Author Topic: DOMA/LGBT Marriage Merged Thread  (Read 8947 times)

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Re: Doma
« Reply #15 on: December 08, 2012, 03:35:37 PM »

Offline Ogaju

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touche ..... love this thread keeps me up on constitutional issues.

Re: Doma
« Reply #16 on: December 08, 2012, 04:25:57 PM »

Online Neurotic Guy

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I'm against same-sex marriage, so I'll be disappointed if this law is ultimately struck down by the Supreme Court, though technically it would be constitutionally right to do so, because, since marriage isn't addressed in the Constitution, it's an issue that should be left to the states, per Amendment X.

That said, I find it sadly amusing that liberals seem to be generally (not always) fine with an overreaching federal government—except for in the case of social hot-button issues such as same-sex marriage. "Yes, let's federally legislate environmental issues, even though the Constitution doesn't give this power to the federal government, but we absolutely must not touch marriage."

Ironic.  I've always found it amusing that conservatives are generally--not always--so against an "overreaching" federal government, except in cases of social hot-button issues such as same-sex marriage.


I was looking to see if someone would cite the irony here. Thanks.  It is true that both sides can effectively rationalize a seemingly (depending upon one's choice of spin) inconsistent stance.  Therefore, probably best to not think of this as liberal v. conservative argument in which we tend to generalize and marginalize the other rather than have a discussion about the actual issue.

Like others have said, I can't see how a gay couple's love and marriage has any impact on my life other than to be glad for the couple if they are happy.  I see nothing abnormal about homosexuality. I have known gay/lesbian neighbors, college dorm/floor mates, co-workers/colleagues, relatives, and friends -- some I've liked as people some I haven't, but I have never questioned the normalcy or legitimacy of their homosexuality. Seems like a natural and harmless human trait to me.  Hope they are allowed to marry and are free to enjoy and stuggle with the responsibilities, troubles and benefits that the choice of marriage entails. Marriage between 2 adult gay men or 2 adult lesbian women should be a civil right in a decent society. I hope the SC decisions will support this right.

 

Re: Doma
« Reply #17 on: December 09, 2012, 02:37:32 PM »

Offline Brendan

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I'm against same-sex marriage, so I'll be disappointed if this law is ultimately struck down by the Supreme Court, though technically it would be constitutionally right to do so, because, since marriage isn't addressed in the Constitution, it's an issue that should be left to the states, per Amendment X.

That said, I find it sadly amusing that liberals seem to be generally (not always) fine with an overreaching federal government—except for in the case of social hot-button issues such as same-sex marriage. "Yes, let's federally legislate environmental issues, even though the Constitution doesn't give this power to the federal government, but we absolutely must not touch marriage."

Ironic.  I've always found it amusing that conservatives are generally--not always--so against an "overreaching" federal government, except in cases of social hot-button issues such as same-sex marriage.


I was looking to see if someone would cite the irony here. Thanks.  It is true that both sides can effectively rationalize a seemingly (depending upon one's choice of spin) inconsistent stance.  Therefore, probably best to not think of this as liberal v. conservative argument in which we tend to generalize and marginalize the other rather than have a discussion about the actual issue.

Like others have said, I can't see how a gay couple's love and marriage has any impact on my life other than to be glad for the couple if they are happy.  I see nothing abnormal about homosexuality. I have known gay/lesbian neighbors, college dorm/floor mates, co-workers/colleagues, relatives, and friends -- some I've liked as people some I haven't, but I have never questioned the normalcy or legitimacy of their homosexuality. Seems like a natural and harmless human trait to me.  Hope they are allowed to marry and are free to enjoy and stuggle with the responsibilities, troubles and benefits that the choice of marriage entails. Marriage between 2 adult gay men or 2 adult lesbian women should be a civil right in a decent society. I hope the SC decisions will support this right.

Well most on this board call me "conservative" and I favor an outcome where marriage issues are decided by the states, and the states decide not to be involved in marriage. But I don't see most liberals claiming limited gov't federalism or strict constructionist arguments for their own support of striking DOMA. As interceptor said they see it as discriminatory, i.e. a social evil, therefor any means necessary should be used to remove it. My experience is that liberals/progressives will call conservatives "hypocrites" for conservative federal laws that are in the gray area (or worse) from a federalism/strict constructionist point of view.

The reason conservatives shouldn't care is game theory. If conservatives play by a pure strict constructionist play book - it basically leaves liberals/progressives free to pursue their federal policies, with no risk that subsequent conservative majorities will strike back. I think it's wise to be judicious in the use of laws in the gray area, but certainly if the welfare clause and commerce clause are to be broadly interpreted by the SC when Dems pass laws, Repubs shouldn't shy away from ever passing a federal law that might be questionable by 1795's standards, but is mainstream now.

Tactically DOMA isn't the hill to stand on. They should launch a war of rhetoric on the Dems for their hypocrisy, lambast the continued politicization of DoJ, explain why its a bad constitutional law - equivalent to other bad laws they don't like. Then if the DoJ strikes down DOMA on federalist/strict constructionist grounds (versus something like an invented right) they should mount challenges to other laws. Most notably the topic we are not allowed to talk about. Furthermore they should put forward bills after the SC rules that clarify the federal gov't doesn't recognize marriage it's a state issue, and undermine all the ANTI marriage laws at the federal level. (Such as the marriage penalty in the tax code.)

If I'm a conservative SC justice - I push for a pure 10th amendment overturn of DOMA as an usurpation of rights reserved to the States and People. Don't let it be a 14th amendment decision, which will just incorporate every crap law at the federal level into every states law.

Finally this issue is illustrative of how far down the "will to power / I know best" slope the progressive mentality is. The argument that its bad is not based in any principle other than "we don't like it". These kind of arguments are why democratic populism slips into autocratic tyranny. The philosophical under pinnings all rest on a population controlled by their gov't. Once the society accepts that, control of the military de facto dictates who controls society. Once upon a time liberals argued against such things, now they march a long with the progressives towards a positive rights theory of gov't. Structure and principle should alway trump politically expediency if you care about long term freedom. Once you justify strike down of unpopular but legal laws you pave the way for a populist to usurp the power structure of gov't and become a tyrant. At that point liberals will be glad some of us never gave up the 2nd amendment.


Re: Doma
« Reply #18 on: December 09, 2012, 05:10:13 PM »

Online Neurotic Guy

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I'm against same-sex marriage, so I'll be disappointed if this law is ultimately struck down by the Supreme Court, though technically it would be constitutionally right to do so, because, since marriage isn't addressed in the Constitution, it's an issue that should be left to the states, per Amendment X.

That said, I find it sadly amusing that liberals seem to be generally (not always) fine with an overreaching federal government—except for in the case of social hot-button issues such as same-sex marriage. "Yes, let's federally legislate environmental issues, even though the Constitution doesn't give this power to the federal government, but we absolutely must not touch marriage."

Ironic.  I've always found it amusing that conservatives are generally--not always--so against an "overreaching" federal government, except in cases of social hot-button issues such as same-sex marriage.


I was looking to see if someone would cite the irony here. Thanks.  It is true that both sides can effectively rationalize a seemingly (depending upon one's choice of spin) inconsistent stance.  Therefore, probably best to not think of this as liberal v. conservative argument in which we tend to generalize and marginalize the other rather than have a discussion about the actual issue.

Like others have said, I can't see how a gay couple's love and marriage has any impact on my life other than to be glad for the couple if they are happy.  I see nothing abnormal about homosexuality. I have known gay/lesbian neighbors, college dorm/floor mates, co-workers/colleagues, relatives, and friends -- some I've liked as people some I haven't, but I have never questioned the normalcy or legitimacy of their homosexuality. Seems like a natural and harmless human trait to me.  Hope they are allowed to marry and are free to enjoy and stuggle with the responsibilities, troubles and benefits that the choice of marriage entails. Marriage between 2 adult gay men or 2 adult lesbian women should be a civil right in a decent society. I hope the SC decisions will support this right.

Well most on this board call me "conservative" and I favor an outcome where marriage issues are decided by the states, and the states decide not to be involved in marriage. But I don't see most liberals claiming limited gov't federalism or strict constructionist arguments for their own support of striking DOMA. As interceptor said they see it as discriminatory, i.e. a social evil, therefor any means necessary should be used to remove it. My experience is that liberals/progressives will call conservatives "hypocrites" for conservative federal laws that are in the gray area (or worse) from a federalism/strict constructionist point of view.

The reason conservatives shouldn't care is game theory. If conservatives play by a pure strict constructionist play book - it basically leaves liberals/progressives free to pursue their federal policies, with no risk that subsequent conservative majorities will strike back. I think it's wise to be judicious in the use of laws in the gray area, but certainly if the welfare clause and commerce clause are to be broadly interpreted by the SC when Dems pass laws, Repubs shouldn't shy away from ever passing a federal law that might be questionable by 1795's standards, but is mainstream now.

Tactically DOMA isn't the hill to stand on. They should launch a war of rhetoric on the Dems for their hypocrisy, lambast the continued politicization of DoJ, explain why its a bad constitutional law - equivalent to other bad laws they don't like. Then if the DoJ strikes down DOMA on federalist/strict constructionist grounds (versus something like an invented right) they should mount challenges to other laws. Most notably the topic we are not allowed to talk about. Furthermore they should put forward bills after the SC rules that clarify the federal gov't doesn't recognize marriage it's a state issue, and undermine all the ANTI marriage laws at the federal level. (Such as the marriage penalty in the tax code.)

If I'm a conservative SC justice - I push for a pure 10th amendment overturn of DOMA as an usurpation of rights reserved to the States and People. Don't let it be a 14th amendment decision, which will just incorporate every crap law at the federal level into every states law.

Finally this issue is illustrative of how far down the "will to power / I know best" slope the progressive mentality is. The argument that its bad is not based in any principle other than "we don't like it". These kind of arguments are why democratic populism slips into autocratic tyranny. The philosophical under pinnings all rest on a population controlled by their gov't. Once the society accepts that, control of the military de facto dictates who controls society. Once upon a time liberals argued against such things, now they march a long with the progressives towards a positive rights theory of gov't. Structure and principle should alway trump politically expediency if you care about long term freedom. Once you justify strike down of unpopular but legal laws you pave the way for a populist to usurp the power structure of gov't and become a tyrant. At that point liberals will be glad some of us never gave up the 2nd amendment.

I will admit to you that though your post appears eloquent (I am sure it is), I didn't understand it.  A good deal over my head in terms what you see as the consequences for wanting gay men and lesbian women to have the right to marry. I don't see myself as a progresive or a liberal -- just think it's wrong that gays/lesbians can be denied the right to a legally acknowledged marriage. Please try to more simply connect the dots that lead from gay marriage rights to tyranny.

Re: Doma
« Reply #19 on: December 09, 2012, 09:05:39 PM »

Offline nickagneta

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I'm against same-sex marriage, so I'll be disappointed if this law is ultimately struck down by the Supreme Court, though technically it would be constitutionally right to do so, because, since marriage isn't addressed in the Constitution, it's an issue that should be left to the states, per Amendment X.

That said, I find it sadly amusing that liberals seem to be generally (not always) fine with an overreaching federal government—except for in the case of social hot-button issues such as same-sex marriage. "Yes, let's federally legislate environmental issues, even though the Constitution doesn't give this power to the federal government, but we absolutely must not touch marriage."

Ironic.  I've always found it amusing that conservatives are generally--not always--so against an "overreaching" federal government, except in cases of social hot-button issues such as same-sex marriage.


I was looking to see if someone would cite the irony here. Thanks.  It is true that both sides can effectively rationalize a seemingly (depending upon one's choice of spin) inconsistent stance.  Therefore, probably best to not think of this as liberal v. conservative argument in which we tend to generalize and marginalize the other rather than have a discussion about the actual issue.

Like others have said, I can't see how a gay couple's love and marriage has any impact on my life other than to be glad for the couple if they are happy.  I see nothing abnormal about homosexuality. I have known gay/lesbian neighbors, college dorm/floor mates, co-workers/colleagues, relatives, and friends -- some I've liked as people some I haven't, but I have never questioned the normalcy or legitimacy of their homosexuality. Seems like a natural and harmless human trait to me.  Hope they are allowed to marry and are free to enjoy and stuggle with the responsibilities, troubles and benefits that the choice of marriage entails. Marriage between 2 adult gay men or 2 adult lesbian women should be a civil right in a decent society. I hope the SC decisions will support this right.

Well most on this board call me "conservative" and I favor an outcome where marriage issues are decided by the states, and the states decide not to be involved in marriage. But I don't see most liberals claiming limited gov't federalism or strict constructionist arguments for their own support of striking DOMA. As interceptor said they see it as discriminatory, i.e. a social evil, therefor any means necessary should be used to remove it. My experience is that liberals/progressives will call conservatives "hypocrites" for conservative federal laws that are in the gray area (or worse) from a federalism/strict constructionist point of view.

The reason conservatives shouldn't care is game theory. If conservatives play by a pure strict constructionist play book - it basically leaves liberals/progressives free to pursue their federal policies, with no risk that subsequent conservative majorities will strike back. I think it's wise to be judicious in the use of laws in the gray area, but certainly if the welfare clause and commerce clause are to be broadly interpreted by the SC when Dems pass laws, Repubs shouldn't shy away from ever passing a federal law that might be questionable by 1795's standards, but is mainstream now.

Tactically DOMA isn't the hill to stand on. They should launch a war of rhetoric on the Dems for their hypocrisy, lambast the continued politicization of DoJ, explain why its a bad constitutional law - equivalent to other bad laws they don't like. Then if the DoJ strikes down DOMA on federalist/strict constructionist grounds (versus something like an invented right) they should mount challenges to other laws. Most notably the topic we are not allowed to talk about. Furthermore they should put forward bills after the SC rules that clarify the federal gov't doesn't recognize marriage it's a state issue, and undermine all the ANTI marriage laws at the federal level. (Such as the marriage penalty in the tax code.)

If I'm a conservative SC justice - I push for a pure 10th amendment overturn of DOMA as an usurpation of rights reserved to the States and People. Don't let it be a 14th amendment decision, which will just incorporate every crap law at the federal level into every states law.

Finally this issue is illustrative of how far down the "will to power / I know best" slope the progressive mentality is. The argument that its bad is not based in any principle other than "we don't like it". These kind of arguments are why democratic populism slips into autocratic tyranny. The philosophical under pinnings all rest on a population controlled by their gov't. Once the society accepts that, control of the military de facto dictates who controls society. Once upon a time liberals argued against such things, now they march a long with the progressives towards a positive rights theory of gov't. Structure and principle should alway trump politically expediency if you care about long term freedom. Once you justify strike down of unpopular but legal laws you pave the way for a populist to usurp the power structure of gov't and become a tyrant. At that point liberals will be glad some of us never gave up the 2nd amendment.

I will admit to you that though your post appears eloquent (I am sure it is), I didn't understand it.  A good deal over my head in terms what you see as the consequences for wanting gay men and lesbian women to have the right to marry. I don't see myself as a progresive or a liberal -- just think it's wrong that gays/lesbians can be denied the right to a legally acknowledged marriage. Please try to more simply connect the dots that lead from gay marriage rights to tyranny.
Allow me to decipher through some of Brendan's.....eloquence.

Basically he is saying that he's for DOMA because it should be a state's right to make laws about anything that isn't specifically mentioned in the Constitution. He then goes on to explain how progressive liberalism's love of big government will eventual turn this country into a tyrannical dictatorship once it controls all of society's issue because its next move will be to usurp the power over the military.

Quite honestly, in certain areas, the federal government does need to be bigger and over ride state's rights because states will create laws that are against the greater good of all Americans. Have we learned nothing about the laws states will create from slavery, civil rights, women's rights, voting laws and now same sex rights? This is a rights issue and the law will be struck down by the SC as it should.

Re: Doma
« Reply #20 on: December 10, 2012, 10:14:37 AM »

Offline Brendan

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Neurotic guy, please ignore nickagneta's explanation of what I said. He's not right about what I said and he's not right in his interpretation of what I mean.

Point 1
I'm against DOMA legislatively. To the extent it usurps state rights (I'm not a constitutional expert and haven't seen convincing evidence one way or the other) I'm in favor of the SC over turning it.

Point 2
At a policy level I'm sympathetic to the libertarian and social conservative argument for and against - but my POV is neither the fed or the states should be in the marriage business. To the extent SSM is legalized it should be done so through legislative and ballot proceses of the individual states.

Point 3
From a political structure and philosophy view: I think the "it's wrong because we say its wrong and that's a reason for the SC to overturn it" is a disaster. I was against executive abuse by the GWB WH, because I feared it would be further abused in less noble ways by subsequent administrations. Similarly I'm against that sort of reasoning to enact a policy I agree with in the SC. I think the two possible long term consequences of this kind of action are:
1. undermine the credibility of the court to the point that its ruling are ignored
2. create a political aspect to the court that leads to successful court packing schemes and the co-opting of the court by executive and legislative power

Either of these fundamentally undermines our system of checks & balances and creates an environment that is more populist and more likely to lead to tyranny.

Point 4
Conservatives and libertarians often argue for smaller gov't on principle. But they also argue for strict constructionist interpretations by the SC. (Basically this means that the SC should read the constitution as granting powers to the federal gov't as enumerated and that's it.)

One argument for overturning DOMA is that by a strict interpretation of the constitution, the federal gov't doesn't have power to make that kind of rule. (I don't know if its a good legal argument or not, IANAL.) So there is a tendency (not on this board per se, but broadly in the media/talking head class) to say: "See you conservatives are hypocrites you say you are for a small limited and constrained federal gov, but on DOMA you are fine with a big overreaching one." -- I basically agree. Much of the problems with the conservative movement has been the Republican parties expansion of gov't. It goes like this Dems want something so they give the R's something like DOMA. Then a few years later, their program is locked in, and they attack the R's for DOMA.

My point here is two fold: one if the other party is going to be unprincipled about passing unconstitutional legislation, game theory DEMANDS the other party should be as a retaliation. My problem with the Republicans is they retaliate on small ball items (like DOMA) instead of to achieve items that are principled and would provide progress on the three stools of their party: liberty, prosperity, defense.

Point 5
The whole argument I'm making in 3 & 4 is also proof of the complete lack of philosophical grounding in the liberal/progressive agenda. Thomas Jefferson would eat a bullet if he could see what the heirs to his party have become. For Jefferson you had to ground things in philosophy first: if you doubt this, read the Declaration of Independence. No need for the preamble other than to establish that some things were right. The only underpinning of the FDR Democratic party is a will to power.


Re: Doma
« Reply #21 on: December 10, 2012, 10:18:01 AM »

Offline Brendan

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Allow me to decipher through some of Brendan's.....eloquence.

Basically he is saying that he's for DOMA because it should be a state's right to make laws about anything that isn't specifically mentioned in the Constitution. He then goes on to explain how progressive liberalism's love of big government will eventual turn this country into a tyrannical dictatorship once it controls all of society's issue because its next move will be to usurp the power over the military.

Quite honestly, in certain areas, the federal government does need to be bigger and over ride state's rights because states will create laws that are against the greater good of all Americans. Have we learned nothing about the laws states will create from slavery, civil rights, women's rights, voting laws and now same sex rights? This is a rights issue and the law will be struck down by the SC as it should.
By the way you realize DOMA is not a state law? Kind of undermines your whole interpretation of what I said. Interpretations work better when you base them on what people actually said, and not on what you think they probably said because you know things.

Re: Doma
« Reply #22 on: December 10, 2012, 11:17:39 AM »

Offline foulweatherfan

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Interpretations work better when you base them on what people actually said, and not on what you think they probably said because you know things.

This is kind of ironic coming from someone who's making the argument that progressives' only rationale for overturning DOMA is "it's wrong because we say it's wrong". 

The simultaneous criticism of progressive federal expansion as only based on the will to power, and support for conservative federal expansion because game theory argues it gives them more power to enact their will, is also a nice touch. 

Re: Doma
« Reply #23 on: December 10, 2012, 11:33:25 AM »

Offline Brendan

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This is kind of ironic coming from someone who's making the argument that progressives' only rationale for overturning DOMA is "it's wrong because we say it's wrong". 
Shouldn't it either be ironic or not? I think ironic is like unique, binary state, is or isn't. I'm saying the only way you can unify the total progressive agenda including a call for an activist style Supreme Court ruling over turning of DOMA is if the philosophical underpinnings are an ends justify the means, to heck with process, rule of law, etc. This is consistent with what I'm seeing in lefty analysis and even on this board, example: "This is a rights issue and the law will be struck down by the SC as it should." That's not a valid justification for the supreme court to over turn a law in our system of gov't.

The simultaneous criticism of progressive federal expansion as only based on the will to power, and support for conservative federal expansion because game theory argues it gives them more power to enact their will, is also a nice touch.
I'm arguing that Democrats are willing to abandon the constitution to in act their progressive policy preferences (expanding federal gov't to enact a host of positive rights that enable them to balkanize the American public along single issues). Game theory demands a tit for tat approach. A nice guy approach just means you always get screwed. Republicans should strike back with laws that follow the same legislative philosophy, but enact conservative policy goals.

Likely results: progressive left challenges to new conservative laws are upheld at SC (likely with support of conservative and libertarian groups), creating precedent to over turn the progressive laws on the same ground. DOMA example would be that if the SC over turns it saying the federal gov't cannot tell states who is married or not because they haven't been granted that power leads to a challenges to a ruling on a topic we are not allowed to discuss.

I'm not arguing that its a good thing overall - but I think its necessary to play hard ball in politics.

Re: Doma
« Reply #24 on: December 10, 2012, 11:51:49 AM »

Offline nickagneta

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When a law violates the basic tenets of human and civil rights within this country by denying rights to a segment of the population that it grants to another then absolutely "This is a rights issue and the law will be struck down by the SC as it should." is a justifiable reason to strike down a law. Its simple 14th Amendment stuff.


Re: Doma
« Reply #25 on: December 10, 2012, 01:04:44 PM »

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I just want to say that I completely support the right for Rondo and Wilcox to be married legally.  After all with chemistry like that how can you argue against it?

Re: Doma
« Reply #26 on: December 10, 2012, 01:26:02 PM »

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I just want to say that I completely support the right for Rondo and Wilcox to be married legally.  After all with chemistry like that how can you argue against it?
Well, it's good that Wilcox can get some open dunks off of Rondo, because otherwise he'd be completely useless.
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Re: Doma
« Reply #27 on: December 10, 2012, 01:47:32 PM »

Offline indeedproceed

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Re: Doma
« Reply #28 on: December 10, 2012, 02:06:49 PM »

Offline Brendan

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When a law violates the basic tenets of human and civil rights within this country by denying rights to a segment of the population that it grants to another then absolutely "This is a rights issue and the law will be struck down by the SC as it should." is a justifiable reason to strike down a law. Its simple 14th Amendment stuff.
1. False. What you said, is not what 14th says.

2. Any man can marry any woman & vice versa. Even if the man and/or woman is gay. Not sure the Due Process case is so cut and dried.

3. Doma prevents the federal gov't from recognizing state marriages, so its not a straight forward rights issue with the states (states cannot abridge the imm/priv of individuals, which often incorporates positive rights from the fed to the states, but doesn't work the other way as far as I know)

Your argument might hold if it was going the other way - i.e. from a federal ssm statute to the states denying that. But IANAL and neither are you, but the fact that you don't feel any need to justify it proves my point: all that matters is you think you are right, so the SC should go that way.

Re: Doma
« Reply #29 on: December 10, 2012, 02:42:05 PM »

Offline foulweatherfan

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This is consistent with what I'm seeing in lefty analysis and even on this board, example: "This is a rights issue and the law will be struck down by the SC as it should." That's not a valid justification for the supreme court to over turn a law in our system of gov't.

First, I appreciate the more accurate characterization of progressive/liberal opposition to DOMA.  Second, IANAL (either), but I believe there's considerable legal precedent to support that civil rights violations are a valid justification to overturn a law in our system of government.  You might disagree with the validity of the precedents or whether they should apply to DOMA, but there's considerably more backing the position than "it's wrong because we say so" or "we just want as much power as possible".


I'm arguing that Democrats are willing to abandon the constitution to in act their progressive policy preferences (expanding federal gov't to enact a host of positive rights that enable them to balkanize the American public along single issues). Game theory demands a tit for tat approach. A nice guy approach just means you always get screwed. Republicans should strike back with laws that follow the same legislative philosophy, but enact conservative policy goals.

Likely results: progressive left challenges to new conservative laws are upheld at SC (likely with support of conservative and libertarian groups), creating precedent to over turn the progressive laws on the same ground. DOMA example would be that if the SC over turns it saying the federal gov't cannot tell states who is married or not because they haven't been granted that power leads to a challenges to a ruling on a topic we are not allowed to discuss.

I'm not arguing that its a good thing overall - but I think its necessary to play hard ball in politics.

If you're familiar with game theory, then you should be aware that:

- tit-for-tat is not an optimal strategy in all game theory paradigms, although it's believed to be in most of the more "famous" versions.  It also requires in-kind response to positive actions by the other party.  It's not just for competitive retaliation.

- game theory approaches tend to produce faulty conclusions when applied inconsistently or asymmetrically.  For example, in this situation, if game theory demands conservatives respond to progressive expansion of federal power by supporting expansion of their own, then it equally demands that progressives respond with support for further expansion, then conservatives respond in kind, and progressives in kind, etc. etc. 

The net result of the tit-for-tat approach over time is both conservatives and progressives continually promoting greater and greater federal authority, and only differing on where and how the expansion should occur.  This is much more in line with progressive philosophy than conservative, and that's without getting into practical considerations like conservative voters becoming much more disillusioned with their party's actions than progressives are with theirs. 

The Supreme Court could derail this process early on as you mention, but it's a lot of eggs to put in a basket that has both historically and recently shown an inclination to support expanded federal powers.  And even if these hypothetical rulings strike down these hypothetical conservative laws, they may well do so in too narrow a manner to be equally applied to progressive policies.

Unless the SC responds in a fairly specific way early in the process, it's difficult to see tit-for-tat as you're describing it as an optimal conservative strategy.  It can sound appealing in individual iterations, but from a conservative perspective, the longer this strategy is employed, the closer it seems to get to the old saying "When you wrestle with a pig, you both get covered in 'mud' (altered for CB) and only the pig likes it."

 

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