The question addressed by my post was whether Obergefell is law, not whether it is good. It is bad.
My post didn't frame the issue in terms of whether or not Oberfefell was good or bad.
On its face, the decision is an interpretation of the Constitution. It purports to apply the Constitution to the case of so-called same-sex marriage.
Which is just a ruse. Kennedy appeals to the 14th amendment equal protection clause to divine a Constitutional right to homosexual marriage. That, however, is a legal travesty. As one source points out:
The Thirteenth Amendment abolished slavery throughout the United States. See U.S. Const. amend. XIII. In response to the Thirteenth Amendment, various states enacted "black codes" that were intended to limit the civil rights of the newly free slaves. In 1868 the Fourteenth Amendment countered these "black codes" by stating that no state "shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States... [or] deprive any person of life, liberty, or property without due process of law, [or] deny to any person within its jurisdiction the equal protection of the laws." See U.S. Const. amend. XIV.
https://www.law.cornell.edu/wex/civil_rights
i) So that concerns racial equality, not homosexual equality. The 19C Congress which passed the 14th amendment, and the 19C states which ratified the 14th amendment, had no intention of making homosexual marriage a Constitutional right.
Obergefell is not an interpretation of the Constitution. Rather, it reassigns the 14th amendment to a referent (homosexual marriage) which the legislators and ratifying states never contemplated. The 14 amendment cannot mean that or refer to that.
ii) Furthermore, it's not just that they couldn't foresee that issue. Rather, the 19C Congress which passed the 14th amendment, and the 19C states which ratified the 14th amendment, would undoubtedly be opposed to homosexual marriage, had that been proposed for their consideration. Consider the prevalence of anti-sodomy laws back then. Indeed, until they were struck in 2003.
So that's not a logical extension of a general principle. That "interpretation" of the 14 amendment isn't evolutionary, but revolutionary.
Obergefell is an exercise in judicial make-believe. Pretending there's Constitutional authorization for homosexual marriage.
The constitution unequivocally gives the judiciary the authority to apply the Constitution to cases: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution" (Article 3, Section 2).
You keep ducking the issue of judicial supremacy. The question at issue was never whether the judiciary has the authority to interpret the Constitution, but whether the judiciary has ultimate authority to interpret the Constitution. Does the Constitution say that? No. Did the Founding Fathers grant the judiciary the final say on what the Constitution means? Not from what I've read.
Moreover, your appeal piggybacks on the false premise that Obergefell is an interpretation of the Constitution, when, in fact, that's a transparent ploy.
Even assuming that the minority opinion of the Court was an objectively better interpretation…
This isn't merely a question of better or worse interpretations. Rather, the majority didn't even attempt to offer a good faith interpretation of the Constitution. That's a game of pretend. What they did is begin with their social agenda, then foist a patently anachronistic import onto the 14 amendment. Their judicial opinion lacks any legitimacy in this case.
So it becomes an issue, not of Constitutional authority, but judicial authority. Not what the Constitution warrants, but what the Court warrants–in spite of the Constition. Does the judiciary have unlimited authority?
On its face, Obergefell is a judicial interpretation of the Constitution.
i) It's not the duty of executive or legislative magistrates to be party to a judicial charade. They should not be coconspirators in that duplicitous exercise.
ii) How is your position regarding the judicial "interpretations" of law any different than the Catholic position regarding magisterial "interpretations" of Scripture? Stipulating that the Constitution means something doesn't make it so, anymore than stipulating that the Bible means something doesn't make it so.
iii) Finally, your argument is self-defeating. In your post you say:
Within the law, we can remove Supreme Court justices for bad behavior and install those who will overturn bad precedent. Alternatively, we can amend the Constitution to overcome bad judicial precedent regarding the Constitution.
But since you refuse to challenge judicial supremacy, your appeal to impeachment or the amendment process is preemptively derailed by the very institution you presume to rein in, given the incontrovertible prerogative you ascribe to it. If the Constitution only means whatever judges say it means (a la Chief Justice Hughes), then they can "interpret" the Constitution to immunize judges from impeachment or forbid the abridgment of their authority.
They can "interpret" the Constitution to mean the US president is the English monarch, Congress is Parliament, and Anglicanism is the state religion.
They can interpret the Constitution to mean judges have the authority to appoint their own successors. They can interpret the Constitution to mean the Chief Justice is Command-in-Chief (rather than the president).
ii) Isn't the very purpose underlying the Bill of Rights to curtail the scope of gov't? What's the point of having a written Constitution in the first place if judges have unrestricted freedom to substitute their own values? As Jefferson said:
Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction.
To which Felix Frankfurter added:
The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.
You call it "ducking the issue of judicial supremacy," but since that wasn't the point of my original article, it would be more accurate to say I don't get distracted by the red herring of judicial supremacy. In any event, raising the question of judicial supremacy requires conceding the point of my original article, namely that Obergefell is law.
ReplyDelete"You call it 'ducking the issue of judicial supremacy,' but since that wasn't the point of my original article, it would be more accurate to say I don't get distracted by the red herring of judicial supremacy."
DeleteIt's hardly a red herring when you conclude your original article by claiming the only legal recourse is to impeachment or amending the Constitution. That would be the only remedy under the assumption that judicial supremacy is true, which begs the question.
"In any event, raising the question of judicial supremacy requires conceding the point of my original article, namely that Obergefell is law."
That's a viciously circular claim. It only follows on the tendentious assumption that judicial supremacy is true, therefore Obergefell must be law. But to deny judicial supremacy hardly concedes your argument. Rather, that denies a key premise of your argument.
"That would be the only remedy under the assumption that judicial supremacy is true, which begs the question." It doesn't beg the question of the article. You're misusing the expression "beg the question." And see my point two about the need to concede the point of my original article if you want to debate judicial supremacy.
Delete"That's a viciously circular claim. It only follows on the tendentious assumption that judicial supremacy is true, therefore Obergefell must be law. "
That's simply not true. Even if judicial precedent can be overruled other ways, it's still law. You need to start thinking more clearly about this.
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ReplyDeleteThis comment has been removed by the author.
ReplyDeleteTurretinfan: // "... Even if judicial precedent can be overruled other ways, it's still law. You need to start thinking more clearly about this."//
ReplyDeleteFor me that's an interestingly strong, even an extremely strong sentence in this debate between you and Steve.
I don't know if either of you, Steve or TF, have watched Justice Breyer's comments recently put up on CSpan, last Thursday, the 17th?
In going over some of the processes of adjudications he brought out an interesting historical bit on two cases. The short side of it was the "precedence" setting issue wasn't so much as the judicial precedent set in Brown v. the Board of Education but the actions of the Governor of Arkansas and the wide open issue of the collective response of the people complying and not complying with the judicial ruling against segregation. In the first instance after the ruling in 1954 it took three years before the President sent in the 101st Airborne, about 1,000 men, to forcefully integrate the black children into the education system. The State was against integrating and was prepared to resist the order or ruling of the Supreme Court. They did. The Governor pitted the State police against the Armed Forces of the United States.The second instance occurred shortly thereafter when I believe Justice Breyer said a new state Board of people came into power and within the State responded in rebellion against the Supreme Court's decision that they are to integrate. What did the State do this time? They shut down the public schools! One remedy doesn't nullify the primary remedy but it sure put a major stumbling block in the way of it's enforcement.
It seems the pendulum is swinging back towards Judicial supremacy again seeing in my State of California the will of the people was overturned by one Federal Judge and the lack of enforcement by the State Attorney General in the case of Proposition 8. Proposition 8 still stands and exists but it is no longer being enforced. This time it's the majority being disregarded. Back then it was the Black minority being disregarded.
I would also note as I did in another thread that in my county there currently is a law on the books against adultery. Adultery is against the law yet the last time anyone was ever arrested for this crime, not to mention the moral violation of God's nature inherent in humans, was 1970. I knew and worked with the police officer who made the arrest. I was also best friends with the District Attorney's son, who refused to prosecute the arrest.
It still is law. Brown v. Board of Education was law but it took a lot of acts of both non-violence and violence before the majority of the citizens of the United States started conforming to it years later.
Seems to me that Brown v. Board was a valid application of the 14th amendment. A primary purpose of the 14th amendment was to strike down "black codes." Jim Crow was another rearguard maneuver to reinstate "black codes." An attempt to circumvent the 14th amendment. I think Jim Crow was contrary to the Civil War amendments.
DeleteWhat made that judicial ruling legitimate wasn't naked judicial authority, but a valid application or extension of Constitutional law. That's judges doing what they are supposed to do.
Steve, // That's judges doing what they are supposed to do.//
ReplyDeleteYes, but.
That seems to be the rub here? What remedy does the State have when in their view the judicial precedent ruling is not valid especially when it is "bad law"?
In the video I mentioned earlier that was posted on CSpan [Supreme Court Justice Stephen Breyer talks about his book, The Court and the World: American Law and the New Global Realities, at the National Constitution Center's annual celebration of Constitution Day] Justice Breyer tells about being visited by a Supreme Court Justice from Ghana. She asks him how do they get the people to follow them? Ghana is a former British colony and gained her independence from Great Britain in 1957. Ghana after gaining their independence from them began setting up a judiciary so they could exist in the 20th century and render legal decisions for internally cultural, national and international societal disputes. The complexity is enormous for them seeing there are "kings" and "kingdoms" that currently exist and that have traditions and cultural rules that at times conflict with this new judiciary. Justice Breyer said it hasn't been easy over the last 2 centuries and I supposed keyed in on that and gave the two examples I cited, Brown v. Board and the subsequent one. I'm not familiar with it. I suppose it was an argument before the Court against the State of Arkansas' authority exercised to shut down the public school system as their State remedy to circumvent being "Federally" forced to integrate Black society into the white man school system and culture prevalent in the South. As you know the Executive exercised her authority in concurrence with the Judiciary and sent the 101st. to forcefully integrate against the will of white majority. He then goes into his own personal dynamic between himself and Justice Scalia, who wants the Court to rule contextually objectively while he believes some cases brought before the Court in the evolving cultures within the United States should be judged subjectively during the Court's process of adjudicating. It is this dynamic that leads to bad law at times and judicial supremacy. It seems to me that this is what TF is arguing, I presume: // In any event, raising the question of judicial supremacy requires conceding the point of my original article, namely that Obergefell is law.//
For me, Obergefell is bad law and by it opened wide another door to even more publicly acceptable immorality becoming legal in time to come unless God intervenes and convicts "we the people", judges, legislatures and the Executive so we regain some Biblically moral character? If not, I suppose the United States will suffer under God's harshness and wrath. What that will feel like or look like is for the Prophets among us to tell. One way or the other God is Sovereign and as Scripture reveals:::>
Psa 33:10 The LORD brings the counsel of the nations to nothing; he frustrates the plans of the peoples.
Psa 33:11 The counsel of the LORD stands forever, the plans of his heart to all generations.
Psa 33:12 Blessed is the nation whose God is the LORD, the people whom he has chosen as his heritage!
Psa 33:13 The LORD looks down from heaven; he sees all the children of man;
Psa 33:14 from where he sits enthroned he looks out on all the inhabitants of the earth,
Psa 33:15 he who fashions the hearts of them all and observes all their deeds.
Psa 33:16 The king is not saved by his great army; a warrior is not delivered by his great strength.
Psa 33:17 The war horse is a false hope for salvation, and by its great might it cannot rescue.
Psa 33:18 Behold, the eye of the LORD is on those who fear him, on those who hope in his steadfast love,
Psa 33:19 that he may deliver their soul from death and keep them alive in famine.