Here’s a weekend roundup of loosely related items.
Mark Steyn’s been dipping his quill in aqua regia as usual this week, and from him we have a pair of items. First up is an NRO piece called The Simulacrum of Self-Government, in which Mr. Steyn describes:
…just another day in the life of the republic: a corrupt bureaucracy dispensing federal gravy to favored clients; a pseudo-legislature passing bills unread by the people’s representatives and uncomprehended by the men who claim to have written them; and a co-regency of jurists torturing an 18th-century document in order to justify what other countries are at least honest enough to recognize as an unprecedented novelty.
For the details, read the rest, here.
Among said details is the Supreme Court’s decision in Windsor v. United States, which struck down the Federal government’s definition of marriage as between a man and a woman. This is a whoppingly important event, a major historical watershed in the history, not just of the United States but of human civilization — and however you feel about same-sex-marriage, I (and Mr. Steyn) think that a decision of this magnitude ought to have been left, in what is ostensibly a nation governed by its people, to the machinery of the democratic process, instead of having been short-circuited by the opinion of one unelected jurist (Anthony Kennedy, of course, the perennial “man in the middle”).
So, as it turns out, does Associate Justice Antonin Scalia, whose blistering dissent is not only a withering indictment of the majority’s incoherent argument on the merits of the case (and of the decision to grant certiorari in the first place, for reasons he makes abundantly clear), but is also a corking good read. Pour a libation and settle in with it, here. (Justice Scalia’s dissent begins at page 35 of the linked file.)
Also among the depressing topics covered in this article is the disastrous immigration bill recently excreted by the United States Senate. Mr. Steyn mentions a recent appearance by Senator John Hoeven (R-N.D.), one of the authors of this calamity, on Hugh Hewitt’s radio show. I have a transcript here; read it and weep.
Next from Mr. Steyn we have a long piece on Nigel Farage and the pro-British party UKIP, whose popularity is surging in the UK as it finally becomes apparent to the good people of Britain that their proud and ancient nation has been, well, destroyed. Read this one here.
When you’re done, visit YouTube for a look at Mr. Farage’s inimitable style. He is a brazenly rude man, to the point of making me wince — but the admirable British disposition never to give offense is what got the U.K. into this mortal predicament in the first place, and the time for politeness is long past, I’m afraid. It’s no wonder that he and the UKIP, and the lower-born but no less perspicacious and patriotic Tommy Robinson (of the English Defence League) are becoming so popular these days. May their star ascend.
All that should keep you busy for a bit, I think, Readers, and it will be time well spent. Posting may be a bit scarcer than usual this holiday week, but we’ll be back soon.
10 Comments
The Hutu bigot seems under the gun to adjust to – failing to understand the Tutsi imposed diktat to willingly accept paying whatever coin the Executioner would have him pay – to kneel (begging “be nice”) however soft to the knees accord – and that at a whim – “Please Make My Headsman Professional.”
“Enumerated Powers” the Constitution declares, Not Especially Granted – Are Reserved To the States.
(For the Tutsi/Hutu stuff – well … we “used to be treated to Derb.” We’re PC now though.)
Unless:
http://news.yahoo.com/blogs/sideshow/jersey-man-falls-coma-wakes-poland-144309711.html
Hooo … well ordinarily I’d follow ‘Hooo’ but valor being what it is up Nawth — here’s Tommy:
https://en.wikipedia.org/wiki/Tommy_F._Robinson
While there is much to refute in this conservative kvetch-fest, the second paragraph is probably the most egregious.
“The machinery of the democratic process” has been steadily moving towards marriage equality. Most Americans support it, and about 30% of us live in states which allow it, with a majority on the horizon. The inference that the Court subverted the will of the people is incorrect.
It was five Justices, not one, who “short circuited” the primacy of heterosexual marriages over what Justice Ginsburg referred to as the “skim milk” marriages of homosexuals (and whose opinion, in my view, was far more cogent and far less cranky than Scalia’s argle-bargle).
Most glaring is the assertion that “a decision of this magnitude” is somehow outside the Court’s jurisdiction. Decisions of great magnitude – whether they concern slavery, school desegregation, abortion, or many other things – have always been within the Court’s purview when they pivot on Constitutional issues. Since Windsor concerned the Fifth Amendment guarantee of equal protection under the law, the Supreme Court was both the logical and necessary venue to resolve it.
Peter, you ignorant slut.
If the consensus of the people is indeed moving toward the acceptance of gay marriage, then why not let it happen according to the democratic process, as it has everywhere else it has been accepted?
Likewise, you completely miss the point of the certiorari question. Nobody is saying that the Court might not have jusridiction on an issue like this at some point; in this case, however, there was no controversy before the Court, as the injury to Ms. Windsor had already been satisfied by the lower court. What you are putting forth here is just the familiar “I and all my friends agree that his law is wrong, so, so of course the Court should rule on it” psuedoargument. This certiorari sets a very dangerous precedent, and pushes the Court into a role it was never intended to have, greatly aggrandizing its power.
Furthermore as Justice Scalia makes clear, one can see no rational basis here for an Equal Protection ruling that would rise to the level of trumping a democratically legislated act of Congress. The law makes lots of distinctions between classes of people, for all sorts of rational reasons, and this is one of them. Overturning a bill that merely codifies the definition of marriage that has existed always and everywhere throughout all of human history certainly calls for a compelling rational-basis argument. More to the point, it is a decision that should, if possible, be left to the people.
It might behoove you actually to read (or even, if it isn’t asking too much, understand) the dissent before attempting to refute it.
I would add that your assertion that the ruling was “a major historical watershed in the history, not just of the United States but of human civilization” is quite an overstatement.
The Court did not redefine marriage. Rather, the State of New York did that some time earlier. What the court did was to affirm the right of individual states to define marriage for themselves, as well as to bar the federal government from discrimination contra the expressed wishes of that state.
Hence the ruling was incremental, and not precedent-shattering. Your beef should be with your fellow New Yorkers, who chose to recognize gay marriage as equal to straight marriage. As one who supports states’ rights, I am surprised that you are not cheering the wisdom of the five prevailing justices.
Re Brown v. Board of Education: if the consensus of the people is indeed moving toward the acceptance of integrated schools, then why not let it happen according to the democratic process, as it has everywhere else it has been accepted?
The certioriari argument fails because the DOJ claimed standing as an aggrieved party tasked with enforcing a statute in legal limbo. I’m not an expert on case law here, but at least five other justices found Scalia’s argument wanting.
It is very easy to see a “rational basis here for an Equal Protection ruling”. If Ms. Windsor was Mr. Windsor, she would have received the money. Sounds pretty unequal to me.
The Court trumped “a democratically legislated act of Congress” the day earlier when It neutered the Voting Rights Act. All acts of Congress are “democratically legislated,” but that does not preclude them from being overturned.
The fact that heterosexual marriage has “existed always and everywhere throughout all of human history” is not dispositive. You could say the same thing about slavery until about 150 years ago. Tradition alone does not justify continuance in perpetuity. The times they are a-changing, and the Court’s decision reflects that.
Is it? I dunno. Maybe. To listen to the news coverage, though, it certainly seemed that a lot of people felt that way. It was Gay Pride Week in the Big Apple this week, and I sure did hear “historic” a lot. It is, after all, rather a big deal when the world’s leading democracy gets told it must, like it or not, redefine the oldest and most universal social custom in human history (with the possible exceptions, I suppose, of warfare and the burial of the dead).
No? What it did was to say “the definition you’ve been using is no longer permitted, and you must adopt a new one, one that eliminates what most people throughout history have considered the essential feature of marriage, always and everywhere.” Readers may of course form their own opinion as to whether this constitutes “redefinition”.
Did you even bother to read the ruling? The Court did no such thing. Nothing in the Court’s decision spoke in any way at all about what the States may or may not do, and the Chief Justice took pains, in his own brief dissent, to make this clear. The States were and are free to define marriage as they see fit, just as they ought to be. This ruling dealt exclusively with a specific Federal law, one whose purpose was to frame a consistent basis for Federal benefits and taxation.
Why? If that’s what the people of New York want, and choose to enact through their own legislative process, well, that’s the law. Whether I agree or not (and I have staked out no position in this post, because I am only commenting on the Supreme Court ruling here), that’s the way democracy is supposed to work. When I have a beef with a law, unless I am injured by it in a way that violates the Constitution, the appropriate response is to take it up through ordinary channels of advocacy and the vote.
With this remark, you are either trolling or are displaying startling ignorance of the content and import of this ruling — which, if it has any effect on the States whatsoever, will be its use in attempts to strike down anti-gay marriage laws in the various States that have them.
The answer is twofold: first, in the case you mention, there was a clear controversy between disputatious adversaries to bring before the Court, which is a Constitutional requirement for certiorari, and second, there was no principled and rational basis for discrimination under the law, and so a violation of the Equal Protection clause. Neither of these criteria apply here: the first because Ms. Windsor’s injury had already been remedied by a lower Court, and the second because there are ample rational principles underlying the ancient and universal concept of marriage, as well as sound and prudent reasons for the Federal government to have a consistent set of rules to apply amidst the welter and flux of the various State laws. Which it had, as the result of a coordinated and broadly supported legislative action, signed into law by a popular (liberal) President. Until Wednesday.
Not so. The Solicitor General argued for the same outcome as had already been granted Ms. Windsor. There was no controversy before the Court.
You seem to be under the delusional impression that the law never makes permissible distinctions between classes of people, which is obviously mistaken.
The Court did not “neuter” the VRA: any violation of voting rights is still actionable, and Congress is welcome to continue to use the law to require any electoral districts that can be consistently shown to disenfranchise voters to subject themselves to Federal review. All the Court said was that after half a century of enormous social progress in civil rights, and huge demographic changes, if an enumeration of such districts was to be used, it was time for a new one.
If the times are a-changing, then they will change. We have ample mechanisms in place, up to and including Contitutional amendments (such as the 13th, which was what abolished slavery), for the people to express their will. If this particular change is indeed so popular as you imagine, then it should have been easy enough to repeal DOMA in Congress. If it isn’t, then maybe the times simply haven’t a-changed, yet, quite as much as you seem to think they ought to have. In either case, unless there are compelling reasons not to, it is better to let the law express the will of the people, rather than that of five unelected judges.
I’ll conclude with Justice Scalia’s closing comments:
“But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”
Scalia is such an intelligent man. I can’t understand his bad reputation.
I’d only add that, not only did the court cheat the losers of a fair defeat, it convinced them that the court has jammed something down everyone’s throat. They will now never accept SSM, and never believe that anyone else accepts it either.
Exactly right, Dom. And from the Left’s point of view, the response of course will be “who cares, they lost because they’re on the ‘wrong side of history’, nobody gives a shit what a bunch of bigoted religious rednecks think anyway — so they can just go die off, and good riddance.”
And then they will whinge about the fact that that the country is so divided.
I’ll say it again: I see very clearly that there are rational arguments, and good, decent people, on both sides of this issue — hell, even the saintly Barack Obama was on the other side of this issue, as recently as eighteen months ago. And this is why Scalia’s point is so important, and why this too-eager and usurpatious ruling will make things infinitely more polarized and difficult. If there really is a rapidly moving social evolution underway here, then it should not have taken much longer to make itself apparent in Federal legislation, just as it appears to be doing in the various States.
As I understand it, the ruling invalidated section 3 of DOMA, which defines marriage for the purpose of federal benefits. So now, the situation reverts back to the pre-DOMA situation, where the federal government considers you married if your marriage was valid and recognized in the jurisdiction in which it was performed.
So from a small government perspective, the ruling itself strikes me as fine. The big problem is that conservatives have nationalized the question by passing DOMA, and the left won’t relinquish that advantage now that the momentum is on their side.