Endless Debates



The New York Times hilariously believes that by agreeing to take up the question of gay marriage, the Court will resolve the issue, the Times assuming, as I do, that the Court is likely to strike down all laws against gay marriage and impose it by judicial fiat.

Such judicial interventions in the governance of this country in regard to hotly contested questions tend to be the starting of debates and not the ending of them.  This week on January 22, we will be observing the 42 anniversary of the decision of Roe v. Wade which sought to resolved the abortion issue.  The fight about abortion continues unabated, the Court’s pro-abortion rulings notwithstanding.  In a democracy, attempts by nine unelected lawyers in black robes to resolve questions of great moment tend not to work in the absence of political power and consensus to support the decision.  Mollie Hemingway at The Federalist reminds us that the Court has a long history of inflaming, rather than ending, debates in this nation:

In “Abuse of Discretion,” Clark Forsythe’s comprehensive look at how Roe v. Wade came to be, he notes that advocates of legalized abortion polled a very general question about whether abortion “should be between a woman and her physician.” Four months before the first arguments in Roe v. Wade were made, such a question got 64 percent affirming it in a Gallup poll, perhaps because the wording was so vague. (This is a bit of an aside, but Forsythe notes that abortion is almost never between a woman and her physician. Fewer than 5 percent of abortions are performed by a woman’s regular OB-GYN and almost all are performed by a stranger.)

You’d have to be living in a New York Times bubble to think that Roe v. Wade was either a limited decision or would end debate. In many ways, that decision is what led to many more people thinking deeply about abortion for the first time. And when they did begin thinking deeply about the topic, it frequently benefited the pro-life movement.

In another abortion decision years later, some justices signed onto some serious wishful thinking about court decisions settling the question of whether there is a right to kill an unborn child. Scalia’s dissent in Casey speaks to this and offers yet another example when the court thought it was settling another contentious issue (and that one’s a doozie):

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

I’ll give the New York Times this much: Whatever the Supreme Court decides on same-sex marriage, I bet it will end the debate at least as much as Dred Scott ended the debate about slavery, Roe ended the debate about abortion, and Casey ended the debate about abortion.

Go here to read the rest.  The Founding Fathers were giants, but they were men and not demi-gods.  They made mistakes, and one of them was in considering the Supreme Court and the judiciary to be “the least dangerous branch”.  When it comes to our most precious civil right, the right to rule ourselves, the judiciary is now the most dangerous branch.


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  1. As they say; it was never supposed to be this way. The SCOTUS robes get their paycheck from the USG, just like all the other employees do. The court has been built up by media and university to be something it is not; it is totally in the USG, which makes it worthless in confronting the USG.
    You can lay all this powerlessness at the feet of Abraham Lincoln, who destroyed States’ rights in 1861-1865. The States were the only real check on the USG, but AL changed all that. AL brought in the era of a super strong central government that interferes in our lives in almost every way.
    So stop looking at the SCOTUS for anything that resembles freedom. Not going to happen. Our new god is the USG, which is what communism is all about, replacing God. To Catholics that are faithful, it is not a new God, but a little Satan.

  2. Even if SCOTUS decides against a constitutional right to SSM, courts across the country will be faced with an intractable problem, similar to that raised by polygamous marriages in Europe.

    When citizens of one country, say Algeria, enter into a marriage there that is actually or potentially polygamous and then come to settle in, say, France, where marriage is strictly monogamous, the courts have to ask themselves whether the relationship between a man and the lady or ladies living under his protection in a polygamous union is sufficiently analogous to the relationship of husband and wife, as described in the Code Civil, to make it just to apply the same rules to them. Otherwise, there is a real danger of the courts creating obligations, rather than enforcing them.

    The same question can arise in relation to succession to moveable and immoveable property, the owners of which are citizens of and domiciled in a foreign country where polygamy is legal.

    No jurist has suggested there is an easy answer to this and the politicians have avoided the issue like the plague..

    The analogy with same-sex marriages is obvious enough.

  3. “You can lay all this powerlessness at the feet of Abraham Lincoln, who destroyed States’ rights in 1861-1865.”

    What a bizarre statement. The powers of the states were unaffected by the Civil War. It was the slaveholding South and their Democrat allies in the North that championed an imperial Supreme Court based upon the Dred Scott decision. Their constant refrain was that the Supreme Court had spoken and that the question of whether slaveholders could take slaves into any territory had been resolved in the affirmative.

    Lincoln’s response to this in the First Inaugural was the correct one:

    I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. 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, having to that extent practically resigned their Government into the hands of that eminent tribunal. 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.

  4. Donald R McClarey wrote, “The powers of the states were unaffected by the Civil War.”
    Only if one rather disingenuously separates the war itself from the war-aims of the victors and from its aftermath, in which those aims were implemented.
    Here was a war fought in defence of State Rights and opposing the right of the Federal government to interfere with a state’s domestic arrangements. Those that defended state rights were defeated and the victors placed them under military occupation, installed puppet governments of freedmen, scalawags and carpet-baggers and proceeded to ratify three constitutional amendments, all restricting the powers of the states.
    If sovereignty is “the right to make and unmake any law whatsoever” (Bodin), the states, for good or ill, were stripped of it as a result of the Civil War.

  5. The Supreme Court has not been noticeable for its adherence to the doctrine of Stare Decisis.
    In Jones v Opelika [319 US 584 (1942)] one finds Roberts J complaining that, in some six years, the court had fourteen times reversed one or more of its earlier decisions, many of them recent. He observed that such decisions tended “to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject.”

    As one particularly egregious example, a case, Minersville School District v Gobitis [310 US 586 (1940)] that was decided by a majority of eight to one, was overruled three years later in West Virginia School Board of Education v Barnette [319 US 624 (1943)] by a majority of six to three. Of the six, three of the Justices (Black, Douglas & Murphy JJ) had changed their minds, two (Jackson & Ritledge JJ) were new appointments and one was the former lone dissident (Stone CJ, formerly Stone J)

    One might have thought that, the highest court having once decided what the law is, it should be for the legislator to say what it ought to be.

  6. MPS I will assume that some neo-Confederate is holding you hostage and forcing you to speak such rubbish.

    The War was not fought in defense of States Rights but rather in defense of slavery. The founders of the Confederacy were quite forthright about that at the beginning of the War.

    As far as the Federal government interfering with “domestic arrangements”, what a coy way of speaking of human slavery, Lincoln was quite clear prior to the War that he had no power to interfere with slavery within a state.

    Those that defended slavery were defeated, not those that championed states’ rights.

    The post Civil War amendments would have been approved even if every former Confederate state had voted against them. The same group of people who led their states out of the Union quickly regained power as Reconstruction ended, largely due to the terrorism imposed against freed blacks by the Ku Klux Klan and other organizations that formed the terrorist wing of the Democrat Party in the South.

    The States never had the right to make or unmake any federal law either prior to, during or after the Civil War.

  7. Donald R McClarey wrote, “The States never had the right to make or unmake any federal law either prior to, during or after the Civil War.”
    I am no expert, but did not South Carolina nullify a Tariff Act?

  8. I am no expert, but did not South Carolina nullify a Tariff Act?

    They issued such legislation around about 1832. Cannot recall if the customs inspectors in Charleston paid the South Carolina legislature any heed or not. IIRC, the legislature later retreated. The power of Congress delineated in Article I to levy “duties”, “imposts”, and “excises” could not be more explicit.

  9. You can lay all this powerlessness at the feet of Abraham Lincoln, who destroyed States’ rights in 1861-1865.

    As late as 1929, public expenditure amounted to 8% of gross domestic product; 65% of all public expenditure was executed by state and local governments, who received little in the way of subsidies from Washington. About 35% of federal expenditure was devoted to the military, not a task you can readily farm out to the periphery.

    Manipulation of the states through federal subventions started small with the financing of the U.S. Route system in 1916; it underwent rapid expansion during the Roosevelt Administration, but the real bender began in 1965 with various and sundry Great Society programs. Abuse of state and local government through federal court decisions was a problem of quite modest dimensions prior to 1954.

  10. “The SCOTUS robes get their paycheck from the USG, just like all the other employees do.”
    The Supreme Court Justices are the personification of God’s perfect Justice. Justice cannot be bought and paid for. The Supreme Court Justices are given compensation. The compensation is derived from tax money and ought not be taxed as stipends and donations and free will offerings are not taxed. Justice Clarence Thomas was almost hauled before the IRS for some money his wife was given for a speaking engagement.
    The Supreme Court stands as testimony against atheism. If anyone wants JUSTICE, “We, the people” need God, not the god of atheism nor the god of political correctness but the True God of Truth. Men are not wives, extortion is not contribution, and Truth, Justice and Innocence are born with every human being, from the very first moment of existence. God gives the newly begotten His Name: I AM…an adopted child of God, created and procreated.

  11. Snowflake babies will end abortion.The existence of the human being, frozen and gestated into adult individual persons, can no longer be denied. Gracie Crane and 44,000 snowflake babies in U.K. alone. Test tube babies who survived every conceivable evil. Hell hath no fury like that of a woman scorned.
    Roe v. Wade found that the unborn had no sovereign personhood, disenfranchising the unborn of their right to life. Gracie Crane says that she has sovereign personhood from the very first moment of her existence in the IVF, in the liquid nitrogen, in her adopted mother’s womb and in her adopted family. Gracie Crane has 44,000 witnesses to her testimony in the U.K. God endows sovereign personhood. The rights the state or the U.N. gives, the state and the U.N. can take away. T.J.
    60,000,000 persons have been destroyed in the womb in America.

  12. “I am no expert, but did not South Carolina nullify a Tariff Act?”

    No, although it threatened to do so. Jackson was at his finest during the Nullification Crisis, the first attempt by South Carolina to start a Civil War. Jackson made his policy clear on April 13, 1830 when he gave a toast at a Jefferson dinner of the Democrat party: “Our Federal Union, it must be preserved”. John C. Calhoun, Jackson’s Vice President and the very embodiment of South Carolina, responded: “The Union, next to our liberty most dear.”.

    The crisis came to a head in 1832 and it looked as if war was in the offing. On December 10, 1832 Jackson issued his Nullification Proclamation which attacked both nullification and secession. Jackson threatened to hang every leader of the nullification forces if a drop of blood were shed in opposition to the laws of the United States. When Senator Hayne of South Carolina told Senator Benton of Missouri that he doubted if Jackson would really hang anyone, Benton, a good friend of Jackson and a man who had shot him in a brawl, one of many such affrays Jackson was involved in during his life, in 1813 before they became friends, told him that “When Jackson begins to talk about hanging, they can begin to look out for ropes”. South Carolina ultimately backed down, helped by Congress passing legislation lowering tariff rates along with a Force Bill authorizing Jackson to use force to collect the tariff, and our Civil War was reserved for a later generation.

  13. Small but significant correction: that the Court is likely to strike down all laws against gay marriage and impose it by judicial fiat.
    Should be “that the Court is likely to strike down all laws upholding traditional marriage and impose its will by judicial fiat.” The vocabulary is important because it leads the conversation. Traditional marriage opponents want to frame traditionalists as “anti”. (“There they go again.”) In the modern public mind, being “anti” requires much higher justification.
    Voters voted to define marriage between 1 man and 1 woman. It is not a stand against a particular association. It is an affirmation of a definition of marriage. Anything else, be it heterosexual, homosexual or otherwise, is incompatible.
    In preparation for our new judicially formed society (Leave it to the robes to create a more perfect union.), I am reading Making Gay Okay: How Rationalizing Homosexual Behavior Is Changing Everything. It’s a fascinating book so far. My Kindle highlighter is used on every page I think.

  14. I too have read–and highly recommend– “Making Gay Okay.” Now I am able to understand the poisonous “Enlightenment” roots of the ideology that has brought us to where we are today regarding marriage. Unfortunately, this same time period produced the inspiration for many of the ideals of the Founding Fathers.

  15. Don, I agree with your assessement of the Framers’ miscalculation of the Judicial Branch. I have long suspected that the Framers simply did not fully anticipate the scope of judicial review and its implications. Don’t get me wrong — anticipated or not, I do think Marbury v Madison was correctly decided. Judicial review necessarily follows from the architecture of our Constitution, and is conceptually desirable. But had its scope been properly anticipated, I believe the Framers would have supplied both the Executive and Legislative branches with superior checks against abuse. As it stands, the Court can exceed its Constitutional authority with impunity, and sometimes does. It did in Dred Scott, and it did in Roe and much of Roe’s progeny.

  16. Agreed as to Marbury Mike. Some colonial courts had engaged in judicial review so it definitely was not a new concept. What would have stunned the Founding Fathers is a Congress so riven by partisan divisions as to tamely consent to judicial usurpations as a way to “win” on contentious issues by judicial fiat. The Founding Fathers always assumed that ultimate power resided in the legislative branch, the branch closest to the people, and to have that power blithely ceded to the Judiciary would have astounded them.

  17. One aspect of this is, I suspect sociological or cultural, and that is that the interests and values of the legal profession prior to a certain date were never at such a variance with those of the general public that judicial review was a reliable instrument of political factions. I’d also wager that the closer one grows to our time, the more the legal profession and academe are populated with people quite willing to utter errant rubbish with the utmost superciliousness.

    It should trouble everyone that the disbarred Little Rock Lounge Lizard and his lovely wife Bruno are respected personages, nowhere more so than at the college campuses willing to pay them $189,000 for 50 minutes of boilerplate. It should trouble everyone that David Plouffe was able to merchandise someone as vapid and silly as BO, something never attempted before in the annals of presidential politics. Of course it does not, and the people least troubled are those putatively devoted to the life of the mind. Sorry age we live in.

  18. Donald says; The States never had the right to make or unmake any federal law either prior to, during or after the Civil War. I believe that 3/4 of the states can do anything they wish with the constitution, including completely do away with it. That fact alone shows were the power lies in our country. The USG serves at the pleasure of the states. That part of the constitution was written to ensure that if the USG became a tyrant, the states could control, replace, or do away with the constitution, as the states did in the first and second agreement with each other.

  19. “I believe that 3/4 of the states can do anything they wish with the constitution, including completely do away with it.”

    A power which has existed since the inception of the Constitution and which has never been exercised by the States. That of course has nothing to do with individual states seeking to ipse dixit nullify Federal laws.

  20. There is a rather interesting observation by Jefferson in a letter to Madison (6 Sept 1789)
    “On similar ground it may be proved, that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation: they may manage it, then, and what proceeds from it, as they please, during their usufruct. They are masters, too, of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors are extinguished then, in their natural course, with those whose will gave them being. This could preserve that being, till it ceased to be itself, and no longer. Every constitution, then, and every law, naturally expires at the end of thirty-four years. If it be enforced longer, it is an act of force, and not of right. It may be said, that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to thirty-four years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form: The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal.”
    A salutary reminder that laws, including constitutions, are not judgments (which may be true or false) but commands, that is an act of the will.

  21. “There is a rather interesting observation by Jefferson in a letter to Madison”

    Interesting, and as usual, wrongheaded. Fortunately it was Madison who, along with his Federalist (not the political party) allies who had the final say. Here’s Madison himself, in print in Federalist 49.

    In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended.

  22. PZ
    Jefferson had obviously read Turgot, for whom the maxim thatthe earth belonging to the living and not to the dead or to those on it not under it, is a constant theme.
    Now, as Lord Acton noted of Turgot, “he taught mankind to expect that the future would be unlike the past, that it would be better, and that the experience of ages may instruct and warn, but cannot guide or control. He is eminently a benefactor to historical study; but he forged a weapon charged with power to abolish the product of history and the existing order. By the hypothesis of progress, the new is always gaining on the old; history is the e mbodiment of imperfection, and escape from history became the watchword of the coming day. Condorcet, the master’s pupil, thought that the world might be emancipated by burning its records.”
    Jefferson appears to have been of Turgot’s opinion; he was an extravagant hater of tailzies and perpetuities.

  23. I’ve long maintained that Jefferson sounds much more like Rousseau in his language regarding constitutions, tradition, and democracy. Regardless of the influence, Jefferson’s philosophy is one that takes us down a rather dark path, in my opinion, but I’ve spilt so much digital ink on this topic that I’ll just leave it at that.

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