"I believe marriage is between a man and a woman. I am not in favor of gay marriage. But when you start playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that's not what America's about. Usually, our constitutions expand liberties, they don't contract them."But what if the judges read the existing constitution to contain rights that people don't believe are really there? This idea that it's wrong to change a constitution to contract rights works very effectively in that situation. You're saying to people, yes, the courts over-expanded rights, but now you'd be wrong to reset the constitution where it actually was, because you'd be making rights smaller, and rights should never get smaller. America's not about taking rights away from people.
***
I assume Obama really does support same-sex marriage, which makes it easier to say that what the courts have given, the people should not take away. The more important question is: What kind of judges will Obama nominate? Will they be judges who use the Constitution to get out in front of the American majority on important social issues?
ADDED: Mickey Kaus writes:
The problem is that if the state Supreme Court is sustained in creating this right, it will be inevitably tempted to create other, more problematic constitutional rights. ("Usually, our constitutions expand liberties, they don't contract them," says a man who may soon be in a position to insure this "expansion" picks up steam.) We'll wind up in a Rose Bird world in which almost all significant disputes involve contending "rights" and are therefore to be decided by judges, not voters.AND: An emailer asks:
Doesn't your post imply that Obama probably disagrees with the judicial reasoning that equal protection requires same-sex marriage? Why would you think that?I think that probably, in his heart of hearts, Obama believes that the U.S. Constitution prohibits the government from restricting marriage to opposite-sex couples. But, as a smart political actor, he knows the country isn't ready for it, and he's giving us what we want.
So the real question is: When this smart political actor gets his hands on the appointment power, will he give us judges who channel his beliefs about what rights really are or judges who follow a path of judicial restraint that resembles Obama the political actor?
Posts
23 comments:
I think he will select an obscure midwestern law professor. Some chick who has been riding his coattails for months. It has all become very clear to me. Althouse, not Ayers will be his first nominee.
"The more important question is: What kind of judges will Obama nominate? Will they be judges who use the Constitution to get out in front of the American majority on important social issues?"
Any reason - any reason at all - to think otherwise?
I don't disagree with Prof. Althouse, but I think she should speak more plainly. It is a desirable feature of our system that elected officials are able to appoint judges who do things the people oppose. The elected officials denounce those judicial actions, but do not overturn them, thereby frustrating democratic accountability, which is good. Too much democratic accountability would mean mob rule.
I believe that, but most academics, including (I think) Prof. Althouse, are too squeamish to speak so plainly.
sean said...
"It is a desirable feature of our system that elected officials are able to appoint judges who do things the people oppose."
Who do things that transient majorities oppose. The warrant that judges have to strike down the passions of the now is that the Constitution -
The people voted to bind their own hands in certain ways, and it's entirely appropriate for judges to enforce that settlement. It's even appropriate, in my own view, for judges to create rules well-adapted to enforcing that settlement; I have no beef with Miranda, for example. But it is utterly inappropriate for judges to invent new restraints, for them to say "even though the people never assented to having their choices limited this way, we think they can't do this."
Because judges are often in the position of taking today's majority to take a hike, it's appropriate that they shouldn't be elected. But they shouldn't forget that while they owe no loyalty to today's majority, and will often play the role of the adult supervision, that shouldn't create the habit of mind that says that they're in charge.
"Will they be judges who use the Constitution to get out in front of the American majority on important social issues?"
"get out in front of" Meaning what? Get into the limelight or 'be more correct'?
"I assume Obama really does support same-sex marriage"
So...you're voting for him because you assume he's lying when he claims to disagree with you?
J, stop harshing Althouse's geek zone mellow...
I don't believe it's a safe assumption that Obama supports gay marriage. I can't remember where i saw it now, sadly, though I'll come back later with a link if I can remember and find it again -- but he has spoken about this, quite persuasively. He said that it's a religious issue for him. He did leave a door open, by implication, for civil unions, but he was quite clear that marriage, per se, in his mind, is a holy matter reserved for a man and a woman. I am not an Obama supporter and don't readily believe him, but what he said on this issue rang true to my ears -- I think he meant it.
If I were voting for him, I'd be very careful not to fall into the trap of projecting what I wish were there onto this particular candidate. That's been the great danger of his candidacy from the beginning.
I was going to ask J's question, but he got there first. The Machine for Lying has straigthforwardly stated his opposition to gay marriage: is this not even worth weighing as evidence?
"I assume Obama really does support same-sex marriage"
So it doesn't bother you that he can look straight at the voters and lie? Wow.
Must be a lawyer thing, to respect liars.
Where was this one-way ratchet in 1937 when we needed it? Think of all the businesses that have had their rights rolled back since then!
So...you're voting for him because you assume he's lying when he claims to disagree with you?
No, she has the audacity to hope that he's lying.
Funny! A post about a politician opposing gay marriage and downtownlad hasn't appeared! Weird! I know it's slithering around the comments here today. I wonder why it hasn't splattered any of its vituperative bile on this anti-gay religious bigot? A mystery...
Of course, for political reasons, Obama has had to sayt he opposes same-sex marriage...
Until election day 2012 +1. Remember when Clinton made gays in the military a first 100 days priority of his first term? If he had waited 'til his second term, he may have had more success -- not only on that issue, but others because of the burned bridges.
I hope Mr. Obama remembers this.
It is sad that politicians have to lie to get elected; I bet there are more than a few in-the-closet atheists scampering around big-hall floors out there.
spice
So the real question is: When this smart political actor gets his hands on the appointment power, will he give us judges who channel his beliefs about what rights really are or judges who follow a path of judicial restraint that resembles Obama the political actor?
Of course he's lying about this, about judges, about the 1st and 2nd amendments and lots of other things.
But he smiles well
"But he smiles well"
He has a nice voice too.
Sean - It is a desirable feature of our system that elected officials are able to appoint judges who do things the people oppose. The elected officials denounce those judicial actions, but do not overturn them, thereby frustrating democratic accountability, which is good. Too much democratic accountability would mean mob rule.
As Simon said later, the people voted to bind their hands so that every decision is not subject to mobs and passions of the moment - But that is a far cry from saying the People created their Constitutions to enable unaccountable lawyer elites the power to legislate and create their ongoing new Constitution. Of "things it should have in it that the People were negligent in missing, things that should be out of it that we can word-parse out since the People were mistaken".
Simon does miss it a little in we do want government accountable to the people, and there must be a mechanism to force government power centers to acknowledge new majorities.
It would be bizarre beyond belief if we had "lifetime appointments of DOD Secretaries, Senators elected to 25-year terms.
It would be bizarre to tell East Europeans and Iraqis that they are stuck with judicial appointments of the old Communists and Ba'thists for 25-30 year terms because losing respect for judges tenure and continuence of "old leadership" would constitute "mob rule".
At some point, if the direction of the country changes enough, the American people should not be constrained in a way that E Europeans, Iraqis, or frankly other democracies - are not..They can remove judges that are not just guilty of a crime - but those that place themselves superior to other institutions and the shifting dynamics of the electorate in repeated elections where their will is clearly not "temporary passions of the mob".
This is of course one of the many things that Senator Obama will not tell the truth about. He is in fact in favor of gay marriage as well he should be. But his political calculus is that it would not help his election chances
so he lies.
Just as he has done about his support of the military, his support for the war on terror, and his intent to raise all of our taxes through the roof.
He lies and when he gets elected we will see what he really thinks.
"I think that probably, in his heart of hearts, Obama believes that the U.S. Constitution prohibits the government from restricting marriage to opposite-sex couples."
I wonder if Prof. Althouse really believes that (i) there is some sort of inherent meaning in the Constitution, (ii) this meaning is so opaque that in some places it takes a century or two to divine, (iii) this meaning, when correctly divined, invariably accords perfectly with the political preferences of law professors at the time of divination, and (iv) Obama shares this approach to Constitutional interpretation.
For myself, I think this sort of Constitutional analysis, whereby a learned priesthood divines the "true meaning" of the Constitution by years of monastic study, and the entire epistemology implied thereby, is nonsense on stilts.
"For myself, I think this sort of Constitutional analysis, whereby a learned priesthood divines the "true meaning" of the Constitution by years of monastic study, and the entire epistemology implied thereby, is nonsense on stilts."
Uh oh. Cedarford alert. He'll be dropping by to talk about the pernicious influence of Jews and "Talmudic" scholarship on our justice system in 3..2..1...
So, do I take from this that Althouse is a "living Constitution" type?
I'm no Obama fan, but I agree with his basic point--adding constitutional amendments to cover morality issues can, and will, backfire. First an amendment making marriage only between a man and a woman, next an amendment making marriage only between a fertile man and a fertile woman. Next an amendment prohibiting sex except between a fertile man and a fertile woman--and none of that nasty stuff either. Next an amendment saying a couple may have only two children.
I have a great idea; alcohol leads to problems so why don't we pass a constitutional amendment prohibiting selling or imbibing alcohol!
First an amendment making marriage only between a man and a woman, next an amendment making marriage only between a fertile man and a fertile woman. Next an amendment prohibiting sex except between a fertile man and a fertile woman--and none of that nasty stuff either. Next an amendment saying a couple may have only two children.
Ohhh. Can we bet on this? Pleeeze?
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