Monday, July 1, 2013


Precedents-- reflections on a post DOMA America
Well, that's what the book would be called if I were to write one. I really don't have the background to hack it, frankly.  Maybe Husband would in theory. But I doubt it. But I have enough of an opinion to blather about in one blog post.
Some conservatives were arguing for the repeal of DOMA in the name of Federalism.  I think that if the Supreme High Court of the land were serious about Federalism they'd be revoking Wickard vs. Filburn.  That ain't gonna happen. Not unless the country is reborn in a form we haven't seen since 1912-- at least.  Besides they rather take away the state's freedom to choose by calling anyone who chooses otherwise a hating hater.   That's just throwing fat on to the fire of dissent.  That will mean that the precedents are going to be ignored, and the "opinion of the court" will be gospel-- just as long as Scalia didn't write it. 
Also, I find it appalling that the Supremes seem to have entirely abandoned the concept of Natural Law.  They forget that it was used as the basis for English Common Law and the assumptions our Constitution was created by.  Something about being endowed by our Creator.  The whole thing doesn't make sense if you wave that off as some kind of allusion, allegory or a "colorful turn of phrase."
Can you really examine the Constitution entirely separate from the body of thought and reasoning that created the document in the first place?  Seriously?  Can you even make sense of such a thing, when words gain their meaning and power from reference and context?! If this is done, that means the document is meaningless. It's like trying to understand one short bit of Aquinas outside the context of Aristotelian thought-- or philosophy itself. If you don't know what "form" is, or what a "mover" is, his arguments make no sense at all.
Natural Law is not hateful. It's not pleasant, we don't like it, but it is based on hard, observable fact-- kinda like science.  Sure, you can legislate against the laws of gravity, but you are only going to cause more pain.  This hasn't stopped progressives of both stripes from trying, I admit.
But I think this little preemptive  strike is going to cause mutually assured witch hunts between the states. THEN we get to decide who's precedent is going to be valid-- by lottery.  Clearly, there is no body of logic and reason that the Constitution is based on, so we'll just decide by feelgood fiat. That's going to be...exciting.  It's all up to who can appropriate other people's money the quickest. Courts are just a fancy way of resolving arguments by burning as much money as humanly possible, it seems.
The rest of us will be bankrupt-- on both sides of the fault line.  Ultimately no one will win, save the legislator. Our gay brothers and sisters won't have their place in the sun forever. The legislator will only use you for a time, and you are king for a day. Never forget that there's a sacrifice in the end-- once you've been sufficiently puffed up.   The Dems are just as loyal as the Republicans.  If you aren't terrified, you aren't paying attention.
Thanks a lot guys. We might just get into wars between the states again, for the first time in 100+ years. I know some people are rearing to go on this sort of thing, but contemplating the whole thing makes me tired. 
There is even a second argument against "the Federalist mandate" that this sets. Well, the Supremes have been doing their  supposed Federalist Dance for a while now. And exactly what has changed?  The entire rest of the political class-- including those who are supposed to be reading the Law in light of what they say-- are ignoring it.  The leading law of the land may as well be pantomiming into an empty room.   One gets the feeling that the  Supremes have been purely political appointments since FDR.  That's how everybody acts, too-- even if no one will admit it out loud.
There is, of course a second reason why people pay deference to this esteemed group of judges, then proceeds to ignore the precedents they don't like. It's also my primary explanation for how this ruling came about.  That is this--  it's far more fun to create law than to define it.   It's almost like you aren't doing anything at all unless you are breaking new ground.  Sooner or later there will be laws against rock slides, tornadoes and earthquakes.  Hell, there might even be some of the latter on the books thanks to the 9th Circuit Court.  It would certainly be ground breaking, and people will never forget that you wrote it.  So it's like the closest thing to Legislative Apotheosis.  
Well, this crop of Supremes guaranteed that people will be examining their legislation for a long time.  Congratulations, I guess.

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