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October 25, 2006

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Erasmussimo

Mr. Roach, your reasoning is predicated on a number of beliefs about social behavior that have no foundation in historical experience.

Let us begin with the institution of marriage, which you argue is both the foundation of Western civilization and designed to nurture procreation. The latter may be true today, but historically the institution of marriage served little procreational function -- the human sex drive did a very good job of insuring that babies were made in abundance. Perhaps you believe that marriage discourages male abandonment of the children; if so, I remind you that males abandon families quite frequently in today's society, when we have explicit laws against such behavior and the means to enforce them. Throughout most of Western history, there were neither the laws nor the means to enforce them; rates of male abandonment of families were much higher. Moreover, there were socially accepted means for families to dispose of unwanted children. In classical times, the procedure was simply to dump the infant in the wild and let the animals eat him; it was an accepted tradition. The Christian church managed to replace this with orphanages and special mechanical devices that permitted families to abandon their infants in complete confidentiality. Needless to say, such actions were always carried out by the fathers, not the mothers. And of course, paternal infanticide remained fairly common and continues today. The notion that the institution of marriage succored the raising of children is a modern romantic fantasy unsupported by historical evidence.

The real purpose of marriage in Western societies was to secure patrilinearity. Property transfer was always from father to child, and this required secure identification of the paternity of the child. This is why female adultery has always been punished much more harshly than male adultery: the former undermines the smooth transfer of property while the latter has no social consequences. This is made especially clear by the ascending scale of punishments for adulterous women of higher social rank. An adulterous peasant woman faced few sanctions, but an adulterous queen was regarded as a traitor and she (and her dangerous infant) were executed.

Now let us turn to your concept of "decent society". The problem here is that decency is a purely subjective term. You, for example, regard Soviet society as indecent because of its political structure. But standards of decency can be turned against you as well. There are societies that regard the toleration of poverty in the midst of great wealth as indecent; by their standards, American society is indecent. More personally, there are societies that regard smoking as indecent; since our society tolerates smoking, it can rightly be regarded as indecent by those other societies. And we eat using both hands; some nomadic societies find that indecent. The Greek society that you rank as indecent had strong views about the propriety of ladies venturing into public. It was OK for slave women to do so, but decent women remained inside their homes, and if they did travel outside, they did so well covered. We Americans permit our women to leave their residences freely, and to wear clothing that those ancient Greeks (whom you regard as indecent) would think scandalous.

The list goes on and on. There is no such thing as an absolute scale of decency, with some societies higher on the scale and lower. Each society has its own standards of decency, and judging another society as indecent is naive, ignorant, and parochial.

Erasmussimo

Mr. Roach, your reasoning is predicated on a number of beliefs about social behavior that have no foundation in historical experience.

Let us begin with the institution of marriage, which you argue is both the foundation of Western civilization and designed to nurture procreation. The latter may be true today, but historically the institution of marriage served little procreational function -- the human sex drive did a very good job of insuring that babies were made in abundance. Perhaps you believe that marriage discourages male abandonment of the children; if so, I remind you that males abandon families quite frequently in today's society, when we have explicit laws against such behavior and the means to enforce them. Throughout most of Western history, there were neither the laws nor the means to enforce them; rates of male abandonment of families were much higher. Moreover, there were socially accepted means for families to dispose of unwanted children. In classical times, the procedure was simply to dump the infant in the wild and let the animals eat him; it was an accepted tradition. The Christian church managed to replace this with orphanages and special mechanical devices that permitted families to abandon their infants in complete confidentiality. Needless to say, such actions were always carried out by the fathers, not the mothers. And of course, paternal infanticide remained fairly common and continues today. The notion that the institution of marriage succored the raising of children is a modern romantic fantasy unsupported by historical evidence.

The real purpose of marriage in Western societies was to secure patrilinearity. Property transfer was always from father to child, and this required secure identification of the paternity of the child. This is why female adultery has always been punished much more harshly than male adultery: the former undermines the smooth transfer of property while the latter has no social consequences. This is made especially clear by the ascending scale of punishments for adulterous women of higher social rank. An adulterous peasant woman faced few sanctions, but an adulterous queen was regarded as a traitor and she (and her dangerous infant) were executed.

Now let us turn to your concept of "decent society". The problem here is that decency is a purely subjective term. You, for example, regard Soviet society as indecent because of its political structure. But standards of decency can be turned against you as well. There are societies that regard the toleration of poverty in the midst of great wealth as indecent; by their standards, American society is indecent. More personally, there are societies that regard smoking as indecent; since our society tolerates smoking, it can rightly be regarded as indecent by those other societies. And we eat using both hands; some nomadic societies find that indecent. The Greek society that you rank as indecent had strong views about the propriety of ladies venturing into public. It was OK for slave women to do so, but decent women remained inside their homes, and if they did travel outside, they did so well covered. We Americans permit our women to leave their residences freely, and to wear clothing that those ancient Greeks (whom you regard as indecent) would think scandalous.

The list goes on and on. There is no such thing as an absolute scale of decency, with some societies higher on the scale and lower. Each society has its own standards of decency, and judging another society as indecent is naive, ignorant, and parochial.

Erasmussimo

Sorry for the double post. My browser reported a load error so I reposted. Oops.

Erasmussimo

Mr. Roach, I have a simple question that I've always wanted to ask a strict constructionist such as yourself. You argue that it is incorrect to re-interpret the meaning of the Constitution in light of modern developments; that we should interpret the Constitution exactly as the Founders intended it. Very well, then let us consider the First Amendment. It guarantees freedom of the press and freedom of speech. It does not grant freedom of expression through other media such as television, movies, radio, or the Internet. The Founders could not possibly have intended the First Amendment to apply to such media, because they had no way to anticipate their creation. Modern courts have stretched the meaning of "speech" to cover the communication we are now having -- but I am not speaking, nor am I using a printing press. Therefore, the only possible application of your principle is to deny that the First Amendment applies to the discussion we are now engaged in. How do you get out of this obvious quandary?

BAC

Eras,

Thanks for your views on marriage, procreation, patrilineage, etc. Your post is a little question begging, however.

In your view, what is the purpose served by "civil unions" in modern society?

Roach

As for technology, it seems to me "Freedom of Speech" is an abstract concept; it means the spoken and written word, but the historical freedom of speech included also plays, cartoons, pamphlets, sermons, etc. It is defined not just (or even not primarily) as a technical act, so much as a specific set of social purposes, such as communication on matters of politics.

So the real question is even if these things may have been unforseen at the time, are they embraced by the concept of free speech and its historical meaning? I think they were. News and TV are protected because they're just highly amplified versions of what was always protected. No one, however, though equal protection had much to do with gays or marriage or very much else states did, other than its prohibition on anti-black discrimination.

My view is quite different form saying "arms" meant guns back in 1776, but we don't like guns anymore and think they're unimportant, and they scare people like Geoff Stone, so we'll interpret the Second Amendment as only protecting the right of states to have a National Guard. Arms meant firearms, specifically small-arms, the arms of the militia. It doesn't take much investigation to find this out. That means today it protects M-16s, but not nuclear bombs or other heavy weapons. Why? The latter are not "bearable" arms.

Technology does not require new laws, because the laws chiefly protect certain behaviors. There's nothing wrong with the court doing its job, interpreting in light of expressed purposes. But that's different from saying they can do whatever they want simply to further abstract liberal views.

Did you go to law school Erasmussimo? You may disagree with my view, or find it to be a weasel-worded way of doing what liberal purport to do, but few people think what you propose is a real quandry or that textualism is hard to apply in practice. Do you have any doubt on how Scalia will usually rule?

Erasmussimo

Good, I trust we'll hear no more from you about heterosexual marriage being the foundation of Western civilization or the concept of "decent societies". Moving on:

To answer your question about civil unions: they serve the purpose of standardizing a common contract in which two persons agree to share their domicile, their finances, and many other prerogatives normally reserved to them as individuals.

You're certainly correct that I regard your response to the problem of the First Amendment and the Internet as weasel-wording. (I notice that you referred to everything BUT the Internet in your analysis -- a good example in itself of weasel-wording.) If the Founders had meant the more abstract interpretation, they would have used more abstract terms such as "freedom of expression" or "freedom of publication". But they didn't -- they used specific terms. The abstraction of these terms to cover modern developments is no different than the abstraction of other terms in the Constitution to address modern developments.


It is hypocritical to insist that we rely on original intent to obtain the results you want, but then switch to a more abstract interpretation when original intent produces results that you don't want.

BAC

Eras,

Why do we need a standardized contract? Aren't the two people better off if they can pick and choose the term of the contract?

Second, do you believe the state has any interest in regulating the terms of this "standardized" contract? For example, why would the terms of this "standardized" contract be available to only two people, rather than, say, three or more?

Erasmussimo

Oops, I failed to notice that the earlier response was by BAC, not Mr. Roach. I apologize for the confusion this created in my response.

I'm having great difficulty getting the site to respond properly to my postings.

Frederick Hamilton

Civil unions are OK for gays per the NJ Supreme Court and marriage is not a gay right. So far I understand, I think.

Please tell me since civil unions are OK, how many can be in a civil union. Two people? Three? Four? Five? Is there a limit to the civil unions other than civil contractural law?

Roach

I think literalism need not be a crude and pedantic game. The point is to figure out what the words mean and then apply them to the case at hand. If the words are abstract or more accurately historically meaningful--and there is a lot of that in the constitution, including ideas like "privileges and immunities" or "the right to bear arms" or "due process of law"--then the courts necessarily have a pretty broad purview to make sense of them. That does not, however, mean that when a concept has a definite meaning it can be ignored simply because of some passing fad.

I've honestly not thought much about the internet or the First Amendment protection to which it's entitled, but since it's mostly written and spoken words and visual images, I should think a lot. At the same time, I can't punch you in the face or murder someone and claim constitutonal protection for it as "guerilla theater." Or can I? So it seems to me words limit us in spite of the kind of thorough-going relativism you want to introduce into this discussion.

I seriously see no contradicdtion in saying that words mean something, they meant something in 1787, we can figure out the metes and bounds of that meaning, we can recognize that meaning also has implicit certain purposes, ane, recognizing those words mean the same thing today apply them to some particular unforseen circumstance embraced by that meaning, even though that particular application could not have been forseen in 1787.

Congress knew, for example, firearms would become more and more lethal and more and more technologically advanced in 1787. They knew this from the preceding 300 years. They still protected the right to bear arms. No reasonable view would be that this right would become obsolete as new technology became available.

Roach

People are treated differently all the time for all kinds of reasons by the law. Women can't be drafted. No one can marry his (or now her) sister. The age of majority is set out by statute.

No doubt the NJ legislature, even way back when, knew some people would be gay and might even want to get married. The courts job is not to fill in the gaps to the point of making totally new laws on controversial social issues. They have no legitimate authority to do that. No one's rights are being taken away here; no one has a "right to get married." For starters, you can't get married unless you convince someone else to marry you. It's like the "right to an inheritance" or the "right to property," you don't necessarily get an inheritance or property just for showing up.

Even if you're right and this is a good idea, there's no reason the courts should make this happen, even though a minority is invovled. The court's job is not to create legislation for the benefit of minorities; it's job is to prevent inconsistent applications of law against minorities that are not applied against majorities. But the law must first exist. Thus, I favor the court striking down Jim Crow, but I don't favor it mandating bussing.

Incidentally, I don't think anyone but racial minorities should benefit from the broad application of equal protection legislation in this sense. Otherwise, why is not a massive violatin of equal protection that cops can carry guns in Chicago but regular people can't? Or, for that matter, why is is it not a violation of equal protection that NJ treats people who living in NJ differently from those who live elsewhere--allowing them to go to public schools for instance, even if one lives right across the border.

These distinctions are manifold and sometimes hard to reconcile with a pure, abstract principle. Convention and line-drawing is the key, and that kind of semi-arbitrary decision making is best done when it comes with a democratic imprimatur.

Speaking of minorities, did you think the the courts were right to protect the minorities (i.e., rich people) in Lochner at its progeny? After all, there is always a strong incentives for democracies to put their interests on the chopping block through wealth redistribution, assaults on property rights, etc. (I don't think that decision was correct, incidentally, for the same reason I'm not keen on the NJ Supreme Court's.)

Stone and other legal realists know these two decisions are basically the same in principle and structure. As a realist he simply endorses one result and dresses it up as legal reasoning.

Erasmussimo

Let us therefore proceed from your statement, "we can recognize that meaning also has implicit certain purposes, ane, recognizing those words mean the same thing today apply them to some particular unforseen circumstance embraced by that meaning, even though that particular application could not have been forseen in 1787."

How does this principle apply to the New Jersey Supreme Court decision under discussion? It seems to me that one of the fundamental "implicit certain purposes" of any Constitution is to protect the rights of the individual against encroachment by the state. I would expect that there are a number of other "implicit certain purposes" in the New Jersey constitution. And certainly the writers of the New Jersey constitution could not have foreseen the circumstance that such a large fraction of the society would be homosexual. Therefore, it seems that the principle you have enunciated can readily be used to support the New Jersey Supreme Court decision.

GARY

New Jersey law gives certain equal protection rights to gay couples that are not accorded by other states. If a gay couple moves from New Jersey to South Carolina does South Carolina have to give "Full Faith and Credit" to the equal protection afforded by New Jersey?

Cynic

Gary, that's what DOMA was about. The Supreme Court hasn't found DOMA unconstitutional yet, even though it almost certainly is.

Frederick Hamilton

Again, with civil unions legal in NJ now, how many people can be in a civil union? Has that been decided? 2, 3, 4, 5?

curtisstrong

Frederick,

2.

curtisstrong

Roach,

I´m glad to see that you have finally decided to answer the questions about his strict-constructionist approach to the constitution. Thank you.

However, 1787 strict-construction is not a viable argument.

First, the common law has come so incredibly far since 1787, it´s going to be nearly impossible to change it back. Practically speaking, your contention is simply not workable.

Second, you seem to assume that the Federal Constitution had some unambiguous "Meaning" back in 1787. That is contrary to fact. There were many different ideas and controversies as to what the constitution afforded and what it did not. Many did not believe a Bill of Rights was needed at all. Another example is the national bank and all the controversy surrounding that. Hence, it´s not always so easy to just pick out what the framers "meant" when writing the constitution. (You´re argument here will be that it´s easy to see that homosexual marriage was clearly NOT included, whether or not other subjects were ambiguous. Fair enough, but also realize, please, that your system is not going to work all of the time.)

Third, there are many original meanings of the constitution that we no longer want, and there are reasonable readings that allow our society to view the text in a different light. Commerce clause is one great example. No one (yourself included, I suspect...although your particulars will differ from mine) wants to go back to the time when the federal government couldn´t use commerce clause to regulate child labor, poor working conditions, minimum wage...etc. A second example is an interpretation of the First Amendment that would allow for the Alien/Sedition Acts. Furthermore, in 1787, the judicial review process didn´t even exist, and the legislature could basically run amok. I agree with all of those changes, even though they haven´t been changed by amendment, and even though they weren´t strictly covered under the interpretation of the text in 1787.

Finally, you have to deal with the ninth amendment. The ninth amendment makes certain that there are some rights out there, not specifically mentioned in the constitution, that are reserved specifically to the people. My argument is that society/philosophies of societies change, and as we progress, it is natural, normal, and prudent to reevaluate those rights based on the culture of the contemporary society. This has been done over and over and over. If the court gets it wrong, the people can correct/reprove them through established methods. However, the constitution and the U.S. culture changes. That´s life, and we´re not going to live with a 14th Amendment interpretation that doesn´t include women, or other types of interpretations that is oppressive or wrong.

The New Jersey court found that homosexuality falls under this criteria, and now it´s up to the people to agree/disagree.

curtisstrong

That is..."or other types of interpretations that" ARE "oppressive or wrong"

GARY

If Utah passes a law authorizing marriages between a man and up to twelve womeen, and the man takes his twelve wives to South Carolina, does South Carolina have to give full faith and credit to that "civil union"?

Roach

I find this discussion of the alleged demerits of originalism/textualism quite boring. It's true, not every issue can be answered mechanically with this approach, but it definitely narrows the scope of acceptable judicial results at every level. A textualist might struggle over the Bank of the United States or military tribunals for foreign enemy combatants who belong to al Qaeda. He would not struggle much over most of the New Deal legislation, a national minimum wage, or any alleged right under the Constitution's 14th Amendment for homosexuals to commit sodomy upon one another or for women to abort their children.

BAC

Curtis,

The NJ court expressly said that there is no "right" to homosexual marriage, so I would not ascribe your Ninth Amendment argument to it. The court indeed found that the state can regulate who it considers to be married, and deny that title to homosexual couples.

What the court did say was that it was discriminatory to deny "committed" homosexual couples certain legal benefits that are available to married couples. Now, although married couples certainly get some legal benefits (like a name change without court intervention) these are certainly not "rights," they are purely legislative grants.

The NJ's court's unappealing reasoning begs two important questions. First, why isn't the state's recognition of the title of "marriage" itself one of the legal benefits granted to married couples that cannot be denied to homosexuals? Second, why isn't it discriminatory to deny "uncommitted" heterosexuals and homosexuals the legal benefits provided to married heterosexuals?

Frankly, I think those that oppose same sex marriage should be somewhat happy with the "separate but equal" position taken by the NJ court. Separate is not equal, and the separation itself means disparate treatment. Arguably, this separateness may not be a slipper slope to required recognition of gay marriage because the legal benefits at stake (like changing your name without court action) are much less vital than the issues at stake in the civil rights movement (education, voting, etc.) The gay marriage debate has always been more symbolic -- seeking the state's imprimatur of a specific type of lifestyle -- than substantive. And on the symbolic arena, separate but equal seems like a loss.

The second point about why grant legal benefits to "committed" couples at all similarly shows the symbolic aspect of the gay marriage debate. Those that support granting legal benefits to gay couples need to explain why that would benefit society. Eras's rather simplistic "to provide a standardized contract" merely repeats the proposition, as does the standard "because married heterosexuals get the such benefits" argument. On this point, I think Roach basically has it correct. The state has an interest in growing its population through children raised in families, so it grants benefits to couples that reproduce. I don't think this argument applies to gay couples, unless we require them to adopt healthy children from other countries as a condition for receiving marriage benefits.

Erasmussimo

BAC, I'd first like to counter your argument against my 'standardized contract' observation. I do not justify the 'standardized contract' with the argument that homosexual couples should enjoy the same benefits that heterosexual couples. My justification is the same as that used for the legal definitions of 'partnership', 'corporation', and so forth. In complex relationships, it's all too easy for a breakdown to lead to litigation. The state has an interest in minimizing litigation by clearly specifying the terms of certain relationships in a standardized contract. Therefore, the state offers its citizens a variety of standardized contracts covering the most common complex relationships. Extending the current standardized contract for marriage to apply to homosexual couples is in the state's interest. ["Harrumph! Simplistic, indeed!" ;-) ]

The state definitely has an interest in the rearing of children, but let's be precise in this: the state's interest is NOT in the quantity of child-rearing, but in its quality. One poorly-reared child who goes on to a life of crime costs the state dearly. One well-reared child who goes on to become a scientist, business leader, teacher (but not, I think, politician) is highly beneficial to the state. If we realize this interest in legislation (which we have already started to do), then we will walk down a path that most conservatives will later regret. Consider that it is in the state's interest to insure the education of its children -- hence, state-financed education. So far, so good. Consider also the state's interest in protecting children from abusive parents. Also good. So, if it's the state's interest to insure the quality of the rearing of children, why not replace the marriage license with a 'child license'? In order to obtain this license, the prospective parent must demonstrate a knowledge of the skills necessary to raise a child correctly, just as a prospective driver must demonstrate a knowledge of the skills necessary to drive a car. Applicants must undergo a psychological examination to insure that they have the emotional maturity to raise an infant. Applicants must demonstrate the financial means to support the child, and the existence of a stable home environment. Applicants already encumbered with children must demonstrate advanced child-rearing skills, and a maximum family size will be written into law. And of course, pregnancy without a child license requires either abortion or adoption, at the mother's option.

This is the inevitable logical consequence of relying on the state's interest in child-rearing to justify excluding homosexual parents from a marriage license. Is this what you want?

I very much like your pointing out the symbolic aspects of all this. I also like your 'separate but equal' comment, although embracing the concept will ultimately lead to the same result that it had with black civil rights. This is one reason why I support the proposal for civil unions as the alternative to marriage. However, I think that the state has no business endorsing anybody's symbolism. Let civil unions be a contract, and marriage be a sacrament.

David

Eras--

In your last post, you lift (or rather rip) Roach's quote out of context-- and use the out-of-context language to support your argument.

Re the dispute over "originalism:"

There is a difference between trying to apply the words used in a written Constitution by analogy to things that didn't exist at the time it was written--for example, the application of the Speech and Press clauses of the First Amendment to radio, television and the Internet--and applying the words in that same Constitution to make legal--indeed a matter of right--things that were illegal at the time the Constitution was written, or vice-versa.

I'll take a less current example: I believe the "one person one vote" SCOTUS decisions requiring seats in state legislatures to be apportioned solely on population are dead wrong. Why? The Framers created a bicameral legislature at the federal level in which seats in one House--the Senate--were not apportioned on that basis. If the persons who wrote the Equal Protection Clause of the 14th Amendment and the courts who interpreted that Amendment thought that that Amendment prohibited apportionment of seats in state legislatures on a basis other than population, we should have seen at least some successful attacks on state legislative houses apportioned like the Senate shortly after the Fourteenth Amendment was adopted. But there were none until the one-person-one vote cases nearly 100 years thereafter.

According to the PBS "Eyes on the Prize" website,
"'One man, one vote' means the democratic principle holding that every individual of voting age possesses the right to vote, and that every person's vote should carry equal weight. The principle was borrowed by SNCC workers from the burgeoning African independence movements of the early 1960s."

(I do not quarrel with the first part of the definition, as I believe it is inherent in the Equal Protection Clause. The second part is where I have the problem when applied in Baker v Carr to require solely population apportionment of state legislatures It therefore seems to me that SCOTUS imported into the Constitution a "right" that was in no sense in the words of the Constitution.

I apply the same principal to abortion and sodomy: those things were illegal when the
Constitution was written and when the Fourteenth Amendment was added to the Constitution. Why was there not a rush to court shortly after the 14th Amendment to overturn such laws?

Does that mean that we have no mechanism to address the changing mores of Americans? Well, we have the legislatures, which most directly embody the will of "We the People." Eras' view would permit courts--which do not reflect the will (or even input) of the people but merely the arguments made to them by two contentious sides in a controversy--to discover new rights in the words of our Constitution that no one had suspected for over one hundred years were there.


Cynic

Gary, first off, that law would be unconstitutional because it disparately affects men and women, making it subject to intermediate scrutiny, which it wouldn't pass. However, DOMA only tells states they don't have to recognize same-sex marriages (the federal government does not recognize same-sex OR polygamous marriages). So, funny enough, the good ol' Republican Congress along with "Democrat" Bill Clinton managed to allow interstate discrimination against gays but didn't even think to include polygamists.

But, again, it's never going to be valid to say a man can have twelve wives. Throw in some gender-neutral language and maybe, MAYBE it will not be unconstitutional. However, once you make it gender-neutral then the same-sex issue enters into it (if three people marry each other, at least two will be of the same sex -- note that this is different from a man marrying more than one woman) so states will be authorized by DOMA not to give full faith and credit to those unions.

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