Gay marriage win, progressive loss?

[Einzige]

http://thephoenix.com/boston/news/103076-fighting-back/

Gay-rights supporters won a huge victory on July 8, when a federal judge in Boston ruled that the Defense of Marriage Act (DOMA) — the federal law that defines marriage as between one man and one woman, thereby denying legally married same-sex couples important federal benefits — was unconstitutional because it violated two Amendments, the Fifth and the Tenth.

...

Currently, Tauro's rulings affect only same-sex married couples in Massachusetts. If the federal government appeals (which it is very likely to do), the case will go to the US Court of Appeals for the First Circuit — an outcome there would also affect Maine, New Hampshire (which also allows gay marriage), Rhode Island (which may soon consider the question), and Puerto Rico. After that: the Supreme Court.

There are other potential implications of these DOMA decisions. There's the question of how a renunciation of DOMA affects the larger issue of same-sex marriage — if it's unconstitutional to treat heterosexual and homosexual marriages differently, mustn't it be similarly prejudiced to bar same-sex couples from marrying in the first place?

Most interesting is the quandary that Tauro's decision on the Coakley case presents for conservatives, many of whom consider themselves "constitutionalists" who believe that states' rights should trump federal regulation. Here, a social and political issue oft-opposed by the right wing — gay marriage — is dealt a victory using the same means that Tea Partiers cite when arguing against health-care reform, or around immigration issues: states' rights.

"Conservatives are the ones now faced with a dilemma," attorney and Phoenix contributor Harvey Silverglate says. "In order to reverse Judge Tauro, they have to convince the appellate courts that they were not really all that serious, all along, in arguing for states' rights and for the viability of the Tenth Amendment."
Yet progressives shouldn't gloat too long.

Yale Law School professor Jack Balkin noted on his Balkanization blog last week, "Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health-care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel."

This is an interesting conundrum. Will 'conservatives' support the 10th Amendment in favor of gay marriage? Will 'liberals' throw gays under the bus in order to protect ObamaCare and other programmes?

[Coyote]

How does "ObamaCare" discriminate against a recognized minority group? The DOMA did just exactly that. Requiring everyone to purchase health insurance is something the conservatives will find easy to accomodate.

But if you think that typical conservatives will support an "anti-Christian/immoral lifestyle" just for a chance to make a few pinprick attacks on mandatory health insurance purchases, you have probably misread the political landscape.

[Einzige]

How does "ObamaCare" discriminate against a recognized minority group? The DOMA did just exactly that. Requiring everyone to purchase health insurance is something the conservatives will find easy to accomodate.

DOMA was overturned because it violated the 10th Amendment - the Amendment that most 'conservatives' claim enshrines the principles of smaller government into law - not because it was discriminatory.

But if you think that typical conservatives will support an "anti-Christian/immoral lifestyle" just for a chance to make a few pinprick attacks on mandatory health insurance purchases, you have probably misread the political landscape.

Some will and some won't. Just as some liberals will support this and some won't.

[Andrew J.]

Few people really care about federalism vs. states' rights - they just pretend to when there's some issue which the two levels of government disagree on.

[Serafina]

Few people really care about federalism vs. states' rights - they just pretend to when there's some issue which the two levels of government disagree on.

However, they should.
Federal vs. State rights is one of the major thing that is wrong with US-politics - the states just have too many rights, which makes the whole federation weaker due to differentiating and contradicting laws.

Incidentally, more Federal power actually means less government. After all, you would only have ONE layer of government instead of two or more. You would also require less government to address resulting conflicts from multiple layers. And people have a more direct influence over government, since there are no longer layers that do not affect them but are outside their state (examples are Texan schoolbooks or things that are criminal offenses in the next state which but not in yours, which is often detrimental). And last but not least, it would improve interstate commerce, education, funding and interaction.

[Alyrium Denryle]

DOMA was overturned because it violated the 10th Amendment - the Amendment that most 'conservatives' claim enshrines the principles of smaller government into law - not because it was discriminatory.

Have you actually read the decision? The decision was made on the basis of the 14th amendment, not the tenth. I know. I actually did read it.

[hunter5]

Few people really care about federalism vs. states' rights - they just pretend to when there's some issue which the two levels of government disagree on.

However, they should.
Federal vs. State rights is one of the major thing that is wrong with US-politics - the states just have too many rights, which makes the whole federation weaker due to differentiating and contradicting laws.

Incidentally, more Federal power actually means less government. After all, you would only have ONE layer of government instead of two or more. You would also require less government to address resulting conflicts from multiple layers. And people have a more direct influence over government, since there are no longer layers that do not affect them but are outside their state (examples are Texan schoolbooks or things that are criminal offenses in the next state which but not in yours, which is often detrimental). And last but not least, it would improve interstate commerce, education, funding and interaction.

It is a paradox as states rights does lead to more levels of government but at the same time it leads to more public control over the government as state and local officials are closer to the people they govern the theory being they would be more in tune to the wishes of the people.

the states just have too many rights, which makes the whole federation weaker due to differentiating and contradicting laws.

That was the point the founders were scared if they made the federal government to powerful it would become tyrannical by limiting what the Federal government could do the hoped to avoid such a fate and for over 200 years it has worked and hopefully it stays that way for a long time to come.

As for the topic on hand I like it. I see no reason not to allow homosexuals to marry and we have a victory for states rights double win in my book.

[Samuel]

That was the point the founders were scared if they made the federal government to powerful it would become tyrannical by limiting what the Federal government could do the hoped to avoid such a fate and for over 200 years it has worked and hopefully it stays that way for a long time to come.

No it didn't. States were perfectly capable of censoring mail in the 1830s and the federal government jailed political dissidents in the 1790s. The idea that the setup prevent tyranny until now (ominous echo) doesn't really work.

[hunter5]

That was the point the founders were scared if they made the federal government to powerful it would become tyrannical by limiting what the Federal government could do the hoped to avoid such a fate and for over 200 years it has worked and hopefully it stays that way for a long time to come.

No it didn't. States were perfectly capable of censoring mail in the 1830s and the federal government jailed political dissidents in the 1790s. The idea that the setup prevent tyranny until now (ominous echo) doesn't really work.

And I agree we had the interment camps in WWI and WWII. It didn't work perfectly I will admit but the country still hasn't devolved into a dictatorship and I really don't think it will in the foreseeable future.

[Simon_Jester]

the states just have too many rights, which makes the whole federation weaker due to differentiating and contradicting laws.

That was the point the founders were scared if they made the federal government to powerful it would become tyrannical by limiting what the Federal government could do the hoped to avoid such a fate and for over 200 years it has worked and hopefully it stays that way for a long time to come.

We are far from the only country to avoid having a tyrannical government in the past 200 years, though (insofar as we have avoided tyranny, given stuff like Samuel mentioned).

I would argue that the Founders weren't afraid of a tyrannical federal government; they were afraid that the states (which they saw as their real countries) would be submerged in the larger government. Today we think of ourselves as Americans, not Pennsylvanians and Georgians... so why do we still need high-powered provincial governments to preserve unique one-state-only law codes?

[GrayAnderson]

Few people really care about federalism vs. states' rights - they just pretend to when there's some issue which the two levels of government disagree on.

I actually do tend to care in general; I think there should be clear divisions on who gets to do what with what (and yes, I recognize that there are good grounds to move things, but I also think that the federal government has abused interstate commerce in a number of instances, even if it has been done in the name of some perfectly good causes) as well as limits on what can be done by either level.

[Simon_Jester]

I think the reason that the interstate commerce clause gets abused so much is that it needs to be. Our society couldn't function without the ability to regulate finance and industry, and in the modern era that kind of regulation has to happen at the federal level.

Without broad interpretation of the interstate commerce clause our government wouldn't be able to function; this is a fundamental problem with the Constitution of the United States, and one that the Founders did not foresee because none of them had the slightest understanding of what the industrial age would do to change their country.

[GrayAnderson]

I think the reason that the interstate commerce clause gets abused so much is that it needs to be. Our society couldn't function without the ability to regulate finance and industry, and in the modern era that kind of regulation has to happen at the federal level.

Without broad interpretation of the interstate commerce clause our government wouldn't be able to function; this is a fundamental problem with the Constitution of the United States, and one that the Founders did not foresee because none of them had the slightest understanding of what the industrial age would do to change their country.

I didn't say that the causes weren't (in general, at least) noble. And to be fair, there's a lot that falls under it legitimately (internet commerce, anybody?). But the interpretation is legitimately to the point in some cases that you could argue that the federal government could force states to set specific tax policies because those policies have an "effect" on interstate commerce. Granted, there's been a pullback from some of the extremely tangential implementations (the big one was attempting to regulate how close a gun could be to a school because, well, education has an effect on interstate commerce...the Supreme Court finally said "too far" on that one).

Of course, there's also a not-unfair point that while indeed the Constitution should change with time, that should come through amendment. You change the document by amending it (that's the purpose of the process), not by conveniently deciding that X doesn't mean X anymore and that instead it really means Y. And yes, I do allow for some leeway in emergencies, etc., if for no other reason than the case usually doesn't get to court until after the emergency has passed and things can be relatively coolly evaluated with a bit of retrospect.

[CmdrWilkens]

I think the reason that the interstate commerce clause gets abused so much is that it needs to be. Our society couldn't function without the ability to regulate finance and industry, and in the modern era that kind of regulation has to happen at the federal level.

Without broad interpretation of the interstate commerce clause our government wouldn't be able to function; this is a fundamental problem with the Constitution of the United States, and one that the Founders did not foresee because none of them had the slightest understanding of what the industrial age would do to change their country.

I didn't say that the causes weren't (in general, at least) noble. And to be fair, there's a lot that falls under it legitimately (internet commerce, anybody?). But the interpretation is legitimately to the point in some cases that you could argue that the federal government could force states to set specific tax policies because those policies have an "effect" on interstate commerce. Granted, there's been a pullback from some of the extremely tangential implementations (the big one was attempting to regulate how close a gun could be to a school because, well, education has an effect on interstate commerce...the Supreme Court finally said "too far" on that one).

Of course, there's also a not-unfair point that while indeed the Constitution should change with time, that should come through amendment. You change the document by amending it (that's the purpose of the process), not by conveniently deciding that X doesn't mean X anymore and that instead it really means Y. And yes, I do allow for some leeway in emergencies, etc., if for no other reason than the case usually doesn't get to court until after the emergency has passed and things can be relatively coolly evaluated with a bit of retrospect.

The thing is trials don't go back up to the Supreme Court because somebody suddenly decided X doesn't mean X anymore, things get that far when nobody is 100% clear on what X meant in the first place. More specifically the concept of precedent and stare decisis means that questions of constitutionality arise because nobody has previously settled the question. In cases where X is truly unambiguous (and that a future question regarding X carries the same legal history) you do not see things change. What you see very often is a very fine but important distinction between X and something that looks an awful lot like X but isn't.

The problem is that language is a constantly changing thing; in the several centuries that a recognizable variant of English has been spoken that language has passed through a massive variation of rules, content, spelling, and non-literal meaning. Try reading Middle English and you will spend half your time confused, even a trip through Early Modern English will leave you with some questions. Put another way pretending that language makes a statement immutable betrays a lack of understanding not just of the law, in this case, but of language.

[Simon_Jester]

Of course, there's also a not-unfair point that while indeed the Constitution should change with time, that should come through amendment. You change the document by amending it (that's the purpose of the process), not by conveniently deciding that X doesn't mean X anymore and that instead it really means Y. And yes, I do allow for some leeway in emergencies, etc., if for no other reason than the case usually doesn't get to court until after the emergency has passed and things can be relatively coolly evaluated with a bit of retrospect.

Gray, at some point I'm willing to sacrifice the formalism and detail interpretation of individual words of the constitution for a government that functions.

The US government could not function, could not provide adequate services to the American people, in the modern era without broad use of the interstate commerce clause. Frankly, I don't care whether that matches up with what the Founders had in mind or not. The Founders had no clue what challenges someone trying to govern a twentieth century nation would face. Their entire social model for how economics and politics ought to work had collapsed entirely by the late 1800s, and if we hadn't adapted with the times we'd collapse.

And many of the adaptations are things it would be impossible to adjust by constitutional amendment. If we stick to an enumerated powers rule, how do we amend the Constitution to let the government do new, necessary things that nobody thought of before? Do we have to pass a new amendment to establish the FDA? To regulate banks? We'd be writing new amendments every year.

Our amendment process is too rigid and slow for us to do that, and if it was flexible enough for us to actually vote on whether to give the feds new regulatory powers, we'd have to set the bar for amendments low enough that we'd fall prey to California Referendum Syndrome, with endless jitter in the legal code and stupid things getting passed into law because they seemed like a good idea at the time to 53% of voters.

It's time for us to be honest with ourselves: tightly limited government is a failed experiment. It was based on theories that date back to the 1800s, and those theories were never adequately tested before we tried to implement them with a list of enumerated powers in our own Constitution. And the more complex our civilization became, the more we found the enumerated powers to be a problem. We kept running into things the enumerators hadn't thought of or were flat wrong about.

In my opinion, the Bill of Rights has been a far greater safeguard of our well-being as a country and our liberty as private citizens than the doctrine of enumerated powers could ever be.* I'm willing to accept that the government takes broad license with its enumerated powers, because I don't think we were ever all that wise to outline them in the first place.

*Ironic, given that many Federalists opposed the Bill of Rights on the grounds that it was unnecessary; enumerated powers were enough security against government abuses...