Glenn Reynolds asks an interesting question:
But here's a question. We're often told that Congressional efforts to repeal the D.C. gun ban are an affront to D.C. citizens' right to self-rule. (See this post by Andrew Sullivan.) But those efforts are in support of an explicit Constitutional right to keep and bear arms -- and since D.C. isn't a state, there's none of the usual argument about whether the Second Amendment should apply to its efforts or not.
So would a Congressional effort to overturn state bans on gay marriage in support of an unenumerated right to marry constitute a similar affront to local autonomy? I'm just, you know, asking. . . .
Good question. Here’s another along those lines: Would a Supreme Court ruling that overturned state bans on abortion in support of an unenumerated right to privacy constitute a similar affront to local autonomy?
I’m just asking…
1
Joe, what's gotten into you?
You've been on a run here of very thought-provoking posts.
posted on 10.04.2004 1:43 PM2
"So would a Congressional effort to overturn state bans on interracial marriage in support of an unenumerated right to marry constitute a similar affront to local autonomy? I'm just, you know, asking. ."
posted on 10.04.2004 1:55 PM3
The answer to both Glenn's and Joe's question is yes.
What is the Supreme Court for, constitutionally? To resolve disputes between the states, and to resolve disputes between the states and the federal government. So when the Supreme Court attacks abortion laws in all 50 states, it is acting outside its constitutional mandate, unless the US Constitution itself precludes such laws to be enacted by the states. The Constitution does not, so SCOTUS was way out of bounds.
The answer to Patrick's question is also yes. If an interracial couple wants to marry, but their municipality denies them that right, they can go to a neighboring state.
posted on 10.04.2004 2:50 PM4
Is "asking" another word for "an idiot"? Maybe it's one of those legal terms.
The problem with Congressional interference with DC, in respect of guns or any other issue, has nothing to do with "states' rights". The problem is that it's undemocratic and racist. Not to know this is to be about as ignorant of DC politics as it is possible to be.
For historical reasons that probably made sense at the time, the Constitution specifies that the capital district must not be part of the territory of any state (to preclude the federal government - which in 1789 had no standing army, very limited finances, and almost no resources of any kind - from falling under the control of one particular state). As a result, the citizens of the District of Columbia have always been democratically shortchanged - they have only one token Congressional representative, who cannot vote (and got that only in 1990), were denied the right to vote for President until 1963, and had no local government of any kind until "limited home rule" was gradually introduced beginning in the 1960s. DC residents could vote for President 4 years before they could vote for their own school board. To this day Congress controls almost all aspects of the DC government - through a committee whose voting members consist entirely of members elected from other parts of the country, the majority of whom are white Republicans deciding issues for an overwhelmingly black, Democratic district. Home rule privileges have been further reduced in recent years (due to Republican hostility combined with Washingtonians' penchant for electing financially irresponsible criminals to local office). Moves to grant DC residents full representation in Congress, or to amend the Constitution to promote it to statehood, have consistently been blocked by Republicans who can't stand the thought of a majority-black, majority-Democrat state added to the union, and who are happy to choose complete lack of democratic franchise for those citizens over the possibility that they might actually vote their own preferences if they ever got a chance to do so.
Be assured that nobody in DC feels sad that racist crackers in South Carolina can't fly the Confederate flag. They aren't lobbying for "states' rights". DC isn't even a state. DC citizens aren't asking for an expansion of state autonomy - they're looking for any autonomy. They're asking for the right to elect a local government that can pass its own laws, and to have voting representatives in Congress - far less than the rights all citizens of all other states take for granted. Congress isn't denying DC its "state's rights" - they're denying it any democratic rights at all, for reasons of race and party politics. To imagine that objecting to the denial of any political rights at all for DC citizens is equivalent to a call for states' rights to trample the human rights of their own citizens is no more that willful Republican ignorance in its traditional racist form.
If Reynolds wants to talk about DC politics in some way that is actually reflective of DC politics, he might start with why a region with a population greater than Wyoming (and greater than all but 24 cities in the nation) should have no Senator, one non-voting Representative, no control of its own laws or budget, no compensation or taxes for the land within it seized by the federal government, and a hostile, unelected government (while its citizens pay federal tax and are subject to every other provision and obligation of federal law). Then he might ask himself whether any proponent of "states' rights" suffers similar disabilities, and whether the lack of "states' rights" has ever caused any such disabilities in any state, except, to a limited degree, after the Civil War. (If he still imagines the states' rights analogy holds, he might then ask himself why a white Republican Congress consistently treats black Democratic voters in the same manner Congress treated Southern ex-slave-owners after the Civil War, and whether there might not be the teensiest question of race and politics involved in the matter.) Having concluded that, in fact, states' rights has never had the slightest thing to do with the denial of the most fundamental franchise rights to citizens of Washington, DC, he might, you know, just shut up and stop making a fool of himself.
Now, as to why that idiotically strained analogy doesn't extend to the issues of gay marriage or abortion, it doesn't because . . . well, it's an idiotically strained analogy. But, beyond this, nothing about "states' rights" overrides fundamental Constitutional rights guaranteed to all the citizens. (They tried that once. The answer was the Civil War. Nullification lost.) Privacy and non-discrimination are fundamental rights, no matter how much conservatives wish it were otherwise. States have whatever rights states have, but not the right to deny rights that all citizens have regardless of the state they reside in. So the lack of franchise in a non-state has nothing to do with states' rights, and the question of states' rights has nothing to do with rights that do not fall within the purview of any state to limit or regulate. You'd think a law school professor could grasp that.
To put it more simply, the question of abortion and gay marriage have to be decided at the level of whether those really are rights at all (i.e., whether they really do or don't fall under the Consitution's guarantees of equal protection and the "freedom of" clauses, as the Supreme Court has said abortion does, and advocates of marriage freedom have said gay marriage does). Whatever answer one gives, this is where the Constitutional issue lies. If those really are protected rights, "states' rights" cannot override them any more than it can prohibit equal protection or free speech. The question of DC sovereignty, though, is not a question of states' rights at all - no advocate of home rule has ever pitched it on those grounds, and, as argued above, the issues at stake in the DC question have nothing to do with traditional states' rights issues. So they have nothing to do with one another, quite aside from the shocking suggestion that states' rights should be read as limiting universal Constitutional protections.
It's hard to imagine Reynolds can't recognize this. So, his sly suggestion that states' rights can ban gay marriage (or your suggestion that it can ban abortion) because states' rights is an argument for DC home rule is ridiculous far beyond the level of a simple mistake. It's an explicit (and one can hardly fail to imagine deliberate) misconstrual of both issues, and of the well-publicized arguments around each. Reynolds is being disingenuous, and it pleases him to do so while smirkingly writing some people's rights out of the law entirely. As he might put it: InstaPundit -- enhancing racism and sexism since 2001!
posted on 10.04.2004 3:48 PM5
Glenn Reynolds is a jackass. I gleefully look forward to his comeuppance and sad sick spiral back down into the dark obscure realm out from which he loathesomely suckered himself not so long ago.
posted on 10.04.2004 4:12 PM6
Kevin,
Let me give you two reasons, one for the Democrat and one for the Republicans, why no politicians want statehood for D.C.:
For the Democrats: If the city were suddenly to become a state and was able to gain one seat in U.S. Congress and two in the U.S. Senate (plus a state legislature with the power of taxation), you would find that it tranformed into a Republican haven overnight. Real estate prices would skyrocket as the rush to gain the power statehood would bring in an influx of carpetbaggers.
For the Republicans: Senator Marion Barry
posted on 10.04.2004 4:20 PM7
Thank you for addressing this, Joe. I read the post on Glenn's blog earlier but didn't have time to address it. Jaw-dropping, to say the least.
I live in DC, so this issue is somewhat personal. If I want to buy a gun for protection, I'd have to pack up and move to VA or MD. Only the criminals and the cops have guns in the nation's capital.
posted on 10.04.2004 5:20 PM8
There are three separate issues here.
The easy one is the D.C. issue. The District was designed to be the center of the federal government, and Congress should have the authority to organize it in a way that protects that role and reflects the national culture as a hole. Congress may choose to grant self-rule on local issues (in the case of D.C. insuring incompetence and corruption in local governent), but constitutionally has and prudentially should have the right to impose its will on issues it regards as critical.
The next issue is states' rights. Truth be told, this doctrine is used by left and right alike, depending on the particular issue. (Gay marriage proponents are for states' rights now because Massachhusetts is a laboratory for their views, but the same lefties are anti-state rights when they want to impose, say, a prohibition on sodomy laws -- and on and on, issue by issue). A principled fedreralist position may make sense, but it has no poltical resonance.
The final issue is that of judicial creation or derivation of new rights in the constitution. This is profoundly destructive, because it eliminates the process of political argumentation that allows change (or stasis) to evolve over time with populat consent. Had Roe v. Wade never been decided, some blue states would allow abortion to some degree, while most red states would continue to prohibit it. Federal judicial impostion destroys one virtue of federalism -- that it allows for policy diversity and gradual change with popular consent.
So endeth the lesson.
posted on 10.04.2004 6:45 PM9
Obviously that "unenumerated right to privacy" applies to the right to kill babies, not burglars. It is a Constitutional right that is not to be tampered with.
posted on 10.04.2004 7:08 PM10
The other Kevin has written a powerful, if completely wrong, advocacy for full democratic rights of the District of Columbia.
There is a mechanism to do so: an Amendment to the Constitution. My advice to you, if you want to see this come to pass in your lifetime, is to begin at once. Keep me updated on your progress.
posted on 10.04.2004 9:55 PM11
Re: D.C. . . . as described, legally, D.C. is directly subject to Congress. That's how it is. The District is rather small; the idea of it being a state is absurd; it's not a state, it's a CITY; and it was a far more liveable city before Home Rule.
The business about how "undemocratic" this is: at one time, years ago, D.C. residents voted in Maryland. Unfortunately, Maryland isn't putting out the welcome mat.
The statehood advocates in D.C. have rallied around the phrase "no taxation without representation." I say, right on! Let D.C. become a tax haven.
As to the guns and gays issues . . . ultimately, we have to ask the question, what kind of society do we want? That's the ultimate question, not the structure of our constitution. The constitution is structured so as to help foster the society we decide we want; it doesn't determine the shape of our society.
And the shape of the society that framed our Constitution had loads of guns, but would have taken "gay marriage" to mean something altogether different from what we mean by that.
Septimus
posted on 10.04.2004 10:58 PM12
Septimus:
"The constitution is structured so as to help foster the society we decide we want"
Wrong answer. The Constitution is structured to provide the citizens the best means of overthrowing a tyrannical govenment. The kind and characer of Society itself is another matter entirely.
posted on 10.04.2004 11:43 PM13
Maybe I'm just dense, but...
I know that Reynolds is in favor of gay marriage.
I also know the constitution says that unenumerated rights belong to the states.
So Reynolds is suggesting that for Congress to ban one of those unenumerated rights (i.e. same-sex marriage, for argument's sake) is an unconstitutional interference with local autonomy.
In response, Joe says that for the Supreme Court to "overturn bans on abortion in support of an unenumerated right to privacy" would, by the same logic, also be an "affront to local autonomy."
This is a good point, but I think Reynolds' original suggestion is flawed anyway. Some members of Congress are trying to start the process for a constitutional amendment. If successful, this amendment would change same-sex marriage from an "unenumerated right" (if it were such a thing, which I don't agree to) to something that is prohibited in the constitution. Thus, by definition, what Congress is doing cannot violate the constitution; it can only agree with the constitution because if they are successful the constitution itself changes.
And at least when the amendment process is used, "local" (i.e. state) governments get to vote on it. When the Supreme Court changes the constitution by fiat, as it did in Roe v. Wade, the process is the ultimate in undemocratic interference in local autonomy.
posted on 10.05.2004 8:23 AM14
Gryph - The problem with your (intended to be rhetorical question ) is that it ignores the 14th Amendment.
posted on 10.05.2004 11:57 AM15
"And the shape of the society that framed our Constitution had loads of guns, but would have taken "gay marriage" to mean something altogether different from what we mean by that."
While the statement above is probably correct, it's not really a good idea to use the argument that the interpretation of the Constitution should always adhere to the morals and customs of the times it was written in.
The reasons often given for striking down roe v wade or against gay marriage is that the Framers would have been appalled at the those ideas, at least in public.
But there is a valid legal train of thought regarding privacy and Constitution that says that the reason the Framers didn't include it specifically was because the respect for privacy was such a fundamental element of the American character at the time that it didn't even occur to them that anyone would ever question it.
So if you were to interpret the Constitution in the light of the cultural moral of privacy as described above, then it would actually strengthen roe v wade and the case for gay marriage instead of removing them.
There have been quite a few amendments over the centuries, so the document itself is in some ways fundamentally different from when it was originally written. So which morals and customs from which generation of Americans would you choose to base your interpretations on?
Constitutional interpretation just can't be an exact science.
posted on 10.05.2004 12:22 PM16
And the award for Best Freudian Slip goes to...
and Congress should have the authority to organize it in a way that protects that role and reflects the national culture as a hole.Grumpy! Congratulations!
Joe:
Real estate prices would skyrocket as the rush to gain the power statehood would bring in an influx of carpetbaggers.Apart from the fact that I'm not entirely sure that's a sentence, I think you're being overly optimistic. Republicans generally don't like to live in high-crime, high-minority-population areas. They would have to solve those problems (get rid of the crime, relocate virtually all of the people) before that would ever happen.
Besides, it would be just about as easy for them to overrun Vermont (population 619,107), Rhode Island (population 1,076,164), or New Hampshire (population 1,287,687), as it would be to overrun DC (population 563,384) without having to worry about the crime thing, and they haven't done that yet...
Ed:
I also know the constitution says that unenumerated rights belong to the states.Actually, it says they belong to the states or the people. Well, guess what? We have a representative government. The Senate represents the states, and the House represents the people. That's their job. What they do is well within the confined of what the tenth amendment allows. But what they do is also subject to judicial review. Move along people, there's nothing to see here. posted on 10.05.2004 12:37 PM
17
Ed Jordan: I also know the constitution says that unenumerated rights belong to the states.
tgirsch: Actually, it says they belong to the states or the people.
Both are wrong. The 9th amendment says:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The 10th amendment says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
One deals with unenumerated rights, the other powers not specifically delegated to the Federal government, or specifically denied to the states (unenumerated powers, one might say, but that's still too broad a phrase, since the legitimate powers of government are still restrained by the principles found in the Declaration at the very least).
posted on 10.05.2004 3:19 PM18
Re "Guns & Gays", I'd like to hear what the Pink Pistols have to say.
posted on 10.05.2004 4:25 PM19
To John Quincy:
I don't disagree with your answer; I don't see that yours and mine are mutually exclusive.
To Patrick:
I would agree that "it's not really a good idea to use the argument that the interpretation of the Constitution should always adhere to the morals and customs of the times it was written in," and I didn't intend to make that argument -- with the key word being ALWAYS.
My point was this: I and many others being convinced that Roe and an (as yet hypothetical) imposition of "gay marriage" are self-evidently inimicable to the Constitution we actually have, sadly this is not self-evident enough to have prevailed (at least in the case of Roe) -- so then, what method of interpretation shall best serve this cause? I submit that attention to the intent of the framers is necessary, if not an iron law. But the text alone? No.
A theological analogy comes to mind: Catholics, Orthodox and others see the Scriptures as PART of a Deposit of Revelation, the other part being handed down (traditio); Evangelicals hold a doctrine of "sola scriptura" (which I won't attempt to describe out of fairness to others who actually believe in the doctrine) -- in this case, I'm advancing a "Catholic" approach to the text of the Constitution -- it's "sola scriptura."
(Admittedly, I don't mean the analogy to extent of fusing as one unity of truth the written text of the Constitution with the unwritten Tradition that accompanies it.)
Anyway, my fundamental point was that, as much as I love our brilliant Constitution, and want to preserve it, in the end, if the Constitution becomes a vehicle for things hostile to a good and just society, broadly understood (i.e., without abortion, with gun rights, and no redefinition of marriage to boost the self-esteem of affirmation-craving gays) -- if then we must choose between the Just Society, and the Constitution (I can't have both), then I choose the Just Society.
My thoughts on how to interpret that venerable charter are aimed at avoiding such an outcome.
Septimus
posted on 10.05.2004 5:04 PM20
Ed Brayton:
I sit corrected. Thanks for the clarification.
posted on 10.05.2004 5:33 PM21
>Obviously that "unenumerated right to privacy"
>applies to the right to kill babies, not
>burglars. It is a Constitutional right that is
>not to be tampered with.
Baal-Moloch is hungry, and must be fed.
(Ever notice that the primary sacrament of Baal's consort, Asherah of the High Places, was Total Sexual Freedom (TM)?)
posted on 10.05.2004 7:16 PM22
I've been asking this question for some time now. Thanks for (not) noticing me Glenn...
A federal marriage amendment is no more an afront to the rights of states and municipalities to work out their own rules on Marriage than the 2nd amendment is to letting them make their own rules for Guns.
posted on 10.05.2004 10:16 PM