Voters in Switzerland Approve Same-Sex Marriage, Voters in San Marino Approve First-Trimester Abortions

Change occurred through the democratic process, and not the judicial process.

On Sunday, nearly 2/3 of voters in Switzerland approved a referendum to approve same-sex marriage. Also on Sunday, more than 3/4 of voters in San Marino approved a referendum to legalize first-trimester abortions.

Imagine that. Change occurred through the democratic process, and not the judicial process.

But wait! Didn't Obergefell--favorably citing West Virginia v. Barnett--hold that "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." Of course, the passage from Justice Jackson's landmark opinion focused on enumerated provisions in the Bill of Rights, and not unenumerated substantive due process rights. Indeed, Justice Jackson explained that "[m]uch of the vagueness of the due process clause disappears when the specific prohibitions of the First [Amendment] become its standard." But details were not important for Justice Kennedy. His obligation was to "define the liberty of all."

Comments

[jb]

Part of the problem in the US at this point is that at the federal level there's no mechanism for direct democracy of the sort that these referendums represent, and the legislature has become completely dysfunctional to the point that even very popular positions have essentially no chance of becoming law through the legislative process. At this point, anything significant that doesn't involve government spending simply can't become law, so we're left with the executive and judiciary trying to fill the gap that the legislature has left for the past couple of decades.

[Moderation4ever]

I agree. The fact is that we could well get by with a part time Congress that meets for six weeks each year to pass a spending continuation bill and to raise the debt limit. They seem to do little else.

[Martinned]

I'm glad to hear you're a fan of unchecked presidential power. I assume you won't complain about Biden doing whatever he wants until at least 2025?

[Bob from Ohio]

The Congress meeting the whole year [except for vacations] does not check presidential power now in any meaningful way.

[bevis the lumberjack]

He didn’t say he was a fan. He’s simply observing the situation that exists.

[Krychek_2]

Yup. That's what happens when North Dakota and Wyoming get to cancel California and New York in the Senate.

[Rev. Arthur L. Kirkland]

Please be patient, Krychek_2, particularly in light of predictable trends.

Those trends will promote enlargement of the union (two or three states), the House (with it, the Electoral College), and the Supreme Court.

[Krayt]

For the intellectually honest reason of telling Puerto Rico how great it is to be a full US citizen (which it is, but you lie that is your real reason) with paying taxes, so the Democrats can have two more senators, and not giving DC back to Virginia, the way the other half was to Maryland, so the Democrats can have two more senators.

Granted, the Republicans oppose it for the same reason. The same reason the Democrats oppose splitting California into 5 states.

But thank you. Admission of cheap political motivations is refreshing.

[jb]

"The same reason the Democrats oppose splitting California into 5 states."

People in California also oppose splitting California into five states, which makes it pretty different from adding both Puerto Rico and DC as states. (You know, and also the whole pesky Constitution thing about needing states to go along with such changes.)

[M L]

Not really, the people in certain areas who would like to disengage from the rest of the state favor it. While others who don't live in those areas would prefer to keep ruling over those areas against their will.

[jb]

By this logic basically every city in every red state is being ruled against their will.

But also, it's not really true: you can plausibly argue that a very small fraction of the northern part of the state might want to split from the rest of California, but there's basically no evidence of anything approaching majority support for broader splits in any other parts of the state.

[Brett Bellmore]

Apparently you're assuming any splits have to be along east-west lines. It's true that only in the Northern end of the state could you create a East-West split line that would give you a Republican state, but that's because the real political cleavage in California is between the coast/border with Mexico, and everywhere else.

[jb]

I'm not assuming anything. I'm acknowledging that there is an actual movement in Northern California to secede with most of the county governments supporting it so you could reasonably say those people want to be split into a separate state.

I'm not aware of any polling or other evidence that any other chunk of California has a population that wants to split from the rest.

[M L]

"By this logic basically every city in every red state is being ruled against their will."

Perhaps they are.

[Krychek_2]

Krayt, in order to truly level the playing field (in which, as I point out, North Dakota and Wyoming get to cancel out New York and California), the Democrats would have to do significantly more than add DC and Puerto Rico as states. It's not that Republicans want fairness; it's that they want to maintain the unfair status quo.

Even if that weren't the case, though, I think giving Puerto Rico commonwealth status rather than either statehood or independence is a terrible policy. Same with having a bunch of people who live in DC with no voting representation in Congress.

[Sigivald]

"Unfair status quo"?

What's unfair about it, exactly?

("Democrats not just getting what they want" is not unfairness, after all.)

California was admitted to the union knowing how it worked, as were the Dakotas and Wyoming, and New York was a founding state and helped make the rules.

"But right NOW the Senate is icky because it doesn't let the party with a slight majority of votes total* do whatever it wants!" is a tough sell.

* And of course, those votes are the result of campaigning in a way that ... aims to win electors, not maximum possible votes. The Presidential election isn't the Senatorial races, of course, but the former is so "important" to political calculus that it affects the latter significantly just as a side effect of money and attention, after all.)

[Krychek_2]

What's unfair about it is that it's the functional equivalent of giving one of the superbowl teams a free touchdown. It's not that Democrats can't get what they want; it's that the American people can't get what they want.

And, as is the subject of this thread, it basically means there can be no political solution to most political problems because neither side can get what they want without completely running the table for at least one election.

[Armchair Lawyer]

That's a bad football analogy... Democrats have every ability to compete in smaller states just like Republicans do. They simply choose not to. The rules haven't changed, Democrats simply changed how they play the game.

If we're going with the football analogy, it's more like Democrats decided to fire their kicker. Then when Republicans started to get a lot more field goals than Democrats, Krychek calls foul, saying "it's not fair" and "we need to get rid of field goals to even the playing field".

[Krychek_2]

It's not getting rid of field goals; it's the Republicans starting off with free field goals. Anti-democratic institutions benefit Republicans because, well, they are the minority of the American people.

[Armchair Lawyer]

The rules stayed the same, same as they always have.

Democrats just decided that they didn't want to compete for those voters anymore. They "gave up" on field goals.

[Krychek_2]

Give us elections in which neither side gets free points, then we’ll talk

[Brett Bellmore]

There are no free points, there are points Democrats used to score, but don't bother trying to anymore.

[Armchair Lawyer]

Neither "side" gets "free points".

Some parties have an advantage in some states due to their previous choices. Other parties have advantages in other states due to their choices. The rules are they same as they've always been for the last 50 years.

Democrats made "less good" choices based on the existing rules.

[Brett Bellmore]

The primary problem the Democrats face isn't the electoral college, or the existence of the Senate.

It's that they've become an exclusively urban party.

They've finely optimized their appeal for people who live in urban centers, where they get 70, 80, 90, and yes, sometimes 100% of the vote. The result is that they do badly everywhere else. They're just competitive in the suburbs in a good year, and hopeless further out.

Now, as America has urbanized, this has been very good for them, but our federal system was deliberately designed to disadvantage parties with only local appeal, and the majorities the Democrats rack up in national elections are typically VERY local, depending on utterly dominating the vote in certain states, and certain cities within other states.

They could fix this by trying to appeal outside their core base, but they don't want to.

[apedad]

Yeah, appealing to masses of voters is such a dumb idea.

Sheesh....

[Kevin Smith]

Since white people make up 70% of the country, politicians should just focus on appealing to them, because the other 30% don't matter when all you need is enough votes

[Queen Amalthea]

So you support Lani Guiner's idea that ethnic minorities should get a veto over legislation?

[Kevin Smith]

Sure, we can do that, as long as Wyoming gets a veto over any legislation introduced from California as well (and not just an equal vote)

[apedad]

Let's try this...

(Based on the last presidential election), since Democrats make up more than 50% of the country, politicians should just focus on appealing to them, because the other less than 50% don't matter when all you need is enough votes.

Say Kevin!

You might be on to something here.

[Queen Amalthea]

"we can do that, as long as Wyoming gets a veto over any legislation introduced from California as well"

See, both of those sound like undemocratic nonsense to me (though the ethnic one less so, given our history). YMMV

[Toranth]

Democrats don't even make up 50% of the voters in California (45% there).

In the last Gallup poll, it was 28% Republican, 29% Democrat.

[Krychek_2]

Brett, the United States has become a largely urban country, so to the extent that the Democrats are an urban party, they're reflecting most of America. Problem is that under our system, most of America doesn't get to make policy.

[Armchair Lawyer]

Sure they do. They just need more support, that they really don't have.

[Krychek_2]

In other words, the majority does not get to make policy.

[Armchair Lawyer]

Because they're not really a majority

[Krychek_2]

How are they not a majority?

[Krychek_2]

Are you suggesting that it's not a majority unless it includes the minority? If so, that's an Orwellian definition if I've ever heard one.

[Sarcastr0]

AL, do you think land can vote?

[Armchair Lawyer]

"How are they not a majority?"

In many different ways.

[Brett Bellmore]

There are reasons to expect that to start reversing in the near future. Modern communications and transport technology have obsoleted a lot of the reason for huddling together in cities, and Covid, with it's urban death rate being twice what you saw elsewhere, seems to have sparked a shift in thinking. Most major cities are now seeing serious outflows of population.

In the short run this is actually going to be beneficial to the Democratic party, as the people fleeing those cities aren't going to magically transform into Republicans when they move into Republican areas. A lot of suburbs are going to turn 'blue'.

In the longer run, however, their children will probably become Republicans.

[David Bremer]

Outside of New York and some cities in California, there's not the exodus you think. And even those cities, the declines aren't that large.

https://www.planetizen.com/news/2021/06/113547-2020-population-growth-rates-50-biggest-us-cities

[bernard11]

Are you seriously pretending that Republicans don't have heavy "local appeal?"

Somehow, to Brett, being popular in NY, Chicago, and LA constitutes "only local appeal." OTOH, AL, MS, and KS represent "national appeal."

Unbelievable.

[Brett Bellmore]

No, not unbelievable, that's exactly how it works.

In our system, getting 90% of the vote where you win, and 45% where you lose, is a bad strategy, because anything over 50.1% is wasted. But that's where Democrats are today, and it's not a structural problem, it's a Democrat problem: The party has honed it's appeal to totally dominate urban areas. Actively despises people who live any other lifestyle!

If the Democratic party had a more general appeal, the same number of votes would return them to the dominance they saw during the first half of the 20th century, because they'd be more efficiently allocated.

But they're stuck, they can't alter their positions to get a more general appeal, because their party now totally depends on getting high percentages in cities to compensate for doing badly everywhere else, and because the very people making the decisions are a product of that focused appeal, they can't want the party to be less focused on their own preferences.

Now, you'd prefer a situation where it didn't matter where you got your votes, or whether your appeal was just local, with you doing badly in 90% of the country. Your ideal is a system where 51% of the population over here get to order around 49% of the population over there, with half the population and 90% of the territory being ruled from a distance, by people who they have no influence over, and who are unsympathetic to their wants and needs.

That's exactly the situation our government was designed to prevent. Literally, it was designed to prevent that situation, with the safeguard of the Senate even placed beyond the immediate reach of Article V.

Such a dramatic change to the very basis of our country would call into question the legitimacy of continuing the country intact, without giving the states that didn't like their protections being abolished a chance to leave.

[IPLawyer]

What’s unfair about it, exactly?

Hmmm, taxation without representation never occurred to you?

[zztop8970]

Puerto Ricans pay no Federal income taxes, and DC residents can get representation if the district areas is reassigned to Virginia.

[Brett Bellmore]

They can also get representation by moving about five miles, so I'm not impressed with how much they want it.

[Thrax2]

This sounds like a very workable standard! Can we disenfranchise all the residents of Jacksonville, FL? Move a few miles and you're in Georgia, so what's the problem?

[Armchair Lawyer]

They're also the richest state/territory in the US by a large margin, so it doesn't seem to be hurting them.

[Brett Bellmore]

The citizens of D.C. have not been disenfranchised. DC existed as it does before any of them were alive, before their grandparents were alive. It's not like one day people in DC could vote, and the next they'd had that vote taken away. People moved TO DC knowing the situation, their children and children's children stayed there, knowing the situation.

You don't want to live in a place that has no representation, and is so small you could walk across it in a few hours, move. It's like complaining that Madison Wisconsin gets a lot of snow, and yet staying there. It's like standing in a lake and complaining your feet are wet. You chose to live in a lake, you're not the victim of a flood.

[Sarcastr0]

Black people in the Jim Crow South were not disenfranchised. Blacks not voting existed as it did before any of them were alive, before their grandparents were alive. It’s not like one day black people could vote, and the next they’d had that vote taken away.

[While semantically true, your point is ignores the moral thrust.]

[Brett Bellmore]

Wow. You probably would describe somebody who insists on living in the middle of a lake as suffering from flooding, wouldn't you?

[M L]

You don't want fairness. Fairness would be letting each State govern their own affairs. Self-government. Live and let live.

[Krychek_2]

Some problems require a national solution. Some solutions are more efficient done at the national level. The question is whether the petulant teenagers who think their own personal freedom is the only relevant concern should be given a veto.

[M L]

"Some problems require a national solution."

Not really. These United States were originally a union of sovereign States and not a nation. They were referred to in the plural, as in, "the United States are a republic."

What "problems" do you think "require" a "national" "solution" ?

[Krychek_2]

Right, and absolutely nothing has changed since 1789. The world is exactly the same now as it was then, and there's no possibility that what worked in 1789 may have outlived its usefulness.

I'm including "are more efficiently handled at the national level" within the category of "require a national solution." Thanks to the internet, almost everything you do crosses a state line.

[M L]

Right. Well the most efficient thing would be a "national solution" that also engulfs a few more additional sovereigns like Canada and Mexico, throw in South America while you're at it and actually the whole world if we're really talking maximum efficiency.

[Krychek_2]

I think that's called the fallacy of the false alternative, in which it is claimed that there are only two solutions, all or nothing. In reality, there are some solutions in which other countries are brought in; that's why we have treaties.

Some things are done best locally, like local policing. Some things are more efficiently done nationally, like health care. And some things are more efficiently done internationally, like NAFTA. It's case by case. Quit trying to pigeonhole the world into holes it doesn't fit.

[M L]

Some things are best done locally - everything. Free trade agreements are great (or even a Constitution that implements free interstate trade) and a common defense where appropriate. Free markets bring more people out of poverty and raise their standards of living and would give them better health care. Industries shouldn't be nationalized or run by the government, especially an industry like health care representing 20% of GDP and affecting such personal matters. Always appreciate the communist perspective though, thanks for your opinion.

[Krychek_2]

Calling me a communist disqualifies you totally from being taken seriously about anything else, but thanks for playing.

[M L]

I don't know that you're a communist, just sounds like you may have taken the communist perspective on this particular issue. It's ok, many of my friends do the same, no need to get all defensive about it.

[Krychek_2]

I'm not defensive; I'm just pointing out that invoking communism disqualifies you from being taken seriously. There's probably a hundred issues on which the Communist Party has taken a position over the years, and if you read long enough you'll probably find one or two that you agree with. So what?

[bernard11]

M L has long since disqualified himself from being taken seriously.

[Randal]

Before he even called you communist, he wasn't making sense... his post listed off a bunch of things that are obviously not best done locally (trade agreements, defense, market regulation) in support of his proposition that "everything" is better done locally. So yeah, he seems a bit addled at best.

[Brett Bellmore]

"I’m not defensive; I’m just pointing out that invoking communism disqualifies you from being taken seriously."

No, you're asserting that it disqualifies him from being taken seriously. It's not like some preexisting physical law you're pointing out, it's just a very convenient debate rule you'd like to impose.

It's not a good debate rule, because there actually ARE real communists out there, and why the hell would we want them immunized against anybody pointing them out?

It's similar to changing Godwin's law from an observation to a debate rule; Some things ARE like Nazi Germany, why the hell would you want to disqualify from debate anybody who didn't pretend otherwise?

Now, I disagree with you a lot, but that doesn't make you a communist. So I'd say he's wrong. But we wouldn't have a lot of arguments if you could disqualify anybody from participating as soon as you claimed they were wrong about anything.

[Krychek_2]

Brett, the argument is essentially a form of ad hominem: Communists are bad people, communists are in favor of X, therefore X is a bad idea. Well, the communists supported ending Jim Crow; were they wrong? You have to look at ideas on their own merits; you can't just say that because bad people support an idea it's a bad idea.

[M L]

"invoking communism disqualifies you from being taken seriously. "

Only in the minds of humorless internet libs.

[Brett Bellmore]

Communists are capable of being right on any given issue, though when they are, it's generally for the wrong reasons. But if you had to guess, knowing nothing about a position but that communists favored it, your best bet would be to assume they were wrong, because they have a track record that makes Genghis Khan look good.

So, no, that communists favor something doesn't prove that thing is bad. But, rationally, it should cause you to reexamine that something with a very skeptical eye indeed.

[jb]

Also: you haven't been paying very much attention to the political dynamics of California lately if you think that Democrats would possibly oppose splitting it up. If you gerrymandered it right, you'd get five solid blue states out of that, and even if you just did rough cuts along geographic lines you'd get three solid blue states and two purple ones.

California is a way bluer state than it was back in 2013 when there was a push to split it into six, mostly because Republicans have been doing their darndest to alienate the huge suburban populations there.

[Armchair Lawyer]

Didn't it go on a ballot a while ago, and fail miserably....

[jb]

The recent attempts to get it on the ballot have all failed. One got enough signatures but was disqualified by the California Supreme Court. I'm sure that if it were to make it to the ballot it would fail miserably since I've never seen a poll showing significant support for the idea.

[Rev. Arthur L. Kirkland]

" Admission of cheap political motivations is refreshing. "

Preferring (1) inclusiveness and tolerance to bigotry and insularity, (2) modernity and progress to backwardness and insularity, and (3) reason and science to superstition and dogma does not constitute "cheap political motivation."

Objections from vote-suppressing Republican racists, obsolete conservative misogynists, superstitious right-wing gay-bashers, faux libertarians, and xenophobic clingers at a White, male blog confirm the righteousness of the cause.

If a half-century of liberal-libertarian progress has made you this cranky, Krayt, how do you hope to handle the next chapters of American improvement?

[Ed Grinberg]

in other words:
"I am a better person than you, my motives are more pure than yours, therefore I can ride roughshod over your political preferences."
I bet he calls himself a liberal too!

[Rev. Arthur L. Kirkland]

Let's hear the arguments for bigotry, superstition, ignorance, and backwardness, Ed.

[jb]

I think it's more complicated than this, since the inherent big state vs. little state conflict has always been a feature of the Constitution, and yet we're only seen complete legislative dysfunction emerge relatively recently.

Coincidentally, fivethirtyeight just did a piece on the death of bipartisanship in the Senate which covers some of the key reasons:

https://fivethirtyeight.com/features/why-bipartisanship-in-the-senate-is-dying/

[Krychek_2]

I look forward to reading the 538 article later today when I have the time. In the meantime, why the dynamic has changed is an interesting question, but the fact remains that it has, and it has made it impossible for government to function. And the direct cause is giving big states and little states equal senate representation.

[Brett Bellmore]

The primary problem is the death of federalism. We're not fighting over who gets a bridge anymore. We're fighting over who gets their way of life outlawed.

[jb]

"Fighting over who gets their way of life outlawed" has been going on at least since Reconstruction and more like since the Whiskey Rebellion, so I'm going to disagree with your diagnosis.

[Krychek_2]

And federalism as the framers understood it has been dead since at least the civil war, and probably before that.

[Brett Bellmore]

Takes a while for the body to start stinking.

Seriously, federalism has been dying for a long while now, by pieces. The process isn't quite complete, even yet, it takes time to go from a government of explicitly limited powers to a government that does whatever it feels like.

Back in the early 20th century, you'll notice that the NFA was written as a tax. Why? Because at that time Congress still was admitting that it didn't constitutionally have the authority to ban things.

Would they admit that today? Hardly. The '94 AWB didn't pretend to be a tax. It just in your face banned things.

All the limits on federal power, and remnants of federalism, are falling, and falling with them are the pretenses, as our current federal government doesn't see the need to pretend it is observing constitutional limits, the idea that there are things they don't have the authority to do is just crazy talk.

But there are still things they'd hesitate to do openly, where they pretend and hide. Not for much longer, though , I think. The last vestiges of constitutional governance are in the process of falling.

[Krychek_2]

Well, maybe it's being done piece by piece because there is a recognition that federalism has outlived its usefulness, at least as to some issues, but we can't kill it outright because it takes 60 votes to do anything in an already anti-democratic Senate. So it's death by a thousand cuts instead.

Brett, the question is not will the country eventually look a lot more like what I'd like; the question is how long will your side be able to continue to obstruct. The country wants a whole lot less federalism than you do. Eventually they'll get it. You can only stop democracy so long.

[Armchair Lawyer]

I think you'd hate a true unitary executive state, as opposed to the federal state we have now.

Many of the advances "liberalism" has made in the last 40 years has been due to the federal system. It's a lot easier to get some change passed in one of 50 smaller divisions, than in a big huge country.

Can you imagine if you had Trump in charge of the police department in every state? The school system in every state? That would be a true unitary state, as opposed to the federal system we have today.

[Krychek_2]

Armchair Lawyer, I actually don't like the idea of the executive running the country. I'm good with Congress making the laws and the president enforcing them.

But that assumes a functioning Congress, which we do not currently have. It is entirely possible that in four days, the United States could default on its financial obligations and suffer a permanent blow to its credit because Congress can't even perform the basic, fundamental task of passing a budget. How is that good for the country? And the specific reason it can't pass a budget is that 400,000 Wyoming voters can cancel out 30 million Californians.

I get that if we do away with anti-democratic institutions, your side is going to end up with policies you don't like, and having dysfunctional government is a price you're willing to pay to keep that from happening. But just how steep a cliff will we have to drive over before you recognize that it's killing the country?

[Armchair Lawyer]

Again there's a difference between a unitary state and a federal state.

Do you want national control of the schools? The police? Because that's a unitary state.

[Krychek_2]

You initially said unitary executive so that’s what I was responding to.

As I told ML I think there are some things that are best done locally and other things best done nationally. But that discussion is entirely beside the point because our paralyzed dysfunctional Congress is unable to enact any national policies. And the day will eventually come when we face catastrophe because of it.

Do you think it’s a good thing that they can’t even pass a budget and we may default because of it?

[Brett Bellmore]

As an engineer I understand that, eventually, entropy does prevail. That doesn't mean I have to celebrate the decay.

[Krychek_2]

This is not entropy. This is going from Windows 1.0 to Windows 8.0 (or whatever version of Windows we're currently up to).

[Brett Bellmore]

It is literally entropy, a system with multiple layers of government, and rules that vary from one jurisdiction to another, takes more bits of information to describe, than a system with one layer of government, and uniform rules.

The more complex system required effort to sustain, that effort ceased to be exerted, it decayed into a simpler system. Entropy. It's basic thermodynamics, really. Everything that is not maintained, decays, including social order and complexity.

[Krychek_2]

But nobody is suggesting there only be one layer of government. I've never heard anyone suggest that if you're opening a restaurant, the feds should be the ones to inspect your kitchen for health code violations. Or that the local police should be the ones to counter Chinese espionage. Everyone gets that some issues are local and some are national. The disagreement is over which issues belong where.

[Brett Bellmore]

"Well, maybe it’s being done piece by piece because there is a recognition that federalism has outlived its usefulness,"

Or maybe it's being done piece by piece because it takes time for people to get jaded enough about any given violation that they stop thinking about it, and you can bring in the next violation without their adding them up and objecting. "Boiling the frog" isn't done by dropping the frog in boiling water, after all.

[Krychek_2]

You're assuming that ditching federalism is a bad thing.

[Brett Bellmore]

I'm assuming that it's contrary to the Constitution, and violating the Constitution is a bad thing even if done in a good cause.

[Rev. Arthur L. Kirkland]

"We’re fighting over who gets their way of life outlawed."

I expect the bigots will continue to lose and reasoning Americans will continue to win. What do you think?

[Kevin Smith]

Exactly. What's good policy for WY and ND is not necessarily good policy for CA and NY (and vice versa) but the increasing desire for the federal government to have a hand in everything and create top-down, one-size-fits-all solutions has led to a level of polarization we haven't seen since before the Civil War, and that has led to a death of bipartisanship

[Queen Amalthea]

I know, federal courts overruling local and state gun control, affirmative action, campaign finance, etc., laws is pretty terrible right?

[Kevin Smith]

Have you made a single comment today that can't be summarized as "tu quoque?"

[Queen Amalthea]

That wasn't a tu tuoque, it was pointing out that you might not want to go with what you put forward as a general principle.

[M L]

I'm fine with it.

[Brett Bellmore]

Well, sure, you can't impose nationally policies that directly violate explicit constitutional rights. It says a lot about you that you even want to.

[Queen Amalthea]

Shorter Brett: I love the feds when the feds take my side!

Also note, for 99% of our history our courts did not see those 'explicit rights' the way you do...

[Brett Bellmore]

I have the advantage here of having actual constitutional text on my side, not just "penumbras and emanations".

[Queen Amalthea]

Again, not really, as the 2nd was for most of our history thought to not confer an individual right (a right to 'armed self defense' is certainly not explicit in there), the 1st was for most of our history thought not to confer speech rights on corporations (it certainly doesn't explicitly do so), etc.

[Brett Bellmore]

Yes, really.

For half the nation's history, we didn't have a 14th amendment making the 2nd amendment applicable to the states, and for more than half the remaining history, the Supreme court had deliberately mooted the 14th amendment.

But the words were there all along. And all along people read them, and complained of their violation.

[Absaroka]

"the 2nd was for most of our history thought to not confer an individual right"

I think that must be a regional thing. I could see that view being common in NYC or NJ, for example. OTOH, I was born in the 50's and was an Army brat growing up around various bases and the first time I ever encountered the view that it wasn't an individual right was sometime in the eighties.

For one of many other examples, in the infamous Dred Scott decision, the opinion argues that blacks can't be citizens because if they were:

"it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

That sounds more expansive than 'the 2A means the National Guard is legal'. For another example, there is a 1941 Florida case about a law against concealed carry. The court opined:

"[T]here has never been, within my knowledge, any
effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention of the Constitution and non-enforceable if contested"

It may be that some people never thought there was an individual right, but the contrary view was certainly widely held as well.

[Brett Bellmore]

"the first time I ever encountered the view that it wasn’t an individual right was sometime in the eighties."

That was, so far as I can tell, about when the idea actually started getting taken seriously in legal circles. Prior to the real prospect of incorporation, the 2nd amendment was only really an obstacle to federal gun control laws, and there wasn't any need to rationalize it away until those started to heat up.

[Rev. Arthur L. Kirkland]

That 5538 article argues forcefully that Joe Manchin is an obsolete, uninformed, delusional, naive relic . . . perhaps a fitting representative of West Virginia.

When modern America no longer requires Sen. Manchin's vote, I hope West Virginia sustains a substantial cost for Sen. Manchin's conduct. Without disproportionate federal assistance, West Virginia likely would become -- believe it or not -- even more economically inadequate, desolate, ignorant, and dysfunctional.

[Bob from Ohio]

"North Dakota and Wyoming get to cancel California and New York "

Its always the Mountain West you bring up, not the small New England states which are Democratic dominated.

North Dakota had a Democratic senator from 1960 until 2020 in one seat and a Democrat in the other seat from 1986 to 2010. Its not a monolithic GOP state.

Win some elections and stop whining.

[Krychek_2]

In American politics, 2010 was a very long time ago.

And while you can cite counter examples such as Vermont, the fact is conservatives benefit overall from each state having two votes. If they didn't, or if liberals benefitted, you wouldn't be so fond of the status quo.

[Bob from Ohio]

"Conservatives benefit overall "

Not sure what it is now but last Congress the GOP and Democrats had equal numbers in both the 10 smallest states and the 10 largest.

While you will dismiss it as to old, Democrats had 60 votes 12 years ago. GOP hasn't had 60 since the 1920s.

There is no structual party advantage in the Senate. It ebbs and flows.

[Josh R]

In the past, you were right. But now with the stark urban/rural split the Republicans have an advantage in the Senate.

If you rank the states from 1 to 50 by Biden's margin of victory, the ten most populous states have an average rank of 20 (slightly blue). The ten least populous states average 23. Sounds like a small effect. But, the next ten least populous rank 34, the middle ten 28 and the second most populous group of ten 19. Yes, there are some very small blue states (VT, RI, DE) but almost no blue states in the next least populous group.

The most populous of the 40 reddest states is Tennessee (16th in population).

[Josh R]

Oops, meant to say 20 reddest states.

[Armchair Lawyer]

They may for now. That's how they've decided to do things.

Democrats have other structural advantages. For example, the Citizen/non-Citizen divide.

To give an example, let's say you had a Congressional district with 600,000 residents...but only 6000 Citizens. Each citizen would have the "vote" of 100 citizens in a normal state. I think we can safely say that is "unfair".

Democrats have a structural advantage in districts with high numbers of non citizens.

Of 16 districts where more than one in four adults is not an American citizen, only one is represented by a Republican. Of the 29 districts where at least one in five adults is not an American citizen, still only one is represented by a Republican

In the 46 districts in which less than 2 percent of adults are not American citizens, 41 are represented by a Republican. In the 108 districts in which less than 3 percent of adults are not American citizens, 87 are represented by a Republican

In the 13 House districts where more than one in four adults is not an American citizen, only 158,000 votes were cast on average in the 2018 mid-terms. In contrast, in the 46 districts in which less than 2 percent of adults are not a citizen, 263,000 votes were cast on average

So, you can see the advantage Democrats have there. Lots of non-citizens pumping up their districts....

Do you think there should be structural changes?

[Josh R]

I'm agnostic when it comes to the principle of apportionment based on citizens or residents (there are good arguments on both sides). I will only comment that Republicans have made their own bed when it comes to pissing of the non-citizens, many of whom (most?) will become citizens in due time.

[Brett Bellmore]

Whereas Democrats made the bed by letting them in in the first place. We're on a path to add several million more just this year.

I don't think that's an accident.

[Armchair Lawyer]

"I’m agnostic..."

Democrats are not. If offers a major structural advantage for them. They oppose any efforts to change things.

"I will only comment that Republicans have made their own bed"

You know, if I was particularly insightful, I might recognize the fact that Democrats have a long...long...long... history of using non-citizens to inflate the size of their states and voting districts.

I might also observe that despite all their speech, Democrats never quite seem to get around to actually developing a new path to citizenship. They may have a majority. They may even have a fillibuster-proof majority. Yet....it never seems to happen. And they never seem to be able to compromise to have it happen. And in the meantime, all those non-citizens...well, Democrats control their votes, and they don't have a choice in the matter.

Just an observation, mind you...

[Josh R]

There has never been a filibuster-proof majority for immigration reform. People have free will. No one controls their votes.

[Armchair Lawyer]

2009 is calling.

Democrats had 60 votes in the Senate, control of the House and Control of the Presidency.

But if you can't pass immigration reform, even then... Well...

[Josh R]

Even the DREAM Act couldn't get past a Senate filibuster in 2010. Democrats Hagan (ND), Nelson (NE), Tester (MT), Manchin (MT) and Pryor (AR) voted against it. However, the public assigns blame to the Republicans, and for good reason. Only three voted for it, Lugar (IN), Murkowski (AK) and Bennett (UT).

[Armchair Lawyer]

Because the Democrats keep proposing things that are too extreme without any hint of compromising....even with the moderates in their own party. You know why?

Because they WANT immigration reform to fail.

You think they can't count votes? You think they can't potentially make the minor compromises with members of their own party in order to get a bill to pass? Of course they can.

But the IDEA of immigration reform serves Democrats far better than actually DOING immigration reform. They can campaign on the idea of immigration reform forever. But once it's actually done, they can't campaign on it anymore. They can hang it out there as a carrot that is never quite granted.

And in the meantime, they get control over all those districts which are pumped up by immigrant numbers, with a minimum number of actual voters needed.

[Sarcastr0]

the Democrats keep proposing things that are too extreme without any hint of compromising

You mean like the GOP stringing Obama along on the ACA for years? Or how the GOP did the same thing with immigration reform at least twice in the Obama admin? Or how the GOP still calls Garland a freaking radical?

No, GOP asks for compromise haven't been in good faith in my lifetime.
Fooled you, at least.

[Brett Bellmore]

Yes, Sarcastro, exactly like that.

[Armchair Lawyer]

This is why it's pointless to respond to Sarcastro. The deliberate obtuseness.

He quotes, but leaves out the next 8 words..."even with the moderates in their own party."

And makes a statement based on the absence of those words....

It's dishonest.

[apedad]

Maine and New Hampshire would like to talk to you.

[bevis the lumberjack]

Yeah, the situation in which California can be “blocked” in the senate has only existed for the 20 years or so that Congress has been ineffectual. Oh, wait, it existed for 100 years before that? Your post must be partisan crap then.

Maybe if California weren’t proposing stuff that is so extreme they’d get a little more support.

[Krychek_2]

For the last 20 years or so, Congress has had partisan gridlock unlike anything before. That's the current problem and the relevant data point.

[bevis the lumberjack]

The point is that the small state/large state balance in Congress didn’t change 20 years ago. It’s been that way forever. So your assertion that the balance of the senate is the problem is not correct.

That balance is saving us from having California run us over. Or - since you didn’t notice it because of your politics - it’s keeping Texas (where I live) from running over y’all. Cuts both ways, which makes it a positive thing.

[Krychek_2]

The balance of the senate is the problem at this moment in time. Doesn't mean it's always been the problem, or that it always will be the problem.

I'm fine with Texas and California both having proportional representation in the Senate. Whomever loses on any given issue will probably feel run over.

[bevis the lumberjack]

You keep missing the point so this is my last try, then I give up.

If the make up of the senate now is the cause of the dysfunctional Congress, why wasn’t it a problem for the 200 plus years when Congress was basically functional? It’s not causing dysfunction now because it never has. Find a different bogeyman.

[Krychek_2]

Bevis, you're engaged in the logical fallacy of undistributed middle. Give it up.

[Don Nico]

K_2,
Nonsense K_2. The present situation only degenerated in the past 15 - 20 years

[M L]

The reason the federal government and the legislature in particular is dysfunctional is that it has far exceeded the scope of its legitimate enumerated powers. Most matters are supposed to be governed by the States and if that were the case, you would see much more functional governments at all levels. States would be more like Switzerland in this respect.

[Krayt]

Spend decades using free speech to convince a change in attitude, then have a judge declare sufficient change it is now a recognized, unenumerated right.

I have no problem with this process in theory, but how do you define "sufficient" and how do you measure it? With a poll, maybe?

There's something inherently dishonest in saying you won a simple majority, and therefore that justifies violating restrictions on the growth of government into new areas pushed by dead white men, then having a judge declare a new unenumerated right because The People have come around and feel it, and therefore a vote of The People to do the opposite is invalid.

It all clears up if you just recognize the government has no business regulating sexuality to begin with.

"Let's grant government the power to regulate our sex lives. All in favor? Hello? Is this thing on?"

[benji]

Yes, we have a different system than Switzerland and San Marino.

[Dan Schiavetta]

As to out of control gun use, among other things.

[Cal Cetín]

You mean the use of guns in crimes?

[rsteinmetz]

I seem to recall that many homes in Switzerland have assault riffles and ammunition stored in them and most Swiss males have training in their use.

[Dan Schiavetta]

Guns are common in Switzerland but to own one you have to go through a background check and an approved training program. IOW they have something like a “well regulated militia”.

[Brett Bellmore]

You can get away with a bit more regulation when people know you aren't trying to use the regulation to abolish a right, and won't be abusively enforcing it.

[Dan Schiavetta]

Paranoia.

The fact is there is no gun safety measure that the right wing in this country will support, even if proposed by Republicans.

[Brett Bellmore]

Remember when the most restrictive gun law in the country got overturned in the Heller case, and the gun control movement went absolutely nuts?

It's not paranoia if you have proof they're out to get you.

[Rev. Arthur L. Kirkland]

The mainstream's backlash against gun nuttery is going to be sweet and perhaps severe.

[rsteinmetz]

The guns I was referring to are provided by the Swiss government and the people who have them were trained by the Swiss Army, as were any older Swiss who have completed their service

The real difference is Swiss society is cohesive and people are law abiding.

[Cal Cetín]

I'm sure the innocent unborn will be much better off getting killed with the blessing of the democratic process rather than by judicial decree.

The right to life exists whether it's electorally popular or judicially popular.

[Rev. Arthur L. Kirkland]

You also believe the unfettered right to carry a gun exists without regard to electoral or judicial popularity.

Your beliefs tend to conflict with the reality-based world . . . almost as if they were based on superstition and stale nostalgia rather than reason and evidence.

I hope you are prepared for most -- and better -- Americans to continue to disregard your preferences to increasing degree in modern America.

[Krayt]

Feel free to propose amending the second amendment, and the American People, if they find it wise, will adopt it.

I believe your side currently ponders, with trial balloons, to amend the first amendment as well, to allow outlawing of harrassment, for cheap political gains of the moment.

[Rev. Arthur L. Kirkland]

The Second Amendment was amended by Heller.

Clingers seem destined to dislike future amendments.

Which is nice.

[Queen Amalthea]

"for cheap political gains of the moment"

Maybe they think harassment is bad and ought not to be protected (like we've treated obscenity)?

[bevis the lumberjack]

Harassment is frequently a judgment call, one that we shouldn’t allow the government to make.

Serious harassment that crosses the line is already illegal in many places.

Keep your bossy hands off my rights. All of them.

[Queen Amalthea]

Government enforces judgement calls all the time (think about all that 'reasonable' refers to in our law).

[bevis the lumberjack]

But when you’re talking about civil rights, particularly those listed in the BOR, any limits on those should be very narrow. Diminishing the 1st amendment (the most important one) over something as vague as harassment is a non starter.

[Queen Amalthea]

Again, isn't that 'vagueness' baked into most of our rights? I mean, the 4th Amendment prohibits 'unreasonable' searches and seizures. If anything 'reasonable' is more 'vague' and 'a judgement call' than 'harassment' (most if not all states already have harassment laws that have been upheld iirc).

[Brett Bellmore]

The 1st amendment is perhaps the least vague of the Bill of Rights, though. "No law" is pretty definite. Though I'd say "$20" is pretty specific, too, and the Supreme court found it ambiguous.

The truth is there's no text so clear that it can't be found to be ambiguous by somebody who sufficiently dislikes what it says.

[Brett Bellmore]

S.J.Res.19 - A joint resolution proposing an amendment to the Constitution of the United States relating to contributions and expenditures intended to affect elections.

"SECTION 1.To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

SECTION 2.Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

SECTION 3.Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.”."

It is worth noting that every single newspaper in the country is a corporation, so the proposed amendment would strip every newspaper in the country of the freedom to spend money in any way that might influence an election.

But if you can privately publish without spending any money, you're safe...

[Queen Amalthea]

There's an entire section to protect the press.

And how do you 'privately publish without spending any money?'

[Kevin Smith]

You do know freedom of the press doesn't mean just professional journalists, right? "Press" refers to an actual printing press, its the right to print and publish things (speech is the spoken word, press is the written word)

So if freedom of the press is exempted, it doesn't actually change much, corporations (ANY corporation) can still print and publish whatever they want. But if the idea is to prevent corporations from doing that, then newspapers would be affected as well

[Queen Amalthea]

No, that's what current SCOTUS doctrine holds, but it's debatable. And if that Amendment passed with that Section 3 language it would probably have to change.

Btw-many states had laws limiting corporate contributions and still had quite free presses before Citizens, so it's not like this is some contradiction.

[Brett Bellmore]

There's an entire section giving Congress the power to prohibit corporations from spending any money to influence elections. It's very specific and clear about that, and unless you read the amendment as repealing in section 3 the power it grants in sections 1 and 2, (Which no court would do.) that blows a hole in the 1st amendment you could drive a Sherman tank through.

Find a way to publish a major newspaper without forming a corporation, or spending any money, I dare you.

[Queen Amalthea]

"Find a way to publish a major newspaper without forming a corporation, or spending any money, I dare you."

Uh, yeah, I was arguing against your statement otherwise...

BTW, note that this amendment wouldn't forbid any spending to influence and election, it would provide for regulation of it. And, state regulation of corporate influencing was the norm before Citizens and yet newspapers operated freely (most people can see the difference between even a biased news source like Fox and a Trump for President advertisement).

[Brett Bellmore]

"BTW, note that this amendment wouldn’t forbid any spending to influence and election, it would provide for regulation of it."

" including by prohibiting such entities from spending money to influence elections."

It does allow such a prohibition. Under the clear terms of the amendment, they could prohibit the Washington Post from running an editorial endorsement.

[Queen Amalthea]

No, because of the third section. Most people can see a distinction between a third party saying 'We think as an opinion candidate X is better' and electioneering for candidate X. It's a fine line sometimes, but discerning fine lines is the stuff of law and life.

[Queen Amalthea]

To be more clear, given that many reasonable people can usually see a difference between the two and given section 3's instructions about interpretation of the Amendment, the Post (Washington, NY, whatever) is going to be fine under that.

[Brett Bellmore]

If the third section were meant to constrain the first two, you wouldn't need the amendment in the first place.

[Queen Amalthea]

Sure you would, because Citizens doesn't buy that.

[Brett Bellmore]

There's a reason that the ACLU considered the Citizens United case a great victory, until they went all 'woke'.

You'll recall the assistant AG literally argued before the Court that they could ban a book, if it mentioned a candidate for office.

You're aiming for the very core of the 1st amendment, political speech, and pretending you'd leave the 1st amendment intact, because we could still discuss the weather.

Like I said, show me that you can publish a newspaper of any size without forming a corporation or spending money, before you claim that proposed amendment wasn't a threat to freedom of the press. The whole POINT of that amendment was to break freedom of the press!

[Sarcastr0]

the ACLU considered the Citizens United case a great victory, until they went all ‘woke’.

You got a cite for that?

You’re aiming for the very core of the 1st amendment, political speech, and pretending you’d leave the 1st amendment intact, because we could still discuss the weather.

That's just the politics of illegitimacy. If you hate people calling you a bigot for disliking Obergefell, you understand how bullshit this tactic is. And Obergefell at least has massive public support. CU (and Buckley) does not.

[Brett Bellmore]

"You got a cite for that?"

Seriously? They filed an amicus brief in favor of CU, and then bragged about the victory immediately after.

Then they got hauled before their donors, and staff changes happened. You know who they put in charge of litigation strategy?

A guy who'd been gaming out ways to undo the victory.

[Queen Amalthea]

"The right to life exists whether it’s electorally popular or judicially popular."

Yes, the death penalty must go.

[Cal Cetín]

Maybe convicted serial killers *do* have the right to life. But the idea that they have a *greater* right to life than a human being in the womb is really bizarre.

[Randal]

What about the lives of the innocent sperms dying in your sock? Who will stand up for their right to life?

[Martinned]

You've basically answered your own question. Some things shouldn't be up for a vote. The death penalty, gerrymandering and other disenfranchisement, and discrimination are wrong and should be illegal no matter how many people support htem.

[Bob from Ohio]

We kill murderers, the Dutch kill old and sick people.

[Queen Amalthea]

Lol, by this logic the Dutch make people smoke pot, too.

[James Pollock]

" by this logic the Dutch make people smoke pot, too."

And the make people hire, no, BE prostitutes, too!

[Rev. Arthur L. Kirkland]

And if a few innocent Black citizens are killed by racist Republicans (jurors, prosecutors, police officers, witnesses) . . . well, that's OK with Bob from Ohio.

Because residents of Can't-Keep-Up, Ohio know that only White, superstitious, backwater Americans are real Americans.

[James Pollock]

There was a time when all these Real Americans who keep whining about their country being taken away from them would all uproot themselves and relocate to some empty space where they could all mutter amongst themselves and didn't have to worry about having to hear an opinion that was different from their own.
Isn't Alaska still mostly just empty spaces full of bears and trees?

[LawTalkingGuy]

Eh. We also kill civilians in other countries and citizens experiencing mental health crises in our own country. We are also entirely indifferent to whether children are murdered at their schools.

[Rev. Arthur L. Kirkland]

" We are also entirely indifferent to whether children are murdered at their schools. "

Most Americans are not so indifferent, a point I expect the modern American mainstream to address -- at the severe expense of gun absolutists -- during the next decade or so.

Culture wars have consequences. Ours is not over but has been settled, with relatively predictable consequences.

[James Pollock]

I think you're going to be disappointed. A few dead schoolchildren are just not that important, and we can always just pretend they aren't real. The dead ones are special effects and the live ones are actors.

[Don Nico]

LTG,
We even murder our own citizens in other countries without judicial review.

[M L]

You just discriminated among public policy issues.

[Queen Amalthea]

I think JB has misread that principle, some rights cannot be abridged by a vote but they can be promoted by a vote (see, for example, some religious accommodations that are not required by the 1st Amendment but are granted as a matter of statutory law).

[Jaypd]

It's really quite something when a hetero white guy like Josh sneers at rights that are meaningless to himself and acts like the entire concept of human rights is a joke.

When will we be rid of this contemptible idiot's posts?

[Bob from Ohio]

Stop reading, then the posts won't bother you.

[Martinned]

You're right. It's high time that the Volokh Conspiracy lets us mute bloggers the way we can now mute commenters.

[Randal]

Plus one to that! Josh really stinks up the place imo.

[Rev. Arthur L. Kirkland]

Josh Blackman is the future of conservative legal academia.

As Flounder would say . . .

[James Pollock]

There aren't any landmines in the park near my home, therefore landmines aren't a problem!

[Josh R]

Imagine that. Change occurred through the democratic process, and not the judicial process.

That's quite a bit easier to do when the federal government speaks for the whole nation.

Justice Jackson's landmark opinion focused on enumerated provisions in the Bill of Rights, and not unenumerated substantive due process rights

That ship had sailed with Zablocki and Turner.

[Martinned]

That’s quite a bit easier to do when the federal government speaks for the whole nation.

I'm not sure if you meant this as a description of either the US or Switzerland, but there's a reason why Swiss referendum results are reported by canton: https://www.bk.admin.ch/ch/d/pore/va/20210926/can647.html

While this referendum only involved an amendment of the civil code, amendments of the Swiss constitution require approval by a majority of votes cast, but also a majority in a majority of the cantons. (art. 139 and 142 of the Swiss constitution) While the really little ones count for half, that still gives a massive outweighted influence to the conservative rural cantons.

[Josh R]

Thanks, I didn't know that. My point was in the USA, each state speaks for itself unless SCOTUS intervenes (assuming it is an issue beyond Congressional control).

[OtisAH]

Ugh, you are just the worst. I’m sure that has its benefits, so good job!

[Randal]

Josh, would you be willing to put the rights you do care about, like guns for hunting, to majority vote?

[M L]

Every State should be allowed to do what they want with regard to guns in their State.

The federal constitution, until properly amended, prevents the federal government from infringing in any way on the right of the people to keep and bear arms.

[Martinned]

Wait, you don't believe that the 2nd amendment is incorporated against the states? Because that's the only way your comment makes sense. And that's certainly a unique stance...

[M L]

I said "should." But yes, my sense is that it's at least arguable that the original meaning of the 14th amendment did not "incorporate" anything against the States. That idea was judicially invented 60 years later. A short time ago this stance wasn't all that unique. https://lawliberty.org/classic/the-coming-resurrection-of-raoul-berger-a-remembrance-of-government-by-judiciary/

[KCar]

This is historian Brion McClanahan's opinion. That constitution only applies to Federal Govt. and incorporation is a perverse invention of the courts. Facts seem to back this up.

[M L]

Brion McClanahan is a sharp guy, well worth listening to for historical insight.

[Sarcastr0]

Brion McClanahan? The Calhoun-defending Lost Causer?

He's a reactionary loon at best. Certainly not a great source for originalist scholarship; dude has an agenda to say the least.

[James Pollock]

"This is historian Brion McClanahan’s opinion. That constitution only applies to Federal Govt."

Such a shame that Brion McClanahan's opinion is based on only the Constitution as it was in 1861. Both the 13th and 14th amendments were aimed squarely at the states, specifically, at the Sourthern states. What kind of historian doesn't know what happened in the 1860's?

[Bob from Ohio]

"And that’s certainly a unique stance…"

Not really. Its a minority stance but plenty of people believe it.

Incorporation was just a successful judicial power grab.

[Brett Bellmore]

Incorporation as it happened in the 20th century was a bit of a power grab, but there's no case at all to be made that the 14th amendment wasn't intended to incorporate the Bill of Rights against the states. Everybody, friend or foe of the amendment, agreed on that much. You have to completely ignore the debate over it to maintain an anti-incorporation stance.

The problem was, the Supreme court in the Slaugherhouse cases gutted incorporation by the P&I clause, and when the Court finally did start incorporating the Bill of Rights piecemeal, they did so by inventing "substantive due process", rather than just overturning the Slaugherhouse decision.

[Randal]

Isn't "substantive due process" just a way of saying "no process for depriving people of fundamental rights could ever be due"? I don't get why it's such a bugaboo.

[M L]

"there’s no case at all to be made"

Here's a review of a recent book making just that case -- albeit by a reviewer who strenuously argues against it. https://lawliberty.org/book-review/an-incomplete-introduction-to-the-fourteenth-amendment/

Your assertion is a rather asinine one belied by over a century of scholarship, and ignorant of Raoul Berger and his seminal work, Government by Judiciary.

Personally, my nonexpert sense of things is that you have different understandings and intentions among different parties including the ratifiers. So that seems to be clearly part of the problem.
Either side, but particularly the pro-incorporation side, can cherry pick 1 or 2 people and quotes that support their interpretation.

Surely, different parties having a different understanding about an agreement or some language should not be difficult to comprehend, as it happens all the time in daily life and even in legal practice as well as political legislation. It may be very difficult to comprehend or accept for those who can only think in black and white or want to insist that there is a single clear answer that is obviously correct. But a more nuanced weighing of history is needed than a few cherry picked quotes from ratification debates can provide.

[M L]

I was going to add, the potential for people having some different understandings about something would be particularly strong for such enigmatic, high-minded language as we're talking about here.

[Randal]

ML, you've already proved yourself unserious.

[Sarcastr0]

As is often the case, M L, you cherry pick your sources to get to the outcome you want (and what a radical outcome it is!).

Subsequent scholarship after Government by Judiciary shows Bingham's incorporation view was not the outlier Berger says it was.

You claim 'respect my diversity of opinion,' but your opinions are based on facts 50 years out of date, and you don't care to update them.

And that's not counting your desire for the Federal budget per capita to equal 1859 levels. Or you belief that the administrative state is unconstitutional.

It's been pretty sad watching you become a crank over the years on this blog.

[M L]

Hey Sarcastro, Read again. Brett claimed that there is "no case at all to be made."

To show that there is a case to be made, I point to a book just recently published by a law professor in the last year.

I also point to an extremely influential work of scholarship from 40 years ago. By the way, in the ensuing years Berger responded ably to his many critics.

If my position is that there's a case to be made, is it cherry picking to point to some prominent examples of the case being made? Not at all. I've acknowledged very clearly that this is a minority view, and does not comport with current Supreme Court precedent.

I'd be interested to learn what are the "facts 50 years out of date" in your estimation. I think it's just the opinion that is out of date, merely by nature of courts and academics having a different prevailing opinion.

[James Pollock]

"If my position is that there’s a case to be made, is it cherry picking to point to some prominent examples of the case being made?"

This depends on how far the cherries that you've picked are from the branch.

[James Pollock]

"Incorporation was just a successful judicial power grab."

A power grab, surely. But not by the judiciary.

The Civil War showed that the pre-Civil War Constitution wasn't adequate.

Coming off the War of Independence, the Founders were leery of implementing sovereign power. They were afraid that a powerful central government would be no better than sticking with the Crown they'd just rejected. So the federal government was intentionally made weak in the Articles of Confederation. Didn't work, and was obviously not working in the 1780's. So they went back, and rejiggered the system into the Constitutional one of 1789. What changed? The federal government was stronger than it was under the Articles, and was expressly superior to the States. Under that system, the Federal government would be prevented from overreaching and invading individual rights by the power the States still retained. That worked better than did the Articles of Confederation had, and held up for 70 years before it became obvious that it wasn't going to work, either. So, we got another rejiggering, and the difference this time around was that the federal government because the guarantor of individual liberty against incursion by the States. The trend since then has been to extend rights to black men in the 14th, women of all shades in the 19th, then 18-year-olds in (don't remember which amendment that was off the top of my head).

Now we need an amendment that strips away Congressional power from states that infringe the ability of citizens to vote.

[James Pollock]

"The federal constitution, until properly amended, prevents the federal government from infringing in any way on the right of the people to keep and bear arms.

"

Now we just need to work out what that right actually entails. Does it protect the right possess ANY kind of firearm the would-be possessor can conceive of? Or is is a right to have A gun rather than ANY gun? If the latter, is "here's your musket" a proper defense to whining that the feds won't let you have a fully-automatic rifle without a permit?
In other words, if they'll let you have a musket, is your right to keep and bear a firearm being infringed, if they won't let you have an M61A1 for home defense? How am I supposed to defend my home's airspace if they won't let me have a state-of-the-art air superiority fighter?

[James Pollock]

" Didn't Obergefell–favorably citing West Virginia v. Barnett–hold that 'fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.'"

Are you suggesting that they do?

It seems that it may matter quite a bit if opponents of fundamental rights control elements of law and government.