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You’d need a heart of stone not to laugh…

60 comments to You’d need a heart of stone not to laugh…

  • CaptDMO

    And THAT one is pretty tame.
    Is The Great Realignment simply dead in the water, or am I missing something?

  • Porcupine Pete

    Her tears taste delicious 😆

  • Is The Great Realignment simply dead in the water

    Yes, it is on ice until we see what REALLY happens on January 2nd 2021.

  • Sean

    Just the sort of person you want deciding the fate of the nation – no? Good grief girl!

  • Steve Turner

    All together now:

    This one is a fruit and nut case….

  • Natalie Solent (Essex)

    Shocking behaviour. At 0:15 she takes both hands off the wheel.

  • Teresa

    I seem to remember Churchill saying something about why women shouldn’t vote…..

  • bobby b

    She’s driving a car with right-hand steer. She must be one of yours.

  • More likely the selfie setting flips the image

  • bobby b

    I know you’re correct, I just don’t want to claim her as one of ours. But step onto any US college campus and you can make films like that all day long today.

  • APL

    bobby b: “She must be one of yours”.

    😎

    Could be my sister, she emigrated to the US and has just divorced her husband of, oh I don’t know, forty years, and claims to be scared of Trump voters in her locality.

    My thought is she should just keep her mouth shut and for an immigrant, keep out of US politics, but no.

    She ‘unfriended’ me on Facebook during the last presidential election. To be honest, I’ve managed without.

  • Mr Ed

    This is that actress who plays Titania McGrath right? I mean, no one is that self-obsessed yet un-self aware to say, record, and post that, surely?

  • Paul Marks

    Nr Ed I am sorry – but millions (yes millions) of people are like this lady.

    Self restraint (self control) is not taught – on the contrary children are taught to “express their emotions” (have insane tantrums) and this carries over into adulthood – this educational approach, which actually attacks self control and reason generally, is from Rousseau and became dominant in many countries due to the work of John Dewey (“the man who ruined American education”).

    Facts are not taught (this lady is most likely “well educated” but she has no idea what is actually in the Constitution – even thought it is only a few pages long) and self control is spat upon – leaving people who are, essentially, ignorant savages (although they may actually have HIGH intelligence – which makes them more, not less, dangerous).

    Also, in spite of the lack of factual education, the “liberals” (the Collectivist followers of Rousseau, Karl Marx and so on) have a nagging thought at the back of their minds.

    They KNOW (yes they KNOW) that the Constitution and law, AS WRITTEN, is not in their favour – they need special “liberal” (read Collectivist) judges to make things go their way.

    What happens to the Collectivist cause if Collectivist judges are not there to twist the law and twist the Constitution to help the Collectivist cause? After all both the law and the Constitution were written to PREVENT the sort of things this lady wants.

    So there is actually a good reason for the leftist lady to be screaming.

    By the way – for a statement of the sort of education and the sort of belief system that is the opposite of what Rousseau, Karl Marx and this lady want…..

    See “The Meditations of Marcus Aurelius” – it is not a long book.

  • As we will no doubt tire of saying before the US Presidential Elections are finally concluded…

    “Cry Harder, Bitch!”

  • I seem to remember Churchill saying something about why women shouldn’t vote….. (Teresa, September 19, 2020 at 11:10 pm)

    🙂

    This list of things said when Scalia died by Libs who’d be shocked!, shocked I tell you!, if anyone said them about Ginsberg, contains a ‘range of identities’ – though, as with BLMers, they look disproportionately white to me.

    Happily, our side’s better average of manners (encouraged, let us honestly admit, by the vastly lesser protection the MSM gives us) mean their tender feelings will likely be less shocked. On the contrary, this respectful article by a former clerk of hers (in the The Volokh Conspiracy, referenced by Instapundit), expanding on Trump’s comment that she could ‘disagree without being disagreeable’, indirectly hints we should not.

    – I confess, the bit I most liked was the idea of the law student’s “Contract Law in Wagner’s Ring Cycle” paper that RBG liked so well she gave him the job. Sadly, I cannot find it on the web.

    – The saddest bit for me was an absence. In a school visit, she was asked “What case that you worked on that you enjoyed the most?” and gave a (predictable) answer. It appears none of the students ever quoted the dictum that “A judge that likes all the decisions she comes to is a bad judge” and asked for the case she decided as the law and constitution demanded, though herself liking the specific outcome the least.

  • Philip Scott Thomas

    The next six weeks until the election are going to be lit. Make sure you have plenty of popcorn to hand.

    Here’s a little game to play to help pass the time. The so-called “McDonnell Doctrine” has two parts. It says that the Senate should not ratify a President’s nomination for the Supreme Court if:
    1) it is an election year, and
    2) the Senate majority and President are of different parties.

    Have a drink every time the selective memories of the Dems and the Never-Trumpers cite the first condition and ignore the second. Your liver may never be the same again.

  • John B

    Late stage TDS. Not pretty.

  • Cesare

    Justice Ginsburg could have retired at 80 and been replaced by a jurist incoherently left of Fidel Castro. She did not, preferring to leave feet first. She did, and like the rest us she had no idea of her expiration date. Her pompously dictated ‘final wishes’ are embarrassing coda to an otherwise remarkable life. As far as the road menace in the video goes, she has become a type, common in demeanor and utter lack of restraint or so much as a memory of self awareness. Imagine this amounted to an actual crisis, in what imaginary world would a state of loud hysteria improve the situation?

    At what point does the stable dimension of the population come to grips with the increasingly glaring fact that a significant political faction has essentially become a refuge for the unstable. Not simply people who need help, but people who proudly wallow in their hysteria as a badge of demented honor the way a toddler might a full diaper. They compete, consciously or not, to out do one another in this increasingly public madness. Every aim or ambition is stated as a demand to be met and followed up with increasing threats of absurd consequences. It is no longer a question of Left or Right, sometimes ‘they’ whoever your they might be win etc. This is not a way in which a social order can continue to function, not a tribe, an Army squad, a village, or a market place.

  • Snorri Godhi

    Cesare:

    At what point does the stable dimension of the population come to grips with the increasingly glaring fact that a significant political faction has essentially become a refuge for the unstable.

    You are yourself pretty close to coming to grips with reality.
    The next step is to realize that, if the stable fraction of the population does not realize that there IS a seriously unstable fraction, then they are themselves not fully stable.

  • Nullius in Verba

    “At what point does the stable dimension of the population come to grips with the increasingly glaring fact that a significant political faction has essentially become a refuge for the unstable.”

    The stable centreground of the population have long been aware that all extremes are refuges for the unstable. Each extreme thinks the same of all the other extremes. Everyone sees the problem – the question is what to do about it. The extremes all think you should fight to stamp out all the other extremes, and leave just one. Revolution, suppression, civil war. But the result of that turned out to be a constant back-and-forth religious war that never ended and where everyone eventually got stamped on, because everyone is classified as ‘an unstable political faction’ by somebody else, which was where the ideas of freedom of belief and freedom of speech and tolerance for dissent came from, to allow no one faction to win or lose absolutely.

    It led to Kant’s Categorical Imperative: “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.” Whatever “come to grips with” might entail, it has to be something you’re willing to live with when society decides *you* are the unstable minority that they need to come to grips with. But we keep forgetting, and going back to the original plan of revolution, suppression, and civil war. It’s a lesson every generation has to learn anew.

  • Philip Scott Thomas

    NiV

    It led to Kant’s Categorical Imperative: “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.”

    In other, simpler words, never give yourself a power that you wouldn’t like to see wielded by your worst enemy.

  • JohnK

    I fear that the whole idea of the Supreme Court has become corrupted. It should not really matter who sits on the SC, as long as they are competent judges, who can read the Constitution.

    Thus: a city such as Washington DC decides to “ban” handguns (ie only make them available to criminals). What does the Constitution say? “Shall not be infringed”, so you can toss that law.

    Or, a woman wants an abortion, but the procedure is illegal in her state. What does the Constitution say about abortion? Nothing at all. Sorry Miss, we can’t help you, it is a matter for the voters in your state to decide.

    Or, the voters in California decide in a referendum that marriage is between a man and a woman. What does the Constitution say? Nothing. So the voters in California get the law they voted for.

    Isn’t being a constitutional republic great?

    The trouble is, left wing activists like Ginsburg, or indeed Lady Hale in Britain, do not want to be bound by a text written hundreds of years back by dead white men, and they certainly do not want to be bound by the votes of people less educated than they are, with archaic opinions about guns or marriage or national sovereignty. Far better for their intellectual superiors to search the Constitution for the the penumbra of some right or obligation the Founding Fathers had no intention of putting in there.

    It is only by twisting the Constitution by the Supreme Court that the USA has been turned from a constitutional republic into a social democratic welfare state. If the people had wanted that, they could have voted for it. But the fools didn’t. Therefore nine left wing judges had to do it for them.

    The Supreme Court today bears no resemblance to the body the Founding Fathers had in mind. It is a political body which has been used to impose leftism on the American people against their wishes. Ginsburg was not the only one to do it, but she was one of the worst. The fury of American leftists at her death is because they know that the only way leftism can be imposed on the American people is via judicial activism, not voting.

    If Trump manages to get a judge who is a Constitutional conservative onto the SC before the election, it will be one of his greatest triumphs. Let’s hope he does it.

  • Nullius in Verba

    “Or, the voters in California decide in a referendum that marriage is between a man and a woman. What does the Constitution say? Nothing. So the voters in California get the law they voted for.”

    Mmm. Yes. That was the 14th amendment, wasn’t it? “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The law was written to stop the states making laws (the Black Codes) giving different privileges and immunities to black people and ex-slaves – indeed, for Republicans to force it on Democrat slavery-supporting states where a vote on it could not possibly be won – but it doesn’t mention race either. It’s not specific about the basis for the division between citizens, nor the details of the legal differences in treatment it covers. So presumably that’s intentional – they didn’t intend to restrict it to the one issue of the day, but to assert a general principle. It says that every citizen has the same rights under the law.

    Is marriage a case of the “privileges and immunities” it is talking about? I think that’s not an unreasonable interpretation. Marriage is a legally regulated state. Does it require homosexual citizens to be given the same privileges as heterosexual citizens in the same way as historically it gave black citizens the same rights as white? Again, I don’t see any good argument that it doesn’t. It says “citizens of the United States”, so it covers all possible dividing lines. Is a law requiring that people only marry others of the opposite sex analogous to a law requiring people only marry people of the same race? Some would think so, although of course this is arguable. And if laws outlawing mixed-race marriages deny citizens of different races the same privileges as those granted to same-race couples, and thus fall foul of the 14th amendment, does not the same principle apply to every analogous situation?

    It’s not that the constitution doesn’t say anything about it. It’s that the constitution talks about broad-brush principles that have to be applied to specific situations, or judged inapplicable, and where you draw the line is a matter of judgement. (And I think there probably is a line beyond which the principle should not be applied.) That judgement about where to draw the line inevitably gets tilted by one’s moral and political attitudes.

    Each side thinks the other side is abusing the powers of the Supreme Court and interpreting the constitution in a partisan way. And they feel about it the same way you do: angry. So now the question is whether you do to them as they have done to you, or as you would have liked them to do to you? Which path teaches the proper lesson?

  • unrestrained outbursts were typical of the style of the whole National Socialist movement … frenzied raging with a total loss of self-control was considered masculine. (Carl Jacob Burckhardt after a visit to Goering, quoted in ‘The Face of the Third Reich’ by Joachim Fest)

    And now frenzied moaning with a total loss of self-control is considered feminist. Another triumph of PC.

  • APL

    Ginsberg, dies age 87 ( COVID-19 target demographic ) suffering from pancreatic cancer ( co-morbidity ), the only woman in the USA in the midst of a COVID-19 scamdemic who doesn’t have her death attributed to COVID-19.

    What are the odds of that?

  • Fraser Orr

    I think y’all are being a bit mean to this lady. I have moments like that in the car. The car is an awesome place to let it all hang out and do a bit of yelling. Sounds to me that this is a kind of “last straw” in this, obviously, shitty year. I don’t agree with her views on RBG, but I can certainly empathize with her frustration. However, much as I might let my cursing and swearing out in the car occasionally, I don’t put it on TikTok. But I’m not one of them kidz who do that stuff today.

  • Barry Sheridan

    This girl is deranged! Seriously!

  • JohnK

    Nullius in Verba:

    I think your sophistry is a prime example of what judicial activists on the SC have been doing to wreck the Constitution and the United States as a constitutional republic.

    The people of California voted against same sex marriage. It was foisted on them, against their will, by left wing activists in the guise of judges. You know it, I know it, the dogs in the street know it.

  • I would save your breath – or rather, your typing, JohnK (September 21, 2020 at 11:17 am).

    – That Nullius’ is particularly poor at reasoning about the US constitution has already been commented on by several in a recent thread.

    – However, it was very truly said in one of the appraisals of her that

    Ginsburg was a woman of great perseverance and arrogance

    and (letting ‘perseverance’ include ‘perseverance in commenting’), Nullius arguing for her style of reasoning is comically appropriate. 🙂

    So don’t expect to persuade or outlast Nullius. 🙂 I’d suggest a better use to be made of this is studying the argumentation Ginsburg used to defend being a very bad judge (as I define it above).

    the constitution talks about broad-brush principles that have to be applied to specific situations, or judged inapplicable, and where you draw the line is a matter of judgement. (Nullius in Verba, September 20, 2020 at 7:07 pm)

    That is of course merely repeating the old established insolences by which activist judges emptied the constitution of (non-PC) constraint. Laurence Tribe urged that idea decades back.

    (And I think there probably is a line beyond which the principle should not be applied.)

    And so did Laurence Tribe claim the existence of just such a limit to absolutely arbitrary interpretation, though, like that King of France who

    was subject to no earthly control – and no divine control that was perceptible

    so this line, that activist judges proclaim substitutes for a boring, uneducated, adherence to meanings of words present in or absent from the actual document, has not proved very perceptible. (As for professor Tribe, his reasoning in other matters does not argue self-restraint.)

    Not everyone this side of the pond has such a poor understanding.

    A conservative judge, in the proper legal sense, is not pro-gun anti-abortion Republican: a conservative judge should ask, as best they are able, ‘What does the law or Constitution actually say?’ (from this article)

    Such a judge would support the 2nd amendment because it was there in the constitution, not because they did or did not have a liking for guns, and strike down Roe v Wade because it was not there, not because they had a particular view on abortion. There is conservative versus liberal and conservative versus activist, the second pairing giving a subtly different meaning to the word conservative (though today, after the plague of activism, many of the most immediately-needed decisions would be the same).

  • Fraser Orr (September 20, 2020 at 11:27 pm), I think it is (or can be) more healthy than mean to laugh. Meanness would be, for example, imitating all those on twitter today begging that fatal mishap befall Mitch McConnell, either at the deity’s hands or their own. (And one is claiming that Mitch’s survival is a conclusive disproof of God’s existence. 🙂 )

    If any on our side imitated this – expressed a real wish that her ridiculous rage make her crash her car, for example – then I’d agree with you in calling that mean (certainly a wish I do not share). Laughter can sometimes be mean but it can also be relatively generous – can calm us and protect us from worry.

    It would be easy to imagine that woman wanting a judge who’ll rule that the first amendment does not include ‘hate’ speech, and who would herself eagerly denounce perpetrators of hate speech. An agitated, unamused imagination can then easily rush ahead to imagining oneself as a target of her denunciation. And now you hate her – she tried to lock you up for hate speech (or rather, she didn’t, but you confabulated a plausible scenario in which she would).

    Maybe the woman herself is given to just such bouts of fictional persecution fantasy – has indulged them often. How much better we’d think of her if she’d laughed, not raged, at 2020 getting even crazier; how much better for her if a few minutes later she laughed at her rage.

    Just my 0.02p on a complicated subject.

  • Schrodinger's Dog

    As libertarians, aren’t we missing a trick here?

    This woman is having hysterics because she fears that, following the death of Justice Ruth Bader Ginsburg, Donald Trump will appoint a conservative justice to the Supreme Court, whose decisions will probably not be to her liking. She needs to learn that huge, all-encompassing government, where so much rests on the appointment of one individual, is not such a good idea. It’s great when your lot is in charge, but not so much when the other bunch is in charge.

    The state is not your friend – not that a libertarian ever needs to be told that.

  • Philip Scott Thomas

    NiV

    Is marriage a case of the “privileges and immunities” it is talking about? I think that’s not an unreasonable interpretation. Marriage is a legally regulated state.

    The 14th Amendment was certainly used to justify the decision in Loving v. Virginia (1967), which struck down bans on interracial marriage.

    Does it require homosexual citizens to be given the same privileges as heterosexual citizens in the same way as historically it gave black citizens the same rights as white? Again, I don’t see any good argument that it doesn’t.

    Again, the 14th Amendment was used to justify the decision in Obegefell v. Hodges (2015), which struck down bans on same-sex marriage.

    The law was written to stop the states making laws (the Black Codes) giving different privileges and immunities to black people and ex-slaves – indeed, for Republicans to force it on Democrat slavery-supporting states where a vote on it could not possibly be won – but it doesn’t mention race either. It’s not specific about the basis for the division between citizens, nor the details of the legal differences in treatment it covers. So presumably that’s intentional – they didn’t intend to restrict it to the one issue of the day, but to assert a general principle. It says that every citizen has the same rights under the law.

    No. Raoul Berger is quite clear in his book Government by Judiciary (1977) that the 14th Amendment should be interpreted according to its originators’ intent. In other words, originalism, not textualism. He contends that the purpose of the Fourteenth Amendment was to raise the Civil Rights Act of 1866 from mere legislation to part of the Constitution.

    Per Wikipedia:

    “Specifically, the purpose of that Act was to tear down the Black Codes in the post-Civil War Southern U.S. and to give the freedmen basic rights such as freedom of contract, the right to sue and be sued, to travel and work wherever they please, and to buy, sell, and own property. Berger argues that, in the view of its draftsmen, the 1866 Civil Rights Act did not require U.S. states to allow African-Americans to serve on juries, to vote, to intermarry with White people, or to go to the same schools that White people went to…

    “Berger also criticizes the argument made by Alexander Bickel, William Van Alstyne, and others that the 14th Amendment’s language was meant to be open-ended in order to give future generations a large amount of discretion in determining how to apply the 14th Amendment’s principles to their own times. Berger argues that the “open-ended language” theory lacks any historical basis whatsoever and that, in any case, any intentions that existed but were not disclosed to the American people before they ratified a constitutional amendment certainly have no value and shouldn’t be used as a basis for interpreting this amendment.”

  • Nullius in Verba

    I think your sophistry is a prime example of what judicial activists on the SC have been doing to wreck the Constitution and the United States as a constitutional republic.

    Yes. The original argument along these lines was developed by Chief Justice Earl Warren, a Republican, in the case of Loving v. Virginia (1967), as Philip Scott Thomas says.

    The people of California voted against same sex marriage. It was foisted on them, against their will, by left wing activists in the guise of judges. You know it, I know it, the dogs in the street know it.

    The people of Virginia (and a long list of other states) voted against mixed-race marriage. It was foisted on them against their will by right-wing activists. You know it, I know it, the dogs in the street know it.

    “That Nullius’ is particularly poor at reasoning about the US constitution has already been commented on by several in a recent thread.”

    Commenting thus doesn’t make it so. I’m not the one who thought there was nothing in the constitution about it! Reasoning poorly about it doesn’t stop anybody else here from commenting.

    “Nullius arguing for her style of reasoning is comically appropriate.”

    You mean the Republican Chief Justice Earl Warren’s reasoning. Loving v. Virginia applying it to miscegenation was written by Warren. Obegefell v. Hodges extending it to gay marriage was written by Kennedy. It’s not Ginsberg’s reasoning, although she agreed with it.

    “No. Raoul Berger is quite clear in his book Government by Judiciary (1977) that the 14th Amendment should be interpreted according to its originators’ intent.”

    I thought that was what I said? The amendment doesn’t mention race, because the originators did not intend for it to apply only to race. Previous drafts did specify race, but were rejected. Although it’s arguable that the “originator’s intent” is undefinable because there was more than one originator – it was a compromise wording negotiated between numerous different factions, each with their own distinct intent. And several of them commented that it was a failure, not achieving what they’d aimed for. The originators wanted it to deliver even more.

    I would also observe that to reject the plain meaning of the words in favour of some alternative based on historians’ ideas about “what they really meant” is just a fancy way of rewriting the constitution to suit yourself. Original intent can help when the wording is ambiguous, and you must pick between several possible meanings. But you can’t reject what the words say entirely and substitute a completely different meaning to them. That would be ‘judicial activism’.

    “Berger also criticizes the argument made by Alexander Bickel, William Van Alstyne, and others that the 14th Amendment’s language was meant to be open-ended in order to give future generations a large amount of discretion in determining how to apply the 14th Amendment’s principles to their own times.”

    And why should we accept Berger’s opinion? If he’s criticising other people’s arguments, then other people must have come to some other conclusion. What if they’re right?

    Although I don’t agree that it’s intended to be open-ended or to allow discretion. It’s very specific. The sole criterion is that they be “citizens of the United States”. There is no room to add other criteria, or to take any away. Are we talking about a law granting privileges or immunities? Are the people involved all citizens of the United States? Then the 14th amendment applies. All citizens of the United States must have all the same privileges and immunities under the law. There is no discretion offered about that.

    But subsequent legislators apply discretion anyway, legislating against certain classes of people and not others in contravention of the constitution, and simply choose not to notice that they do so. We only gradually remove more of these constitution-breaking laws, selected one-by-one for deletion as times change. The discretion is not in the constitution, but in our choices of when to breach it.

    That said, I’m sure the originators were well aware that it would not be immediately and fully applied in practice, in the same way that the author who wrote the words “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness” himself owned 600 slaves. It’s not that they didn’t really mean what they said, or that they intended that the unalienable right to liberty somehow doesn’t apply to slaves, but people are hypocrites, and bound by the traditions of the times. It’s not intended as a statement of what they intend or expect to actually do, but a statement of what is right to do. The United States have not yet achieved constitutional perfection, but they aspire to it.

  • JohnK

    NIV:

    Calling Earl Warren a Republican several times does not detract from the fact that he presided over a liberal Supreme Court.

    As I am sure you are aware, from the dawn of time marriage has been an institution between a man and a woman. This has nothing to do with whether a black man may marry a white woman. The 14th Amendment was not and is not to do with sex or sexuality. There can be no doubt that the question of same sex marriage never crossed the mind of the drafters of this Amendment.

    None of this means that same sex marriage should be banned if the voters want it. It means that in a constitutional republic, if the constitution is silent on a thing, then the Supreme Court should say so, and leave the matter to the people to decide. The Founding Fathers meant the Supreme Court to uphold the US Constitution, not to act as philosopher kings.

    Your scrabbling around amongst the penumbra of the 14th Amendment is an excellent example of the way activist judges have let down their calling and let down the people. The votes of the people of California were struck down by judicial activists. What is the point of voting?

  • A good judicial opinion relies on the solid building blocks of precedent and statutory authority. … Ginsburg’s opinions, especially on issues that mattered to the left, were amalgams of random bits and pieces of law that could be cobbled together … Ginsburg and her clerks hid this shoddy construction in muddy and muddled writing surrounded by myriad case citations that were never quite on point. (bookworm)

    She was a politician in judges robes and those who praise her “fighting” for “equality and justice” are thereby admitting the fact.

    … from the dawn of time … (JohnK, September 22, 2020 at 10:59 am)

    True, modulo the odd oddity (the Venetian Doge used to be annually ‘married’ to the sea, for example), but one only need (and indeed, an originalist arguably only should) go back to circa 1868 and ask what those who passed the 14th amendment would have said about NiV’s highly un-analogous cases. We know two things about the radical republicans who sponsored that amendment.

    1) During the civil war years they repeatedly had to defend their ‘negrophilia’ against supposed-to-be-reductio-ad-absurdum arguments: “So you’d obey a Negro if he were elected president, would you?”, “So it’s fine and legal if your daughter does a Desdemona, is it?”, and so on.

    They could not in logic dodge these and similar questions, so as time went by they (some vehemently, some reluctantly, some impatiently, some sotto voce) put themselves on record. And of course, they tended to come from northern states where black-white marriages were legal – where there were towns founded for the precise purpose of inter-racial marriage settlement (Star Trek’s Nichelle Nichole grew up in such a town, her mixed-race ancestors having found it expedient to move there).

    It was around the turn of the century that the USSC began to tolerate separate-but-equal handling of things (e.g. Plessey v. Ferguson in 1896 allowed laws obliging separate rail carriages for blacks and whites) and under that approach laws demanding black men marry black women and white women marry white men could be construed as having a similar separate-but-equal constitutionality, but you can make an originalist case for that being a typical ‘living constitution’ change to the 1868 radical republican intent. (Woodrow Wilson was a great ‘living constitution’ fan).

    2) A respectable number had a classical education; they knew, and were taught to respect, a society where homosexuality had not been a sin – and had not been a marriage either. There is no slightest room for doubt how they would have ruled on that – nor any need to suppose they would have had to be biased by the opinions of 1870 more than the opinions of classical Greece to reach that decision.

    The constitutional right to withhold alternative forms of marriage participation from that previously established was confirmed soon after, when the Utah Mormons lost their supreme court cases against anti-polygamy laws in 1882 and 1887, confirming our certainty how the writers of the 14th amendment would have ruled on its meaning.

    To people like Laurence Tribe, Ruth Bader Ginsburg and other ‘living constitutionalists’, the constitution is like the proclamation of independence – a mere expression of general hope that allows judges to be politicians provided they can sound to themselves as if they are realising the hope. But as was recognised from the Federalist Papers on, such views destroy the separation of powers. If judges can be politicians then it were far better to discard the court and oblige them to gain power as politicians. The living constitutionalists know this. Tribe’s ‘line’, whose imperceptibility I mock above, is just their fiction that attempts to let them combine the power of politicians with the independence of the electorate that the elite crave.

  • Nullius in Verba

    “Calling Earl Warren a Republican several times does not detract from the fact that he presided over a liberal Supreme Court.”

    And nor does presiding over a liberal court detract from Earl Warren being a Republican, and being the author of the decision.

    “The 14th Amendment was not and is not to do with sex or sexuality.”

    The 14th amendment is to do with citizens all having the same rights and privileges under the law. Marriage isn’t excluded.

    “As I am sure you are aware, from the dawn of time marriage has been an institution between a man and a woman.”

    As I am sure you are aware, no it hasn’t!

    A third century Jewish commentary to the book of Leviticus explains the habits of the Egyptians banned in Lev 18:22 and 20:13 by saying: “A man would marry a man and a woman a woman, a man would marry a woman and her daughter, and a woman would be married to two men.”

    The Roman emperor Elagabalus was married to Hierocles and Zoticus. The emperor Nero married Pythagoras and Sporus. In 342 AD the early Christian emperors Constantius II and Constans passed the Codex Theodosius banning gay marriage and ordering all those so married to be put to death. It wasn’t until 534 that the Codex Justinianus banned all but monogamous one-man-one-woman marriages. And there’s no point in introducing a law to ban something that never happens.

    President Grover Cleveland met an lhamana (= transgender) representative of the Native American Zuni tribe called We’wha, who was married to a man and generally recognised as such.

    There are also numerous cases of polygamous, polygynous, polyandrous, and polyamorous marriages that also don’t fit the prescription “a man and a woman”.

    And then there’s this. And this. And this. You’d need a heart of stone not to laugh!

    The idea that “from the dawn of time marriage has been an institution between a man and a woman” is a case of making up your own ‘alternative facts‘! It is, in any case, irrelevant. Just because nobody has done something before doesn’t mean it can’t be done now, or nothing would ever change.

  • Paul Marks

    The philosopher that the American Founding Fathers most read was Thomas Reid – not Kant.

    Reid an the other “Common Sense” philosophers (it was still the main school of philosophy in the United States til the late 19th century – due to James McCosh and Noah Porter, although Porter used some Kantian terminology at times) did not say things that were dramatically new, what they tried to do was defend traditional truths in language which was as clear as they could make it.

    As the Oxford Realist philosophers of the early 20th century were fond of saying – if the ordinary person on the bus passing this lecture hall could not understand my lecture, then I am doing something wrong.

    The truths were simple, but fundamental. The physical universe is real (it is not an illusion), the human person (the “I”) is real, moral good and moral evil are real – and humans (as beings) can chose between good and evil – are morally responsible for out actions because we can choose to do otherwise.

    Nothing Earth shattering in the above – Aristotle and so on would have said “well who denies any of this?” – the trouble is that a lot of “great thinkers” do deny it, or cast confusion.

    By the way even Kant could speak clearly when he choose to do so – for example his denouncing of Compatiblism (the idea that we that we can not choose to do other than we do – but that we are still morally responsible for our actions) as the squalid fraud that it is.

    But on “extremism”- that the Nullus brings up.

    It is in no way “extremism” to say that a Constitution says what it says – that both the words on the pages of the document and the written comments of the people who wrote those words have an objective meaning.

    What is extreme (indeed utterly insane) is the idea of a “living constitution” which changes (without formal Constitutional Amendment) according to the whims of the leftist elite.

    For example…..

    There is nothing in the Constitution of the United States or (as far as I know) the Constitution of any Stare about Gay Marriage (other than those States that had specific provisions against it) – and marriage was in the Common Law between a husband and wife. Now Gay Marriage may be a wonderful thing – but it is not the role of judges to invent it or make other people “recognise” it.

    Of course people should be allowed to say “Hello I am Harry and this is my wife Tom – is not the beard and penis of my wife nice” – as long as other people are allowed to not associate with them.

    People can ignore objective reality as much as they like – but a judge should not FORCE other people to applaud (“recognise”) this and use their language.

    Another example is welfare payments – there is no right to such payments for citizens (let alone non citizens) in the Constitution of the United States – or (again as far as I know) in the Constitution of any State.

    To extend this (nonexistent) “right” to ILLEGAL IMMIGRANTS as the Californian Court did was clearly insane.

    The people were not “extreme” when they voted in Proposition 187 NOT to spend tax money on illegals – it was the JUDGES who were extreme when the overturned both the the vote and the words of the Constitution of California.

    The laws and Constitution are not “ambiguous” and more than the British vote for independence from the European Union in 2016 was “ambiguous”.

    Judges and other types who overturn laws and Constitutions under the mask of “making them live” may tell themselves they are “fighting extremists” – but they should look in the mirror, for then they will see the real extremist.

    As for abortion (the issue dearest to Justice Ginsberg’s heart). Perhaps killing babies is wonderful – but again it is not the role of judges to decide this. And notice how it is now killing babies even AFTER birth – the Governor of Virginia is fine with that (and did Justice Ginsberg oppose this?)

    Thee is no “right to abortion” in the Constitution of the United States anyone who pretends that Roe V Wade was decided in line with the Constitution of the United States is a liar.

    There is a lot in the Constitution of the United States that I do no like – for example the right of Congress to have a “post office and post roads” – why?

    And there is much in the Constitutions of many Sates that I dislike – for example the education provision laid out in many State Constitutions.

    But most of the things the left pretends are Constitutional are not, and they know they are not. The left are lying.

    And it those who seek to base a political order upon lies who are the extremists.

  • Paul Marks

    It should be pointed out that the main Oxford Realist philosophers, Harold Prichard and Sir William David Ross (Major Ross) were both fond of Kant – I hope I did not give the impression that they were not.

    As for Kant and Reid – Kant despised Reid, but admitted that he had never actually read any of the works of Reid (he had just heard that Reid tried to write and speak in a way that the ordinary person would understand – which was, supposedly, beneath the dignity of a true philosopher).

    kant on politics.

    There were a series of books (blue covers – I seem to remember) produced by a team headed by Professor Skinner at Cambridge.

    They were the “Political Writings” of various philosophers- their actual political writings.

    Instead of trying to work out what their political stance was by going to the depths of their philosophy, these works looked directly at what these men wrote about political matters – in essays, or even letters to friends.

    I find myself unable to remember exactly what Kant’s political stance was.

    I seem to remember that he wanted all property tax payers to have the vote (which does not seem unreasonable) and that he wanted some sort of world federation (which is daft – but it was a dream shared by many over the centuries).

    I can not really remember much more.

    The idea of judges acting as the “Law Giver” and making stuff up to suit their whims about how society should be “organised” sounds more like Rousseau than Kant.

  • My defence of laughter (Niall Kilmartin, September 21, 2020 at 12:15 pm) has proved timely. As my principles require, I did not wish for it. As my principles allow, I was amused by it. 🙂

  • JohnK

    Nullius in Verba:

    I take my hat off to you. You really should be a Supreme Court Justice.

    Do you really think that the fact Emperor Nero married a dude, or that Grover Cleveland once met a Red Indian transgenderist has anything to do with the 14th Amendment, or whether the votes of the Californian people count for nothing?

    The 14th Amendment is not about same sex marriage. If the people want it, they can vote for it. To pretend that it is a constitutional right, albeit one that no-one noticed they had for about 140 years, is utter sophistry of the highest order. Which is why, as I said, you would make an excellent Supreme Court Justice.

  • Paul Marks

    S.D. – the lady wants an all controlling government, she is frightened that a conservative Supreme Court Justice will help prevent this.

    Remember the lady (like all “liberal” Democrats) wants the American taxpayers to fund a Welfare State for the entire planet – that anyone from anywhere could come to the United States (illegally) and get an income, free medical care and so on.

    The lady is also scared that a conservative Justice will defend (rather than undermine) the fundamental liberties of the Bill of Rights – which modern “liberals” (in this odd reversal of language) hate and despise.

    Conservatives believe that these rights pre exist government – that the Bill of Rights does not “grant” rights, but (as the Ninth Amendment makes clear) it recognises pre existing eternal rights – but that is a discussion for another time.

    The point is not what is the origin of these rights – but are they going to be enforced?

    With the sort of judge this lady wants there is no chance of that – as such a judge would be fanatically determined to destroy such things as the First Amendment “Hate Speech!” the Second Amendment “Property owners should not be armed – only government and private criminals should be armed! Burn! Loot! Kill the Racist Reactionaries!”

    There is very little of reasoning with such people. They are too “educated” – they believe that reason is part of “whiteness” and is evil.

    One can refute Marxism – but only with reason and evidence, and modern “liberals” are taught to despise reason and evidence.

  • Do you really think that the fact Emperor Nero married a dude … has anything to do with the 14th amendment

    Actually, JohnK (September 23, 2020 at 10:13 am), it seemed to me that Nullius historical references did have an amusingly contrary relevance to RBG-and-friends’ view of it.

    – Caligula declaring his horse a senator does not tell us about the eligibility rules for Roman senators. It tells us Caligula was a tyrant, who showed it by mocking his wretched subjects’ sense of reality in petty (‘you don’t dare laugh’) ways as well as in brutal ways.

    – When Nero had a wretched slave castrated (by commanding ‘Make him a woman’ in one version IIRC) and then presented as his wife, this does not give us information about Roman marriage law. It merely tells us that Nero too was a tyrant.

    These examples of tyrants demonstrating that they are unconstrained by law have an analogy with ‘living constitution’ judges demonstrating that they too are unconstrained by the constitution they swore to uphold, or by their duty to be judges and not usurp the role of legislators.

    Just because nobody has done something before doesn’t mean it can’t be done now (Nullius in Verba, September 22, 2020 at 7:42 pm)

    That is true, Nullius, but it is far more relevantly true that precedent is important to law, and to whether things not only can be done but must by alleged federal constitutional right be enforced to be done.

    JohnK, as I noted (in Niall Kilmartin, September 21, 2020 at 12:10 pm) I advise, not ‘taking your hat off’ to Nullius-in-Verba, but simply accepting that NiV will outlast us in this thread. RBG may be dead, but I predict the spirit of her ‘arrogant perseverance’ will outlast her. 🙂 The wisest use of these debates is better to understand the arguments (open or indirect, in general and on specific points) of ‘living constitutionalists’, and so find the strongest (which sometimes means the least vulnerable) ways to defend the constitution against them.

  • Labour MP Jess Phillips reads the BabylonBee. (Don’t tell her its satire – she’ll cry.)

  • JohnK

    Niall:

    That is a very sophisticated point. When the SC can do a David Blaine act and find an hitherto invisible part of the Constitution, it does not make them sophisticated lawyers, it makes them politicians.

    I note our old friend Nullius, with his most excellent pedantry, chose to call in aid the sex lives of various Egyptian and Roman emperors. Yes, they married their sisters and did all sorts of weird shit. But the fact remains that for ordinary people, throughout time, marriage was a contract between a man and a woman. If you want to change that, let the voters decide, don’t rub their noses in your legalistic sophistry.

    I note that Nullius does not seem to have anything to say about Roe v Wade. The Supremes really had to twist themselves in knots over that one, finding a previously unknown right to privacy in the Constitution, and then extending that right to the privacy to have an abortion. As Paul has pointed out, the Constitution is silent on abortion. If I had to guess, I would say the Founding Fathers would have been against it. But it does not matter. It is not an issue for the federal government. Let the voters of the states decide what they want in their state. That is the correct constitutional position, and the left wing views of the likes of Ruth Bader Ginsburg should not come into it. But I will leave it to Nullius to inform me of which ancient rulers were in favour of abortion, as if it mattered.

  • Nullius in Verba

    “I take my hat off to you. You really should be a Supreme Court Justice.”

    Thank you! I’m afraid I have a thing about logical consistency! It’s a quirk of personality.

    “Do you really think that the fact Emperor Nero married a dude, or that Grover Cleveland once met a Red Indian transgenderist has anything to do with the 14th Amendment, or whether the votes of the Californian people count for nothing?”

    No. It was to do with the claim: “As I am sure you are aware, from the dawn of time marriage has been an institution between a man and a woman.” That’s not true. Other cultures define marriage differently. Other definitions are possible.

    “The 14th Amendment is not about same sex marriage. If the people want it, they can vote for it.”

    The same may be said for slavery and the Black Codes. If the southern states had wanted to end slavery, they could have voted for it. If the southern states had wanted blacks to be able to vote, to travel, to sign contracts, to bear arms, to gather in churches for worship, or to learn to read and write, they could have voted for it. If the southern states had wanted to allow black and white people to intermarry, they could have voted for it. They didn’t. It was imposed upon them, by civil war and federal law.

    The basis of the union is that all citizens of the United States have the same rights under the law. At the time the 14th amendment was enacted, the issue of the day was black citizens not having the same rights as white citizens, and blacks in one state not having the same rights as blacks in another state, but the same reasoning applies to men having the same rights as women, or Catholics having the same rights as Protestants, or homosexual citizens having the same rights as heterosexual ones. You can’t say “We hold these truths to be self-evident, that all men are created equal” and then immediately turn around and say they’re not. You can’t say that every man has an inalienable right to liberty, and still keep slaves. But people did.

    One of the most admirable things about the United States was that it was founded on the ideals of liberty and equal rights before the law. But initially those were only ideals and aspirations, not facts. Slaves were not free. Blacks and women (and many others) were not equal. It took a long time before the idealists were able to talk the rest of the population round to actually implementing the ideals the founders talked about. The pre-existing traditional culture had many practices contrary to the spirit of freedom and equal rights wired in, and it would have seemed to go against nature to make blacks and women the equal of whites and men. That’s just how things are, and how they’ve always been. But once it’s been changed, suddenly it’s hard to understand how anyone could have thought they didn’t have the pre-existing and eternal right!

    When the declaration says “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”, are not women and blacks among the governed? If you do not have their consent, what legitimacy does your government have? But until 1920 and the 19th amendment the constitution apparently didn’t see it that way. The consent of the governed was not sought. Half of the citizens of the United States were given no say in it.

    And so why couldn’t the women thus say “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness”? Isn’t this truth self-evident? Or do Americans and Conservatives think Jefferson was lying?

    It’s also the libertarian position. The state has no right to restrict individual freedom of action except to prevent unconsented harm being done to others. Or to put it another way, if they can do it to women and blacks and homosexuals, then what’s stopping them doing it to you?

    “Conservatives believe that these rights pre exist government – that the Bill of Rights does not “grant” rights, but (as the Ninth Amendment makes clear) it recognises pre existing eternal rights…”

    Yes. But do they recognise that those pre-existing eternal rights apply to everyone? Or only a selected subset of people?

    And if the selected subset is something like “citizens of the United States”, then does that not also require that citizenship of the United States be pre-existing and eternal? How can you define rights before you define the terms on which the meaning of those rights depend?

    “But the fact remains that for ordinary people, throughout time, marriage was a contract between a man and a woman.”

    If by “ordinary” you mean “the majority of people” then it still is. Most people who marry are heterosexual and monogamous. It doesn’t take away anything from those who are, for the state to not forbid it to those who are not.

    For most of recorded history, marriage was also a religious ceremony. Does it make sense for atheists to marry (or people belonging to false religions), and must a deeply religious person “recognise” such marriages as de facto legal in law? How can a Hindu marriage be valid in a Christian country, or vice versa? The God to which they are sworn doesn’t even exist! How can an atheist or unbeliever be considered party to a religiously-defined state of affairs? For most of recorded history, atheism was a crime. Is the right to freedom of belief pre-existing and eternal? Or did we create it?

  • JohnK

    Nullius:

    No, I really mean it, you deserve to be on the Supreme Court.

    Yes, the 14th Amendment was about the equal treatment of citizens. Thus, every man had the right to marry every woman. That is what marriage meant. The drafters of the 14th Amendment would not have given the idea of same sex marriage a second thought. The very concept would have been meaningless to them.

    This is not to mean that same sex marriage could not be possible if the people wanted it. What was not wanted in 1880 might well have been wanted by 2020. And the power should be in the hands of the people.

    I have no problem with same sex marriage if that is what the people vote for. The fact is, however, that the people of California did not want it. They voted against it. That was their sovereign will. Until some judicial leftists came along, twisted the 14th Amendment out of all recognition, and informed the people of California that they were brain dead scum, whose votes meant nothing.

    It is when shit like that happens, that it matters who is on the Supreme Court, and why leftist chicks have meltdowns because their favourite leftist has died and let the Donald appoint a new SC Justice. It is very wrong, and has turned the SC into a new branch of the executive, which is not its job.

    I am not expecting you to agree with me, by the way.

  • Paul Marks

    There are legitimate ways to change both State and the United States Constitutions.

    A Convention can be called to write a new Constitution – at the United States level this does not even involve Congress, the Senate and the House do NOT have give their consent to the calling of a Convention – two thirds of the States can call one regardless of what Congress thinks, and Congress gets no say in the results either – if three quarters of the States approve the new Constitution it is the new Constitution (even if the new Constitution abolishes Congress and the President).

    This is what might be called the “nuclear option” – basically “the present situation is mess – we need to go back to the drawing board”.

    It has not happened in the two and half centuries of the existence of the United States since the 1780s (the last Convention), but if two thirds of the State get really annoyed, it would happen – and it may well happen if the Federal Government goes de facto bankrupt “paying” its debts by printing money – as seems very likely.

    After all that is the reason the last Convention was called in the 1780s – the “Not Worth A Continental” problem. The “Continental” being the name of the government paper currency that most people thought had been ended for ever by the Philadelphia Convention (the “but if you drink a bottle of meths then the Constitution seems to say that paper legal tender is fine” tap dance came much later).

    The other way of changing the Constitution (State or Federal) is by Amendment – for an Amendment two thirds of the House and Senate (not the President – he has no say at all) have to agree – and three quarters of the States have to agree as well.

    That may seem like a high fence to climb – but the United States Constitution has been amended many times. If there is really a head of steam for a change – then the Amendment will get through.

    But as for the stuff that Nullius is talking about in his comments – no that is not a legitimate way of changing the Constitution of the United States or any of the 50 States.

    I am reminded of the time that the late Justice Ginsberg started to cite what sounded like Constitutional text – this was so usual that it got attention (normally, like Justice Kennedy, Justice Ginsberg did not tend to cite text – even to twist it), and this seemed like the actual citing of text and then drawing reasonable conclusions from that text.

    However, Justice Ginsberg had not actually been citing the United States Constitution (which Justice Ginsberg disliked and tried to undermine) – the lady was citing the Constitution of South Africa.

  • Lee Moore

    Yes, the 14th Amendment was about the equal treatment of citizens.

    Up to a point, Lord Copper.

    1. the equal bit is not restricted to citizens, it prohibits any State from denying to “any person within its jurisdiction..”

    2. “..the equal protection of the laws…”

    Number 2 does not refer to “equal treatment”

    Precedent on the meaning of the 14th Amendment is very confused, and clearly at the time the 14th Amendment passed, nobody thought it applied to things like voting rights. Since they went right on and passed the 15th Amendment :

    The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

    which would have been redundant had it already been covered by the 14th.

    Textually there’s an important difference between equal treatment and equal protection of the laws – because not all laws involve “protection” for the citizen. Voting rights, obviously, have nothing to do with protection – except with highly energetic leaps of sophistry.

    As for marriage, it is rather doubtful that marriage laws involve much by way of “protection.” They provide recognition, and perhaps some legal privileges in some circumstances. The ancient rule that a wife can’t give evidence against her husband might just possibly be squeezed into a notion of “protection” though even this is highly iffy.

    Perhaps where fornication is a criminal offence, marriage might be said to afford some legal protection for those engaged in nookie. But I don’t believe fornication is illegal these days, and I don’t know how illegal it was 150 years ago. I expect miscegenation was illegal in some States, but notwithstanding Justice Gorsuch’s recent mental gymnastics in a related matter of statutory construction, miscegenation laws, however deplorable, do apply equally to all.

  • Paul Marks

    The specific issue that Nullius raises may not be as important as, for example, whether paper money can be legal tender in any State (no – it can not, see Article One, Section Eight and Section Ten), or whether the words “general welfare” are the purpose of the specific spending powers granted to the Congress, or a catch all “general welfare spending power” as the Supreme Court has claimed in past judgments (clearly, from the context of the Article One Section Eight ad the existence of the 10th Amendment – the words “general welfare” are the PURPOSE of the specific spending powers granted to the Congress, they are NOT a general spending power).

    However, he deserves an answer.

    Is there anything in the Constitution of the United States that allows the Federal Government to compel people to recognise “Gay Marriage”.

    Well perhaps in D.C. – D.C is part of no State, nor is it a State.

    If, in defiance of Common Law, the Federal Government wished to establish homosexual marriage in the District of Columbia (compelling insurance companies to pay out and so on) then I think they could.

    But they have no Constitutional power to impose it on any State – that, like abortion and so on, is a matter for the States.

    At State level State Courts have often violated what State Constitutions say – the extreme dishonesty of many State and Federal judges is something that was nor predicted by most people when these documents were written.

    I think my favorite example is a judgement of Justice Kennedy (I was reminded of it only yesterday) – it was some corrupt judgement giving “Planned Parenthood” (a private organisation) taxpayer money it should not have, but it was not that sticks in the mind (there are so many corrupt judgements) – no it was the LANGUAGE.

    Freedom, according to Justice Kennedy, was the ability to define your own reality, both the universe and yourself – and a key part of this was abortion.

    Leaving aside whether killing babies really is that much fun (I do not know – I have never tried it) – the radical relativism of Justice Kennedy was interesting – defining the universe (denying its objective reality contrary to one’s subjective whims) and denying the existence of an objective self (the idea that someone can just declare themselves to be something they objectively are NOT).

    The “Catholic” (in reality he is as much “Catholic” as Biden or Pelosi he detests the doctrines of the Roman Catholic Church, as they do) Justice Kennedy has gone way beyond abortion here – he is denying the objective nature of the physical universe, and the objective nature of the human person.

    Often when one reads the judgement of a modern judge one thinks “this person should be in prison”, but with this particular opinion by Justice Kennedy the thought was “this person should be in a padded cell wearing a straight jacket”.

    Someone like Justice Ginsberg (in spite of her many faults) would NOT have written as Justice Kennedy did.

    It really was “away with the elves and pixies” stuff.

  • Paul Marks

    The Supreme Court opinion that I (and many others) would like to have seen written – but was not written, was that of Justice Pierce Butler in “Buck V Bell”

    The Supreme Court decided (eight votes to one – Justice Butler being the one) that a woman, who had committed no crime, could be cut up by a State government – forcibly sterilised.

    This clearly violates Common Law – it was the use of violence by the State in response to no crime, and the 14th Amendment makes clear that the rights of United States Citizens may not be infringed by State and local government – the State or local government can not just come attack you when you have done nothing wrong (“everyone your business is shut down, whether it has Covid 19 in it or not, and no one may leave their home without a mask, again whether they have Covid 19 or not” is as Constitutional as “you are now a slave – and we are all going to rape you to death”).

    The State claimed that the woman was of inferior stock (actually she was not “retarded” as they claimed) – but being of inferior stock (even if the lady was – which she was not) in no way justifies a violent attack by the State – using a knife to cut her open and mutilate her.

    But instead of writing a formal dissent, Justice Butler just dissented.

    True writing formal dissents was less common then – but it would still be worth having.

    As it is we just have the garbage justification of OWH junior.

    The one good thing about Justice Holmes was that he never made his hatred of the Constitution a secret – indeed he used to tell people how much he hated it, and praise British people (whether they wanted to talk about this or not) for not having a Constitution.

    I suppose the idea of Justice Holmes was – if you are going to be evil, make a good job of it, celebrate and rejoice in your evil.

    No surprise that OWH junior was into Eugenics – it was very popular at the time. It is not in the Constitution of the United States or any Amendment to it – but to Justice Holmes that was a bonus (a chance to spit on the Constitution was what he lived for).

  • Paul Marks

    I am told that Justice Holmes (junior) was a fiend of Professor Harold Laski.

    If that is true, it would not shock me.

    As for the people who went along with him, and with the fashions of their day, because there would be a big social price to pay for opposing such things.

    Well – if you are not willing to give up everything, including your life, on a point of principle, then you are not much of a man. I am sorry of that sounds harsh – but it is true.

  • Paul Marks

    On “Gay Marriage” – as I have pointed out before, there is no problem with a couple of men (or several men) or a couple of women (or several women) having private ceremonies and declaring themselves “married” – the problem comes when other people are forced to”recognise” this. “Hello my name is Tom and this is my wife Harry – which of our beards do you think is longer? And these are my other three wives, Charles, Peter and Mike – they are clean shaven” – ” is NOT a violation of the Nonaggression Principle – forcing someone else to “recognise” them as married (making an official thing of it) is the problem. Non Association is a vital part of Freedom of Association – the right to walk away.

    The demand that other people “recognise” this, indeed “celebrate” it (hello Justice Kennedy) is the totalitarian demand.

    Still the Federal Government (Congress – not the Supreme Court) has a right to do this stuff – in DC (not in any State).

    On Justice Holmes I did not actually give his argument in Buck V Bell – and it is an interesting example of using a smaller evil to “justify” a greater evil

    Compulsory vaccinations – that was the thing that Justice Holmes hit upon.

    Governments use force to stick a needle in the arm of someone who does not want the injection – so why not use force (a knife) to cut up a woman against her will?

    And it does not matter if the women is really inferior or not – as government uses force to give people injections whether they are really inferior or not.

    The argument makes logical sense – if you accept his evil starting point.

    By the way I am PRO vaccination – I am not an “anti vaxer”, I am just against using force in these matters.

  • Non Association is a vital part of Freedom of Association – the right to walk away.

    Amen to that. Tolerance is great but mandatory acceptance is monstrous.

  • Well, at least Princeton university is standing firm against an ‘over-zealous’ reading of anti-racism laws in one case. They’ve put it on record that they see their “Systemic Racism” as perfectly legal, not at all the kind that violates any of the laws against racism, let alone the 14th amendment (or at least, not enough to deprive them of federal funding).

    Indeed, they call it racist of Trump and Betsy de Vos to imagine that Princeton’s ‘Systemic Racism’ is any concern of the Feds.

    You’d need a heart of stone not to laugh at the thought of Ruth Bader Ginsburg trying to rule on this one. 🙂

  • Nullius in Verba

    “Yes, the 14th Amendment was about the equal treatment of citizens. Thus, every man had the right to marry every woman.”

    But it didn’t say “man” or “woman”. It said “citizen of the United States”. So if it applies at all, it means every citizen of the United States can marry every other citizen of the United States. I’ve no doubt this particular implication of the principle they articulated hadn’t occurred to them. That doesn’t mean it’s not implied.

    “the radical relativism of Justice Kennedy was interesting – defining the universe (denying its objective reality contrary to one’s subjective whims) and denying the existence of an objective self (the idea that someone can just declare themselves to be something they objectively are NOT).”

    That’s not what he means. The problem he is alluding to is that while there may well be an objective reality out there, all *we* have access to is the shadows on the wall of Plato’s cave. Each of us sees “objective reality” slightly differently. What each of us perceives can only be a *subjective* reality.

    But some people don’t understand that, or if they do understand it, reject it. They think their own *subjective* reality is the one and only “objective” reality, they are *outraged* that other people see reality differently, that they are even *permitted* to do so, and therefore wish to *enforce* their own interpretation of reality on everyone else.

    This is what Justice Kennedy is objecting to – the definition of freedom is that everyone is allowed to interpret reality as they themselves see it, not have somebody else’s equally subjective viewpoint imposed upon them. This doesn’t deny objective reality, it only denies that *your* perception of reality is any more objective than anyone else’s.

    “On “Gay Marriage” – as I have pointed out before, there is no problem with a couple of men (or several men) or a couple of women (or several women) having private ceremonies and declaring themselves “married” – the problem comes when other people are forced to”recognise” this.”

    But that then raises the question – is anyone “forced” to recognise a heterosexual marriage? If a man divorces and remarries, for example, are Catholics “forced” to recognise the new couple as man and wife? Because if they’re not, then the same must apply to gay marriage in the same terms and there’s no problem. You can choose not to recognise a marriage like Catholics can. And if they are, then the existing state of affairs must have been monstrous, too.

    Being *forced* to recognise marriage between a man and a woman is just as much of a problem. Thus, marriage itself is the problem. So why restrict your attention to just ‘gay’ marriage, and not ‘straight’ marriage too? They’re not doing anything new – they’re just replicating what you’re already doing to/for one set of people to a different group. All they want is the same rights you have. They’re only doing to you what you already do to everyone else.

    As I said ealier, does a person who sees marriage as a religious institution, with a specific religion in mind, have to recognise marriages between atheists and followers of different religions? Is such a marriage “objective reality”? Is it true that people are either married or they’re not, or is it subjective, depending on your definition of marriage as religious/secular, Protestant/Catholic/Hindu/whatever, or whether you’re in a state or nation where miscegenation is illegal or one where it’s not? In the Loving case, they were married in Washington where it’s legal, but living in Virginia, where it’s not. So ‘objectively’ speaking, are they married? If the law is changed, does that change? And is anyone – the police and courts in Virginia, for example, or the Lovings themselves – “forced” to recognise it? Or “forced” not to?

    Didn’t the State of Virginia “force” the Lovings not to recognise their own marriage? Wasn’t that monstrous?

    So to the extent that forcing acceptance is monstrous – all marriage is equally monstrous. If you’re not going to criticise conventional marriage for it, then citing the principle in the case of gay marriage is a case of forcing *your* reality on others, but objecting to others doing the same to you.

  • JohnK

    Nullius:

    But it didn’t say “man” or “woman”. It said “citizen of the United States”. So if it applies at all, it means every citizen of the United States can marry every other citizen of the United States. I’ve no doubt this particular implication of the principle they articulated hadn’t occurred to them. That doesn’t mean it’s not implied.

    I would say that the implication you find so attractive is not implied in the slightest. And that is why you would fit on an activist Supreme Court, and is also why the Supreme Court has been dragged down into the gutter of partisan politics, where it was never meant to dwell.

    The job of the SC is not to use their massive 21st century minds to find something which they decide was “implied” in the 19th century, even if the dead white males did not have the decency to write it down. No. The job of the court is to say that they cannot find a mention of same sex marriage, or abortion in the United States Constitution. These issues are therefore not within the jurisdiction of the federal government of the United States. They are matters for the states to decide.

    The states may well decide in different ways. That’s fine, it’s a federal republic after all. What is not acceptable is for a question to be put to the voters of a state, such as California, and they decide what they want, only to overruled by an activist judiciary, who find things, or purport to find things, in the constitution which are simply not there.

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