paid for by the losing party.
I would argue that several of “the states” tried to assert their inherent right to sovereignty in 1861-1865 and we’re defeated by the overwhelming power of the industrial North and ever since the Federal government has been of the view that “The states can do as they want as long as they do as we say“.
The states are no more free under Federal hegemony than an Anglo-Saxon serf under the overlordship of the Norman bastard in the local castle.
Certainly if the states had the right to reject unconstitutional Federal overreach, then the United States would be a very different place than we see today, both for the better in some parts and the worse in others.
There’s hope. The states are going to drag the feds into marijuana legalization, and several states are currently defying the feds in the area of gun law. More states are balking at the fed intrusions regarding immigration, filing lawsuits contesting fed overreach. States are on the cusp of defying federal food laws for purposes of the “fresh” and “natural” foodstuffs industry. There’s more and more pushback and defiance on the federal land grabs.
If nothing else, we are on a current upswing of states v. fed power, and I can’t imagine that Trump’s time will take us the other way.
Of course they did and do have the right, it’s just that they have been lacking the will to assert it.
They tried asserting it in the 1860s, actually.
Pretty much the point I made earlier.
The states are not lacking the will to assert their rights, rather they are very cautious about doing so since the states have very limited powers of force, especially against the might of the Federal government, both militarily and financially (withdrawal of Federal funding et al).
While the attitude of the states regarding the decriminalisation of state laws on cannabis is interesting, it is still a developing situation, one in which the Federal government (in the form of the ATF) has not yet decisively responded.
What that eventual response will be is unclear.
My magic 8 ball says “Outlook not so good” 🙁
JG, the filp side of the rights coin is responsibility. The States are essentially the politicians leading them, backed by their constituents – IOW, human beings, which is to say creatures motivated by incentives. Of course they like to “assert” their rights, but they also like their federal funding for all manner of tings. Just like the perpetual teenager who tells his parents that this is a free country dammit, he can come and go as he pleases, smoke and drink what he likes, etc. – but somehow never moves out of his parents’ basement.
Eleven states (or twelve or thirteen, depending how you count it, or even fourteen if Maryland had not been well-garrisoned) asserted their right to secede from all federal jurisdiction, not merely from overreach of that jurisdiction, during the civil war. That point of law is now settled: no state has the right to secede. However it did not alter the very explicit constitutional rule that all powers not assigned to the federal government in the constitution were reserved to the states or the people.
I therefore agree with Alisa that it is lack of will, not lack of constitutional right, that has inhibited the states from resisting federal overreach.
As a thought experiment, let us suppose that President Trump announces: “My prior executive order on immigration is withdrawn. Instead, the executive order issued by President Obama for one country for a six month period in 2011 is now reissued, for a shorter period of time, for that country, and for another six countries identified by his administration as resembling it in the key characteristics that motivated the 2011 order.”
Let us then suppose that the same judge issues the same wholly-conclusory suspending order against the new EO, and is supported by the ninth circuit in the same way.
1) What constitutional responses does Trump have?
2) The current supreme court would be (I assume) split 4-4 (which would IIUC maintain the lower court’s blocking of the EO), and the senate may need the nuclear option to confirm Gorsuch. Suppose Reid’s very recent legitimising of this option had not happened; what constitutional responses would Trump have in that case?
If the answer to (2) is none, or none that are practicable in real time, then I think that would show there is a real problem. Apart from the Andrew jackson quote above, what real-time options would Trump have?
The States did have a check on the Federal Government via the appointment of Senators – until the 17th Amendment removed that power from the States. I see that as the second-biggest cause of the current big-government problem. The biggest cause isn’t unelected, life-tenured judges but unelected life-tenured civil service bureaucrats who have managed to acquire the power of passing regulations having the force of law.
“Judicial activism” can be annoying, but I’m skeptical that any of the various proposed cures won’t turn out to be worse than the disease. Except, possibly, giving the States more say in who gets appointed as Federal judges via the power to appoint the Senators who confirm those judges.
Related (put your beverage aside for a few minutes).
The Communist State of California?
Now that I would pay good money to see, it would be most amusing, like an independent Scotland run by the SNP.
Good article, Alisa. The thing is, I agree with most of their arguments! Let California go!
Alisa,
To get this California secession thing going, I’ve got a slogan ‘The West will sink again‘, but we need a film.
Gray ‘Jefferson’ Davis, as President, a feelgood comeback, or perhaps Charles Manson escapes (a metaphor) and ‘redeems’ himself as the new Dear Leader.
Moonbeam or Schwarzenegger as Robert E. Lee.
Nancy Pelosi as Scarlett O’Hara.
It’s not as far-fetched as it might seem. California has surpassed France and is now the world’s sixth-largest economy by itself.
For those eager to see federal power in the US decline, a fight involving California keeping federal-tax receipts generated in the state would be a good thing. That fight would pit the power of the federal government against the most vocal proponents of a powerful federal government. Splitting that coalition would only boost the influence of states-rights proponents.
An independent California would be a big problem for the rest of the US. It would run up even huger debts than it does now, and then the US would have to decide whether to bail it out, or let it go bankrupt. If the latter, that would cause financial problems for the US just as the former would (although the latter would be preferable, as bailing it out would be a never-ending process).
Also, an independent California run by leftists would have no effective border control, and would soon be overrun with Mexicans, so basically you’d end up with Mexico expanding, and the US shrinking. At least you would then see, before too long, the rest of the US getting really serious about border control.
Also, there are a lot of conservatives in California who would be extremely unhappy, and a lot of them would choose to get out before independence, making it even easier for the Mexicans to take over. But if a lot of Conservatives stayed then there’d be a real risk of civil strife, possibly even civil war eventually.
Perosnally I think some states, possible Texas and/or California, and maybe others, will secede from the US within 50 years.
None of those are insurmountable problems, Cal, but you are correct that there would be complexities to the separation. Start with properly allocating California its proper share of the $20 trillion national debt. How would that be determined? Based on population, GDP, square miles? Water rights are a big issues, too; much of northern California’s water comes from Oregon. Still, I like the idea, and certainly would prefer a civilized, negotiated exit (Caxit?) to a repeat of the unpleasantness of 1861-65.
Mr. Ed:
I agree that the enforcement (police, sheriff) in the US are subordinate to the judges, but not as much as many think. Disputes are common, just kept out of the public eye. I work for and with them.
Deep Lurker:
I agree that the direct election of US Senators was a big mistake, allowing the US Federal government to become the leviathan it is today. Unfortunately the capitol culture has made it unlikely that part of the 17th amendment will get struck. In my own California the meddling of the US Supreme Court mandating the State Senators be equally portioned instead of representing the counties made California dominated by two cities, allowing them to just about dictate what happens. I also found it funny that the California Senate had been deliberately setup like the US Senate for exactly the same reason: to avoid the dominate of high-population centers. While I may be a Northern California resident I do understand that a day of GDP in Los Angeles county is 15 years in Plumas County (or 1.8 million years in Alpine County) and that size matters. I just want a balance so that “us valley and hillfolk” are not the serfs to distant politicians in LA or SF.
The United States Constitution is not perfect – but it is not that hard to interpret.
What, for example, the Ninth Circuit Court of Appeals does (on a regular basis) is nothing to do with the an honest misinterpretation of the Constitution – they HATE the Constitution of the United States.
Nor can this be dealt with by the President and Congress “interpreting the Constitution as they think best”.
No, no, no.
Uphold the Constitution as written – not one would like to see there, but what it actually there.
For example the post office is Constitutional – I wish it were not, but it is (it is there – Article One, Section Eight).
The late Justice Scalia had on his desk a stamp – it said “Stupid but Constitutional” on it.
Either one stands with Aristotle (the rule of law NOT of men) or one stands with Thomas Hobbes – with the rule of the WILL of men, with arbitrary tyranny.
I stand AGAINST Thomas Hobbes.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Why did they need those extraneous words at the beginning of the sentence? Examination of the origins of those words, and the arguments about them as they were drafted, make it clear (to me) that the amendment could have been better written as simply “the right of the people to keep and bear Arms shall not be infringed.”
Throughout the Constitution, there are numerous examples of phrases that could have been written more clearly, leaving us in some cases with a document that isn’t so much “hard to interpret” as “allowing for alternative interpretations.” On the whole, I think the document brilliant, but they could have used a bit more editing.
bobby b (February 10, 2017 at 1:50 pm), intelligent discussion of the second amendment’s initial clause in no way compromises the individual right clearly asserted in its final clause. In a world containing the kind of judge who can rule Trump’s immigration order unlawful, I understand the dangers of anything but the crudest, most unqualified phrasing, but the second amendment has been doing better in the courts recently despite all the hatred for it, and the first clause has a point. I recommend Glenn Reynolds’ paper.
Niall, I agree that the Miller case and its progeny construct a logical and workable interpretation of the “militia” clause, allowing for the proper reading of the remainder as outlining an individual right. Looking to the long-standing right that they were describing along with their contemporaneous writings and arguments as they were drafting the language, I’m confident in using the phrase “proper reading.”
But I find that construct, as I find most all explanations of that clause, somewhat strained and reaching. There are alternative explanations of that clause that are also strained and reaching (and in my mind less compelling) that give comfort to those who see the right as a limited, general one.
As you say, the 2nd A has been doing better in the courts recently, but the fact that it didn’t do so well for so long, and the fact that a slight change to our Supreme Court could easily see that result switch, underlines my wish that they had said what they said more clearly. Heller was a masterwork that shouldn’t have been necessary. Stare decicis isn’t so secure that the next Court couldn’t bring us right back to 1960.
To have to argue, because of the “militia” clause, that the phrase “the right of the people to keep and bear Arms” provides a size limitation on arms – that we can own things that are small enough to both “keep” and “bear” – instead of an enumeration of two specific aspects of the right being discussed – that we can own weapons and also bear them out in society – is awkward and counter-intuitive.
Frankly, I don’t think anything in the Constitution impinges on our right to own nuclear weapons. This doesn’t mean I think it’s a good idea – I just don’t think it’s addressed, which leaves a rather gaping hole that requires a workaround. The Miller line gives us a workable parsing of both the size limitation and the personal aspect of the right through use of the militia language, but it’s an after-the-fact elegant crafting of “here’s how we can make this work” more so than a compelling argument for “here’s why they used the words they did.”
In any event, my point to Mr. Marks was that the Constitution isn’t “hard to interpret” – in fact, it easily allows for several contradictory interpretations, the persuasiveness of which seem to center on what we want it to say. They could have used language that made all of our parsing unnecessary, as they did so well through the bulk of the document.
Coincidentally, I’m about to leave for the wild and empty plains to exercise that specific right in a 300 yard competition tomorrow, so you can imagine which way I’d prefer to interpret their language. 😆