The Enlightened Despot

• President Barack Obama announced his nominee to replace David Souter: Sonia Sotomayor. Jeffery Rosen wishes conservatives wouldn’t use his critical article about her from a few days ago as a source for criticism of her now. He won’t get his wish.
• California’s highest court upheld Proposition 8, but maintained that existing same-sex marriages were still recognized.
• Rumblings that North Korea is only getting warmed up in its latest campaign to bum the rest of the world out.
• Everything you learned in sex-ed was a lie.

Law professor John Culhane responds to my earlier post thus:

Your vituperative post (”this man is a law professor”) overlooks the possibility that I’d read and digested the briefs, heard the three hours of oral argument, and understood the legal issues on both sides before the ruling was handed down. In fact, though, all of these things are true. My reaction was based on what I knew the court to have done, and I had a pretty good sense of the reasons it might have given for doing so. Mostly, I was right. (I’ve since done a sort of long legal analysis, but one geared for the “lay” audience.)

Admittedly, I could have been clearer about what I meant by “blinking”; it’s not surprising you were at a loss. What I meant, and should have conveyed more clearly, is that the court, with at least a couple of key justices soon up for retention, was intimidated by the populist rhetoric to the extent that its judgment was occluded; a judgment that I thought should have gone the other way, pretty much along the lines expressed in Justice Moreno’s dissent.

I confess freely that I was writing with a good deal of vituperativity. Public discourse on matters of jurisprudence have a way of filling me with mind-numbing despair, so perhaps I was lobbing criticisms a bit too erratically, rather than inflicting targeted scorn on the world, as per usual. But I would have hoped it was clear that Culhane’s understanding of the law wasn’t my target here. I was highlighting the post he actually wrote as an example of the way we think and talk about judicial review.

I suppose I did “overlook[] the possibility” that he had been through the briefs already, but not out of nastiness, but simply because it didn’t matter much to the point I was making, which is that the response of a law professor to this news was a condemnation of the court that made no reference to the legal merits of the case. I also pointed out, and was much nastier about, a post from an opponent of gay marriage, which also ignored the legal questions at hand.

The clarification over the “blinking” business is helpful. That was certainly the heart of my complaint, so I’m happy it was merely a misunderstanding on my part. But I do think that the order of operations here - a post reacting to the awful news, with a legal explanation for the lay audience to follow - reinforces my point that the nuts and bolts of legal reasoning are essentially epiphenomenal to the process through which people make up their minds about these issues. (Culhane’s charge that my post was ‘vituperative’ clearly establishes that it is Vocabulary Day, thus licensing my use of ‘epiphenomenal’. There’s  precedent here.) There’s nothing particularly original or groundbreaking about that observation, but that doesn’t make it any less accurate.

So, John Culhane, I’m sorry I spilled my vituperation on you, it was to a large extent unwarranted. I still think the fact that you can blog about the tragedy of a decision to an audience that you assume does not yet have enough information to know what is wrong with that decision is a pretty good example of the cognitive dissonance our society maintains regarding judicial matters. But I also realize that actually being bothered by this puts me in a small, crazy minority. And, as should go without saying at this point, on the actual substance at issue here I am firmly on your side, not Maggie Gallagher’s.

As was widely expected, California’s Supreme Court has upheld Proposition 8, which amended the state’s constitution to ban gay marriage, but held that existing gay marriages were still legally valid. Here are two reactions that sum up why I find constitutional law so depressing. First, John Culhane:

Yet I’m overcome by a profound sense of grief. The courts are supposed to be on the side of justice and protection of the rights of minorities. This time, the California Supreme Court — admittedly with precedential justification — blinked.

They blinked! Now, we all know from our dear friend Sarah Palin that blinking is a terrible thing to do, but I’m at a loss as to what constitutes judicial blinking. Culhane notes that he hasn’t read the decision yet, and legal analysis will follow. But he already knows the court did wrong. Not based on the merits of the case, mind you, but because courts are supposed to stick up for minorities. This man is a law professor.

Now, here’s Maggie Gallagher, who is thrilled, because she doesn’t like gay people, but cautious, because she doesn’t like Californians or judges either:

Six to one. Even in California there is only one justice willing to strip 7 million voters of their core civil right, expressly guaranteed, to amend their own constitution. I should be grateful, right?

Amending one’s constitution by a direct majority vote of the electorate is a core civil right? That’s bad news for anyone who lives in, say, the United States of America where no such right exists. True, Californians are expressly granted that right in regards to their Constitution. But the bar for revising the Constitution is different. The legality of Prop 8 comes down to whether it constitutes and amendment or a revision. Perhaps Gallagher is aware of this, but the argument she actually puts forward is that amending constitutions is a core civil right. Neat.

For what it’s worth, ‘revision’ - as opposed to ‘amendment’ - refers to a “substantial alteration of the entire constitution rather than to a less extensive change in one or more of its provisions.” That’s pretty vague, but it’s as good as it gets. You might think that the treatment of marriage is pretty obviously just a set of provisions within the document. On the other hand, you might think changing the Constitution froma document that doesn’t draw distinctions between the union of men and women and the union of men and men or women and women to one that does is a pretty substantial, overarching disaster. I’m not really sure, but I am sure that just about nobody cares.

Which is fine, so far as it goes. I’m not wild about giving practically unlimited legislative authority to unelected lawyers, but it’s a system that’s worked well enough for us so far, and it’s not going anywhere. What is frustrating is the near-universal denial about what is going on. As far as I can tell, these three things are true of almost everyone:

1.) They believe that legislators should interpret the law, rather than read into it what they want. ‘Legislating from the bench’ is a bad thing.

2.) The right decision for the courts to make on the major Constitutional issues of contention (abortion, affirmative action, gay rights, abortion, abortion, etc.) is - happily! - the decision whose outcome lines up most closely with what they think the law should be.

3.) They have absolutely no idea what the legal arguments on which these questions balance are. Not a clue. There are core, Constitutionally guarunteed rights that people are certain are in there, but they wouldn’t know what Article to open to to find them.

This is a fairly ludicrous combination, but I find it to be true even of most well-educated people. There are some differences of degree, especially with regard to item 1. Conservatives will talk about strict, literal interpretations, whereas liberals are generally more happy with talk about ‘the spirit of the law’, whatever that might be. But this is nonsense. Conservatives want the courts to do conservative things and liberals want them to do liberal things. How many conservatives had to look at precedents on the distinction between ‘amendment’ and ‘revision’ in Californian Constitutional Law?

There are some lefties - especially younger ones, it seems to me - who are pretty openly happy about saying they think Justices should make stuff up to justify decisions that will help people. But for the most part, conversation about the Supreme Court is located firmly within a collective fantasy about what it does. And it hurts my head.

On the other hand, I note with some satisfaction that Sotomayor is - according to our president, anyway - a life-long Yankees fan. So her heart is in the right place. And that’s what matters, isn’t it?

Here’s what crazy right-wingers, crazy left-wingers, and Sarah Palin have to say today:

From the right, Brookhiser wins the very competitive contest for the most deranged reaction to a picture of Obama bowing to the king of Saudi Arabia:

I wish he had been raised Muslim. Then it would be habit, not baseness.

Meanwhile, Ed Whelan reacts to the Iowa Supreme Court ruling on same-sex marriage:

The lawless judicial attack on traditional marriage and on representative government continues.

On the left, Bill Keller has an interesting take on how people view the decline of his publication, the New York Times:

Saving the New York Times now ranks with saving Darfur as a high-minded cause.

Finally, Sarah Palin responds to the suggestion that Senator Begich should resign and make way for a special election, as it is unclear that he would have been elected if voters had known Ted Stevens’s seven felony convictions would be overturned due to prosecutorial misconduct:

I absolutely agree.

Back in early December, I wrote about an emerging strategy from GOP party-line hacks: portraying certain Obama policies as functionally identical to some of the Bush policies he criticized on the campaign. I imagined that, while sticking to the standard this-is-terror-loving-socialism fare on most issues, they would trot this Bush v2.0 routine out whenever he was doing something particularly popular, successful, or irritating to the hard-left, who would be a great source of rhetorical ammunition. It did not occur to me, however, that they could ever use both of these strategies at the same time. How naive. Here’s Victor Davis Hanson, summing up the early days of the Obama administration:

If one were to have gone into deep sleep in late October during the Dark Ages, and woken up in late January in the AB (after Bush) era of Hope and Change and an end to all evil, would the world seem different? No, it looks pretty much the same. Same old Predator strikes on terrorists in Pakistan [wait, the strikes Obama promised before Bush ever ordered any? Sorry, keep going]. Same old DC and NY grandees caught fudging on taxes and giving complex explanations of hiring less than legal nannies and maids, same old Guantanamo open with the same old pledges to, “Close it now! Or at least soon!”

Yep, the more things change, and all that. This should be wonderful news for Bush fans. Sure, you have to hate Obama for being such a dishonest hypocrite, but you also have to be pretty thrilled that W’s agenda is still on track, right? Er…:

(more…)

Via Patrick Appel, two Canadians are about to become the first to attempt the journey down the famous Slippery Slope of Gay Marriage:

Winston Blackmore, 52, and James Oler, 44, are each accused of being married to more than one woman at a time. The charges carry a maximum penalty of five years in prison, British Columbia Attorney General Wally Oppal said.

But Blackmore’s lawyer, Blair Suffredine, said during a telephone interview that marriage standards in Canada have changed.

“If (homosexuals) can marry, what is the reason that public policy says one person can’t marry more than one person?” said Suffredine, a former provincial lawmaker. Canada’s Parliament extended full marriage rights to same-sex couples in 2005.

This will no doubt strike most people who favor gay marriage as very bad news, as slippery slope fans will now have an actual real-world event to point to when they want to frighten people. That is certainly a shame, but I have to say I wish these guys the best (in their quest for legalized polygamy - they’re clearly both wackjobs whose best might not be so great for the rest of us.) I find both sides of the slippery slope debate - those who say it exists, so we can’t allow gay marriage and those who say it doesn’t exist, so we can - fairly far off the mark. These Canadians have it right - the slope is there, and we should get down it as quickly as possible.

But that’s a bit too vague. One irritating thing about the gay marriage debate in general, and talk of the slippery slope in particular, is that people on all sides of the issue almost never make it clear which of three related questions they are discussing:

(i) Does the proposition that gay marriage is morally permissable entail that polygamy, incest, etc. are also morally permissable?
(ii) Does the proposition that gay marriage should be legal entail that polygamy, incest, etc. should also be legal?
(iii) Does the proposition that laws prohibiting gay marriage are unconstitutional imply that laws against polygamy, incest, etc. are also unconstitutional

Clearly, (i) and (ii) are related, but they are very different questions. Saying nasty things to your mother is usually not morally permissable, but I doubt even Mike Huckabee thinks it should be illegal. In a perfect world, (iii) would have nothing to do with (i) or (ii); as it is, most people think questions like (iii) are just long-hand for questions like (ii). In any event, it’s impossible to have a coherent debate without being clear about which of these questions you are adressing.

I get the impression that most people in favor of gay marriage are thinking of (i) when they write the slippery slope off as preposterous and offensive. There’s nothing wrong with being gay, and there’s a lot wrong with screwing your sister, so where do these jerks get off comparing the two? I myself am inclined to say that most behaviors that make their way into slippery slope discussions are morally A-OK, though in some cases creepy and unpleasant to think about. But whatever one thinks about this, I don’t see how (i) can possibly be worth arguing about. Different opinions on these questions are based on ethical differences that are far too fundamental for a debate about them to be of much use. If God’s feelings are an important factor in determining what is moral, the slippery slope might not be plausible at all, but that probably depends on the god. Fortunately, (i) isn’t particularly relevant; (ii) and (iii) are where all the action is.

I cannot fathom how anyone can seriously argue that the answer to (iii) is not very obviously “yes”. The Constitution has absolutely nothing to say about marriage, sex, homosexuality, polygamy, incest, or any of the rest of it. I have never seen a remotely plausible argument that some laws about with whom one can fornicate and to whom one can be married are in conflixt with the text while others are not. If someone has such an argument, I’d love to hear it.

(ii) strikes me as somewhat less obvious, but I’m pretty sure the slippery slope works here too. Gay marriage should be legal because it’s usually right to let people do whatever the hell they want as long as they aren’t hurting anyone but themselves, and because if government should be involved in formally recognizing a social convention like marriage - which is debatable - it should use as broad an understanding of that convention as possible. That reasoning seems to me to argue just as persuasively in favor of polygamy.

So the slippery slope works where it counts. But that’s not such a bad thing. Yes, a man should have the right to marry three of his brothers. But we’d all still have the right to keep our distance.

One of the great things about Google Ads is that while a site’s content determines what will be advertised, the content-provider has no direct control over what goes up. As a result, you can get some very fun contrasts. This post about Prop 8 from Michelle Malkin just popped up in my Google Reader. It packs a lot of “us and them” into a small package. Attached to it was an ad for these t-shirts:

Keep fighting the good fight, Michelle!