Antonin Scalia

Scalia's DOMA Dissent Highlights Conservative-Libertarian Split on Supreme Court

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Credit: C-SPAN

During the March 2010 oral argument in the case of McDonald v. Chicago, Justice Antonin Scalia upbraided the libertarian lawyer Alan Gura for asking the Supreme Court to follow the original meaning of the Privileges or Immunities Clause of the 14th Amendment and thereby force state and local officials to respect the individual right to keep and bear arms.

"What you argue is the darling of the professoriate, for sure," Scalia mocked in response to Gura's case for reviving the Privileges or Immunities Clause, "but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, I have—even I have acquiesced in it?"

Substantive due process refers to the method whereby judges invalidate laws or regulations that violate what they determine to be a fundamental right secured by the Due Process Clause's protection of life, liberty, and property. In the eyes of its critics, including many legal conservatives such as Scalia, substantive due process is illegitimate because the clause was designed merely as a procedural safeguard, not as a tool to protect fundamental rights. But as his questioning of Gura indicated, Scalia ultimately set aside those qualms in the McDonald case, joining three other justices in relying on a substantive interpretation of the Due Process Clause in order to strike down Chicago's handgun ban. Only Justice Clarence Thomas voted to follow the original meaning of the Privileges or Immunities Clause in that case.

I was reminded of this jurisprudential maneuvering when reading Justice Scalia's dissent yesterday in the Defense of Marriage Act case United States v. Windsor. In it, Scalia not only accused the majority of harboring a "diseased" and "exalted conception" of judicial supremacy by striking down Section 3 of DOMA, he attacked his colleagues for committing the crime of substantive due process, the very approach he himself so recently "acquiesced in" when striking down a gun control law.

Scalia did not acknowledge that particular inconsistency. Instead, he attacked Justice Anthony Kennedy's majority opinion for its overly broad reading of liberty and for its corresponding lack of deference to the elected branches that had duly-enacted the Defense of Marriage Act. This case, Scalia declared at the outset of his dissent, "is about the power of our people to govern themselves."

If the overriding theme of Kennedy's DOMA opinion is the protection of liberty, the theme of Scalia's dissent is respect for majority rule. "The Constitution does not forbid the government to enforce traditional moral and sexual norms," he wrote, citing his dissent in Lawrence v. Texas (2003), the case where he voted to allow states to criminalize homosexual conduct. As for placing restrictions on the recognition of gay marriage, "We might have let the People decide."

It's a familiar conservative legal argument, drawn from the same philosophy of judicial deference to the will of the majority that has motivated many other thinkers on the right, including Robert Bork, who famously ranked majority rule higher than individual rights in his conception of the American system. "In wide areas of life," Bork wrote in his bestselling book The Tempting of America, "majorities are entitled to rule, if they wish, simply because they are majorities."

Bork's majoritarian approach prompted a response back in 1986 by the libertarian political scientist Stephen Macedo that I have long considered to be a definitive nutshell summary of the difference between conservative and libertarian legal thinking. As Macedo put it, "When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights."

The controversy over DOMA rests on a very similar philosophical split. According to Justice Kennedy, "though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment." According to Justice Scalia, "even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation."

A sea of individual rights or a sea of government powers? Kennedy chose the former, Scalia endorsed the latter.

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223 responses to “Scalia's DOMA Dissent Highlights Conservative-Libertarian Split on Supreme Court

  1. Macedo’s a libertarian now? Read what he has to say about civic education and get back to me.

  2. wow, that 2nd para makes me feel retarded ‘n stuff…

  3. Wasn’t part of Scalia’s issue that he felt the court should not have even heard the case? The appeals court sided with the plaintiff and the government, whose supposed to side with the law, refused to argue the case. The reasoning is that SCOTUS is not supposed to rule on whether a law is good or not. It’s supposed to hear disputes.

    Even with that he still ruled for DOMA instead of recusing himself.

    1. That isnt a reason to recuse yourself. He had no conflict that would lead to a recusal.

    2. It’s supposed to hear disputes.

      And then what?

      1. Interpret the law in order to decide who has the better case and declare a victor along with any applicable compensation or punishments.

        Their job is settle conflict between two or more parties, not simply to opine on the law.

        That this case was even heard is evidence of blatant judicial activism of the worst kind. They specifically sought to ignore their function (SCOTUS had NEVER heard a case simply to opine on the law when there was no legal conflict) and turn their role political.

        Ultimately I agree with the outcome (SLD: government should have dick to do with marriage), but in rendering said outcome, the court trashed the principal upon which it operates. It was horrible.

        The case should never have been heard.

  4. I thought the DOMA decision was more about standing (and, no, Im not confusing decisions, the Prop 8 one was entirely about standing).

    Root, did you actually read the decisions?

    1. Scalia would have dismissed on standing grounds, but he also says he’d uphold the law if there was no problem with standing, because fuck federalism when it’s a law he doesn’t like.

      1. Er, *unless* it’s a law he doesn’t like.

  5. It also seems like many conservatives have this unique view of liberty (or lack thereof) when it comes to sex. I knew a guy in college — very thoughtful, genuinely interested in limited government and liberty, except when it came to sex. As he saw it, sexual urges were just too powerful to resist and would wreck a society if the government didn’t do something to restrain them.

    1. …”As he saw it, sexual urges were just too powerful to resist and would wreck a society if the government didn’t do something to restrain them.”

      Screams about purity tests be damned; my dingaling is my business and no one else’.

    2. ” As he saw it, sexual urges were just too powerful to resist and would wreck a society if the government didn’t do something to restrain them.”

      ROTFL, yes because the government has such a long and successful track record of restraining the people from doing what they want.

      Hell the government can’t even get people to drive within it’s proscribed limits and there is no overwhelming biological urge to go faster (well except maybe where sex is concerned)

      1. He seemed less concerned about the effectiveness of such laws and more concerned about their righteousness, as he saw it. This is the SoCon mindset.

        1. There is this idea that the law is there to express disapproval for moral issue and that has as much value to them than if anyone ever actually goes to jail for it.

          That is the very essence of legislating morality that most libertarians object to so fiercely. The law is not a suggest or a bulwark, it’s a brute with a club and gun, waking you in the dead of night to drag you away. It should be reserved for violations of other individuals, not ickiness.

      2. The only institution less qualified to make decisions about people’s private expression of their sexuality than a government is a religion.

  6. A sea of individual rights or a sea of government powers? Kennedy chose the former, Scalia endorsed the latter.

    I have to disagree with this. Kennedy didn’t rule DOMA unconstitutional on federalist grounds; he believes in a “sea of government powers” as well or the opinion would simply have read, “the federal government has no power to pass any laws regulating marriage.” And Scalia’s main concern was with whether the court had even heard a case or controversy, though he would have upheld DOMA even if they had.

    1. This, on both parts.

  7. It seems to me that a large percentage of people who are commenting on yesterday’s decisions didnt actually, you know, read them.

    1. Yep. But never underestimate the ability of people to congratulate the logic of outcome-based decisions that arrive at a conclusion they agree with.

      Libertarian-minded folks should be wary of what this means for future SC decisions. Scalia’s dissent was on point when he argued that the Court had no business deciding this case. What happens in the future when a hostile court decides to pass judgment on some other random law that DOMA opponents like?

      1. I haven’t read the full decision, but I also haven’t heard any arguments I find persuasive about why this is so dangerous. So I’m honestly asking why you think it is?

        1. This. And after a casual glance, I’m more interested in the Prop 8 ruling and it’s implications on future ballot initiatives.

          1. Ballot initiatives are dead if the state government wants them dead.

            1. Is this correct? I saw at least one comment implying that people could still defend laws even if the state didn’t if repealing them would cause them harm.

              Which brings up an interesting question — who defended DOMA? And why did they have standing?

              1. I saw at least one comment implying that people could still defend laws even if the state didn’t if repealing them would cause them harm.

                That is what the CA courts ruled WRT Prop 8, but SCOTUS said this did not wash and dismissed the case for exactly that reason.

                BLAG defended DOMA with the permission of the DOJ.

            2. The CA court system came to a different conclusion than the federal one on standing. States with ballot initiatives can do the same or pass legislation to that effect. Its only dead if the state wants it dead.

              There is nothing wrong with state governments having a more expansive view of the protections in the constitution than the federal government. In Texas, for example, DUI checkpoints are considered unconstitutional under the federal constitution.

        2. The Court should never have even heard this case or issued this ruling, since there’s no valid dispute before it. It’s dangerous because it gives the Court the absolute and context-independent ability to pass judgment on the constitutionality of any law. Granted, while far from perfect, the current Court is a better friend of liberty than either of the elected branches, but this may not always be so. I’m just wary of any branch making a power grab of this magnitude.

          1. It’s dangerous because it gives the Court the absolute and context-independent ability to pass judgment on the constitutionality of any law.

            Well, that is how the system of checks and balances works.

            If not the courts, then who? Executive branch? Yeah, no problems there. Congress? Not given their shameful track record of passing unconstitutional shit which they know the courts will overturn.

            1. If not the courts, then who?

              The courts ONCE there is a valid dispute.

              Ends dont justify means, and the means was wrong this time.

              1. This.

                There must be a legal dispute. In the DOMA case there was no dispute.

            2. Well, that is how the system of checks and balances works.

              No, that’s exactly wrong. All the branches are subject to checks and balances, and a crucial check on the power of the unelected Federal bench is a limitation to genuine “cases or controversies”.

              1. No, that’s exactly wrong. All the branches are subject to checks and balances, and a crucial check on the power of the unelected Federal bench is a limitation to genuine “cases or controversies”.

                ^^THIS^^

          2. I would have zero problem with a system where the courts don’t need a legal dispute to rule on the constitutionality of laws. The vast majority of laws these days are bad and unnecessary. If SCOTUS rules them constitutional, then it just leaves the status quo in place, but if they rule them unconstitutional, more often than not that’s going to be a good thing

            1. *I meant to say the Supreme Court, rather than just “the courts” in the first sentence

      2. So lets say he’s right about the standing issue. The appeals court decision stands and the Obama administration acts like DOMA doesn’t exist. For all intensive purposes everything is the same, except the next president elected changes his mind and decides to enforce it. The whole shebang goes back through the courts and is overturned because its blatantly unconstitutional.

        I’m not sure how this is a huge dangerous precedent.

        And in any case some of us support an increase in liberty, constitutional or not.

        1. And in any case some of us support an increase in liberty, constitutional or not.

          I do think this is dangerous. I don’t worship the Constitution as a sacred text, beyond reproach, but if there is some flaw in it that prevents the expansion of liberty, then it should be amended, not ignored. Otherwise you’ve slid into arbitrary rule. Having said that, I don’t really see any such flaws, except that maybe in some areas it isn’t clear and emphatic enough to prevent big government types from circumventing it. But that has more to do with willful neglect for the plain meaning of the English language.

          1. It’s not arbitrary: increase in liberty good, decrease in liberty bad.

            I’m somewhat supportive of the idea that following the constitution will lead to more liberty but I’m also aware of the actual world we live in.

            But whether the Constitution really be one thing, or another, this much is certain ? that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

            Sometimes I’ll take what I can get and be happy.

            1. Who said that?

              1. Lysander Spooner.

                1. That chick who kicked some hornets’ nest?

              2. Last name rhymes with schooner…

        2. So lets say he’s right about the standing issue. The appeals court decision stands and the Obama administration acts like DOMA doesn’t exist. For all intensive purposes everything is the same, except the next president elected changes his mind and decides to enforce it. The whole shebang goes back through the courts and is overturned because its blatantly unconstitutional.

          Whats wrong with that?

          It gets us to the same state as now, but its done without raping procedure. Its not just important to get to the right end, its important (more important, even) what means are followed to get there.

          1. Whats wrong with that?

            IIRC, Appellate decision only apply to the states within that circuit.

            I haven’t read much about the case, so no idea if this played into it or not for going to the Supremes.

            1. And?

              Let another circuit bring up a similar case.

              If they conflict, the loser in that 2nd case will appeal to the Supremes and we are right back to same state.

              This has been standard operating procedure for over 200 years.

              1. I’m not arguing this, just pointing out that this might have been the rationale of the SCOTUS plantiffs and was accepted under cert.

            2. In this case the circuits wouldn’t matter. The Obama administration said that it was unconstitutional and that they wouldn’t enforce it unless the court said they had to. My understanding is that if it had been rejected on standing they would have just stopped enforcing it.

      3. I don’t know. I think it would be a good thing if there were some body which was empowered to seek out and nullify bad laws. There are a lot of unconstitutional laws out there that will never be challenged because it is nearly impossible to have the standing to do so. There should be a way to challenge laws simply on the basis that they are unconstitutional.

    2. Same goes with the VRA decision 2 days ago.

      It’s because people are actively discouraged by their masters in the media to ignore the legal arguments in favor of how they feel about a particular issue.

      Some douche at HuffPo on the VRA decision:

      So don’t get bogged down in the legal arguments offered by Justice Roberts. First of all, in effect, what the Court did was reject Congress’s interpretation of voting data in favor of its own (even though the House voted 390-33 to reauthorize the VRA in 2008). This is Roberts and his business conservative colleagues inserting their far-right interpretation of the law ahead of 48 years of the act being accepted as being well within the bounds of the constitution.

      But even more importantly, the legal argument is pretense, an excuse to allow five business conservatives to undo a key piece of legislation that did huge work in giving more Americans the power to vote and govern themselves, but made it harder for business conservatives to win elections.

      SCOTUS gutted the VRA because KKKorporashuns!!!!!!! Let’s forget that the “voting data” used by Congress is nearly 50 years old, because Roberts is a RIGHT WING IDEOLOGUE!!!

      Obfuscation of what was written in the opinion and for what reasons is the point. Feelings supersede the law, and if you don’t agree your nothing but a KKKORPORATE apologist and racist.

  8. Is anyone else still trying to figure out Thomas’ vote?

  9. Guess who said this:

    “If we have no laws on this, people take it to one extension further ? does it have to be humans? You know?”

    1. Some Senator from Kentucky?

    2. Ann coulter?

    3. PETA?

    4. Rand Paul, musing on what might happen without govt defining marriage. Not a high water mark for him. That sounded like the sort of pondering someone might do while stoned, not on a national radio show.

      1. I think its a legit question.

        Well, not the animal part.

        But, yeah, without laws on marriage (which I favor, and I mean literally NO laws, as in no state licensing/recognition of marriage at all) then polygamy would be “legal”. Heinlein style line marriages, the whole kitchen sink.

        Despite all the arguments otherwise, this absolutely opens up legalization of polygamy.

        1. I pointed this out to Mrs. OMWC, who reminded me of her right to keep and bear arms.

        2. The part on bestiality is what pisses people off, and rightly so. I’m a fan of Paul, but that was an idiotic thing to say

        3. Rasilio and Xenoclese had an interesting discussion on this in the AM Links.

          I think this opens up the possibility that polygamy could be recognized, but I don’t think there’s a clear path to “legalizing poly”

          1. So what if there is? What’s wrong with a contractual agreement between multiple people?

            1. I didn’t mean to imply that there was. I’m in full favor of poly couples having access to clear legal recourse if needed. I don’t know if you read the conversation I linked, but it’s more about the technical aspects of how would that be structured in the context of American family law.

        4. ” this absolutely opens up legalization of polygamy”

          I don’t see the problem. It’s a pitty that when people first made the polygamy objection to gay marriage more people didn’t just say “So?”.

      2. I thought he came out in support of the ruling?

        1. I think he did then went off into bizarro land.

        2. He did and openly said that the GOP needs to learn to agree to disagree.

          I don’t care what any given politician thinks about a matter personally, but about whether a given politician is willing to use the force of government to thrust a particular belief upon me.

          Paul can believe whatever he wants. So long as he isn’t willing to use government to force those beliefs on me, I will continue to support him.

  10. [Scalia] attacked Justice Anthony Kennedy’s majority opinion for its overly broad reading of liberty

    What a fucking surprise.

  11. except the 2nd amendment exists and the right to bear arms exists in our constitution. it’s right there in the text. go ahead. look it up. using substantive due process to protect it less bad than making up rights that never existed.

  12. After the long rant about standing, Scalia’s opinion is basically incomprehensible except as a long-winded whine about how unfair it is that he’s not allowed to hate gay people and be considered a decent person, or have his views enshrined in law.

    1. jeezus on a biscuit, come up with a better argument than the tired “hate” bullshit that the left relies on any time anyone agrees with it on anything. I realize principled disagreement is a tough concept for you, but people don’t agree on everything all the time. And disagreement is not the sole result of hate, malice, or evil.

      1. There is no coherent argument in favor of the constitutionality of DOMA or against full marriage equality. Nobody can come up with one, and the only people who are upset about it have religious hangups.

        1. there is plenty of argument over how marriage should be defined and what purpose it has in society. There is even more argument in whether govt should be involved in any aspect beyond the state’s role as mediator in disputes over the marriage contract. There is, or should be, NO argument over who gets marital recognition for the purpose of receiving govt ponies.

          1. There is, or should be, NO argument over who gets marital recognition for the purpose of receiving govt ponies.

            No one.

            I got the right answer, didnt I?

          2. there is plenty of argument over how marriage should be defined and what purpose it has in society

            Your mistake is that you are judging the arguments. You’re supposed to judge the person.

            If the person is religious, principled (ideologue!), not a Democrat, then their argument is bunk because of the person who is making it.

            If they’re anti-religion, have no principles, a Democrat, then their argument is sound because of the person who is making it.

            Even if they make the same argument, one is right and the other is wrong!

            1. Even if they make the same argument, one is right and the other is wrong!

              and when we walked through the looking glass, here is what we found.

      2. Accusations of hatred are great because they set up a scenario where the only possible reason you have to disagree with the leftist is hatred, and the only possible way to prove you’re not a hater is to agree with the leftist.

        You have to remember that leftists truly believe in ad hominem arguments. It’s not what a person says that matters, it’s the person. Principals trump principles.

        1. that must the corollary to your “demonstrate tolerance by being intolerant” theorem. The hate meme is such a default mechanism for the left that it is practically caricature.

          1. I’ve actually been told this in these exact words from someone claiming to be tolerant “I don’t have to tolerate intolerance!”

            So self-unaware.

            1. I upset someone extremely once when I told them the concept of “moderation in all things” was an extremist position and internally self-contradictory.

            2. What is wrong with that sentiment? All opinions are not valid. Tolerance means accepting people are are made different from you, not putting up with people who think wrongly.

              1. Like I said, so self-unaware.

                1. I’m not calling for people to be imprisoned for being bigots.

              2. you think wrongly on a regular basis, and we tolerate that. See, that’s how it works. Not everyone agrees on everything.

        2. Just because Scalia is a toad, an idiot’s idea of what a smart person is, a religious bigot, simultaneously an ideologue and a hack, and a breathtakingly bad justice, doesn’t mean I can’t address his argument.

          I just can’t keep up with his argument from day to day. One day a near-unanimous Congress can’t discriminate against racist states in merely preclearing voting law changes. Literally the next day Congress is perfectly free to enact a law whose only effect is to discriminate against a class of people on so-called moral grounds.

          1. then address his argument. Your summation of his appearance, faith, and ideology does not constitute such an address. Ad homimem is not argument; it just reveals the lack of one. And it’s not as if he didn’t give you material to work with.

            1. Scalia thinks states should be able to criminalize certain sexual behavior and should be able to exclude consenting adult pairs from equal marriage rights because of moral (read: religious) norms. Do I really need to argue against this?

              There is a thread of a principle in his arguments (albeit with occasional gaps): his value for the democratic will of sub-federal jurisdictions. He generally doesn’t believe the courts or Congress should, beyond their mandated powers, tell states or localities how they should conduct themselves.

              But what does that have to do with DOMA? His opinion on DOMA is a travesty, a complete contradiction of the prior day’s opinion on the VRA, and, as I said, essentially a long rant that the world is so unfair that he doesn’t get to be a homophobe, that he, not gay people who lack equal rights, is the victim, because he doesn’t get to impose inequality on gay people.

              1. Scalia thinks states should be able to criminalize certain sexual behavior and should be able to exclude consenting adult pairs from equal marriage rights because of moral (read: religious) norms

                No, he doesn’t. He said that govt is not prohibited from enforcing norms.

                His opinion on DOMA is a travesty… essentially a long rant that the world is so unfair that he doesn’t get to be a homophobe,

                Again, no. Maybe the voices in your head connect his opinion to homophobia but not favoring gay marriage does not require hatred of gays or of anyone else.

                Even when you try, you don’t succeed. It’s just not in you to go beyond the personal. It’s all you have.

              2. equal marriage rights

                Two points on this.

                First, aren’t you the shoe liner turned children’s toy that argues that rights are dynamic based on majoritarian interests? If that’s the case then wouldn’t it be true that gays have no marriage rights in most of the country right now because the majority is against granting them?

                Second, what rights are you missing? Are you not allowed to freely associate with your homosexual partner? Are you not allowed to freely speak about your relationship? Or is it marriage privileges that you’re after? A slurp off the government gravy train?

                1. Rights are defined, in part, as entitlements. There are many government-granted entitlements that count among marriage rights. And yes, in fact, in reality, gays do not have marriage rights in much of the country. Do they have a theoretical right to marry? I guess there might be some disagreement among you absolutist deontologists here.

                  The only basic right I’m interested in is the right to be treated equally under the law by the government I pay the same taxes to everyone else does. Whatever government gravy that entails is immaterial to me personally since I think marriage is dumb.

                  1. The only basic right I’m interested in is the right to be treated equally under the law by the government I pay the same taxes to everyone else does. Whatever government gravy that entails is immaterial to me personally since I think marriage is dumb.

                    Except that granting these same privileges to a group is NOT the correct way to go; the correct way to take away from the government the ability to give gravy. Without government mandated tax incentives (whether real or not), estate privileges, etc, for being married there would be no need to address gay marriage via government.

                    Removing marriage from the tax code is the better way to deal with disenfranchisement.

                    1. Isn’t that a bit like saying if the gays want marriage, nobody gets marriage! Huff!

                      Yeah good luck with that. Why not let gays enjoy just a few years of what heteros have had forever before we decide now is the time to scrap the whole thing?

            2. Please WarEagle. If you eliminate ad hominem attacks you deprive the statists of all their arguments.

          2. racist states

            There are no such things as racist states. Only racist individuals.

            1. States full of racists.

    2. Tony has argued on this very site–for years–that our rights depend entirely on government and public opinion. That they don’t exist otherwise…

      When Scalia and Bork say the same things Tony has for years, he denounces them?

      It’s just because it’s Scalia and Bork saying it. Well…and it’s because Tony is an idiot.

      If Obama said the exact same thing about our rights in regards to the individual mandate or gun ownership, Tony would be saying the same things Scalia and Bork said.

      Tony is a moron.

      1. It’s just because it’s Scalia and Bork saying it.

        It’s not the content of argument that matters. What matters is who is making it.

        1. That is absolutely correct.

          There are only two kinds of arguments in Tony’s world: the kind that support Obama and the kind that don’t.

          The way to tell which positions to hold is by looking at the people arguing for them. If they support Obama, then they’re right. If those who support Obama don’t like those arguments, then the arguments are wrong.

          When you know what’s true because of who’s saying it? That’s cult behavior. Tony could have just as easily been a Scientologist or a Moonie.

          1. I am far less obsessed with Obama than you are.

      2. I just don’t believe in magic. Rights are legal constructs. They’ve never been anything else.

        1. Yes, we know you have no principles other than “might makes right.”

          You know who else had no principles other than “might makes right”?

        2. I’m intentionally taking this to an extreme position to try to understand this statement, but here goes…

          If a majority, or a super-majority if you’d like, made it legal to murder a certain class of people, would that be OK? Is the right to one’s life nothing more than a legal construct?

          1. Yes a right to one’s life is nothing more than a legal construct (backed up by a taxpayer-funded law-and-order apparatus). No, it’s not right to murder people, and it wouldn’t be so no matter how many people voted in favor of it. But if enough people did vote for such a thing, the point is what are you going to do about it? You can try to make a rights assertion into a protective force field, but I doubt it will work.

            1. Well, yes, mob rule is mob rule. But I’m more interested in these two statements, which seem contradictory to me:

              Yes a right to one’s life is nothing more than a legal construct

              No, it’s not right to murder people, and it wouldn’t be so no matter how many people voted in favor of it.

              Based on previous statements you’ve made, I’d guess you think majority rule is the only best way of creating legal constructs. But this seems to contradict the first statement.

              1. I can say murder is wrong because I’m a non-psychopath. I’m not required to believe it’s wrong because God says so. There’s actually a relatively complicated philosophical underpinning for secular ethics, but suffice it to say that “murder is bad” is a pretty easy one.

                1. it has nothing to do with god; you should believe, not say, that murder is wrong because your own moral compass forbids the taking of another’s life unless yours is in imminent danger. It’s really not that complicated.

                2. You didn’t really answer the question. If rights are legal constructs, and the majority can define those legal constructs anyway it wishes, then how can it be wrong to murder someone if the majority approves it? I’m not bringing God into this in any way shape or form, I’m just trying to figure out what your moral foundation is and where it actually comes from.

                  1. I’m just trying to figure out what your moral foundation is and where it actually comes from.

                    It’s based upon feelings and wants. You’re looking for principles. Other than “might makes right,” he has none.

                  2. It is likely true that, at bottom, all moral codes are convenient fictions. I submit that nobody would ever have needed God telling them what to do if there were a tangible “moral foundation” we could all derive our norms from. Clearly ethical systems have differed from society to society and era to era.

                    So I prefer to rely on a sort of utilitarian social contract theory of ethics. While I personally have a deep nonintellectual disgust reaction to the concept of harming another person, I have to be aware that not everyone does, and that absent social institutions and creature comforts, ethical systems break down for even the most upright of us. The question of murder is perhaps the simplest of all, of course: murder should be outlawed, because I don’t want to get murdered, and I don’t want to live in a society in which people are murdered without consequence.

                    At less extreme levels of interaction, I sometimes even favor norms and rules just for the sake of having them. God didn’t say “thou shalt use the smaller fork to eat salads.” But it’s useful to have the rule for its own sake, to ensure everyone’s on the same page.

                    1. murder should be outlawed, because I don’t want to get murdered

                      Like I said. No principles. Only feelings and wants.

                    2. And if enough people decided that they did want to murder you, and a few others, then you’d have no real argument against them. Sure, you’d defend yourself if you could, but step back before it gets to that point. You are having a debate before a national audience, arguing against murder in all circumstances. Your opponent is for murdering you and your small group, whatever that might be. He’s got the guns but he doesn’t have the numbers yet. You try to say “If we go down this road, no one is safe.” But the majority doesn’t listen, because they are safe, by definition, because they are the majority. So you have no real argument against him other than “I’d really rather you not.” It really is might makes right.

                    3. It really is might makes right. Luckily I live in a society in which legitimate might is concentrated in a democratically established government that respects minority and individual rights, and rights are thus not determined by whichever roving gang has the biggest arsenal.

                      I just see no purpose in talking about rights as merely theoretical. It’s easy enough when we’re talking about long-established rights such as a right not to be murdered. But what about more difficult questions, such as a right to healthcare or gay marriage?

                    4. While I personally have a deep nonintellectual disgust reaction to the concept of harming another person[ . . .]

                      That’s why I voted for Obama. Because he too is disgusted by murder droning people in far away lands, including Americans who never received a sliver of due process, the racist and destructive drug war, and seeking to prosecute those leak government secrets about spying on Americans.

                      Fuck off.

                  3. You didn’t really answer the question.

                    Of course Tony w/o spaces didn’t answer the question because it can’t answer the question. Tony w/o spaces is a mental lightweight at best and a true believer of the Civil Religion at worst. It can make no arguments, merely assertions, and its assertions cannot be defeated, in its own tiny mind, by any argument. As it has said, if you disagree with its assertions, you are a bigot/racist/idiot or possess some other personal defect that invalidates your argument.

                    Principals, not principles.

          2. “If a majority, or a super-majority if you’d like, made it legal to murder a certain class of people, would that be OK?”

            You’re not taking it far enough.

            When put to him, Tony has already argued on this site Rosa Parks didn’t have a right to sit in the front of a public bus–because the government didn’t recognize that right.

            Oh, in the same thread, Tony went even farther. When put to him, Tony refused to admit that Jews had a right to their own lives during the holocaust–because the government at the time didn’t recognize that right.

            You’re being thoughtful and considerate not to take it to the real extremes, but Tony’s already been way farther out on the limb that you’re going–and he never even flinched.

            1. Why is this so difficult for you people? It’s just a difference of is and ought. Should the Jews have had the right not to be herded into ovens? Yes. Did they actually have that right? Patently, no.

              Rights are not things that have existed for all time in the ether. They are legal constructs people have fought and died for and have struggled to maintain. What could it possibly mean in any practical sense to say that the rights were already there, when nobody actually could enjoy them?

              1. Fuck off, sockpuppet.

              2. I for one am concerned with trying to find a principled basis for government and social interaction in general. And it isn’t just an academic interest. When you can argue effectively that people have certain rights simply by virtue of the fact that they are people then you can stand up against violations of those rights far more effectively than if you simply say that the majority rules.

                Since we’ve already stumbled into this area — if you lived in Nazi Germany and saw Jews being horded into camps, what would you have done? Based on what you’ve said so far, it seems like the response would be “That’s a shame, but we voted, so oh well.”

                1. On the contrary, you most effectively stand up against violations of rights when those rights are legally enforceable. I think one disrespects the centuries of social evolution and occasional bloody struggle to create and secure individual rights when one asserts that they exist somewhere out there in the cosmos, or in human beings simply because they are human beings. It is not only more correct to say that rights are human innovations, it treats them with more respect in my opinion.

                  If I lived in Nazi Germany I’d probably be marched into the camps right alongside them, so my opinion wouldn’t really matter. Once you get to death camps, discussions of rights and democracy become somewhat academic.

                  1. Of course the best way to defend rights is through legal enforcement. The question is how you convince people to respect and maintain those laws? I’d argue that convincing people that our rights come from something basic which cannot be justly violated is far more effective than convincing them that it all comes down to majority vote. And I’d say history is on my side.

                    1. how you convince people to respect and maintain those laws?

                      Well, I don’t advocate telling people lies about magic–eventually they’re going to figure out it’s bullshit. Much better to instill a strong sense of practical social responsibility. Telling people stories about rights coming from rights fairies just runs the risk of them coming out of the delusion with no other intellectual safety net.

                      I say teach people to appreciate rights more than they appreciate filled Easter baskets by teaching them about the long-fought struggles to secure them. Wouldn’t they be more grateful and apt to want to hang onto them?

                    2. You seem to think my concept of individual rights stems from an appeal to some supernatural power. It doesn’t. It is based on nothing more than the fact that I am a unique individual with the capacity for reason and free will. I My fundamental moral code is “Don’t violate that.” The only “magic” I invoke is in extending this concept to all people without really knowing through direct experience what goes on in their minds.

                      In the interest of full disclosure, as a religious person I do interpret my capacity for reason and free will in the context of a soul and a God, but that is a consequence of the above, not the source of it.

              3. Actually, Jews had the right not to be herded into ovens–whether the government said so or not.

                And your refusal to acknowledge that fact betrays you as a moral defective.

                You should have been the attorney defending the Nazi war criminals at Nuremberg! How could Nazi war criminals be guilty of crimes against Jews, when–according to you–the Jews didn’t “actually have…the right not to be herded into ovens”?

                You have no shame. You’re so far gone, it really is like talking to a Moonie.

                1. And your refusal to acknowledge that fact betrays you as a moral defective.

                  I simply don’t–can’t–believe in magic. Your reliance on magic to make your points makes you intellectually defective. There’s nothing wrong with my morals. I think it is much more respectful of human beings and their rights to recognize the real-world struggles it took (and continues to take) to secure them. What good, exactly, did it do the Jews for them to have theoretical rights?

                  1. Should the Jews have had the right not to be herded into ovens? Yes. Did they actually have that right? Patently, no. Yes. And it was violated in spades.

                    See the difference?

                    Just because a right is violated doesn’t mean the right suddenly ceases to exist.

                    Even a mental defective like you has a right to live. Murdering you doesn’t take that right away. It takes your life away in violation of the right.

                  2. “What good, exactly, did it do the Jews for them to have theoretical rights?”

                    People’s rights aren’t any more theoretical than the people themselves.

                    If you think the rights of people not to be herded into ovens for being Jewish was only theoretical, then for yourself and the rest of society, you need to go to a psychiatrist that specializes in treating psychopaths.

                  3. The Jews suffered because the Nazis were able to convince enough people that the Jews didn’t have rights. Had enough people believed that rights weren’t subject to the whims of the government, then maybe 12 million people wouldn’t have been exterminated.

                    1. Nobody has any rights in a fascist totalitarian state, except the dictator himself.

                      I believe in treating rights with the respect they deserve, as things people either have in real life or that they are denied in real life. It’s a sort of absurd intellectual condescension to be waiving to the Jews from beyond the fence saying, “But you have rights! Doesn’t that make you feel a little better?”

                    2. That +1 was to LynchPin

                  4. I simply don’t–can’t–believe in magic.

                    Natural rights have been explained to Tony w/o spaces many times. The inherency of natural rights and the relationship between individuals has also be explained. But Tony w/o spaces doesn’t like any of that, so of course, it’s MAGIC and icky and probably racist.

                    Your reliance on magic to make your points makes you intellectually defective.

                    Again, Tony w/o spaces doesn’t care to explain itself, it just waves the argument off and continues on its merry little way, its mental hymen still intact.

                    There’s nothing wrong with my morals.

                    Except that your morals are a moving target and not even truly your own. Your “morals” are what the high priests of the Civil Religion tell you they are.

                    I think it is much more respectful of human beings and their rights to recognize the real-world struggles it took (and continues to take) to secure them.

                    An opinion and not even one that makes sense. Quelle suprise.

                    What good, exactly, did it do the Jews for them to have theoretical rights?

                    To acknowledge that statists, not unlike yourself, were the malefeasant party, instead of acknowledging the moral actors’ defense that they were simply “following superior orders” from government.

                    1. Natural rights have been explained to Tony w/o spaces many times

                      Never to my satisfaction, because natural rights theory is total bullshit.

                      Such a long post to say absolutely nothing.

                2. Everybody should notice, too, that in Tony’s weird world, what the government says is what’s real.

                  But our real rights (of which our Constitutional rights are just a pale shadow), those are just ephemeral to him.

                  Rosa Parks standing up for her right to equal treatment–whether the government recognized her right or not? That wasn’t real in Tony’s world. That right was just a fantasy.

                  The government violating the rights of American citizens of Japanese ancestry, when they were herded by the thousands into internment camps–men, women, and children? Those rights weren’t “real” according to Tony either!

                  In Tony’s world, the right of the government to round up Americans of Japanese ancestry–for being of Japanese ancestry? That was “real”.

                  1. So what makes up the canon of human rights, and where did it come from?

                    1. It starts with the principle of self ownership.

                      Where does it come from? Who said it had to come from anything? It just is.

                      Do you own yourself?

                      Is slavery wrong because it violates the principle of self ownership, or because of your wants and feelings?

                      Is murder wrong because you own your life and it is wrong for someone to take it, or because of your wants and feelings?

                      Personally, I believe that the reason you choose not to believe in principles is because you have the heart of a thief. Property rights are the next logical step from self ownership, but you feel it should be OK to steal if you want something. So you can’t believe in the principle of self ownership because in your heart you’re a thief.

                    2. Self-ownership is not something that “just is.” It’s a relatively recent concept in political thought, in fact. Useful an an axiom? Sure, but if you can’t come up with a tangible source for these allegedly universal rights, then you aren’t really disagreeing with me. And you’re just lumping in property rights because it’s convenient for your capitalist libertarianism. Property rights are no more intuitive than a right to healthcare.

                    3. Property rights are no more intuitive than a right to healthcare.

                      Uh, yes they are. A right to property only requires that someone else does not steal it. A right to property requires that someone else pay for it.

                      Back to distinctions, like the distinction between positive and negative rights, or the difference between action and inaction.

                      Whatever.

                    4. A right to property health care requires that someone else pay for it.

                      oops

                    5. So does a right to own property!

                    6. I guess it comes down to when force is legitimate.

                      For property rights force is only required in reaction to force, whereas the “right” to health care requires an initiation of force.

                      Don’t claim an equivalency between taxes paying for cops and taxes paying for doctors. Not the same thing.

                    7. Sure it is. It’s only different because you like property rights and are accustomed to them and they are necessary for capitalism to work. I’m not convinced a so-called negative rights libertarianism is compatible with property rights.

                    8. I’m not convinced a so-called negative rights libertarianism is compatible with property rights.

                      Then you are a moron.

                    9. I’m not convinced a so-called negative rights libertarianism is compatible with property rights.

                      One, you have given no indication that you know what positive and negative rights are or the arguments in support of negative rights, so how can you have any comprehension of how negative rights relate to a right to be secure in one’s property?

                    10. I don’t acknowledge a meaningful distinction between them, but I understand what you think they are.

                      Not being as simple as you is not the same as being less educated.

                    11. Self-ownership is not something that “just is.” It’s a relatively recent concept in political thought, in fact.

                      “Recent”? This concept has been around since before recorded history.

                      “But if it is manifest that a man is the author of his own actions, and if we are unable to trace our conduct back to any other origins than those within ourselves, then actions of which the origins are within us, themselves depend upon us, and are voluntary.”- Aristotle

                      Useful an an axiom? Sure, but if you can’t come up with a tangible source for these allegedly universal rights, then you aren’t really disagreeing with me. And you’re just lumping in property rights because it’s convenient for your capitalist libertarianism.

                      Again, there is no external source for “rights”, they are logical propositions that are either true or false. They are not physical laws like gravity or the speed of light, which control the universe, but reasoned argumentations concerning social interaction.

                    12. Self-ownership is not something that “just is.”

                      If I don’t own myself, then who does? God? Prove there is one. The state? Man existed long before the state. Other people? Then you argue for slavery. If God doesn’t own me, the state doesn’t own me, and another person doesn’t own me, then, by process of elimination, I must own myself.

                    13. Oh, we’ve been through that a hundred times. You know I believe our rights are a social adaptation–sort of like language. There are other explanations, but why go through that again?

                      Is this going to be the spot where you start arguing that we don’t have any rights unless the government says so?

                      Or is this going to be the spot where you start arguing that the sun didn’t really exist until scientists explained exactly how it formed and where it came from?

                    14. We’ve been circling the drain and, as anyone could have predicted, we’re down to agreeing with me that rights are not, in fact, part of the fabric of the cosmos.

                      You have those rights (liberties or entitlements to do or have certain things) that you are able to practice. Feel free to define a right as something you are only theoretically able to practice if you like, but that really is a very boring “is, ought” distinction.

                      The problem is you guys want desperately to stamp your policy preferences with a quasi-magical imprimatur so you don’t have to defend them on their outcomes or merits.

                    15. So Ken, I am gay and live in Oklahoma. Do I have a right to get married to my male partner?

                    16. Of course you do!

                      And your philosophy of rights is perfectly consistent with Robert Bork’s, who would have upheld throwing you in prison for the “crime” of sodomy.

                    17. Incidentally, we libertarians were overwhelmingly in favor of the government recognizing an individual’s right to gay marriage back when Barack Obama’s position on gay marriage wasn’t much different from the Baptist church’s.

                      Barack Obama had a change of heart, wasn’t that just a year or so ago? But that’s the government for you–always changing their stance on our rights based on which way the wind’s blowing.

                    18. So Ken, I am gay and live in Oklahoma. Do I have a right to get married to my male partner?

                      Sure you do. Will the government recognize that? I dunno. But you’ve got the right.

                    19. “So Ken, I am gay and live in Oklahoma. Do I have a right to get married to my male partner?”

                      Maybe that’s part of the misconception, here?

                      Just because the government violates your rights with impunity doesn’t mean the government isn’t violating your rights–or that your rights don’t exist.

                    20. So you’re still implicitly claiming that there is a specific and complete lists of rights that exists somewhere, and thus presumably I’m supposed to agree with you about them all. But most people in my state absolutely do not believe in a right for gays to marry. Why are they wrong? Gay marriage is surely not something that has been considered a right since time immemorial.

                    21. Our rights are very complicated. They’re as complicated as the people who hold them. The idea that complicated things can’t form or exist or function without some kind of central authority to make them–smacks of creationism. Reality is complicated, and our rights are, too.

                      People disagree all the time about what our rights are and how they should be protected. There are some general rules. The framers thought it would be helpful to spell a few of those out–but they also gave us the Ninth Amendment so we wouldn’t start thinking that the Constitution or the government was the source of our rights.

                      Also, new rights are created all the time. 50 years ago, no one had a right not to have their emails scanned by the government.

                      Complicated? I’ve never met a libertarian I agreed with about everything. That’s the great thing about being a libertarian–once you agree that everyone has a right to make choices for themselves, it becomes perfectly alright for people to disagree.

                      There’s no central list of rights. Sometimes our rights overlap and conflict with each other, too, and honest libertarians can disagree about what should happen in those situations. We tend to agree that the affected parties have a right to make choices for themselves in those situations, but many of us disagree about how to protect that.

                      The world’s a complicated place, and libertarians seem to be well equipped to account for all that complexity.

                    22. So you’re still implicitly claiming that there is a specific and complete lists of rights that exists somewhere

                      Nope. They are unlimited and unenumerated. They simply have to abide by a simple principle (yes I know you have no principles other than the primitive one of the last word in violence always being right, but we civilized people do): does this right harm the life, liberty or property of another person, or put an obligation onto another person? That is all. By obligation I mean to do something, as opposed to an obligation to not do something.

                      As in your right to property only requires that someone else does not steal it, while your “right” to health care requires the goods and services of paid medical professionals.

                    23. ANY argument about morality is going to become axiomatic at some point. You stated that you’re a social contract utilitarian? Why? Because of the good of the many is better than the good of the one? Why do you believe that? If you ask enough questions you’ll eventually get down to an axiom.

                      As libertarians self-ownership is self-evident, just as your utilitarianism principle is and belief in government is. Removing god from the argument (which it should be in public discourse) allows us to argue which point is more valid.

                    24. I said above that morality is always rooted in a convenient fiction. I do not claim mine to be self-evident (a phrase describing another convenient fiction in the Declaration of Independence). But I agree, political discussions should be on the merits of policy ideas. Libertarians tend to love to pat themselves on the back and claim special access to truth, though, which always seems to come in lieu of having to defend positions on their merits.

                    25. I said above that morality is always rooted in a convenient fiction.

                      You said it, but that doesn’t make it so.

                      Libertarians tend to love to pat themselves on the back and claim special access to truth

                      Like claiming that “morality is always rooted in a convenient fiction”?

                      though, which always seems to come in lieu of having to defend positions on their merits.

                      Dishonest bullshit. This thread and countless others witnesses various defenses of libertarian positions, but you act as though no argumentation occurred.

                    26. From what I can tell, you don’t have much of a morality. You have preferences for how you want to live your life, and the good fortune to be left alone enough to do it. But if you were prevented from doing so, your preferences would be meaningless, since they would become nothing more than a theoretical discussion. And you’d have no basis for asserting your preferences in the face of someone stronger, because as you’ve said, might makes right.

                      And for libertarians, and I think most people actually, the means are every bit as much a part of the merits of some policy as the ends are.

                    27. On the off chance that this thread is still active…

                      I realized the above may have come off like a personal attack. It wasn’t intended as such and I apologize if it was taken that way. I’ve really tried to have a dispassionate debate without resorting to name calling. Despite the fact that I strongly disagree with you, I’ve found the whole thing rather stimulating.

                    28. Feel free to define a right as something you are only theoretically able to practice if you like, but that really is a very boring “is, ought” distinction.

                      So the “gay marriage” issue is a “boring ‘is, ought’ distinction” by your argument, correct?

                    29. I believe people have rights when they have them. Gays should be able to get married. If the state forbids them, they do not have the right to marry, period.

                      Yes I find this conversation not particularly enlightening, but libertarians for some reason are heavily invested in the idea of theoretical rights.

                    30. I believe in treating rights with the respect they deserve, as things people either have in real life or that they are denied in real life.

                      You can’t even see the logical contradictions in your arguments, can you? If they are not true, then “what” is being “denied in real life”? They still exist even when being “denied”.

                      I believe people have rights when they have them.

                      So do I, but my conception is not contingent on acceptance by others. The proposition is justified or it is not, consensus does not make it so.

                    31. Gays should be able to get married.

                      Why do you believe this? You must have some reasoning to make such a claim, because currently this “right” isn’t actualized in most states.

                      If the state forbids them, they do not have the right to marry, period.

                      But this contradicts your above claim that they SHOULD be allowed to marry. Does the state’s refusal to allow this force you to change your above belief?

                      Yes I find this conversation not particularly enlightening, but libertarians for some reason are heavily invested in the idea of theoretical rights.

                      It’s “not particularly enlightening”, yet you engage in it on a constant basis, such as above when claiming that “gays should be able to get married”.

                    32. Tony:
                      “So what makes up the canon of human rights, and where did it come from?”

                      Can you tell me where the universe came from? If you can’t, does this imply that the universe does not exist?

                    33. Argument from ignorance.

              4. Rights are not things that have existed for all time in the ether. They are legal constructs people have fought and died for and have struggled to maintain.

                Wrong. They are logical propositions that are either true or false, REGARDLESS of their acceptance by individuals. Because the concepts of “rights” has a muddied history, it’s understandable that many conceive of them as “qualities” or actual things, when they are not. They are merely logically justified propositions concerning social interaction.

                What could it possibly mean in any practical sense to say that the rights were already there, when nobody actually could enjoy them?

                The validity of the claim is not inherent by virtue of being accepted by all, only that it is logically valid. How many justified concepts are still rejected by millions? Does this make the concept false?

                1. The concept of inalienable rights is a philisophical one. One that I believe in. Tony’s utilitarianism is also a philosophical one. It’s one reason why Statists vs. Libertarians have a hard time reconciling their ideas. We espouse a certain philosophy up to the axiom of self-ownership, while people like Tony espouse the philosophy of authority.

                  I think we have to get into human behavior and the definition of what makes a man to understand if a human being has inalienable rights or not.

                  I believe we do, because by nature we want the best for ourselves.

                  The practical arguments for libertarianism vs statism may help illustrate our point, but it will never dissuade those who hold a core philosophical belief

                  I also believe, Tony, that the libertarian POV ALLOWS YOU TO FOLLOW YOUR PHILOSOPHY. Which is key. Even if you don’t believe in self-ownership, nothing is stopping you from building your own private commune in which you all hold hands and share stuff and sing koombaya. Everyone wins

                  1. I would ask Tony, and every other Statist out there: Why does the government need to be involved in you carrying out your beliefs that people should be afforded free healthcare and medicine and welfare checks? If you dislike capitalism so much, just know you’re not forced to participate in it. How about you get all your little friends together, start your own communities, grow your own crops and build your own technology, and then share equally among other like-minded people? You shouldn’t have a problem finding them, since Obama voters seem to share this view

                    Why must you drag along people who don’t agree with your philosophy with you? Start your own organization within the US with your own rules and leave us the fuck alone.

                    1. I think I already know the answer to this one: Leeches don’t like to work,there wouldn’t be any incentive to work for the leeches, and the commune wouldn’t work because of it.

                      But, you know, let’s force everyone else into our failed ideology

                  2. I do believe in “self-ownership,” I just don’t use it as a trump card to get out of having to defend policy positions on their merits.

                    Libertarianism: People own themselves, thus, no universal healthcare, the end!

                    1. How can you claim to believe in self-ownership when you also claim to not believe in an absolute right to life? Or did you mean to say that you think the current system grants you self-ownership?

              5. Should the Jews have had the right not to be herded into ovens? Yes. Did they actually have that right? Patently, no.

                Bullshit.

                Jews absolutely had that right. It’s that the government did not recognize that right.

              6. Tony:
                “What could it possibly mean in any practical sense to say that the rights were already there, when nobody actually could enjoy them?”

                It could mean that, in the past, the system violated people’s rights. This would mean that the institutions of slavery was a violation of their rights.

                Is it really so hard to imagine a possible meaning? Or do you just enjoy arguments from ignorance?

  13. “The Constitution does not forbid the government to enforce traditional moral and sexual norms,”

    what part of the Constitution gives the govt the power to do this?

    1. Scalia is not concerned with such petty matters.

    2. Some people would argue the 10th amendment.

      The Feds clearly dont have the power at all, but state governments might under the 10th. Might.

      You know, if you ignore the 9th entirely. And dont buy into incorporation.

      1. The Feds clearly dont have the power at all,

        which makes Scalia’s statement all the more stunning.

        1. The statement quoted above doesnt mention the Federal government.

    3. The “Well, it doesn’t say that we can’t do this.” idea of Federal power needs to be killed, quartered, burned and buried, along with anyone else who promotes it.

  14. Scalia: “As for placing restrictions on the recognition of gay marriage, “We might have let the People decide.”

    “In wide areas of life,” Bork wrote in his bestselling book The Tempting of America, “majorities are entitled to rule, if they wish, simply because they are majorities.”

    This would seem to suggest that in wide areas of life, our rights are nothing more than a popularity contest.

    If our rights don’t exist despite what the majority wants, then they don’t really exist at all.

    I might go so far as to say that their existence despite majority opinion is a characteristic feature of a right.

    I’m not sure anyone can come up with a comprehensive definition of a right that doesn’t acknowledge that feature somehow.

    1. He didn’t say all areas of life, so he’s absolutely correct to say “in wide areas” majorities are entitled to rule. Perhaps that excludes certain basic civil rights.

      1. How do you decide which ones?

        1. You put them in a hard-to-amend constitution.

          1. Tony:
            He didn’t say all areas of life, so he’s absolutely correct to say “in wide areas” majorities are entitled to rule. Perhaps that excludes certain basic civil rights.

            Rights-Minimalist Autocrat:
            How do you decide which ones?

            Tony:
            You put them in a hard-to-amend constitution.

            He’s asking what the basic civil rights are. Not nice things you might do with them, if you are care to.

            1. Whatever are necessary to ensure that people have equal access to their democracy. To me that includes rights to have basic physical needs met.

      2. Now, Tony’s defending Bork.

        Judicial deference to the will of the majority…has motivated many other thinkers on the right, including Robert Bork, who famously ranked majority rule higher than individual rights in his conception of the American system.

        Bork argued that the First Amendment doesn’t protect anything pornographic. He supported the criminalization of gay sex.

        You support Bork’s same legal philosophy in every way–you just have different rights you despise on your shopping list.

        You’re a buffoon.

        1. Stop it! You’re thinking in terms of consistent principles! Judge the person making the argument, not the argument itself!

          1. Tony is consistent in one way!

            If he thinks the majority wants what Obama wants, then he thinks our rights are subject to public opinion.

            If he thinks the majority doesn’t want what Obama wants, then he thinks that the Koch brothers have blinded them–and that our rights are inalienable.

            There’s some consistency, there. And it all has to do with deference to his Dear Leader.

            Tony is incapable of thinking for himself, and he hates the rest of us for thinking for ourselves. Thinking for yourself?! That’s no way to support Obama.

        2. So you possess complete knowledge of what individual rights should consist of? And you got that knowledge, where, from a burning bush? Pulpy novel?

          We all have different rights shopping lists. I just don’t bestow upon myself a magical aura of absolute correctness, helpful as that may be. Some rights are easy and everyone agrees about them. Others are currently up for democratic debate (a right to healthcare, for example).

          1. Principles starting with self-ownership.

            I assume you do not believe in self-ownership, since might makes right.

            Slavery is perfectly acceptable if the majority says so, right?

            1. Slavery is a subversion of democracy, so majority rule is moot in a system with slavery. Majority rule presupposes a respect for individual self-ownership and full equality with respect to participation in democracy. It’s not a question of whether slavery or anything else is “right.” (Again, you always go for the easiest possible questions, probably because you’re simpleminded.) It’s a question of whether a society is evolved enough to find slavery abhorrent. You’re trying to pretend that there is a “good” and a “right” somewhere “out there” that trumps the actual real-life circumstances of human beings.

              1. I’ll take that as a yes.

                1. Slavery is never acceptable under any circumstance. Similarly, eating children is bad.

                  1. But children taste so good! With some fava beans and a nice chianti?

                    *slurp*

                    1. “The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities.”
                      ? Ayn Rand

                    2. “The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities.”
                      ? Ayn Rand

                      But Rand wrote it, so it must be wrong. Probably racist too.

                  2. I would argue eating children in a survival situation might be okay.

                  3. Tony:
                    Slavery is never acceptable under any circumstance. Similarly, eating children is bad.

                    Tony:
                    You’re trying to pretend that there is a “good” and a “right” somewhere “out there” that trumps the actual real-life circumstances of human beings.

                    Could you go argue with yourself in a corner somewhere, until you come up with a consistent position, free of contradiction, and then get back to us?

                    1. It is consistent, Brian. Though it means Tony is a dogmatic ideologue.

                      Slavery’s never acceptable? How dogmatic!

                    2. I get what you mean, if you’re implying that Tony is consistently a dogmatic ideologue.

                      How slavery can be wrong under any circumstances, yet circumstances always dictate right and wrong, is beyond me. The rightness or wrongness of slavery can’t both be dependent and independent on circumstances.

              2. Tony:
                Majority rule presupposes a respect for individual self-ownership and full equality with respect to participation in democracy.

                Actually, that’s just question begging. Majority rule assumes majority rule, i.e., at least a majority have to be voting. It says nothing about respect or equality in terms of anything.

                And why should it? You’ve already said that we’re all connected, all our decisions effect each other, and that economic circumstances dictate redistribution by government. Why then, should we not strictly regulate who can vote? Doesn’t voting effect everyone? Earlier, you claimed that politicians are specialists at ruling. Unless everyone is a specialist at choosing specialists, this implies that people can hurt other people through voting. Why not, then, strictly regulate who can and cannot vote? Is this an extra special right, and if so, why? Government fabrication? Special pleading?

                1. Because I don’t trust anyone to decide who is and isn’t worthy of voting. We let everyone vote equally and hope it turns out well. There’s no other fair way to do it. With any luck we’ll have voted ourselves a decent system of education.

          2. I bet if the majority of voters decided to execute Tony and people like him, he wouldn’t say,” Well this decision blows, but we must abide by what the majority wants.” No, he would be the first person who wiould argue that his right and ability to live shouldn’t be decided by a majority.

            You sir are an ass.

            1. What is with this delusion that mere assertions of rights have real-world effects?

              When have I said that it should be OK to put people to death by majority vote? I am perfectly happy with a system that requires the unanimous vote of a jury before anyone is punished for a crime. (And I’m against the death penalty anyway.) I have never said that I’m not OK with varying thresholds for certain things. That you guys need to constantly rely on the straw man that I’m for direct democracy in all things suggests that you don’t know what you’re trying to argue.

              1. You confuse not having a right with a right not being recognized. Consistently.

                There is a fucking difference. Learn it. Until then, shut the fuck up.

              2. Tony:
                What is with this delusion that mere assertions of rights have real-world effects?

                And the straw man takes a hit. Believing that you have the right to avoid murder = delusion that assertions of rights have real-world effects.

                This implies that, if you think that you’re rights are being violated, and you cannot avoid it, that you are delusional, so you should shut up. Because just thinking it doesn’t make it so.

                It’s an argument. It pretty much disintegrates upon examination of any history on this planet. But, it’s an argument.

              3. That you guys need to constantly rely on the straw man that I’m for direct democracy in all things suggests that you don’t know what you’re trying to argue.

                No, what we’re saying is that you argue that some rights are up for debate, and some are not. Yet you frequently criticize libertarians for having a list of rights that are not up for debate, wondering where we pulled that magical list from–all the while having a magical list of your own. To quote you from this very thread:

                So you possess complete knowledge of what individual rights should consist of? And you got that knowledge, where, from a burning bush? Pulpy novel?

                1. All rights are technically up for debate. The conversation is distorted because you guys insist on focusing on only the absolutely least controversial rights–the ones that seem like they’re universals.

          3. Tony:
            So you possess complete knowledge of what individual rights should consist of? And you got that knowledge, where, from a burning bush? Pulpy novel?

            You seem to be admitting that there are actually basic human rights that are not fabricated by government. Perhaps he’s getting his knowledge from where you get yours.

            Tony:
            I just don’t bestow upon myself a magical aura of absolute correctness, helpful as that may be.

            If you admit that you don’t really have a reason for thinking you’re correct, maybe you shouldn’t go around constantly explaining to libertarians how wrong they are?

            Or, if you do think you’re correct, then maybe you shouldn’t go around explaining to libertarians how wrong they are, for thinking that they are correct?

            Either you’re a blatant hypocrite, or you are totally incapable of self-examination.

            1. Libertarians are wrong on most things because they lack the slightest respect for empirical facts to back up their claims, and that is so because yours is an ends-based philosophy. You’ve been taught what the best form of society is, and no amount of evidence otherwise is going to dissuade you. That’s what happens when you are focused on the ends.

              1. Libertarians are wrong on most things because they lack the slightest respect for empirical facts to back up their claims, and that is so because yours is an ends-based philosophy. You’ve been taught what the best form of society is, and no amount of evidence otherwise is going to dissuade you. That’s what happens when you are focused on the ends.

                For the Love of Jeebus….the irony….it burns!!!

              2. Libertarianism is an ends based philosophy? Let’s see, how many libertarians like hate speech? Want to live at a higher risk of dying in a terrorist attack? Want to get high on every drug known to man? With the exception of maybe the last one, I’d say the answer is very few. Yet libertarians embrace freedom of speech for all, they fight to hold on to liberty despite the risks that may come with doing so, and they push for drug legalization. And you could find plenty of other examples in the spirit of “I disagree with what you say but will defend to the death your right to say it.” Libertarianism may be least concerned with the ends of any major political philosophy today.

                And it is especially rich that you use this as a criticism when you’ve described yourself as favoring a utilitarian social contract.

  15. “This case, Scalia declared at the outset of his dissent, ‘is about the power of our people to govern themselves.'”

    IOW, in this particular case, Scalia supports majority rule over the individual.

    1. do the people not have the power to govern themselves? I realize the Constitution is a hundred years old, maybe older, but I think it was a framework for self-govt.

      1. DOMA isn’t about my right to govern myself, it’s about my right and your right and Alan’s right to get together tell gay people they’re icky and don’t have real marriages because fuck them, we’re the majority.

  16. This case, Scalia declared at the outset of his dissent, “is about the power of our people to govern themselves.”

    I completely agree with this statement. But I don’t think Scalia and I mean the same thing.

    1. No. Because Scalia believes that there should be a government mediary in between the people and the governing themselves.

      I don’t.

      It’s a particular view of Catholic Americanism. As Catholics believe in a church representative being the only valid intermediary between an individual and god, so he does with civil life. A direct connection is not possible.

  17. “If the overriding theme of Kennedy’s DOMA opinion is the protection of liberty, the theme of Scalia’s dissent is respect for majority rule”

    Whatever else you can say about striking down Section 3 of DOMA, is it really a blow for “liberty” when, as a direct result of that decision, (1) employers and private businesses will see dozens of federal laws and regulations pertaining to or mandating obligations based on “marriage” now greatly expanded in scope, and (2) dozens of federal entitlement programs pertaining to or based on marriage will now be extended to thousands of new recipients, with resulting additional burdens on taxpayers?

    1. Attack those programs, not this ruling.

      1. But that does not answer my question about the decision furthering liberty.

        Equal standing and treatment before the law is a value worth pursuing in its own right. But be under no illusion that the DOMA decision means smaller government and greater liberty. Neither the plaintiff in the case nor the four justices who voted with Kennedy have any interest in that.

        1. Why should they?

    2. Was allowing interracial marriage a blow to liberty? Would it be ok to limit government benefits to people of a certain race, religious group, etc? It would reduce the net burden, wouldn’t it? Equal treatment by government is a fundamentally important part of liberty, and that should extend into areas the government ideally wouldn’t be involved in. Gay couples pay taxes to support those programs, and they shouldn’t be denied use of them (SLD as long as they exist) while straight couples reap the benefits

      1. Before we shrink the state we must make it bigger and pass more anti-discrimination laws. Also repealing Obamacare harms blacks so socialized medicine is libertarian since it means equal treatment of all people.

  18. Excellent! Conservatives always worry that too much liberty will hurt society. Libertarians believe in the more liberty, the better, and that society will come out just fine!

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