> Can anybody counter Scalia, and say why the issue of gay marriage couldn't wait to be resolved by the states?
For the same reason that slavery couldn't be resolved by the states. For the same reason that racism can't be resolved by the states. Because these things haven't gotten resolved by states. The United States of America, sadly, has a significant minority of people who Just Don't Get It, and there are enough of them that if (when) they congregate they can form majorities in a number of states. And so the federal government needs to step in and dope-slap these people from time to time.
I think that gay marriage should be legal, but I disagree with this. Beware of the fallacy of analogy! There is no economic incentive for a state not to allow gay marriage, there was an economic incentive for states to keep slaves. Also, it wasn't the supreme court that ended up freeing the slaves...
There was no economic incentive to ban interracial marriage either. That didn't stop many states from doing it. And there are economic disincentives to racial discrimination. That didn't stop it from being institutionalized for decades.
And I didn't say the supreme court needs to step in, I said the federal government needs to step in.
I agree with this being a fallacy of analogy, but yours is the wrong point. There is absolutely economic reason to prevent gay marriage - lower taxes for married couples, for one thing.
I'm one of those who I think you would say "Just Don't Get It." Judging from your rhetoric, you clearly don't understand why some people do not think gay marriage is a good thing for the country. I don't think you have earned the right to say we "Just Don't Get It" and need to be "dope-slapped" until you actually get why we disagree with your viewpoint. If you can coherently argue for my position (even though you disagree), and you still don't think I'm being reasonable, then maybe you can use that kind of rhetoric.
> you clearly don't understand why some people do not think gay marriage is a good thing for the country
I've been studying this issue (and writing about it) for twelve years. I doubt very much there is an argument on either side I haven't heard.
But this is a red herring. It doesn't matter whether gay marriage is or is not a good thing for the country. (I think it is, but that's irrelevant too.) What matters is if it's protected by the Constitution.
So here's the test: do you think that states can Constitutionally ban interracial marriage? If so, then we'll just have to agree to disagree. But if not, then I submit that you cannot oppose same-sex marriage without being a hypocrite. There is no argument against gay marriage that cannot be applied just as well to interracial marriage.
If you think there is such an argument, I'm listening.
There is clearly such an argument: "marriage is about biological reproduction."
Of course, consistently applied, that should also argue against marriage of straight couples unable to have children (and probably also all the straight couples uninterested in having children). "No marriage after a hysterectomy" is not a position I've encountered.
No, that argument applies (and was in fact applied) to interracial marriages as well: interracial marriages produce undesirable hybrids which have no racial identity and therefore cannot be integrated into society.
> "No marriage after a hysterectomy" is not a position I've encountered.
Of course you haven't, because no one really takes the reproduction argument seriously. When you dig into it, it's just an obvious smokescreen to cover up the bigotry which is at the heart of all opposition to gay marriage.
If there were an actual argument against gay marriage, any demonstrable harm that comes from it, don't you think that the Right would be shouting it from the rooftops? But they aren't. All they're shouting from the rooftops is how horrible it is to ram social change down people's throats. The fact that this is the best argument they can muster is proof that sometimes you have no choice but to ram social change down people's throats, because some people are simply impervious to reason.
My point was not that it's a great argument, devastating to The Gay Agenda. My point was that it is an argument that does not equally apply to interracial marriage. The fact that someone could stack additional assumptions on top of that argument to get an argument that does apply to interracial marriage is irrelevant - you've built a different argument.
And it's absolutely an argument I have heard. Handwavy denial of its existence to serve your rhetoric is poor form. Addressing the argument directly should be easy enough; I touched on why I think it's a poor argument. I agree that those who make it don't consistently apply it - I raised that point explicitly.
Edited to add: To elaborate on why the argument you mentioned against interracial marriage is a different argument in the sense that is important here, one could easily believe that marriage is about biological reproduction, but believe that interracial "hybrids" are not a bad thing, and thus not be inconsistent in accepting interracial marriage but rejecting gay marriage on these grounds.
> My point was that it is an argument that does not equally apply to interracial marriage
I didn't say it could be applied equally, I said it could be applied just as well. Those don't mean quite the same thing. To review, the argument as you presented it was:
"marriage is about biological reproduction"
That exact argument (in almost those exact words) can be and in fact was applied to interracial marriage back when that was still a thing. Look at e.g.:
The first quote is "They cannot possibly have any progeny, and such a fact sufficiently justifies [not allowing their marriage]." (State v. Jackson. Missouri, 1883)
The rhetorical force of your initial statement came from an accusation that one could not be consistent in denouncing gay marriage while accepting interracial marriage. Once you add additional assumptions, or rely on claims of fact that are true in the one case but false in the other, that does not hold. "Your argument sounds a tiny bit like something that was used to argue for something wrong" is not a good refutation.
As an aside, it looks like the quote is misleadingly truncated in a way that substantively changed the meaning. That said, the full version is still flagrantly factually inaccurate, so the reasoning above remains unchanged.
> people who Just Don't Get It
Ah, but you clearly _do_ "Get It" and should have the right to impose your understanding of the universe on the rest of the country? Who gets to decide who "gets it"? Who decides in which situations those not-getting-it-majority-states should be denied their right to self-government and forced to adopt ways they oppose?
> Who decides in which situations those not-getting-it-majority-states should be denied their right to self-government and forced to adopt ways they oppose?
Ultimately, the Supreme Court, by virtue of the fact that the Union army won the civil war.
If you don't like it, you can always try to get the Fourteenth Amendment repealed. Maybe the Thirteenth too while you're at it. Good luck with that.
So your preference is for fundamental changes to the institution of marriage to be propagated by the force of state power rather than through reason, persuasion, and organic change.
I'm afraid the Union Army wasn't fighting for gay rights, so I don't quite see how that applies. Nor do I see the relevance of your curious implication that because I question the appropriateness of the Supreme Court proclaiming gay marriage by fiat, I must also be interested in bringing back slavery. ("Maybe the Thirteenth too while you're at it.")
> So your preference is for fundamental changes to the institution of marriage to be propagated by the force of state power rather than through reason, persuasion, and organic change.
Of course not. But that is, sadly, not an option. The forces of ignorance and bigotry are too deeply entrenched in the U.S. That is one of the costs of freedom. People are free to be ignorant, and they are free to be bigots. But the government -- neither federal nor state -- does not have that freedom, thank God.
> I'm afraid the Union Army wasn't fighting for gay rights,
No, they were fighting for the union. But then, having won the war and established the nation as a sovereign power, when the fourteenth amendment was duly enacted it became binding on all the states. Sometimes when you fight for things you end up accomplishing more than you set out to do.
> or the same reason that slavery couldn't be resolved by the states. For the same reason that racism can't be resolved by the states. Because these things haven't gotten resolved by states.
I'm not so sure that the states would not have resolved it (Edit: gay marriage, not slavery).
13 years ago, there were 0 US states with legal gay marriage.
6 years ago it was 3.
2 years ago it was 12.
Yesterday, it was 36 states (plus DC, Guam, and a whole bunch of native american tribes). 70% of the US population lived in areas with legal gay marriage.
You might argue that a few states abolished slavery, too, but that was not going to lead to nationwide abolition without war. I think gay marriage would have been difference, because
1. We have much more interstate trade interdependence now, and
2. We have much more personal mobility.
More and more large national companies are including support for same sex couples in their benefits, and when opening new facilities will take into account if the location is friendly to all their employees, including the LGBT ones. I think as soon as one or two of the hold out states lost some big project that would have brought a lot of jobs and money, and the awarding company cited as a reason for picking a neighboring state was that the winning state is more friendly to their LGBT employees, you'd see a lot of the hold out states changing their tune.
> I'm not so sure that the states would not have resolved it [slavery].
Opinions among historians seem to vary, but the impression I've gotten (albeit not with any careful study) has been that the slave states likely would have been extremely slow to abolish slavery, because:
1) the dollar value ascribed to enslaved people represented a huge proportion of the wealth of politically-powerful slave owners; and
2) many non-slave-owning voters in the slave states --- all white males, of course --- aspired to become slave owners and thus tended to sympathize with the interests of slave owners.
Oops. I meant that I'm not sure the state's would not have resolved gay marriage, not that I'm not sure they would not have resolved slavery. I've edited my comment to clarify.
Unfortunately, the southern states were going the opposite direction. There were states that strongly abolished gay marriage. Even after today's ruling, Texas is making passive-aggressive moves to make it difficult by encouraging county employees to use the "personal objection" reason to not issue licenses.
Because even if you eliminate discrimination as one degree of freedom in the legal code, that still leaves a lot of room for experimentation. Some states have legalized marijuana, others haven't. Some states have high taxes. Some states have low taxes. Some states allow self-serve gasoline, others don't. I could go on and on. There's an awful lot of room for legal "biodiversity" left.
Based on this flowery language on the 14th Amendment in the majority opinion, I'm having trouble understanding why the 14th Amendment doesn't make marijuana bans illegal too.
That sounds like an attempt at a constructionist argument. That's not what I'm reading at all in this opinion.
I'm reading about the 14th Amendment being something that develops over time, helping people discover new freedoms, and be the very best they can be. It's fluffy stuff.
Did you read the opinion? Decisions typically contain some rhetorical flair ("fluffy stuff"), but there was plenty of substance to this decision. See e.g. pages 3-5 of the Syllabus. None of this analysis would be relevant to a decision about marijuana, and many of the standards the decision sets forth would fail in the case of marijuana.
Yes, I agree, but the 14th amendment requires some kind of asymmetry in order to have effect. To violate equal-protection, something has to be unequal.
Not sure I get your meaning here. People who break the law are incarcerated more than people who don't break the law. That's not an equal protection violation.
Some states have no taxes. Contrast Washington (state) and Oregon. Oregon has no sales tax, but an income tax. Washington has sales tax, but no income tax.
In Portland (which is right on the Washington-Oregon border), I recall a car with the license plate "TAXFREE," which was ambiguous enough that I couldn't figure out if it was referring to the owner being "tax free" (paying no income tax living in Washington) or that the car was "tax free" (the owner paid no sales tax when purchasing it in Oregon).
You pay the sales tax based on where you live, not where the car is. For small purchases, no one tracks this but for large purchases like cars, you are charged the sales tax based on where you live.
You will notice that the 10th Amendment mentions both states and people, which implies that the people can have rights that the states cannot abridge. The 14th Amendment made this explicit.
No, the beatings will continue for as long as you fail to respect the law. If you want to forbid gay marriage, it's very simple: repeal the fourteenth amendment. (Good luck with that.)
It's like I tell my liberal friends: if you want to regulate guns, it's very simple: repeal the second amendment.
So according to this ruling, the right for two men to marry has been "lurking" in the Constitution since 1868, right? But we just now discovered it? What I mean is that if someone had brought this case before the Supreme Court in 1870, the legally correct decision would have been to allow gay marriage? Things like that make me wonder what other "rights" (scare quotes because they are things that would not be considered rights today) are hidden in the Constitution, that will be discovered 150 years hence but would shock the conscience of nearly everyone alive today.
Alright, I'll bite: Historically, the second Amendment was meant to to refer to guns being allowed inside of a well-regulated militia. This is accomplished by the states' National Guards. It was not intended to mean that each person gets to have a gun.
This, according to America's Constitution: A Biography by Akhail Reed Amar. Great read, it walks the reader in a novel-type way through each part of the Constitution.
But, we've expanded the 'meaning' of the Constitution several times in ways the founders would have never anticipated. This in like with the 'living document' aspect, and a direct result of our veneration of document that is quite short.
> It was not intended to mean that each person gets to have a gun.
Actually, that is exactly what it was intended to mean. And that's exactly what it does mean according to the Supreme Court. The whole point of the second amendment is that The People do not need permission from the government to have arms. (Don't forget, the country was founded on the basis of a violent revolution against the then-exitisting government!) It's unfortunate the that founders confused the issue by putting some of their rationale into the text of the amendment. But the operative language of the amendment is clear: the right of the People to keep and bear arms shall not be infringed. Full stop.
Back then there were technological limits to how much damage one crazy person could do even if they did have a gun (and economic limits too -- guns were expensive. Only the rich could afford them.) It's unfortunate that the founders did not have the prescience to foresee the day when these limits would go away and a single crazy person could do an awful lot of damage. But for better or worse, that's our legacy.
Let's keep in mind that the Supreme Court, though we rely on them to interpret the Constitution, very often does so against what the founders had intended: take the example in my other comment, Heart of Atlanta Motel v. U.S., where the court unanimously decided that the state can force a business to serve black people under the Interstate Commerce Clause. The Supreme Court ruled that the Second Amendment allows people not members of militias to own guns. This was not the intention of the Amendment. My objection to your comment is that it betrays an attitude that whatever we do with the Constitution is what was Meant To Have Been Said, when in fact the Constitution is a living, breathing document that is constantly re-interpreted to meet our current needs.
Also, I do not find your dual argument -- that the Founders made their intention clear and also convoluted their intention -- particularly convincing. The Founders made quite a few mistakes when they drafted the Constitution[0], so their veneration as authors of the document seems quite overblown.
[0] Ackerman, Bruce. "The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy"
I didn't say the founders' intent should be venerated, or even necessarily taken into account. But you made a claim about their intent ("It was not intended to mean that each person gets to have a gun") and I was responding to that.
People can (and do) argue about the founders' intent, and people can and do argue about the consequences of controlling weapons, or failing to do so. But two things are inarguable: 1) the plain text of the amendment, notwithstanding the explanatory preamble, says that "the right of the People to keep and bear arms shall not be infringed", period, end of story. And 2) the currently operative Supreme Court ruling supports #1.
The real problem with this debate is that both sides are hypocritical. The liberals argue that the 2nd amendment doesn't mean what it plainly says, while conservatives argue that it does mean what it says while tacitly conceding that some limits on personal weaponry (like nukes or ground-to-air missiles) are nonetheless necessary and reasonable. The only real disagreement is over where to draw the line. But until everyone agrees that that's what the argument is really about we're not likely to make any progress.
>I didn't say the founders' intent should be venerated, or even necessarily taken into account.
Hm. I'm a little confused. How can you make a claim about what the intention of the clause was ("Actually, that is exactly what it was intended to mean") without claiming that Founder's intent should be taken into account?
Additionally, it's not pertinent to disclude the "explanator preamble" because, as you say, it's explanatory. The clause and the Amendment itself comes before an Amedment that speaks of quartering troops in peace time. It's clear that the writers intended the clause to be read in the context of militas.
"Equally anachronistically, individual rightists read “the people” to mean atomized private persons, each hunting in his own private Idaho, rather than the citizenry acting collectively. But when the original Constitution spoke of “the people” rather than “persons,” the collective connotation was primary. In the Preamble, “the People” ordained and established the Constitution as public citizens meeting together in conventions and acting in concert, not as private individuals pursuing their respective hobbies.”
[..]
“Founding history confirms a republican reading of the Second Amendment, whose framers generally envisioned Minutemen bearing guns, not Daniel Boone gunning bears. When we turn to state constitutions, we consistently find arms-bearing and militia clauses intertwined with rules governing standing armies, troop-quartering, martial law, and civilian supremacy. A similar pattern may be seen in the famous English Bill of Rights of 1689, where language concerning the right to arms immediately followed language condemning unauthorized standing armies in peacetime. Individual-rights advocates cannot explain this clear pattern that has everything to do with the military and nothing to do with hunting. Yet states’ rightists also make a hash of these state constitutional provisions, many of which used language very similar to the Second Amendment to affirm rights against state governments.”
Amar, Akhail-Reed. "America's Consitution: A Biography." 736-737
I'm not making any claim about how the clause "should" be read, only pointing out that the current reading of it was decidedly not the intention of the writers themselves. Further, to pull it out of context and make a claim about its meaning 'full stop' is to ignore the nuance of the document as well what those words would have meant when the document was drafted.
> How can you make a claim about what the intention of the clause was ("Actually, that is exactly what it was intended to mean") without claiming that Founder's intent should be taken into account?
It depends on whether the question on the table is, "What did the founders think?" or "Should what the founders thought carry any weight?" The intent is obviously salient to the first question, not necessarily to the second.
> It's clear that the writers intended the clause to be read in the context of militas.
No, it is manifestly unclear. That is the only reason we're arguing about it, because it's unclear.
It depends on whether the question on the table is, "What did the founders think?" or "Should what the founders thought carry any weight?" The intent is obviously salient to the first question, not necessarily to the second.
The question on the table is "What did the Founders think?" I pretented cited, historical evidence of the context of the clause which make clear what the Founders thought. We're arguing about it because you do not find that evidence compelling, and I'm attempting to tease out where you've gotten your facts about this intent. I'll have to dig up the SCOTUS case for the DC handgun ban being overturned (2007?) to see why Roberts believed in an individual right, or believed that it was to be found in the Founder's intent. You appear to be basing yours on our 2015 grammar rules, which doesn't quite cut it if we're going all way back to 1787. Also, keep it mind it was manifestly clear for years before it was challenged in court :)
That's true, but it doesn't mean what you think it means. In context (both textual and historical) it means "well-functioning", not "constrained." i.e. it means "In order to have a well-function militia, the right of the people to keep and bear arms shall not be infringed." And the Supreme Court has (correctly IMHO) upheld this interpretation.
I'm all for repealing the Second Amendment. I am vehemently opposed to trying to do end-runs around it.
how are the rights of 8 year olds protected that they can't go to a gunshop unattended and buy a gun? or a convicted felon? how can something be a "right" if it's revocable? how is the word "arms" defined? Why can't I purchase a grenade launcher (after all, if you really want to build a "militia" capable of defending against the British re-invading, you're going to need them)? The 2nd amendment in practice is subject to tremendous levels of regulation. The kinds of regulations most Americans want, e.g. simple waiting periods to allow background checks, are a tiny frill of a regulation compared to how heavily regulated "the right to bear arms" already is.
Because the second amendment isn't really taken seriously by anyone, not even the gun nuts. If it were taken seriously, it would become immediately obvious to everyone that it has become horribly dated by the advent of modern weapons technology and it needs to be changed. And then we could have an honest debate about where we ought to draw the line between weapons that people not in the military ought to be allowed to have, because everyone agrees the line needs to be drawn somewhere, even if it's just at WMDs. But no one seems to want to actually have that debate.
Who is waving the democracy flag? Certainly not me. I'm waving the fourteenth-amendment equal-protection flag. The United States isn't a (pure) democracy. Never has been, never will be. Thank goodness.
For the same reason that slavery couldn't be resolved by the states. For the same reason that racism can't be resolved by the states. Because these things haven't gotten resolved by states. The United States of America, sadly, has a significant minority of people who Just Don't Get It, and there are enough of them that if (when) they congregate they can form majorities in a number of states. And so the federal government needs to step in and dope-slap these people from time to time.