One of the relatively new commenters at STACLU calls himself Glib Fortuna. Like all of the STACLU contributors, he specializes in pointing out the splinter in the eyes of others while ignoring the log in his own, all while blissfully unaware of the contradiction. A textbook example:
It's no surprise that the ACLU has no respect for the democratic process and continues their attempt to undo popularly-enacted legislation and constitutional amendments. What is surprising is the stinging string of rebukes the ACLU and its extremist allies have suffered in the past week on the subject of marriage from the very courts they depend on to force their twisted vision on a public that overwhelmingly rejects nearly everything the ACLU stands for.
The absurdity of this kind of rhetoric is made obvious when one considers that everyone files suits in court to stop "popularly-enacted legislation" that they believe to be unconstitutional. The anti-ACLU crowd does the very same thing and they do it often. Oregon passed an assisted suicide law, not once but twice, by popular referendum. Did the right's "respect for the democratic process" prevent them from using the "courts they depend on to force their twisted vision on a public" that rejected their views? Of course not. They filed suit immediately and took it all the way to the Supreme Court, despite losing at every stage.
When the people of California passed a law allowing the use of medical marijuana by popular referendum, were those anti-ACLU conservatives so overwhelmed by their respect for the democratic process that they acquiesced to public opinion even if they disagreed? Of course not. They ran to the courts - the same ones they accuse the ACLU of using so shamefully - to get the "will of the people" overturned. When democratically elected school boards pass policies that forbid religious groups from using school facilities, they file lawsuits in court to overturn those decisions - so much for their "respect for the democratic process."
The fact is that both sides file suits to overturn laws passed democratically all the time, whenever they believe those laws violate the Constitution. But it's only the hypocritical gits in the STACLU camp that pretend that only the other side does it. It's only the STACLUless who rant and rave about it and ignore the fact that their side does it too. Clearly, having a consistent and coherent position is of no importance to them.
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The absurdity of this kind of rhetoric is made obvious when one considers that everyone files suits in court to stop "popularly-enacted legislation" that they believe to be unconstitutional.
Four words: Japanese American concentration camps.
I know damn well what the freedom haters at STACLU would have said about that...
http://stoptheaclu.com/archives/2006/07/14/aclu-punkd-againand-again-ma…
Yoo hoo...Ed...please challenge me directly on my blog. I'm game. The only way I found this was because a guy who had a very unfortunate and embarrassing experience debating me yesterday gave up on making his own arguments and resorted to running home, or in this case linking, to his big brother.
I have responded to this post there. Thanks.
Then, "Mr." Fortuna, you equally have the courage to respond here.
Are you going to defend the concentration camps for Japanese Americans? THAT was democratically DEMANDED..."Mr." Fortuna, are you saying that the ACLU was wrong for fighting that?
I'll print his comment over here.
Glib-
I put my responses here rather than at STACLU because, frankly, a lot more people read them here. I'll answer your comment, which Jay was kind enough to paste in, here as well.
I don't think it really matters. The fact is that groups on both sides file lawsuits to overturn laws passed by the democratic process all the time, and they do so when they think such laws are unconstitutional. And the point of my post is that you only attack one side for it. Even if you disagree with those who filed the suit to overturn the Oregon assisted suicide law, why don't you attack them for their "lack of respect for the democratic process" and their attempts to use the courts to overturn "popularly-enacted legislation"? Your rhetoric would apply equally as well, yet you only aim it at one side and not the other. That suggests that your arguments are driven more by your agenda than by a respect for the truth. There is nothing at all wrong, in and of itself, with trying to get the courts to overturn laws that result from the democratic process when those laws infringe on our liberties.
I agree completely that a lawsuit is justified in that case. I strongly support the whole line of viewpoint discrimination cases, from Lamb's Chapel to Good News Club to Rosenberger and beyond. But you're missing the point completely. The point is that sometimes when people go to court to overturn democratically passed laws, they're right; sometimes when they go to court to overturn such laws, they're wrong. But your argument was that they are wrong because they don't "respect the democratic process" - and the mere fact that you admit that there are cases where democratically passed laws should be challenged in court is enough to disprove your overly broad rhetoric.
I didn't make any statement in my response to you about marriage laws at all, but I would disagree with the claim that there is a rational basis for the state to limit marriage to straight couples. I've written much analysis of that, which you are free to attempt to rebut if you like.
This is nonsense. The strict separationist position of the ACLU is easily traced back to the father of the Constitution, James Madison. In fact, Madison was more strict than the ACLU is today. Have you ever read Madison's Memorial and Remonstrance? He even argues that military chaplains violate the first amendment, a position even the ACLU doesn't take (nor do I, by the way). Now, let me also add that the accomodationist position, which would allow public proclamations of religion, national days of prayer and so forth, as long as they're not coercive, can also easily be traced back to the founders, many of whom took that position. The most extreme separationists are wrong when they claim that the accomodationist position is a flagrantly wrong interpretation of the first amendment religion clauses; but you're equally wrong to claim that the separationist position is merely a product of the ACLU's fantasies. Both were strongly held positions among the founders themselves and thus both have a strong constitutional pedigree. Obviously, they were split on the issue and someone's views are going to win out in the courts.
Okay. The fact is that everyone uses penumbral reasoning. It is inescapable in constitutional law. Glen Reynolds has an excellent law review article that I can give you a link to if you like that details the long history of penumbral reasoning used by both conservative and liberal judges and legal scholars. The 9th amendment demands penumbral reasoning. If you want to throw out penumbral reasoning, then you have to throw out a long range of cases that you aren't gonna wanna see go, like Pierce v Society of Sisters. This is just another bit of inconsistent rhetoric from conservatives. They rail against penumbral reasoning....except when they agree with it, then it's okay. The fact is that there is no way to interpret the bill of rights without such reasoning. The founders knew this and said so.
And even if you're right that conservative groups rarely challenge democratically passed laws, the fact that they sometimes do means that your rhetoric about lacking respect for the democratic process is nonsense. You can argue that their position is wrong, but it can't be wrong just because it seeks to overturn democratically passed laws.
I'm enjoying watching this debate. Do you mind either pasting your response at STACLU or allowing me to do so?
Feel free to post it there and respond if you like. I have no problem holding a cross-blog debate. Indeed, that's probably the best way to do things.
And yet the anti-equal rights crowd positively crows with every law or amendment passed specifically to injure gay people by denying them the right to marry. Granted, 'homosexual' is not a suspect class, but this idea that marriage laws evolved without intent of discrimination is just absurd.
Homosexuals certainly ought to be considered a suspect class. They meet all of the criteria by which women and racial minorities are considered suspect classes. If it was up to me, I would get rid of the rational basis standard entirely. But as long as we're going to have separate standards on the basis of suspect classes, we should consider gays to be just as much a suspect class as the ones we do already.
The group amd slander such people as "GF", nazis in "conservative" drag, to be frank in venturing an opinion, changes but never their objective: he/she/it has only the wish to define their own shapelessness by defining, then attacking some group as "other."
I spend very little time hating, but knowing full well how ugly, and cowardly, the sort of shit someone like GF is really brings it out.
"It's such a wonderful would, if it wasn't for some people." -- Radio Days
It's interesting that glib fortuna appears to completely miss the point of your commentary Ed. He seems to assume that every constitutional case that the ACLU files is frivolous while every one that organizations he agrees with is a valid legal effort to stop someone from violating someone else's constitutional rights.
He seems, when it comes to ACLU cases, to tie them directly to whether he agrees or disagrees with the position (more likely he'll filter out any cases he agrees with ... or let them "slip his mind). He doesn't like some of the cases that the ACLU has argued, so ALL of their cases are bad, all of their stances are bad, etc. Of course that's just my take based upon what he's posted. Also, my gut instinct is that he doesn't like the idea of boys kissing either.
Section one of the 14th amendment pretty well covers the gay marriage issue in my mind:
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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."
They're being denied social, legal, property, and financial rights.
It's interesting that glib fortuna appears to completely miss the point of your commentary Ed. He seems to assume that every constitutional case that the ACLU files is frivolous while every one that organizations he agrees with is a valid legal effort to stop someone from violating someone else's constitutional rights.
That's because he doesn't think; he's an idealogue. He doesn't have the intellectual integrity to apply his thinking to all sides in a debate.
For Ed Brayton:
http://stoptheaclu.com/archives/2006/07/14/aclu-punkd-againand-again-ma…
Yes, Ed, I understand that your blog enjoys more traffic, but if you'd like to challenge me in the future, at least notify me with a link in my comments section. Otherwise, all you're doing is whispering behind someone's back in a room full of your friends and pretending you've somehow won the debate.
Being that you and I have a similar weakness - far too much to say already with the accompanying focus-killer that is the need to ensure that every contention made by the interlocutor of the moment is answered. Sorry I can't dig deeper on these issues, as my family expects a bit more from me this weekend than the back of my head, so I'll be as brief as my wife currently requires.
1)It is very important to know the position of the person you are challenging. You accuse me over being overbroad (something else I'll get to in a moment) yet you didn't even bother to ask my view before assuming where I stood, and attacking this invented presupposition. It is also very important to use LIKE illustrations. State constitutional amendments are much different from stupid decisions by education bureaucrats. I didn't "miss your point," I called you out for presenting a poor comparison.
2) You know, I thought about it, and you are right. I was overly broad in my original post. I thank you for keeping me honest and forcing me to rethink my presentation. My more nuanced argument would go something like this, "It is not surprising that the ACLU has come to depend heavily on subverting our law and our culture by using the courts as a weapon to impose their vision of society on America without the consent of the governed, their agenda being very unpopular in America. Groups opposed to the ACLU have occasionally used the courts to challenge decisions made by the people through legitimate democratic means, but the ACLU and its allies have cornered the market on a large-scale legal strategy that that wields the courts as a sword that severs the people from their proper place as ultimate arbiter of a public policy. Thankfully, this week has prodcued a stinging string of rebuke of several strategies used by the ACLU to impose a radical redefinition of marriage on America." I know you still won't agree with my view, nonetheless you have done me a service.
3) Related to the last point. It is not inconsistent to generally give deference to the results of the democratic process but to support court intervention in a limited number of egregious cases and to acknowledge which side as a matter of long-established legal strategy depends on partisan judges to do their bidding in hijacking the normal course of our form of government when they don't like the result and which side does not. This is what I argue the ACLU has done over and again, especially in regard to the sheer number of unique and alien arguments in marriage cases, which is a point I made in my original post - they will attempt to drive a boot into the neck of an unwilling public by any means necessary. The Right is generally more likely to accept results of elections and referenda, turning not to the courts, but using the front door - look at what has happened in Massachusetts. You mention a couple anomalous cases, but if you look at big picture, conservatives normally live with what is until they can change it at the ballot box. By extension, lawyers of the Right normally appeal to and rely on more well-grounded legal reasoning, while lawyers of the Left attend conferences on "Transhumanism" and discuss how to secure rights for "post-humans" and how to establish a defense for animals against "human racism." I know you will claim that these are outliers, but what Federalist Society conference would yield such a circus side show? What side reveres Peter Singer and takes his ideas seriously?
4) Madison as a stricter separationist than the modern ACLU is a big stretch Ed. Yes I have read M&R and we probably see that document through different eyes, but all that it too much to get into right now. That Madison opposed paid chaplains is a well established fact. However, did his view prevail? I can send you "Scalia Dissents" or John Kerry's campaign speeches. While Scalia's published dissents have great value (can't say the same thing about anything John Kerry has ever said), the prevailing side carries more historical weight. How vociferously did Madison oppose the Northwest Ordinance? Did Madison attempt to prevent what would become the largest congregation in the country at the time from worshipping at the Capitol building with the Marine Corps Band providing music every week? Even if you have an answer for all this, no matter which one you give proves me right - either he was the strict separationist of your world and his view was rejected or he was not the separationist secular historians thirsty for ancestral partisans have revised him to be. Madison, as demonstrated in M&R and elsewhere, was far more worried about government infecting religion and conscience than he was about religion influencing government. One powerful example is that Madison, as I'm sure you know, wanted to die on a hill during Convention and ratification debates to proscribe a bill of rights, as he was convinced that the unamended Constitution would suffice in protecting religious liberty. However, he had a constituency at home that distrusted the majority religion and who'd also been responsible for Madison's election - the Virginia Baptists. Only after these evangelicals repeatedly reminded Madison of their role in his securing office and their desire for religious liberty to be enumerated did he flip-flop in a big way and even author what he'd previously loathed. I can only imagine Ed, how you and your buddies here would be calling for that "dominionist" Madison's head had he been alive today and so heavily influenced by evangelicals!
Nice brief response, no?
5) Finally, on penumbral reasoning. Yes, I would like to see Reynolds' article. Please send me the link. But...saying the 9th Amendment "demands" penumbral reasoning is like saying the anal tumor on that abused Doberman found by Animal Cops Detroit is required for its survival since it is there. Stripping away important context using Constitutional isogesis, it is understandable where you and many others would conclude this. I'm sure conservatives deal in the "is" rather than the "ought" in some cases, so I am not making an argument that the Right never employs this reasoning because the Left has gained home field advantage and made up many of the rules. In your "middle ground" between "seps" and "acoms" argument you've related the tortured and incomprehensible judicial philosophy of Chief Obfuscator Sandra Day O'Connor, who in Lynch v. Donnelly was at her worst on the subject. Her "reasoning" reminded me of an expository writing assignment where you are asked to take a mundane activity like opening a box of cereal and writing directions with the intent to make the exercise as difficult as possible. Sending "a message to non-adherents that they are not full members of the political community" is a violation of the Establishment Clause? Come on! Meaninglessness disguised as high legal analysis can only lead to treachery...and it has.
"what Federalist Society conference would yield such a circus side show?"
Really. However one may feel about the Bush Administration's grab of additional powers, I believe that no one would contest that the grab is an unprecedented innovation. And where did the legal doctrines come from? That's right, the Federalist Society. Starting in the mid-1980s, FS conventions rehearsed all of the ideas behind the Bush Revolution: Commander-in-Chief theory, signing statements as a means of "framing" legislation, national security as a means of quelling domestic opposition, "legal" ways to control opposing speech, etc. Glib, do you really think liberals are the only ones who "depend heavily on subverting our law and our culture by using the courts as a weapon to impose their vision of society on America without the consent of the governed" Admittedly, you have to replace the word "courts" with executive branch, but the revolution is spreading through favorable court rulings also. See Chief Justices Roberts' appellate concurrence in Hamden, for instance.
Frankly, it boggles the mind how STACLU can stay in such a perpetual state of panic over the ACLU "agenda" when the right wing controls all three branches of government.
kehrsam wrote:
Eh, maybe. At least some of Bush's power grab has historical precedent. The most dangerous aspects of his "unitary executive" argument, claiming the right to suspend habeas corpus in specific instances without a congressional declaration of martial law in response to an invasion, has the clear precedent of Abraham Lincoln's actions in arresting the copperheads and putting them in military prisons. Indeed, Lincoln went even further and bluntly ignored a Supreme Court ruling. So there is clear precedent for some of it, at least. And I'd say the overreach in terms of wiretaps and the like are at least equalled by programs like COINTELPRO. That doesn't diminish the seriousness of Bush's perversions of the Constitution at all, of course, but it does suggest that they aren't quite as unprecedented as one might think.
Is it just me, or did things just get off the subject?
Glib brought up the Federalist Society, Jay. Blame him.
Oh, Good Grief!
1. Why would Madison have ever opposed the Northwest Ordinances, either before or after the Constitution? The first thing the ordinances did was guarantee religious freedom. That was exactly what Madison advocated. ("Article I: No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.")
2. The worship services in the Capitol building were not the largest congregation in the country. Nor is there any reason to stop groups from using public buildings for private purposes (this is done in thousands of public schools today, for example, with new congregations using otherwise-vacant buildings on weekends). Nor is it fair to suggest that whatever rag-tag band of musicians existed in uniform in 1809 bears any resemblance to the Marine Band we know and love, which didn't come close to its present form until after the Civil War. The religious services were not government-sponsored, not mandatory to anyone, and not government-approved.
Doesn't this guy know that "separation of church and state" refers to government interference in church affairs, or church interference in government affairs, and the examples he offers show neither?
Double Good Grief!
Where this false history comes from I do not know. Madison was never opposed to a bill of rights. There was not one attached to the Constitution when it was sent to the Continental Congress. When Jefferson complained this was a gross oversight, Madison, after some correspondence, noted the practical necessity: A bill of rights would have taken another couple of weeks to draft, at minimum, and with delegates drifting away to attend to sick wives, dying mothers, neglected farms and businesses, and other affairs, that two weeks would have been fatal to getting a sufficient vote to send the document for ratification. So, Madison noted, knowing that each and every one of the states had constitutional provisions that protected religious worship and other rights in their own bills of rights, Madison felt comfortable that such an oversight was not fatal in any form. Nor did Madison "flip-flop." When states asked for a bill of rights and it became clear that demand was high, Madison quickly agreed. Madison's point remains, however: The Constitution creates a limited government, and there was no delegation of any duty or privilege in religion to any governmental entity, nor was there any delegation of any official role in government to any religious entity. The First Amendment does not add rights to the document -- it merely restates and enumerates rights already present in the people, and it adds a further restriction that Congress may do nothing at all to interfere.
Virginia Baptists were a small number, and they had no electoral sway over Madison's office. Nor did their support make any material difference in his later elections. Virginia Presbyterians were greater in number, and higher on Madison's list of persecuted minorities to protect, but neither was their weight so great as to sway Madison. The states' ratifying conventions' calls for a bill of rights was enough, and sufficient.
It's worth noting that Patrick Henry, the closest thing to a modern fundamentalist in Virginia at the time, did everything in his power to stop the Constitution. Elected as delegate to the Philadelphia convention, he refused to serve. Governor when the ratifying convention was called, he tried to stop it, and when that proved unsuccessful, he tried to stack it to vote down ratification. When Madison outmaneuvered him, Henry vented his anger by stopping Madison's election to the U.S. Senate, to stop the proposal of a bill of rights. When Madison ran for the House in order to have a platform to carry out his pledge for a bill of rights, Henry hand-picked Madison's opponent and funded his campaign. (Madison persuaded that man, James Monroe, to Madison's side, ironically, and Madison won the election). When the new government took effect, Henry turned down Washington's call to join it.
Make no mistake: Madison was the most ardent defender of separation of church and state at the time. It was a life-long passion of his, and he waivered seldom (once by my count), nor ever very far. He was no advocate of religion in government at any time.