Here’s what I’ve found after further digging: if you care about federalism, Perry isn’t to be trusted. That is the only conclusion to draw after reviewing his lengthy, impassioned treatment of the subject in Fed Up!: Our Fight to Save America from Washington. Its passages, juxtaposed with Perry’s recent actions, represent a betrayal of principle far more stark than I realized before reading the book. Its account of why federalism matters is anything but legalistic. And a man who intended to stand behind its contents would never support a Federal Marriage Amendment, which would ban gay marriage in all states, imposing a traditional definition even on places like New York, where a duly elected legislature has already passed gay marriage.
The passages he cites makes it clear that, as of last year (if not last month) Perry preferred a federalist system that allowed different states to define marriage however they pleased. This cannot be squared with an endorsement of a Federal Marriage Amendment (FMA), which defines marriage as monogamous and heterosexual both at the state and at the federal level. From the 2004 version:
Marriage in the United States shall consist solely of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.
There are only two possibilities:
Perry lied, either in his book or in his recent statements;
Perry has no flipping idea what the FMA is.
Though I’m fairly cynical when it comes to politicians — it’s a cynical business after all — there’s a non-zero chance that Perry is confusing terms. More specifically, his recent statements on the matter have called for a “Federal Marriage Amendment” in terms that sound more like a constitutional amendment version of the Defense of Marriage Act (DOMA). Despite the similar names, the two are completely different: the FMA strips citizens of the right to define marriage in their own state; the latter would protect them from being bound by the decisions of citizens of other states. In short, the FMA is an affront to the values of Fed-Up; a DOMA Amendment would embody it.
Taking a closer look at Perry’s exchange with Tony Perkins, it’s amazing how confused the conversation is. I’ve highlighted FMA-like statements in red, DOMA-like ones in blue, and ambiguous ones in black:
TONY PERKINS: You said that, “Our friends in New York six weeks ago passed a statute that said that marriage can be between two people of the same sex and you know what that is New York and that is their business and that is fine with me, that is their call. If you believe in the tenth amendment, stay out of their business”.
GOV. PERRY: Let me just, I probably needed to add a few words after “that’s fine with me” its fine with me that the state is using their sovereign right to decide an issue. Obviously gay marriage is not fine with me, my stance had not changed. I believe marriage is a union between one man and one woman.
… TONY PERKINS: Governor, we are about out of time but I don’t want to put words in your mouth, but I think I hear what you are saying. The support given what’s happening across the nation, the fear of the courts, the administration’s failure to defend the defense of marriage act.
The only and thin line of protection for those states that have defined marriage, that have been historically been defined between a man and a woman. The support of a marriage amendment is a pro-state’s rights position, because it will defend the rights of states to define marriage as it has been.
GOV. PERRY: Yes sir, and I have long supported the appointment of judges who respect the constitution and the passage of a federal marriage amendment. That amendment defines marriage between one man and one woman, and it protects the states from being told otherwise. It respects the rights of the state by requiring three quarters of a states vote to ratify. It’s really strong medicine but is again our founding fathers had such great wisdom and their wisdom is just as clear and profound today as it was back in the late eighteenth century.
Honestly, I can’t tell what to make of this conversation; seriously, I’ve no idea. But whatever it is, Perry needs to clarify his position immediately so he can concentrate on more pressing matters.
Oh man, a lawsuit, based on Lawrence v. Texas, to decriminilize polygamy is being filed by someone represented by Jonathan Turley. While Turley isn’t the biggest or most respected name in the legal academy, he is a somebody, and he’s not a fool. If he’s involved with this suit, it’s something to take at least somewhat seriously.
I haven’t read Lawrence since around the time it came out, but I went back and reread it today. I recommend you do the same. Here are some things to keep in mind as you do.
The Utah bigamy statute: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” It’s a felony.
“Cohabit” means something along the lines of “living together as husband and wife.” As best I can tell (I have no prior knowledge of Utah law), Utah’s criminal code provides no definition of “cohabit,” but a statute in a different Utah code defines “cohabitating” as “residing with another person and being involved in a sexual relationship with that person.” That seems likely the definition that would apply to criminal code.
Now go read Lawrence. I don’t think you can draw a line between laws banning sodomy and laws banning polygamy, at least not if you look at the law the way Lawrence did:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Mike Lee, batting down the stupidnotion that the 14th Amendment somehow abrogates the Glorious Revolution by allowing the executive branch to raise its own funds:
Added: Lawrence Tribe has an uncharacteristically decent op-ed, pointing out that the 14th Amendment argument is bunk. If he and I are on the same page on a question regarding the Constitution, that’s an excellent sign that the principle is well-settled and obvious:
Worse, the argument that the president may do whatever is necessary to avoid default has no logical stopping point. In theory, Congress could pay debts not only by borrowing more money, but also by exercising its powers to impose taxes, to coin money or to sell federal property. If the president could usurp the congressional power to borrow, what would stop him from taking over all these other powers, as well?
When I saw this issue come up, I knew it was going to be big among lawyers because it allows them to engage in their favorite pastime, namely creating arguments to show why something means the exact opposite of what it says. If you’re charged with a crime that you committed and are on trial, you want someone on your side who is capable of making convoluted arguments to show why white is black and up is down. If, on the other hand, you are attempting to run a democratic republic, such a person is a wolf in sheep’s clothing. A republic must be run according to the law, not according to the sophistry of its lawyers.
So I will conclude my thoughts on this stupid debate as follows. The 14th Amendment was passed by a Congress that was extremely hostile to the current executive (impeachment was involved). The Amendment is explicit in giving the Congress the power of enforcement, because the Radical Republicans understood that it would be much easier for southerners to win back the presidency than to win over Congress. By its terms it deals with the validity of previously accumulated debt, not the accumulation of more debt, because it sought to bind future Congresses (which might include enough Southerners to block spending) from repudiating the costs of suppressing the southern rebellion.
If, in the face of the plain intention of the Amendment, the plain language of the Amendment, and the Constitutional order as it was understood in the 1860s (the Republicans were Whigs who thought nearly all domestic policy should originate with the legislature, not the executive), you actually believe the 14th Amendment allows the president to usurp the Congressional power to borrow money, I congratulate you on your Ivy League law degree and firmly believe our country would be better off if people like you were disenfranchised. Please restrict your sophistry to the law reviews and the classrooms, and STOP EFFING WITH OUR REPUBLIC.
This will undoubtedly be but the first of many such attempts by the Obama administration and Senate Democrats to avoid spending cuts. So let us first drop acid and get in the Wayback Machine. Fun times.
Second, rather than in engage in the any-tool-at-hand argument style that the Left is so fond of whenever the Constitution is mentioned, I shall point out why, upon reading the entire Constitution, this argument is obviously wrong. Congress – not the president – has the powers to borrow and tax. If Congress decides not to borrow money, the president has no power to do so in its stead. The president can no more borrow money if the Congress refuses to do so than the Congress can appoint Supreme Court justices if the president refuses to do so.
A second reason why this argument is wrong is that there is plenty of tax money to service our debt without threat of default. There is not, however, plenty of tax money to service our debt and engage in recklessly huge spending. If Congress does not allow further borrowing, the president, as the executive, will be obliged to prioritize Constitutionally-mandated spending (i.e. servicing the debt) over statutorily-mandated spending (e.g. Medicare). It’s really quite simple how that works out. Saying that the 14th Amendment would allow the president to borrow money not authorized by the Congress is just another example of trying to get around the plain meaning of laws through bad lawyering.
These points, I think, are pretty persuasive in showing that the 14th Amendment argument is meritless. But let’s say you disagree with them; you think that Section 4 of the 14th Amendment overrides the seperation of powers plainly evident in Articles I and II; you think that Section 4 of the 14th Amendment allows the president to borrow for discretionary spending rather than simply forcing him to prioritize the spending of money he actually has. Okey dokey. Well let’s continue reading all the way to the end of the 14th Amendment to see if it offers us any clue as to which branch of government has the power to enforce its requirements:
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The Constitution: You’ll find the darnedest things if you read it.™
N.B. Here’s a neat trick. Section 4 of the 14th Amendment only guarantees “[t]he validity of the public debt of the United States, authorized by law.” Let’s say the president borrows money without Congressional approval. Because that debt would not be authorized by law (either statutory or constitutional), its validity would not be guaranteed by the 14th Amendment.
Update (9:25 pm): I just realized that the genius floating this idea is Chris Coons, who beat Christine O’Donnell in last year’s election. The nation was collectively beat about the head region for months by Respectable People telling us how stupid and unprepared O’Donnell was. Yet here’s the guy that all the Respectable People endorsed, himself a lawyer, endorsing a legal theory that is at least ignorant and almost certainly idiotic. Point: Christine O’Donnell never said anything half as stupid as this legal theory from Chris Coons. Congrats Delaware, you’ve found a worthy successor to Joe Biden.
We are normally less than fond of Ruth Bader Ginsburg, but when she’s right, she’s right. Michael Walsh in The New York Post explains:
On Monday, in Kentucky v. King, the high court upheld the conviction of a man arrested after cops — who were tailing a suspected drug dealer into an apartment building — smelled marijuana smoke and banged on his door. When they heard noises coming from the apartment “consistent with the destruction of evidence,” they broke in and found drugs.
But they had the wrong guy. The drug courier was in another apartment. Hollis King may have been breaking the law, but he was minding his own business, on his own premises, and only became a suspect afterthe police had made their mistake.
But Justice Sam Alito, writing for the 8-1 majority, said, in effect, So what?
“Exigent circumstances” — in this case, the possible destruction of evidence — justified the forcible entry. He wrote: “The Kentucky Supreme Court held that the exigent circumstances rule does not apply in the case at hand because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence. We reject this interpretation” — since King could have simply ignored the knock at the door, or could have opened his door and declined to answer any questions.
“Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless . . . search that may ensue.”
What planet is Alito living on? The whole point of the Bill of Rights is to restrict authority. The Founders, who suffered under the British system of “general warrants” and “writs of assistance” — i.e., fishing expeditions — wished to ensure that no American home could be searched without probable cause and a duly issued warrant specifying exactly what police are looking for.
The case has been remanded to Kentucky, to sort out whether the circumstances were truly “exigent.” But Alito’s interpretation is an open invitation to abuse — as Justice Ruth Bader Ginsburg emphatically warned in her dissent:
“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down — never mind that they had ample time to obtain a warrant. I dissent from the court’s reduction of the Fourth Amendment’s force.”
Perhaps they’ll waive the fifth and eighth amendments, too. . .
It’s not about your feelings or Congress’s avoidance of formal gestures. Either there is a serious constitutional safeguard here or there is not. If there is, it doesn’t disappear because you are comfortable without it or because Congress holds back. If there is a constitutional safeguard, it is a permanent guarantee that goes to us, the people.
I’m quite disappointed in the fact that the House has not taken up our president’s new war as priority #1. The Senate, of course, is full of boobs and blowhards, like Graham, who think that the Constitution is all about their power. I expected nothing less from them. And, obviously, I had no expectations whatsoever that President Obama would obey the restrictions on executive power on which Candidate Obama waxed. But the Tea Partiers in the House need to step up here. Our president just started a damned war, and the Congress seems not to care one whit.
Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.
The opinion seems to pretend that everything we don’t do involves a decision to not do it. Not buying health insurance, the opinion reasons, is the result of deciding not to buy health insurance. But what if you just don’t think about it? Did I “decide” not to burn down my house or buy a new car this morning? Or did the thoughts just not cross my mind? Making a choice is an affirmative action, but not making a choice certainly isn’t. There is literally an infinite number of things about which I made no decision today and will make no decision in the future. It seems to me that a perfectly reasonable person can go through this world without it crossing his mind that he needs to go buy health insurance; and even if that’s not the case, does the Constitution give the federal government the power to determine those things that we need to be thinking about and making decisions about? What if I just don’t flipping care about my health? Congress, according to this opinion, has the power to make me care.
This opinion, like the main arguments in favor of the individual mandate, leads to a government of unlimited power. That may be what we have, it may be what we want, but it is absolutely, undeniably facetious for judges and lawyers to keep insisting that the Founders’ grant of power to “regulate commecerce . . . among the several states” gives the federal government the power to regulate my thoughts and inactivity.
Weird. I suggest reading the whole letter, but here’s what I take as the upshot:
The president is declaring section 3 of DOMA unconstitutional because he believes the judiciary will strike it down at some point in the future.
The president will continue to enforce this unconstitutional law.
The president will not defend this law as constitutional in the judiciary because he believes that the judiciary will strike it down.
This strikes me as a bizarre sort of posturing. First, there’s no independent basis for the president’s determination of constitutionality. It defers entirely to the judiciary’s standards of constitutionality. Despite what this letter claims, the judiciary is not “the final arbiter” of constitutionality; all three branches of the federal government have an independent duty to examine the constitutionality of laws, and our system is designed so that the American people will not be afflicted with any law that any branch considers unconstitutional. The Congress can revoke a law or refuse to fund its enforcement; the president can refuse to enforce it; and the courts can refuse to allow it to be enforced. For any one branch to base its interpretation solely on the interpretation of another branch deprives the American people of the constitutionally-created division of power.
Second, if the law’s unconstitutional, don’t enforce it. Why are they planning to continue enforcing an unconstitutional law? That strikes me as an impeachable offense. The president has a duty to see that the laws are faithfully enforced, but the Constitution is THE law; that’s the whole rationale, for example, behind judicial review, that in refusing to allow unconstitutional statutes to be enforced, the judiciary is actually enforcing the Constitution. If the president is enforcing a law he believes to be unconstitutional, he is not seeing that the most important law is enforced.
Third, the president is refusing to defend in court a law that he is actively enforcing. This is pure bad faith.
Fourth, the refusal to defend defensible laws – even if the president believes they are unconstitutional and refuses to enforce them – is the end of constitutional government. We the people, through previous Congresses and Presidents, have expressed our opinion that DOMA is constitutional, and we deserve to have our interests represented in court by our non-political lawyers in the DoJ. Otherwise, I look forward to the next president defaulting on Obamacare, as well as any other laws I dislike. I’ll start making a list.
This story on the oral arguments regarding Arizona’s new immigration law is not terribly interesting, really. Plainly, one of the three judges on the panel is not sympathetic to the feds’ argument:
“I’ve read your brief, I’ve read the District Court opinion, I’ve heard your interchange with my two colleagues, and I don’t understand your argument,” Noonan told deputy solicitor general Edwin S. Kneedler. “We are dependent as a court on counsel being responsive. . . . You keep saying the problem is that a state officer is told to do something. That’s not a matter of preemption. . . . I would think the proper thing to do is to concede that this is a point where you don’t have an argument.”
So the Post then goes on to estimate the votes of the other two judges on the panel, and in doing so does something I regard as unconscionable:
Bea is also a Republican appointee and tends to vote with the court’s conservative wing, which could help Arizona’s chances. Paez is a Democratic appointee.
But Bea and Paez are Hispanic, and it is Hispanics who are most upset about the Arizona law. “Perhaps this is one area where Bea might not vote as a so-called conservative because he himself is an immigrant,” said Arthur Hellman, a University of Pittsburgh law professor and an expert on the 9th Circuit.
This guy is openly speculating that judges will base their decisions not on the law or the arguments, but on their race. What sort of third world crapistan does this Hellman chump think we live in? [The sort where the president calls on his preferred ethnic groups to show racial solidarity against his enemies? --Ed. Yes, I guess that would be the sort.] If I thought that any judge would base a decision on his personal identity rather than the law, I’d call for his immediate impeachment, not make glib comments to newspapers where I used the trademark phrase of the Liberal Douche, “so-called conservative.”
Orin Kerr points out a particularly weak portion of the Prop. 8 ruling. The judge made the following finding of fact:
Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.
Huh. Well, if it’s a fact, I guess it must be true.
I cannot think of a finer example of why social policy should not be made by judges. Quite a few people for quite some time have been debating the future effects of changing the definition of marriage. There are significant divisions within the country regarding what people believe will occur if same-sex marriage gets recognized. At the end of the day, though, everyone’s conclusions are largely speculative, with one side generally concluding that allowing new marriages won’t alter old marriages, and the other side saying that weakening an already tenuous connection between marriage and child-rearing will result in fewer stable child-rearing couples. There are valid reasons to believe each side.
But then some monarch-wannabe in a robe hears a few days of staged testimony and concludes that one side of that argument is a proven fact. Tens of millions of voters across dozens of states have weighed in here, but King Vaughn I decides that one side of a speculative debate is a proven fact, so everybody just go home and hush up about the whole thing. Because he said so.
Though I must say it’s remarkable that a former Dean of Harvard Law School has such a paltry paper trail. Souter was a nobody state court judge, so it’s understandable that no one knew what he really thought. Kagan, though, held perhaps the single most prestigious position in legal academia.
Whether or not I have the wish I wish tonight, I don’t think liberals are going to be happy with this in the long-term. With Sotomayor, they got someone who has never shown signs of being able to duel with the best legal thinkers. With Kagan, they got someone who has never shown inclinations to dueling, period. Someone who can’t beat Scalia, and someone who won’t (and perhaps can’t).
I can look at W.’s SCOTUS picks and be happy. John Roberts is an extraordinary judge; thinking back over the justices I’m familiar with, I can’t name a better writer since John Marshall himself. The clarity and simplicity of the Chief’s opinions is a thing of beauty. Sam Alito suffers from being in Roberts’s shadow, but he’s an above average justice who is consistently right and who has the courage of his convictions.
I have serious doubts that in five years Obama supporters will look at Sotomayor and Kagan with the same contentment.
This column by David Rivkin and Lee Casey on the demise of Don’t Ask Don’t Tell (DADT) is immensely wrong-headed as a matter of constitutional law – or, at least, it should be (one never knows what the Supreme Court will do until it does it).
Their argument is that because the Chairman of the Joint Chiefs of Staff and the Secretary of Defense have said that there is no need for DADT, therefore a court would have to find that there is no rational basis for the law and strike down the law as unconstitutional.
Let me rephrase that argument: Because two high-ranking presidential appointees don’t think there’s need for a duly-enacted law (i.e. an act of the legislature), the judicial branch should strike it down. This is a complete separation of powers clusterf**k.
Obviously the opinions of the Secretary of Defense and Chairman of the Joint Chiefs of Staff are pretty important here. Congress would be foolish not to ask them their opinion when it is performing its Constitutional duty of “regulat[ing] the land and naval forces.” But it is clear that, Constitutionally speaking, presidential appointees are irrelevant here. The Secretary of Defense’s view on DADT is no more binding than is his view on the Voting Rights Act, the national gas tax, or the existence of Martians, and Congress, seeing as it is independent from the executive, should be under no obligation to follow his suggestions.
Personally, I couldn’t care less about DADT – if I were to draw a picture of my opinions regarding DADT, I would draw a vast, featureless ocean of apathy extending to the horizon in all directions. What I do care about is judicial activism. It is, to my mind, preposterous to suggest that the judiciary should strike down an act of the legislature because of the opinion of some executive appointees. The executive and judicial branches should not try to use each other as sticks to beat down the legislative.
Of course, what would make this approach particularly galling is that there is absolutely no need for it. We have a president who won a large electoral victory campaigning, at least in part, on repealing DADT. The president’s party, even after Scott Brown’s win, has the largest Congressional majorities in 30 years. The Secretary of Defense and Chairman of the Joint Chiefs of Staff – Republican appointees both – have said there is no need for DADT. Don’t look to the courts to end DADT, just pass an effing law!