Parting Shots

I'm about to leave my desk for a couple of weeks. Here's a pair of pieces to chew on while I'm away:

? John Tierney has a sharp column today on the extent to which the Red-on-Blue culture war is "a myth created by people inside the Beltway talking to each other or, more precisely, shouting at each other."

? The Christian Science Monitor ran an interesting report last month that I only just discovered this weekend, about a slum in Kenya whose residents "asked the city council to give them the land that they had been squatting on illegally. In return, they promised to build proper houses, schools, and community centers without any government money."

Comments

[kevrob]

Note the planted assumptions:

But Professor Fiorina insists the voters are merely responding to a president who is more partisan than virtually all of his modern predecessors. A president who played more to the center might not stir such strong reaction, he said.

What if Bush had not ignored the widely accepted Powell doctrine by launching the war in Iraq, never proposed drilling in the Arctic refuge and never supported a constitutional amendment to ban gay marriage?" he asked. "It's the actions he takes that polarize the voters in both parties. A candidate who seized the middle ground against a polarizing candidate could still win handily.

While I think it is fair to place the division over the war in Iraq at Bush's feet, as he had to act to change the status quo, it is judges in places such as Massachusetts who started the polarization on the marriage issue. The proposed constitutional amendment is merely a reaction. I doubt that drilling in ANWR is a polarizing issue. The average voter approves of reducing dependency on foreign oil. Opposition to the policy is energized by special interests -environmental activist groups. The technical question of whether such drilling can be done with little or no environmental harm is beyond the independent judgment of most of us. If there were no oil in ANWR, the Sierra Club, et al would pick some other policy to oppose, and use it as a marker with the value "Evil Republican Bush wants to harm the environment."

This analysis ignores the fact that on some issues, a middle ground isn't possible, or isn't acceptable to one or both sides. You either open more of Alaska to drilling or you don't. Either gay marriages in MA are recognized in other states, or they aren't. Any "civil union" compromise won't please the forces advocating change, and will be seen as a defeat by the most ardent conservatives.

I have long believed that the general public would welcome a compromise that regulated abortion without totally outlawing it. Activist groups either want every possible type of abortion legal, with the government paying for it in some cases, or would oppose it in all forms. Because it is the courts, not our legislators, settling the issue, the beliefs of the majority can be ignored. For elites, the ideology of the next Supreme Court appointee is the most important factor of all.

Kevin

[Rick Barton]

Jesse,

When is this due? Do we have two weeks to prepare essay answers? Is there extra credit for presenting counter proposals to the pieces? Is there a source citation minimum?

[Reason Comments Lifestyle Repo]

"I'm about to leave my desk for a couple of weeks."

It won't matter, since everyone knows Jesse Walker and Jeff Taylor are the same person using different identities.

[Gadfly]

It's when the majority starts screwing certain segments of the population that the courts MUST step in to protect them, in keeping with constitutional principles. They don't "ignore" the majority - they rule in favor of them 99% of the time. Indeed, it takes some courage to rule against the precedents of racism, sexism and discrimination and it's only done when the argument is so dumb they can't deny it. For this, they get smeared as activists.

Take abortion for instance. It's not the choice people that have pushed this to stupidity. It's the folks that insist a wet dream is human life and nothing less is acceptable. Gay marriage, when you pull the religious dogma out of it, is a cut and dried contract issue between two adults that has serious financial implications.

So don't give me that crap about liberals running to the courts to get their way when the Bushies do it themselves when it serves their purpose. The courts are the last, and usually futile, hope for justice when one party controls the rest of government.

[Phil]

While I think it is fair to place the division over the war in Iraq at Bush's feet, as he had to act to change the status quo, it is judges in places such as Massachusetts who started the polarization on the marriage issue. The proposed constitutional amendment is merely a reaction.

Yes, but given that the Masschusetts ruling was a Massachusetts court interpreting the Massachusetts Constitution for citizens of Massachusetts, I think it's fairer to call it an overreaction. What it really is is the Bush White House saying, "Hmmm . . . DOMA doesn't really help us out here, and Federalism is a nice word to pay lip-service to, but we'll nip it in the bud if it means wedding announcements in the WaPo for Adam & Steve."

[crimethink]

Take abortion for instance. It's not the choice people that have pushed this to stupidity. It's the folks that insist a wet dream is human life and nothing less is acceptable.

Less stringent parental consent for minors getting abortions than for minors getting ears pierced sounds pretty stupid to me, and that's but one example of the foolishness that many choicers push for.

And please tell me you don't really believe that the pro-life argument is based on the personhood of semen.
You may not be Jean Bart, but you certainly share his strawman-building tendencies, and more basically his utter contempt for anyone who disagrees with him.

[thoreau]

You may not be Jean Bart, but you certainly share his strawman-building tendencies, and more basically his utter contempt for anyone who disagrees with him.

I don't think Gadfly is Jean Bart.

Who is Jean Bart? Will he stop the engine of the world? 🙂

[Gary Gunnels]

kevrob,

"...it is judges in places such as Massachusetts who started the polarization on the marriage issue."

Wasn't it the litigants who brought the cases in the first place - or the Massachusetts legislature which asked for the advisory opinion? And to be frank, it was a real common law court making this decision; indeed, people tend to confuse the more limited nature of the federal courts with that of the state courts. State courts, though they lack the geographic jurisdiction of say the US Supreme Court, have far greater power as far as issues of subject-matter jurisdiction are concerned, and indeed are expected to make law just as their sister courts in the U.K. have done for many hundreds of years.

"The proposed constitutional amendment is merely a reaction."

Of course Bush didn't have to react.

"Opposition to the policy is energized by special interests -environmental activist groups."

Those groups that oppose your ideas are always "special interests" - it just depends on whose ox is being gored. To be frank, whether we like it or not, a large portion of the U.S. doesn't want drilling there - calling their notions a "special interest" really just elides over the point that division is natural and expected (indeed, healthy) in a republic.

[Gary Gunnels]

Douglas Fletcher,

Sure you aren't Sir Richard Hawkins? 🙂

[JDM]

"They did the decent thing and let the Gipper ride off into the sunset."

Yeah, those Democrats sure were nice to Reagan. Politics were so pleasant until those mean Republicans ruined it be atacking the Clintonoids, who wanted no part of partizanship. What was their campaign slogan again? "It's the economy, my friend." Right?

It probably breaks their big, loving hearts to have to say such mean things about Bush and every other Republican, just to keep up, of course. If those damn Republicans could just stop hating children and other living things, they'd have never been put in that position.

[kevrob]

Gadfly, Phil, - Where to start?

The pro-life dogmatists have their stupidities, but the pro-choice radicals have just recently struck down a law, courtesy of the reflexively activist 9th Circuit, outlawing the shredding of infants who have all but emerged from the birth canal, due to a lack of a "health of the mother (sic)" exception. The legislation did have a "life of the mother exception", but the second loophole is necessary so "harm to psychological health" can be used to make a truckhole out of it. This is the kind of running up of the score that has me bemoaning the p-c side's dependence on the judiciary to trump the legislature at any turn.

That the ability of two people of the same sex to create a marital union sanctioned by the state is a core constitutional principle is an idea so novel that it would be laughable, except that certain ideologues are determined to convince the nation that it is, history be damned. Do I think that DOMA or any ordinary legislation will quarantine same-sex unions to MA or other states that have similar court rulings, or whose legislators actually change the law? Not if the "full faith and credit" clause of the Federal Constitution is applied, as it was for divorce. How could conservatives stop that? The only way is a constitutional amendment, failing a win in the high court.

Mind you, I think abortion should be legal many weeks into a pregnancy, just as I think that Roe v. Wade was lousy law that overreached the SCOTUS' purview, and thwarted the political process that was already leading to a new democratic consensus on abortion. And I heartily endorse the view that marriage should be seen as a contract between individuals, whether it has a religious component or not, and requires no special state imprimatur. But that isn't what the people filing suit are after. They are like the businessman who complains that his competitor is getting a subsidy, and rather than call for an end to it, wants one for himself. They want official spousal status for the privileges the government bestows on the married as much as for any other reason.

I'd say crimethink has `fly busted on nocturnal emissions, too.

Kevin

[kevrob]

"R":

I think you have things backwards. The NARAL crew doesn't want any restrictions on abortion, even though Roe set up a rule, wherein the state couldn't do much in the first trimester, a little more in the second, and could even outlaw abortion in the third, save for the "life" and "health" exceptions. The charge of vagueness is trotted out to invalidate almost any law that they hope to have struck down. It is all of a piece with their "we must oppose all restrictions on abortion, no matter how sensible" policy they follow.

Perhaps this particular law really was that vague. Its opponents have cried wolf on that score too often for me to take that on good faith.

Kevin

[Gadfly]

JDM can't argue the point so he points his finger and snivels "nah, nah, nah, nah, nah, nah".

Typical.

[Captain]

"What if Bush had not ignored the widely accepted Powell doctrine by launching the war in Iraq, never proposed drilling in the Arctic refuge and never supported a constitutional amendment to ban gay marriage?"

This statement is so breathtakingly stupid it takes your breath away.

First, it takes two to polarize. It can't be blamed on one person taking a stance--you have to have a large group stongly taking the other side.

Second, these three issues, even though cherry-picked, were not especially polarizing, or not due to Bush, anyway. The Iraq war was consistently popular when planned, discussed (at length by both parties) and fought. (Its still popular if you ignore the results of push polls, but that's irrelevant in any case, unless you think Bush figured he'd do something the people wanted but would later split them.)

The Arctic refuge drilling is simply not a big issue, except for a small cadre. In fact, Bush has been relatively moderate in environmental matters, doing almost nothing Clinton didn't do (and no one claims Clinton was polarizing on the environment this side of Alexander Cockburn), allowing tougher standards on diesel fuel and swamplands, etc., and even swallowing those idiotic arsenic standards. It's outrageous attacks against Bush in Rolling Stone and the Sierra Club that are polarizing. (In any case, bringing up the possibility of using our natural resources when oil is costly and no alternate sources are economically feasible at present seems an eminently reasonable thing for a President to propose.)

Even the gay marriage issue is simply something that was already highly controversial, and unless you believe the President shouldn't talk about matters of national interest, the idea that suddenly he polarized society over his take is bizarre.

Third, let us pause a moment to appreciate the most gloriously stupid pphrase in this sentence, "the widely accepted Powell doctrine." Yes, I remember sitting in cafes before Bush was elected and going on and on about how important the Powell doctrine was to all Americans, and how I hope no president would ever do anything to contravene it lest he polarize society. Leaving aside the many bombings by Clinton, there simply was no national consensus on how to deal with international problems in general, and the average citizen did not fervently believe in something she was hardly aware of. But I love the picture of a heated discussion behind doors--"better not attack Iraq, it'd go against the beloved Powell doctrine and really polarize the electorate."

Fourth, even if the people (not some twit in the New York Times who believes recieved opinions on the East Side of Manhattan represent the country) were generally opposed to preemptive attacks (doubtful), I think we can safely say that any President would have understood after 9/11 the rules of engagement were different. It was an epochal event, creating a situation where everything had to be reconsidered. If there was any polarization immediately after 9/11, it was between those who wanted a measured response (this was Bush's side) and those who couldn't understand why Bush was taking so long to start dropping bombs.

Fifth, Bush is a relatively moderate member of his party, just as Clinton was a relatively moderate member of his. Both regularly disappointed the true believers. And yet both were highly polarizing figures. Why? Maybe because that's the way it's always been. Or maybe because the thesis of this ill-considered essay is all wet.

[JDM]

"JDM can't argue the point"

You don't have a point. Not one that deserves anything other than ridicule, at any rate. To argue that politics was polite before the Republicans tried to impeach Clinton is absurd on its face.

Do you have any personal memory of what it was like before then? Or does all of your information come from the latest breakthrough social analysis in Mother Jones? Do you even remember "It's the economy, stupid?" The non-stop campaign against the dangerous moron Reagan? Have you heard of the Daisy ad? How about Dan Quayle? Remember how nice the Dems were to him? How about the constant vitriol directed at Bush? None of it is heartfelt? It's all just a reaction to the Republicans being mean?

[joe]

"To argue that politics was polite before the Republicans tried to impeach Clinton is absurd on its face."

Then it's a good think he didn't argue that.

[JDM]

Whatever. To say the Dems are as mean, obstructionist, partizan, etc. as they are because the Republicans tried to impeach Clinton is ridiculous, so I ridicule it. Robert Bork? Anyone?

"Call it extremism; call it whatever you want but it's payback time and those bastards asked for it."

How about this - people of different political idealogies attack each other because they disagree. How many times have Republicans opposed Green party Supreme court nominations? If the Greens sweep into major minority status in 2004, does anyone think they wouldn't use every means at their disposal to oppose everything Bush tried? How about the Libertarians? Wouldn't they try their best to slow the growth of government? Cruel rhetoric and parlimentary procedure included?

Are you folks really this occluded in regards to the Dems? Do you really think they so different?

[Gary Gunnels]

Kevrob,

"Justice Douglas' opinion is famous, or infamous, depending on who you ask, for its 'emantations and penumbras,' but he and the several other justices who wrote concurring opinions cite numerous cases that find support for such a right in the 4th, 5th, 14th and 9th amendments."

All of those cases reference things like search and seizure; not one concerns acts in the marital bedroom. To be blunt, no one ever expected that such a right existed until Douglas, et. al. found it, and the dissenters in that decision made that fact perfectly clear. But let me reiterate, this is a STATE COURT we're dealing with here, one which is more powerful in many jurisdictional areas than the US Supreme Court.

"The Civil War amendments were specifically written to guarantee people of all races, especially the former slaves and their descendants, equality of rights, and of 'privileges and immunities.'"

Well, to be blunt, that would an interesting argument, if the court made their decision using the "privileges and immunities" clause, but they didn't! Substantive due process was the area of the law they made their decision under. Further, there is no "privileges and immunities" issue involved because blacks and whites would both have the same privileges under anti-miscegination laws. Finally, the notion that the 14th Amendment was created to end such laws as anti-miscegination laws is clearly contrary to the historical record - indeed many members of the Congress from the time who actually supported the amendment would be shocked at the overturning of such laws.

"That state courts may decide a case based on the state's constitution has both good and ill effects. Sometimes those charters enshrine rights more completely than in the Federal Constitution. Sometimes they lock in structures, such as guarantees of 'free public education,' which we would do well to dispose of."

This is what we lawyers call dicta.

"If you want to argue that treating same-sex unions identically to historical male-female marriage was in any way contemplated by the authors of the Massachussetts Declaration of Rights, go ahead."

Well, that, to be blunt, is the heart of the matter.

"So that the decision of Massachusetts wouldn't become binding on the rest of the country. I would have thought that was blindingly obvious."

Many commentators have already stated that the FF&C does not apply here; and would not apply. Which is of course why some states recognize marraiges between minors and others do not.

"Same-sex marriage will result in state and local governments paying for the health insurance and other benefits of a new batch of 'spouses.' State anti-discrimination laws are likely to reach into the private sector, requiring businesses that don't yet offer benefits that widely to do so. There will probably be unintended consequences, of course. That Christian conservative small businessman who decides that it is wiser to drop insurance for his employees rather than possibly contribute to the encouragement of immoral behavior comes to mind. And, yes, the same goes for any domestic partner registry that includes unmarried M/F couples, entitling them to such benefits."

To be blunt, none of these are honest objections to same sex marraige, they are objections to things wholly unrelated to the issue at hand. If you want to end these things, then I suggest that you don't do it on the backs of gay people.

"Remember the order of the events. The MA SJC found in favor of the plaintiff's in the Goodridge case, and directed the legislature to change the law. The lawmakers asked for an advisory opinion to see if a 'civil unions' bill could meet the court's objections. The answer was 'No.'"

So what? Massachusetts courts are empowered to make these sorts of decisions, and they made this decision.

"They would have probably sought repeal of the law, initially. They might have moved onto a state amendment, next. When it became obvious that they were losing in MA, then the Federal amendment track would be tried."

In other words, it wouldn't ultimately matter whether this decision came from the courts or the state legislature - they would still fight it. Ultimately this demonstrates the hypocrisy of the position that opposition is based on objections to "tyrannical courts."

"I don't pretend that this activity isn't an end-run around majority opinion that is sometimes necessary."

In other words, when its an opinion you agree with, you don't mind using the courts. Please.

"That we never cease to have legal battles about abortion has much to do with the legislative approach having been short-circuited, by my lights."

Even if you had state constitutional amendments enshrining abortion rights into law - indeed, there are some of them as I recall - you would still have court battles and political fights with the same degree that you have them today. Indeed, they would just mestasize in other other areas like stem cell research.

I reject originalism as a sole doctrine for determining constitutional issues - as do conservatives when it suits them.

[Gadfly]

Yes I do.

After the shameless treatment of Clinton (again, way out of proportion to what Reagan received) and the subsequent coronation of W, I chewed it up real good and swallowed it. "Move on" as they say. Let's make the best of it.

Then I watched the bastards, in the name of compassion, bring back all the old cold warriors (Poindexter included), trash Kyoto, trash the World Court, trash the ABM treaty, trash the energy policy, trash the Powell Doctrine, re-fund Star Wars, invade Iraq based on a pack of lies, give tax breaks to the oil industry and wealthy blue noses and run the deficit to a half trillion dollars in just two years.

Your court nomination argument doesn't hold up, either. Republicans held up about 60 of Clinton's nominations while Dems have held up about 3 of Bush's. There's hate mongering for you.

So, yeah, I think the Dems are different and I can't wait for November.

[JDM]

"Yes I do."

Alright, then.

"Then I watched the bastards, in the name of compassion, bring back all the old cold warriors (Poindexter included), trash Kyoto, blah, blah, blah"

Now you're getting it. You disagree with them, probably lots of Dem pols do to. Doesn't have a lot to do with who was mean, obstructionist, etc. first, does it?

[Gadfly]

For me, JDM - and I speak for nobody else - my rage at this particular time and in this election cycle began with Clinton's impeachment and builds right through today, a period of five or six years. It has nothing to do with who did it first; it has to do with who's doing it NOW.

[Gary Gunnels]

Kevrob,

"This is the kind of running up of the score that has me bemoaning the p-c side's dependence on the judiciary to trump the legislature at any turn."

The courts are an independent third branch of government; get used to it. And let me blunt here - conservatives are as adept at using the courts as anyone else is (and always have been).

"That the ability of two people of the same sex to create a marital union sanctioned by the state is a core constitutional principle is an idea so novel that it would be laughable..."

The notion that there was a "right to privacy" vis a vis the marital bedroom was also pretty novel at one time, as was the notion that that states could not criminalize inter-racial marraiges. Novelty by itself is hardly an objection in these matters, especially as this was a decision of a state court - which as I have already stated, has far more power than a federal court.

"Not if the 'full faith and credit' clause of the Federal Constitution is applied, as it was for divorce. How could conservatives stop that?"

Why would they want to? Ask yourself this question - if the Massachusetts state legislature had gone forward by itself with a same-sex marraige law, would conservatives have also pushed for for an amendment? I think the answer is obvious; and this answer puts to sleep this notion that religious conservatives are at heart concerned with "judicial overreach."

"But that isn't what the people filing suit are after. They are like the businessman who complains that his competitor is getting a subsidy, and rather than call for an end to it, wants one for himself. They want official spousal status for the privileges the government bestows on the married as much as for any other reason."

Its all venality, eh?

[Ironchef]

On the second story - does anyone else see the root cause of some poverty in the article's first sentence? "For 12 hours a day in her cardboard shack, she would . .(work for) $2.50, to feed her four children."

Don't get me wrong, this is a good article, and the direction the Kenyans are going is well and good. (much rather see this than more millions wasted in fruitless and corrupt aid programs)

But maybe if we could teach this common sense value first: DON'T HAVE KIDS IF YOU CAN'T AFFORD TO RAISE THEM.

[kevrob]

I hadn't realized, Gary, that you were a lawyer. I don't think I'll try to chop logic with you on fine points of law, as I am giving a layman's take, albeit one from a political science background. From a political point of view, a test case is often the first strike in a political battle. That the side playing defense often gets caught on its heels, and winds up resorting to calls for constitutional amendments to overturn decisions they don't like does not mean that they are picking the fight, unless one takes the view that the court system is non-political. That's where I think Prof. F. goes wrong.

BTW, I am not planning to do anything on the backs or fronts of gay people. I've said for years that public employers would be wiser to give every similarly compensated employee a cafeteria plan with the same cash value, and not even enquire as to what percentage is used to cover a "partner" or any dependents. I'd suggest the same thing to a private business' HR department. If you are looking for someone getting screwed in the employee benefits area, try the single childless person, gay or straight.

We'd be even better off if we separated health insurance from employment altogether, which is an artifact of companies trying to game WWII wage and price controls, anyway.

Kevin

[joe]

Several conservative commenters seem to be taking the tack "Bush's actions weren't partisan/divisive/polarizing. They were right!" and one even adds the counterargument, "Clinton was seen as a centrist, but he did things that were wrong."

Fellas, the process for determining whether an action is or isn't divisively partisan does not involve asking whether people on one side or the other agree with it. Each and every one of those actions taken by Clinton, for example, (except "started the Gulf War," which he didn't do) is completely within the mainstream, and supported by solid majorities in national polling.

[fyodor]

It ain't red and blue, it's all just shades of purple.

[MJ]

"Now, in the ultimate show of chutzpah, Republicans accuse liberals of hate-mongering when they utter the smallest squeak of protest while getting steam rollered by both houses of Congress plus the court appointed Executive."-Gadfly

Pardon me, but where and when during the past four years have liberals been "steam rollered"? What controversial (at the time) piece of legislation since 1/01 has there been without the Dems putting up some kind of roadblock and forcing significant changes to the final product? During these past four years I have seen the Dems pull out every stop, exploit every parliamentary rule and technicality to the fullest extent (even ones that were traditionally considered abusive, i.e filibustering judicial appointments) to foil Bush's and the GOP's agenda. They have been far from steamrollered.

The Dems are in the minority in Congress, the voters put them there, for good reason. Since at least the '70s, the Dems have handled power poorly, and they have handled their present lack of power with scant grace and little wisdom. I see no signs of that changing, in fact I see it only getting worse.

[Gadfly]

Tit for tat horse trading is as old as politics itself and I have no problem with it. All the issues discussed here could be, more or less, settled by a Congress motivated by concern for the Republic instead of the desire to see their opponents crushed.

I lay the blame for this squarely at the feet of the Republican leadership. When Reagan got caught lying to Congress on the Iran-Contra affair the Dems could have pushed for impeachment. Their was certainly cause. But, they figured it would be unpopular and brutal. Reagan was already humiliated and a lame duck to boot, so whatthehell. They did the decent thing and let the Gipper ride off into the sunset.

Fast forward to the Clinton years and compare the Republican response to his circumstances that were arguably more benign than Reagan's transgressions. Their meanness, personal animosity and disregard for the public good showed me there, in a nutshell, the true colors of the Republican Party.

Now, in the ultimate show of chutzpah, Republicans accuse liberals of hate-mongering when they utter the smallest squeak of protest while getting steam rollered by both houses of Congress plus the court appointed Executive.

Call it extremism; call it whatever you want but it's payback time and those bastards asked for it.

[Larry A]

{But Professor Fiorina insists the voters are merely responding to a president who is more partisan than virtually all of his modern predecessors. A president who played more to the center might not stir such strong reaction, he said.
What if Bush had not ignored the widely accepted Powell doctrine by launching the war in Iraq, never proposed drilling in the Arctic refuge and never supported a constitutional amendment to ban gay marriage?"}

As opposed to President Clinton, who proposed nationalized health care, cut federal firearm dealer licenses 80%, authorized the HUD firearm manufacturers lawsuit and engineered the Smith & Wesson ?compromise,? instituted the gay don?t-ask-don?t-tell rule for the military, supported the formulated gasoline program, and started the Gulf War?

Guess where Professor Fiorina thinks the ?center? Bush is supposed to play to is located.

[joe]

"Republicans accuse liberals of hate-mongering when they utter the smallest squeak of protest"

You mean like "vicious" Tom Daschle?

chuckle

[kevrob]

The notion that there was a "right to privacy" vis a vis the marital bedroom was also pretty novel at one time,

The Griswold decision, that used that newly discovered right of marital privacy to strike down a ban on contraception, did not create that right out of thin air. Justice Douglas' opinion is famous, or infamous, depending on who you ask, for its "emantations and penumbras," but he and the several other justices who wrote concurring opinions cite numerous cases that find support for such a right in the 4th, 5th, 14th and 9th amendments.

as was the notion that that states could not criminalize inter-racial marraiges.

Conflating skepticism of expansive readings of the state or federal constitutional rights of same sex couples with Jim Crow is an extraordinarily specious argument. The Civil War amendments were specifically written to guarantee people of all races, especially the former slaves and their descendants, equality of rights, and of "privileges and immunities." That it took until the Loving case to strike down miscegination laws is more a result of the corrupt nature of the post-Reconstruction political system than the intent of the authors of the 14th amendment.

Novelty by itself is hardly an objection in these matters, especially as this was a decision of a state court - which as I have already stated, has far more power than a federal court.

That state courts may decide a case based on the state's constitution has both good and ill effects. Sometimes those charters enshrine rights more completely than in the Federal Constitution. Sometimes they lock in structures, such as guarantees of "free public education", which we would do well to dispose of. If you want to argue that treating same-sex unions identically to historical male-female marriage was in any way contemplated by the authors of the Massachussetts Declaration of Rights, go ahead.

"Not if the 'full faith and credit' clause of the Federal Constitution is applied, as it was for divorce. How could conservatives stop that?"

Why would they want to?

So that the decision of Massachusetts wouldn't become binding on the rest of the country. I would have thought that was blindingly obvious.

Besides the reason that those who oppose this invention do so as a method to enforce their version of morality on their fellow citizens, they might want to save money. Same-sex marriage will result in state and local governments paying for the health insurance and other benefits of a new batch of "spouses." State anti-discrimination laws are likely to reach into the private sector, requiring businesses that don't yet offer benefits that widely to do so. There will probably be unintended consequences, of course. That Christian conservative small businessman who decides that it is wiser to drop insurance for his employees rather than possibly contribute to the encouragement of immoral behavior comes to mind. And, yes, the same goes for any domestic partner registry that includes unmarried M/F couples, entitling them to such benefits.

Remember the order of the events. The MA SJC found in favor of the plaintiff's in the Goodridge case, and directed the legislature to change the law. The lawmakers asked for an advisory opinion to see if a "civil unions" bill could meet the court's objections. The answer was "No."

Ask yourself this question - if the Massachusetts state legislature had gone forward by itself with a same-sex marriage law, would conservatives have also pushed for an amendment?

They would have probably sought repeal of the law, initially. They might have moved onto a state amendment, next. When it became obvious that they were losing in MA, then the Federal amendment track would be tried.

this answer puts to sleep this notion that religious conservatives are at heart concerned with "judicial overreach."

I think it is fair that, in strict constructionism and originalism, conservatives have found a theory that fits their policy choices, and adopted it. That doesn't mean that those of us who hold with those principles, even if we agree with the policies being enforced by the courts, can't object to the manner in which they are being promulgated. As to the question of the red/blue division, when one asserts, as Prof. F did, that a reaction to an unpopular court decision is the first punch thrown in a partisan rhubarb distorts the political calculus. The process of presenting test cases in favorable jurisdictions in order to effect policy changes has long been an established method of doing politics. People that I consider "the good guys", like The Institute for Justice, do it too. I don't pretend that this activity isn't an end-run around majority opinion that is sometimes necessary. It is preferable to win in Congress or the state legislature sometimes, if only to build consensus. That we never cease to have legal battles about abortion has much to do with the legislative approach having been short-circuited, by my lights.

Kevin

[R]

"The pro-life dogmatists have their stupidities, but the pro-choice radicals have just recently struck down a law, courtesy of the reflexively activist 9th Circuit, outlawing the shredding of infants who have all but emerged from the birth canal, due to a lack of a "health of the mother (sic)" exception."

Yes, the whole health of the mother exception was motivation in opposing the ban, but you are missing another very important reason that pro-choice advocates opposed it. The wording was far too vague, and the concern was that the ban could be used or stretched to infringe upon abortion rights beyond just the attacks on partial-birth.

[Douglas Fletcher]

Jesse Walker finally chews through the ropes he tied himself to his desk with 11 months ago so he would finally get some work done instead of watching TV...oh wait, that's me. Sorry.

[johnL]

Captain - The Powell Doctrine is more obscure than that.

Maybe I understood your post wrong, if so sorry. the Powell doctrine isn't that we should never go to war, it's about how to fight. The Powell doctrine is to always apply more force than you think you need. Let's say you want to invade somepleace and you are looking at the most important targets to bomb before the infantry advance. One general says "We can break their army if we can pin them down", another says "if we keep them from talking" and another "if we destroy their armour". You agree with each of them, that destroying any one of the supply lines, communications equipment, or armour would be enough to win the war. So the Powell Doctrine says to bomb all three.

Now try explaining how not following that is partisan and polarizing.

[Gadfly]

Exhibit A - Invasion of Iraq and all the jingoistic, perverse uses of the law that went with it. Dems were steam rolled into agreement and then ridiculed for doing so.

There's plenty of others but that alone is good enough for me.

[Larry A]

{and one even adds the counterargument, "Clinton was seen as a centrist, but he did things that were wrong."}

Well, no. I didn?t say they were wrong, I said they were partisan, as in favored by the Democrats but not the Republicans. The only problem I had with don?t-ask-don?t-tell is that it didn?t go far enough to protect gays.

{Fellas, the process for determining whether an action is or isn't divisively partisan does not involve asking whether people on one side or the other agree with it. Each and every one of those actions taken by Clinton, for example, (except "started the Gulf War," which he didn't do) is completely within the mainstream, and supported by solid majorities in national polling.}

Really? The gun lawsuits may be popular in some polls, but almost two-thirds of the state legislatures have outlawed them. And the popular reaction of 80 million gunowners about Smith & Wesson?s suicide pact was overwhelmingly negative.

Partisan has nothing to do with majority support or being ?mainstream.? It?s about political differences between parties.