Merged SCotUS nominee - Neil Gorsuch

[BobTheCoward]

Okay, I'll bite, although I suspect I'll regret it. On what basis do you think the Constitution allows a state to prohibit and criminalize marriage between whites and "coloreds" (the language used in the law)? I note particularly that, beyond just not recognizing such marriages, the state sent the couple to prison for a year.

At the the time of ratification of the Constitution and the 14th amendment, anti miscegenation laws were so common that it seems very clear the 1848 legal meaning of the 14th did not apply to it.

My style of originalism is very easy to apply. It is very common in liberal criticism of originalism to list cases originalism would rule a terrible result. But when they do that, they are conceding that those are situations with a clear historical meaning. They do all the work for me.

 

[shuize]

At the the time of ratification of the Constitution and the 14th amendment, anti miscegenation laws were so common that it seems very clear the 1848 legal meaning of the 14th did not apply to it...

The Fourteenth Amendment was ratified in 1868.

 

[BobTheCoward]

The Fourteenth Amendment was ratified in 1868.

Yeah, that is what I said in post 47.

 

[sunmaster14]

At the the time of ratification of the Constitution and the 14th amendment, anti miscegenation laws were so common that it seems very clear the 1848 legal meaning of the 14th did not apply to it.

My style of originalism is very easy to apply. It is very common in liberal criticism of originalism to list cases originalism would rule a terrible result. But when they do that, they are conceding that those are situations with a clear historical meaning. They do all the work for me.

That strikes me as completely ridiculous. The 14th Amendment was quite clearly aimed at discrimination based on race. Just because anti-miscegenation laws were extant at the time, and just because they persisted for many decades (as many unconstitutional laws do because of the need for a clear case in controversy and a plaintiff with standing), it does not follow that they were not clear violations of the 14th Amendment.

I suppose there might be a "colorable" argument in favor of the constitutionality of a state refusing to recognize certain marriages between people of sufficiently different skin color or whatnot (although I can't think of one at the moment), but to actually make it illegal with a punishment? That's clearly unconstitutional.

There is also a reductio ad absurdum argument against anti-miscegenation laws, given that there is a racial continuum. At what point are two people declared to be of different races? Can a quadroon marry an octoroon? Can an octoroon marry a hexadecaroon? There must be a point at which the equal protection and due process clauses are violated, because of the uncertainty about lineage. If you make the cutoff at octoroon for example, how can the state prove octoroon status without a DNA test that didn't exist at the time?

Note that this same problem does not arise in Obergefell. Aside from the history of marriage and that the whole institution evolved for the purpose of creating families with children (which given the widespread acceptance of adoption might be a moot distinction today), there is no continuum between the sexes, except in the case of genetic anomalies.

 

[BobTheCoward]

That strikes me as completely ridiculous. The 14th Amendment was quite clearly aimed at discrimination based on race. Just because anti-miscegenation laws were extant at the time, and just because they persisted for many decades (as many unconstitutional laws do because of the need for a clear case in controversy and a plaintiff with standing), it does not follow that they were not clear violations of the 14th Amendment.

I suppose there might be a "colorable" argument in favor of the constitutionality of a state refusing to recognize certain marriages between people of sufficiently different skin color or whatnot (although I can't think of one at the moment), but to actually make it illegal with a punishment? That's clearly unconstitutional.

There is also a reductio ad absurdum argument against anti-miscegenation laws, given that there is a racial continuum. At what point are two people declared to be of different races? Can a quadroon marry an octoroon? Can an octoroon marry a hexadecaroon? There must be a point at which the equal protection and due process clauses are violated, because of the uncertainty about lineage. If you make the cutoff at octoroon for example, how can the state prove octoroon status without a DNA test that didn't exist at the time?

Note that this same problem does not arise in Obergefell. Aside from the history of marriage and that the whole institution evolved for the purpose of creating families with children (which given the widespread acceptance of adoption might be a moot distinction today), there is no continuum between the sexes, except in the case of genetic anomalies.

It didn't wait 100 years for the "right" case. It waited 100 years because no legal mind in the 1870s thought the 14th applied to anti miscegenation laws.

 

[Fast Eddie B]

Probably the first and last time I have/will every agreed with logger.

When Scalia died, I automatically assumed that that gave Obama the slot to fill. Luck of the draw, so to speak, and how it's supposed to work.

While there may have been procedural ways to deny him the choice, I'm still surprised the Democrats did not raise holy hell about it and make it a cause célèbre*. Obama et al did seem to meekly slink off and allowed the Republicans to have their way without much of a fight. Surprised me, is all.


*I had to Google how to accent that!

 

[BobTheCoward]

When Scalia died, I automatically assumed that that gave Obama the slot to fill. Luck of the draw, so to speak, and how it's supposed to work.

While there may have been procedural ways to deny him the choice, I'm still surprised the Democrats did not raise holy hell about it and make it a cause célèbre*. Obama et al did seem to meekly slink off and allowed the Republicans to have their way without much of a fight. Surprised me, is all.


*I had to Google how to accent that!

I thought Democrats never shut up about it? What specific strategy did you expect?

 

[Ziggurat]

Yes, the time period for them was until a Republican is in office.

No. The time period was until the next president, whoever that was, including Hillary.

I say that Democrats play that game too.

Sounds good: have the Dems wait until the 8th year of Trump's presidency, THEN block his 3rd nomination after letting two justices be confirmed.

 

[Fast Eddie B]

I thought Democrats never shut up about it? What specific strategy did you expect?

"The perception is the reality", but from what I think are the fairly balanced news sources I recall the outrage as muted and short-lived.

Did Obama and the Democratic leadership ever issue a proclamation, such as, "Every single day, in every single way, getting Garland a hearing is Job #1. In every interview, in every TV and radio appearance, make sure the American people understand how their will is being subverted. Protest, filibuster, whatever. They want a fight, we'll give them a fight! Now get out there and make it so."

Like I said, the perception is the reality, and my perception is one of a weak Democratic response to what was an outrage.

YPMV!

 

[thaiboxerken]

No. The time period was until the next president, whoever that was, including Hillary.



Sounds good: have the Dems wait until the 8th year of Trump's presidency, THEN block his 3rd nomination after letting two justices be confirmed.

Wrong. They made it clear that if Hilary won, they would continue to block the nominations. Do you have amnesia, or are you trying to gaslight the forum?

 

[BobTheCoward]

No. The time period was until the next president, whoever that was, including Hillary.



Sounds good: have the Dems wait until the 8th year of Trump's presidency, THEN block his 3rd nomination after letting two justices be confirmed.

Doesn't change the fact that waiting for the next president is a stupid idea and voters that agreed with it are stupid people.

 

[uke2se]

"The perception is the reality", but from what I think are the fairly balanced news sources I recall the outrage as muted and short-lived.

Did Obama and the Democratic leadership ever issue a proclamation, such as, "Every single day, in every single way, getting Garland a hearing is Job #1. In every interview, in every TV and radio appearance, make sure the American people understand how their will is being subverted. Protest, filibuster, whatever. They want a fight, we'll give them a fight! Now get out there and make it so."

Like I said, the perception is the reality, and my perception is one of a weak Democratic response to what was an outrage.

YPMV!

There was news coverage about the Republican blocking of Garland throughout the year. I don't know where you get your news, but you might consider expanding your sources.

Hell, I live in Sweden, and we kept hearing about it.

 

[Fast Eddie B]

There was news coverage about the Republican blocking of Garland throughout the year. I don't know where you get your news, but you might consider expanding your sources.

Hell, I live in Sweden, and we kept hearing about it.

Mainly CNN (playing in a window on my iPad right now), Fox News, CBS News, various podcasts (including from NPR), Apple News, Twitter feeds, and, of course, sites like this.

I never said we didn't keep hearing about it, just that it sure seemed to get pushed down as newsworthy in a hurry.

Again, just my perception. The reality may be different.

 

[theprestige]

Like the 2nd amendment, which taken literally, only aims to arm citizens in a well-regulated militia?

Exactly.

 

[theprestige]

Republicans showed the public that it is okay to completely block a SCOTUS nominee indefinitely.

No. The Republicans in Congress showed that it was possible. The public showed that it was OK.

 

[sunmaster14]

Mainly CNN (playing in a window on my iPad right now), Fox News, CBS News, various podcasts (including from NPR), Apple News, Twitter feeds, and, of course, sites like this.

I never said we didn't keep hearing about it, just that it sure seemed to get pushed down as newsworthy in a hurry.

Again, just my perception. The reality may be different.

The Democrats tried to make hay out of it, but largely failed because the idea that a President is "entitled" to get his nominee confirmed didn't resonate with the public. It doesn't resonate with me. If the President wants to get his nominee on the court, then he has to persuade the Senate to confirm him. One way of doing that is to persuade the public to elect Senators willing to vote to do that. The Republicans controlled the Senate, and they had a perfect right to block any and all of Obama's nominees until the end of his Presidency. There is no reason why the Supreme Court has to have nine justices anyway, or even an odd number for that matter. It works just fine with eight. There is nothing magical about the number 9.

 

[theprestige]

I predict it will not.

Who will be the next Kreskin?

I predict that it will energize progressives, but that "energized" is different from "effective".

 

[sunmaster14]

It didn't wait 100 years for the "right" case. It waited 100 years because no legal mind in the 1870s thought the 14th applied to anti miscegenation laws.

No legal mind at all? I doubt that very much. It certainly could be the case that the Supreme Court would have upheld anti-miscegenation laws in the late 19th century, just as they upheld "separate but equal" in Plessy v. Ferguson. That doesn't mean they were interpreting the Constitution correctly. There were probably several members of the Supreme Court who disagreed with the 14th Amendment on policy grounds and let that inform their legal decisions.

 

[sunmaster14]

I predict that it will energize progressives, but that "energized" is different from "effective".

"Energized" for progressives mainly means that conservatives will be shouted down, attacked (both verbally and physically), and harassed in other ways as well.

 

[theprestige]

If the Constitution has to be amended to keep up with changes in culture, technology and world affairs, it would be an unreadable document with hundreds - if not thousands - of amendments.

Good thing that's not the case. Human nature doesn't change. The goals of good governance don't change. The tension between individual rights and common welfare doesn't change.