It is just disgusting

[bennyonesix]

Cute.

You really need the decision on legal weed to come out...you're blowing more gaskets than the Russian Closet case.

Yeah. I think this case and Roberts' ACA decisions are big deals. I take the legal system in the US seriously.


But you appear to be back to the "Who cares? There is nothing really big happening here. Relax man. Why are you so worked up about this? I am concerned for you... Is there something else going on? I mean you are really really worked up about this... I'm worried."

[bennyonesix]

What's done is done. Gays now have the marriage based medical and inheritance rights they've craved. Whether you hate it or love it, there is no changing it, period.

What interests me is what comes next because live and let live will not stand. My Donkey predictions are:
1) The right will rail and wail to no result except to raise money and garner votes from the religious right.
2) The left will be much more active since support of traditional marriage is now full on hate akin to racism, nothing less. As a result, we can expect the following:
>>>Religious universities who don't bow will start to face attacks on accreditation and gov't funding - especially student loans.
>>>Clergy will keep their rights to refuse to participate in gay nuptials but lay believers will be universally forced to provide any and all services under threat of criminal or civil sanction. If that doesn't work, several small business will be subjected to well financed civil suits until the recalcitrant get the message and quit or recant their evil ways.
>>>Professors and others will literally have to sign on to codes of conduct that include belief and support clauses regarding all things considered by the left to be gay rights. Expect Roman Catholic and evangelical professors to be publicly called out and eventually subjected to tribunals.
>>>Parents who don't immediately accept their pre-teen or early teen child's transgender identity or ass fuckery will be considered abusive and experience all the tender ministrations the state cares to bestow on child abusing heretics.

Whether my predictions are specifically right or wrong, there is much more excitement en route.

Yes. I agree. But it has nothing to do with bennies. Nothing. It has to do with the last things you mentioned. Your last point about parenting is the real thing I worry about. I think Alito did not go far enough when he spoke of "the right to whisper your opinion in your home".

it seems you and I are the only ones who think this is a big deal.

[Blaidd Drwg]

Yes...the chill mask is all a ruse to cover the fact that I'm worried that the right (not that you fall squarely in that camp) spends too much of their energy trying to snatch defeat from the jaws of victory.


I can see being exercised over legal implications of SCOTUS's behavior with the 14th...going all the way back to Roe V Wade being predicated on a legal fiction (the right to privacy). If public sentiment is any guide, this notion should have been fixed legislatively. So, I am with you in spirit about worrying the details.(hell I find the guts of TPP terrifying) but as we've seen, time and again, the 14th amend one of the most difficult to parse and I do not fault the Court for taking this one up and siding with liberty. I'm just sad that preacher didn't set himself on fire yet.

As for the culture war rubbish, I'll leave that for the crows. The only people arguing about culture wars are the ones who, a) thought it was winnable and b) lost.

[bennyonesix]

Yes...the chill mask is all a ruse to cover the fact that I'm worried that the right (not that you fall squarely in that camp) spends too much of their energy trying to snatch defeat from the jaws of victory.


I can see being exercised over legal implications of SCOTUS's behavior with the 14th...going all the way back to Roe V Wade being predicated on a legal fiction (the right to privacy). If public sentiment is any guide, this notion should have been fixed legislatively. So, I am with you in spirit about worrying the details.(hell I find the guts of TPP terrifying) but as we've seen, time and again, the 14th amend one of the most difficult to parse and I do not fault the Court for taking this one up and siding with liberty. I'm just sad that preacher didn't set himself on fire yet.

As for the culture war rubbish, I'll leave that for the crows. The only people arguing about culture wars are the ones who, a) thought it was winnable and b) lost.

Excellent. Yes. And the interesting thing about Roe (and Roe != Obergefell except superfically) is that it is not clear if it worked... The number of abortions peaked in 1983/4 and the access to abortions is approaching zero and public opinion (measured by polls) is not pro-choice by any means... Also look at the Free Speech cases of Brennan... Completely forgotten and most think a net loss to Free Speech.

This is bad juju and to think that it can't go against you and that culturally the country is necessarily going to the Left is just not true.

This conception of the Supreme Court as a Supra-Legislature is directly the same as The Guardian Council in Iran. One ostensibly uses the Koran and the other ostensibly uses the Constitution but they are both about the opinions of the clerical class and legal academia.

I suppose one could compare it to the House of Lords in England but that is not really helpful as it has been a super reactionary body for all but 20 years or so of its centuries long history.

[Blaidd Drwg]

Honestly...I don;t think the country is going left at all...I think we're going somewhere new and a little disturbing. I called this 15 years ago where I can see the future is some sort of bizarre Victorian Socialism...where privacy is extinct at nearly every level and we all act like nosy inhabitants of an inbred small town. Everybody in each others business all the damn time because we're all propping up the same fiction.

[bennyonesix]

I see Argentina and Brazil. Once decent countries gone degenerate. Look at our cities.

[bennyonesix]

I don't consider myself a pollyanna on judical issues either... I accept that much of judging by its nature is outcome determined and reverse engineered. But there are ways to at least limit the possible outcomes... That is what not creating rights under the 14th Amendment (Obergefell) and not writing decisions based on arguments neither side put forward and contrary to what they actually argued (ACA cases) are about. We just saw any pretense at formal and procedural and prudential restraint abandoned by SCOTUS. There are other places that work that way and I do not like them one bit. But like my brother told me Geraldo said on god damn Fox News: Immigrants commit less crime than US Citizens in the US because the US is the exception to the rule.

[Turdacious]

SCOTUS's responsibility should be to affirm or deny whether individual states have this right, and whether other states have to respect that authority-- and little more.

That's a conveniently narrow misinterpretation of the role SCOTUS. Their role is crystal clear....whether I like the decisions they extrude or not...The Constitution is a document that sets forth the bright line between state and universal rights. No armchair legal wonkery (the logic of which defies incredibly broadly accepted legal expertise) changes the central fact that the States may not preclude this fundamental right.

As usual, you're missing my point. I'm not suggesting that SCOTUS doesn't have the ability to make this ruling, I'm suggesting that we would all be better off if they exercised restraint and didn't. I don't think we really disagree here.

SCOTUS does not possess the ability or power to make this decision. Tony K says it does, but it does not. It is quite literally ultra vires.

SCOTUS is not able to create rights that are nowhere in the Constitution. It is a legal institution and not a legislature.

It is not a Guardian Council.

You really ought to look into Marbury v. Madison and the 14th Amendment. In one they created a right, which has been cemented by centuries of precedent. In the other, they were given a Constitutional responsibility. Civics 101.

[nafod]

That is what not creating rights under the 14th Amendment (Obergefell)

Obergefell sure looks a hell of a lot like Loving -vs- Virginia, which was based on the 14th, and had a 9-0 decision. Must a state recognize a marriage sanctified by another state?

[DrDonkeyLove]

Yes...the chill mask is all a ruse to cover the fact that I'm worried that the right (not that you fall squarely in that camp) spends too much of their energy trying to snatch defeat from the jaws of victory.


I can see being exercised over legal implications of SCOTUS's behavior with the 14th...going all the way back to Roe V Wade being predicated on a legal fiction (the right to privacy). If public sentiment is any guide, this notion should have been fixed legislatively. So, I am with you in spirit about worrying the details.(hell I find the guts of TPP terrifying) but as we've seen, time and again, the 14th amend one of the most difficult to parse and I do not fault the Court for taking this one up and siding with liberty. I'm just sad that preacher didn't set himself on fire yet.

As for the culture war rubbish, I'll leave that for the crows. The only people arguing about culture wars are the ones who, a) thought it was winnable and b) lost.

I'm hypersensitive to all things liberty related right now (hooray married gays). There's no doubt in my mind that the toothless religious right and the old puritans are being replaced by an ascendent, and even more intolerant, set of new puritans (almost 1950's style repressive). There's going to be a lot of pain for people who were considered mainstream a few years ago and are about to be denormalized and demonized by the new and unimproved power elites.

Left or right, monkeys gotta monkey, "the centre cannot hold" and all that.

*Edit
I didn't notice your post before I posted but it 75% explains how I feel.

Honestly...I don;t think the country is going left at all...I think we're going somewhere new and a little disturbing. I called this 15 years ago where I can see the future is some sort of bizarre Victorian Socialism...where privacy is extinct at nearly every level and we all act like nosy inhabitants of an inbred small town. Everybody in each others business all the damn time because we're all propping up the same fiction.

[bennyonesix]

SCOTUS's responsibility should be to affirm or deny whether individual states have this right, and whether other states have to respect that authority-- and little more.

That's a conveniently narrow misinterpretation of the role SCOTUS. Their role is crystal clear....whether I like the decisions they extrude or not...The Constitution is a document that sets forth the bright line between state and universal rights. No armchair legal wonkery (the logic of which defies incredibly broadly accepted legal expertise) changes the central fact that the States may not preclude this fundamental right.

As usual, you're missing my point. I'm not suggesting that SCOTUS doesn't have the ability to make this ruling, I'm suggesting that we would all be better off if they exercised restraint and didn't. I don't think we really disagree here.

SCOTUS does not possess the ability or power to make this decision. Tony K says it does, but it does not. It is quite literally ultra vires.

SCOTUS is not able to create rights that are nowhere in the Constitution. It is a legal institution and not a legislature.

It is not a Guardian Council.

You really ought to look into Marbury v. Madison and the 14th Amendment. In one they created a right, which has been cemented by centuries of precedent. In the other, they were given a Constitutional responsibility. Civics 101.

If your statement has any meaning it is the old circle of SCOTUS has the power because SCOTUS has the power.

Marbury was decided in 1803. The text of the decision limits the power of judicial review to cases in which legislatures force the Supreme Court to decide between The US Constitution and laws which effect the Court's functions directly.

Specifically, Congress was not allowed to extend the jurisdiction of the Court beyond what was explicitly stated in Article III. There is no right of judicial review of the legislature to be found anywhere in Marbury. In fact, the opinion holds that the mere unconstitutionality of a piece of legislation is not sufficient grounds to allow the court to strike it down. It also nowhere argues that SCOTUS is the final arbiter of what constitutionality is.

Historically, from 1803 to 1957, there were 88 citations to Marbury. Of those 88, only 10 refer to judicial review. Each of those 10 put forward modest interpretations of the right of judicial review (and most are directly contradictory to the current understanding). Prior to 1957 Marbury was not understood by its writer or anyone else to confer a right to judicial review on SCOTUS.

Form 1958 to present there were 137 separate citations to Marbury. Of those 67 supported judicial review.

Judicial review and more importantly judicial supremacy is a recent creation (within the last 45 years) of SCOTUS and has nothing to do with Marbury. It is nowhere in the Constitution and is not in any way required to execute the functions delegated to SCOTUS therein.

The 14th Amendment did not grant SCOTUS the ability to create rights anywhere on its face. In fact, in the beginning, SCOTUS took the opposite tack and read the Amendment narrowly and contrary to the way you claim it is required.

The current role of SCOTUS as judicial reviewer and supreme authority on the US Constitution is not only a recent thing, but a thing not required by the US Constitution.

Now, you can argue that it is necessary to get your personal policy preferences enacted. But you can't argue that it is anything constitutionally necessary.

This is basic stuff man. I find it hard to accept that you don't know it.

[bennyonesix]

This is what it looks like is happening from my admittedly outsider position. Especially the Harm Principle. That seems like the linch-pin of the whole thing.

http://www.theamericanconservative.com/ ... ial-logic/

By Alan Jacobs

These six axioms provide all you need to know to navigate the landscape of current debates about judicial decisions:

1) The heart wants what it wants.

2) The heart has a right to what it wants—as long as the harm principle isn’t violated.

3) A political or social outcome that is greatly desirable is also ipso facto constitutional.

4) A political or social outcome that is greatly undesirable is also ipso facto unconstitutional.

5) A judicial decision that produces a desirable outcome is (regardless of the legal reasoning involved) proof of the wisdom of the Founders in liberating the Supreme Court from the vagaries of partisan politics so that they can think freely and without bias. The system works!

6) A judicial decision that produces an undesirable outcome is (regardless of the legal reasoning involved) proof that the system is broken, because it allows five unelected old farts to determine the course of society.

From these six axioms virtually every opinion stated on social media about Supreme Court decisions can be clearly derived. You’re welcome.

Stuart Mill's Harm Principle:

https://en.wikipedia.org/wiki/Harm_principle

[Wild Bill]

[TerryB]

cake

[TerryB]

SCOTUS's responsibility should be to affirm or deny whether individual states have this right, and whether other states have to respect that authority-- and little more.

That's a conveniently narrow misinterpretation of the role SCOTUS. Their role is crystal clear....whether I like the decisions they extrude or not...The Constitution is a document that sets forth the bright line between state and universal rights. No armchair legal wonkery (the logic of which defies incredibly broadly accepted legal expertise) changes the central fact that the States may not preclude this fundamental right.

As usual, you're missing my point. I'm not suggesting that SCOTUS doesn't have the ability to make this ruling, I'm suggesting that we would all be better off if they exercised restraint and didn't. I don't think we really disagree here.

SCOTUS does not possess the ability or power to make this decision. Tony K says it does, but it does not. It is quite literally ultra vires.

SCOTUS is not able to create rights that are nowhere in the Constitution. It is a legal institution and not a legislature.

It is not a Guardian Council.

You really ought to look into Marbury v. Madison and the 14th Amendment. In one they created a right, which has been cemented by centuries of precedent. In the other, they were given a Constitutional responsibility. Civics 101.

If your statement has any meaning it is the old circle of SCOTUS has the power because SCOTUS has the power.

Marbury was decided in 1803. The text of the decision limits the power of judicial review to cases in which legislatures force the Supreme Court to decide between The US Constitution and laws which effect the Court's functions directly.

Specifically, Congress was not allowed to extend the jurisdiction of the Court beyond what was explicitly stated in Article III. There is no right of judicial review of the legislature to be found anywhere in Marbury. In fact, the opinion holds that the mere unconstitutionality of a piece of legislation is not sufficient grounds to allow the court to strike it down. It also nowhere argues that SCOTUS is the final arbiter of what constitutionality is.

Historically, from 1803 to 1957, there were 88 citations to Marbury. Of those 88, only 10 refer to judicial review. Each of those 10 put forward modest interpretations of the right of judicial review (and most are directly contradictory to the current understanding). Prior to 1957 Marbury was not understood by its writer or anyone else to confer a right to judicial review on SCOTUS.

Form 1958 to present there were 137 separate citations to Marbury. Of those 67 supported judicial review.

Judicial review and more importantly judicial supremacy is a recent creation (within the last 45 years) of SCOTUS and has nothing to do with Marbury. It is nowhere in the Constitution and is not in any way required to execute the functions delegated to SCOTUS therein.

The 14th Amendment did not grant SCOTUS the ability to create rights anywhere on its face. In fact, in the beginning, SCOTUS took the opposite tack and read the Amendment narrowly and contrary to the way you claim it is required.

The current role of SCOTUS as judicial reviewer and supreme authority on the US Constitution is not only a recent thing, but a thing not required by the US Constitution.

Now, you can argue that it is necessary to get your personal policy preferences enacted. But you can't argue that it is anything constitutionally necessary.

This is basic stuff man. I find it hard to accept that you don't know it.

To be clear, your primary critique of literally hundreds of years of legal reality is based on Shepardizing the case?

You know, eventually your law school account's free access to Lexus Nexus/Westlaw will expire.

[bennyonesix]

50 years of "legal reality". At most.

What was the "legal reality" as to judicial review and Constitutional Supremacy prior to 1958?

That requires you to know what you are talking about and not just regurgitate the Cultural Left facile hive mind blah blah blah.

[bennyonesix]

That is what not creating rights under the 14th Amendment (Obergefell)

Obergefell sure looks a hell of a lot like Loving -vs- Virginia, which was based on the 14th, and had a 9-0 decision. Must a state recognize a marriage sanctified by another state?

It's turtles all the way down.

What passes for discussion of constitutional law in this country is almost entirely lies.

In Loving, SCOTUS created out of thin air a fundamental federal right to marriage. It then declared this federal right to include the right to interracial marriage. It then enforced that right on the States through the 14th Amendment.

All of those actions were based on a pure arrogation of authority. No one, no one, had detected or mentioned such rights prior to that decision and there had been as you can imagine more than a few cases decided concerning marriage before that. SCOTUS made them up and then enforced them on the States. It legislated.

I will stipulate that you agree with the outcome in Loving. That has nothing to do with what I just argued.

To the extent Obergefell was based on Loving it is not based on anything legal or constitutional.

I will stipulate that you agree with the outcome if Obergefell. That has nothing to do with what I just argued.

[TerryB]

So, yes. You Shepardized Marbury v. Madison.

The very fact that the Court reviewed the legislation at all is the point.

You are on a truly Quixotic quest, if you're seriously arguing SCOTUS doesn't interpret the Constitution (i.e., identify and/or limit Constitutional rights) and also rule on the Constitutionality of state and federal law.

[bennyonesix]

This is why I cite to 1984. You don't dispute my point. All you do is point out that I won't assent to the lie.

You Shepardized Marbury v. Madison.

You say that as if it was a bad thing? Or useless? That is my point. That is where we are. SCOTUS is a supra-legal and supra-constitutional entity that is unbound by anything other than the imagination of the Justices. Think about what you just said there... Think about what your disdain for legal research and precedent and history means.

The very fact that the Court reviewed the legislation at all is the point.

That is it exactly: ahistorical and anti-Constitutional. That is the basis of the power SCOTUS wields today.

You are on a truly Quixotic quest, if you're seriously arguing SCOTUS doesn't interpret the Constitution (i.e., identify and/or limit Constitutional rights) and also rule on the Constitutionality of state and federal law.

Exactly 1984 again. I refuse to deny history and reality. I know American Legal History. For me to assent to your position would be to assent to untruth. I will not do that.

I will point out the circle as many times as you assert it: SCOTUS has the power because SCOTUS has the power.

SCOTUS' actions were illegitimate. There is no denying that.

[Kazuya Mishima]

[youtube]http://www.youtube.com/watch?v=aVKlZRWeDI4[/youtube]

[TerryB]

You're fun, B16.

[bennyonesix]