Politics Thread


#646

But you don’t, what you’d need to get through the state legislatures of Texas and Mississippi in this case would have been a repeal of the sodomy laws, in which case the main enemy is legislative inertia and, provided it is possible in the state legislatures, getting around state senators filibustering and/or governors refusing to sign such a bill. I mean had Indiana still had a sodomy law on the books I don’t think a governor Mike Pence would have signed legislation designed to repeal it.
Absent binding state referenda on these matters it seems like you would need to line up a perfect set of dominoes in the recalcitrant states from the legislature all the way to the governor’s office.

If they were that much out of favour why not appeal to the Texas state legislature to repeal them, preferably with a re-enfranchisement clause for men who have a criminal record solely because of an old sodomy conviction? Clearly there must have been some combination of just enough legislative opposition or an unmovable governor as to make that route seem impossible. Which it still seems to be as recently as 2016
https://www.texasobserver.org/seven-anti-lgbt-laws-that-remain-on-texas-books/


To borrow the words of your current president “so sad”.
But I guess the only reason why it is not repealed more then a decade after Lawrence is exactly because some people are hoping on a repeal of Lawrence, which would make these Texas laws constitutional again.

Edit: Seems like Texas in particular is already gone far enough that the voters are little more than window dressing and you’d need the Texas equivalent of a constitutional convention as well as sweeping aside its Republican and Democratic machines to even begin to clean it up and bring it up to date for the 21st century.
https://www.texasobserver.org/in-a-system-that-encourages-corruption-prison-bound-senator-carlos-uresti-was-inevitable/

That would seem to depend on if Trump or Pence get to replace Ginsberg and/or Breyer too, as a hard-line conservative in the mold of Thomas or Gorsuch who seem to have considerably less judicial restraint would allow a conservative majority even without Chief Justice Roberts signing on.


#647

#648

And when I thought things couldn’t get any worse…


#649

Because Thomas, a conservative African American whose existence clashed with the Democratic narrative that Republicans were overwhelmingly racist, was the first highly credible Supreme Court nominee to face scorched earth tactics to block his nomination. The nastiness involved convinced many Republicans that they needed to take the gloves off and start going on the offense.

Bork it can be argued was already somewhat toxic and fatally damaged by his heavy involvement in the Watergate scandal.

Dred Scott is a good example of the dangers of judicial activism and “legislating from the bench”. In striking down congress’s Missouri Compromise by reading into the US Constitution a right to own slaves as an extension of property rights via “substantive due process” the court determined that congress could not grant citizenship to black folk nor make laws banning slavery from federal territories. The court hoped to settle the issue of slavery once and for all in the South’s favor and in a manner that would eliminate the South’s motivation to secede, They foolishly believed that the nation would calm down after they threw Dred Scott back into the jaws of slavery. Instead they ripped off the duct tape keeping the bleeding wound that was slavery from killing the Union, shattering an extremely delicate political situation, emboldening the South while infuriating popular sentiment in the North. It is no coincidence that the US Civil War started just 4 short years after Dred Scott was decided.

The Burger court’s judicial activism on abortion may not have triggered a military civil war, but it did set off a bitter cultural war, sparking a backlash and a counter-movement, as well as creating a festering wound that still hasn’t healed 45 years later, and without which Trump could never have been elected.


#650

Age: 23

Side: centrist


#651

I forgot to revisit this but @P_Tigras has set down the basics enough that unless you want to go down a rabbit hole of details, we can let everything stand as it is.


#652

I don’t mind going down that particular rabbit hole. American jurisprudence and legal theory is fascinating .

So, in essence the Republicans have just got a short memory and it was the arch-conservative/regressive Taney Court that first pioneered the approach Burger et al would later appropriate for liberal ends.

As for the current situation it does really seem like the US Constitution is in dire need of some rather big updates or an overhaul and maybe a US Second Republic. Of course as long as the wisdom of the founding fathers is held to be sacrosanct that will probably never happen
Although if Trump does lock in the judiciary for more than a generation and depending on how relatively liberal the generation change from the Boomers to the Millenials and post-Millenials is going to be it seems like the US might need a constitutional convention after all as that does seem to be the one surefire way to bypass the Senate, the Presidential veto and the Supreme Court.


#653

Dire need how? And what kind of big updates? I’m curious at to what you mean specifically.


#654

With the Supreme Court becoming more and more arch-conservative I am beginning to agree with Lessig that a new Constitutional Convention is likely going to be the only way to ever get rid of Citizen’s United and the hugely corrupting influence of big money in US Elections. Apart from that I think a national referendum in Swiss style might be nice as it would provide a way to occasionally drag along stubborn, holdout states whenever issues like the abolition of sodomy laws and gay marriage reach a critical threshold with the general voting public. With the current system and without judicial activism it would have been impossible to get some states to decriminalize sodomy, let alone legalize gay marriage, or perhaps paradoxically legalize gay marriage while still criminalizing gay sex. Much like in Switzerland national referenda can be used to occasionally drag these states into modernity as you will currently note that some US states still have not abolished their criminalization of gay sex, since they are presumably waiting for Lawrence to be overturned or nibbled at.
Since Lawrence made gay sex legal in the US only Montana and Virginia repealed theirs. Therefore absent to judicial activism both @P_Tigras and @Havenstone decry it seems very likely nothing would have ever convinced places like Texas or Mississippi to repeal, which could have led to saddling some gay guys with criminal records and all the heavy penalties that alone brings with it, such as disenfranchisement with often no way for a person with a criminal record to get the franchise back. :unamused:

This may be a chicken or the egg situation and it is arguable that law that packs the Courts would itself be subject to review by the Courts and may be prevented from taking effect until it is, which would currently mean it would go the way of the Dodo pretty fast.

We’ll probably get a preview if a less conservative government is ever allowed to come to power in Poland again. Since the current PIS government packed the Polish courts with arch-conservatives the only feasible way to get rid of them would seem to be to do a purge of the judiciary in reverse, but that pretty much ends all pretense of the separation of powers and having an independent judicial branch, yet if a future more liberal Polish government doesn’t do so it would presumably be unable to govern effectively.
In Poland it was the arch-conservative, even regressive PIS Party who started it, but unless any new government enjoys not being able to govern and want to appear pusillanimous wimps the only cure seems to be effectively ending judicial independence.

I know and for the next 80 or so years, even with the generational changes the Republicans will retain control over more than that state-wise, so if it is more liberal policy it seems to US can forget about getting the Contitution Amended. Republican stranglehold can be bypassed by having the second consitutional convention, should there ever be any ratified by state ratifying conventions.


#655

I would say that the US Supreme Court had been political from almost the beginning. Certainly the politics was shining through in Marbury v. Madison (1803) when the Federalists having been voted out of power in the Election of 1800 spent the time until their replacements took office by attempting to pack the federal courts with their supporters. Sound familiar? One of the appointments was not delivered before midnight and the Jefferson administration announced it would not deliver it regardless. By law, the case went straight to the US Supreme Court which avoided the issue of the Executive Branch probably ignoring the Judicial Branch by invalidating the law that had sent the case straight to the US Supreme Court in the first place.

There is a much easier remedy that has been threatened before but never carried through. FDR threatened court-packing when parts of the New Deal kept being ruled unconstitutional. The idea is that since the US Constitution does not specify the size of the US Supreme Court, just add more justices until the votes shift your way. Whether that would be a cure worse than the disease is an interesting question.

I would say it is more because passing an amendment to the US Constitution is very difficult since it requires getting three fourths of the states to agree.


#656

I was wondering about this. Culture movements tend to be reactionary, going back and forth like a pendulum. The US post-WW2 culture of the 1940s gave way to the counter-culture of the 1960s. It’s possible that the election of Trump has marked the end of the liberal movement. It’s hard to believe it, but millennials might just go the way of the hippie.

For the US at least, I would expect a rise of nationalism and conservatism for the next couple of decades. Especially relevant is that we’re on our way to becoming energy independent. This changes a lot of dynamics on a global scale, and I think it ultimately leads to the US pulling its military abroad and going non-interventionist.

This, plus heavier tariffs and a focus on self-sufficiency all tie into a more conservative culture. I think the chance of a second constitutional convention is non-existent.


#657

Considering US conservatism at the moment amounts to a full out war on the poor, women and gay people that would be rather bad.


#658

It’s definitely something to worry about! We’ll just have to see how it goes. If we look at more modern Christianity as some sort of gauge, I’d say gay marriage will remain while abortion will go back to state-level.


#660

It was the Democrats who supported the judicial activism in both cases.

I’m not entirely comfortable applying a modern conservative-liberal scale to the regional politics of the civil war era. Taney’s interpretation of the constitution certainly wasn’t conservative even if it can be argued that it was crafted to further conservative (from the South’s perspective) ends.

The U.S. Constitution was intentionally designed to be hard to change in order to prevent tyranny. If it’s too easy to change than it would become child’s play for a wannabe tyrant to get rid of unwanted freedoms like freedom of the press (goodbye 1st amendment) and to make himself President for life (goodbye 22nd amendment) as has happened in so many other countries…

The U.S. doesn’t really need a constitutional convention, aside from maybe w/respect to citizen’s united. In most cases all that’s required is for public support to become great enough that the needed laws get passed.

I can certainly understand the frustration of those who don’t want to wait, but forcing changes by judicial fiat before the people are ready for them can destabilize a nation and bring about a severe backlash. As the branch closest to the people, it’s usually better when the legislature makes the laws, not the judiciary.


#661

The reason very I mention national referenda on the Swiss model, is because my ancestral land too has some very conservative Cantons, yet on near universally shared positions they can be overridden by the rest of the country in a referendum. None of those have yet led to civil war, though Switzerland too is having its populist and nationalist backlash. Still the Swiss ban on some religious expression through minarets in the interest of public harmony is still a far cry from Trump.
Something like that in the United States would have allowed for some contentious issues to be settled nationally when a certain threshold is reached without allowing the most regressive parts of the population and country to hold things back nearly indefinitely. Again 12 US states still haven’t repealed their ban on gay sex in their state laws 15+ years after Lawrence.
So forget Obergefell and gay marriage if it were up to the US legislature alone gay sex still wouldn’t be universally legal on par with heterosexual sex in lots of the country and for a modern, western nation I do find that unacceptable. Particularly since simply repealing sodomy bans isn’t even about greater rights and anti-discrimination it is a basic live and let live thing about respecting your fellow citizens, even if they’re gay.

If we are talking about all kinds of beneficial regulations though, aside from “culture war” (though why abortion and gay sex are its main points I’ll never understand) issues one of the most worrying thing will be that the Roberts Court, once it is reliably conservative, will probably try to revive Lochner and really try to move back to the Gilded Age.

Particularly with a potential Lochner restoration this is the big issue and accounts for why the US government is, even compared to the EU, so unresponsive to its citizens. The money = speech fallacy needs to be dealt with and if you are going to have a second convention for that you might as well update the entire governmental structure so that it would in effect be a Second Republic. I mean it if you get a Convention going for that reason might as well make full use of it and not let a perfectly good Convention go to waste. Just as an example the rural, Christian farmer rationale from a time with fairly undeveloped infrastructure of why US election day needs to be on a Tuesday probably needs to be re-examined.

It is rather Ironic I suppose that most of your actual founding fathers seem to have thought the Constitution would have been overhauled by now.


#662

While it’s not a lunatic fringe idea, at the end of the day no one’s going to risk a constitutional convention, and I don’t think they should. When everything’s on the table, the stakes are just too high.

In a country as conservative as the US, there’s no reason to think a constitutional convention would do everything Lessig (or you or I) would like it to. For starters, it could easily lock in “money is speech,” rather than upending Citizens United. The Trumpist right would fight to get nativist and anti-immigrant provisions into the constitution, and might well succeed. We could see a low profile but devastating challenge to the equal protection language that underpins much modern civil rights legislation. On hot-button culture war issues, there would be a temptation (possibly a necessity) to avoid them entirely if it looked like they’d prevent us from getting enough delegates to approve the constitution.

And I do decry judicial activism, even though it’s had results I like and has sped up processes that would otherwise have taken longer. It’s not a sufficiently accountable power…as will perhaps become clearer to more US lefties when the power to “drag people into modernity” is held by the right. Pointing to the suffering avoided by LGBT people in Texas and Mississippi is entirely fair, but not adequate. An activist, politicized Supreme Court has already been used to create suffering, not just prevent it; and in the process, it badly damages the democratic process by which we can resolve deep disagreements without violence. Dred Scott accelerated the US Civil War, and I fear that we’ll look back on the Court cases of this era in a similar light.

Edit: Even for folks who don’t share my worry about damage to democracy through an unaccountable judiciary, the fact remains that if our strategy is to win big at federal level rather than through state-by-state battles, or to win through the generation-long means of a Supreme Court decision rather than the theoretically reversible decisions of elected lawmakers, we’ll periodically lose big at the federal, generational level too. Like we are now…hopefully not in a way that will affect sodomy laws/gay marriage (besides locking in conscience exceptions for various religious businesses) but on dozens of other important issues. Keeping more issues at the legislative level reduces the devastating losses as well as the big wins.


#663

Dread Scott’s judicial activism was of a different era and one that involved factors that are different then the activism of the mid-20th century, the late 20th century and the early 21st century.

There is no comparison that can do justice to the reality without hundreds of pages of discussion and comparison.

I am purposefully taking my time before responding to many things here because the last time I tried to explain some of the differences of a misunderstood topic, it seemed I offended a friend (suffragettes not being temperance supporters per se)

The Dread Scott case ushered in a hot civil war. I seriously doubt, even if the new court overturns 60 years of precedents and judicial law, we will be involved in a hot civil war.


#664

I hope and expect that you’re right. In many ways we came closer in the 1960s than we have now. But the degree of tribal polarization in the States right now is deeply alarming, and the violent breakdown of democracy one conceivable outcome.


#665

The violence associated with Harper’s Ferry and Bloody Kansas was not the same thing as an outright civil war. The strife, violence and tragedy all were as real, especially to those participating in such things but there was a difference with regards to the Rule of Law.

Ruby Ridge, Waco and terrorist bombings of federal buildings may be like Harper’s Ferry in many respects and in the future we may have a Bloody Colorado where things heat up to an extreme but I do not see an actual hot civil war breaking out, at least within my lifetime.


#666

Admittedly being gay was perhaps my most pressing reason (though of course the green and socialist parts have always been present too, yet on their own they would probably not have been enough to overcome those familial and environmental barriers) to ever become involved in politics as I come from a mostly non-political family and environment and I live in a country where gay sex has been (de-jure, less so de-facto in many places outside of Amsterdam, the Hague and Utrecht) legal for 200 years and same-sex marriage has been legal since 2002. Though of course I am not all that happy about the compromises that were made even over here to get there as it does shackle us to the institution of marriage, which in turn has some religious connotations that are very inimical to gay people. It was also a rank betrayal of our more polygamous allies.

Still I am unsure if change would have ever come to places like Texas and Mississippi or internationally recognized gay marriage to the US without the judicial strategy your reformers followed. It is also worth noting that people in other countries with a somewhat dysfunctional at best democratic system like India are turning to the judicial route too, if only because waiting for the post-millenials to help out would mean most of us would be on the little blue pill, or well past it, by the time they finally bring change.

Again, not in Texas
Quote is the operative part of this piece in the Texas Tribune.

"Two taxpayers went to court in 2013 to keep the state’s biggest city from awarding spousal benefits to the same-sex partners of government employees. That case started before same-sex marriage was legalized, but it’s still being fought after the Obergefell ruling.

Jonathan Saenz, president of the conservative nonprofit Texas Values and an attorney for the taxpayers, said the lawsuit aims to hold the city of Houston accountable for unlawfully providing spousal benefits — which he said is still illegal under state law.

Though gay couples can now legally marry, the plaintiffs claim, they don’t have all the same rights as straight couples."

In Texas and Mississippi, unlike India as a whole not even waiting for the post-millenials to take the majority of political offices would likely change anything substantial related to gay rights. Currently those two states are very much engaged in turning the gay marriage rights granted by Obergefell into little more then the rights to get the license and the ceremony, while stripping gay marriage of all the legal benefits traditional marriages enjoy.

Then again no sodomy laws and repeal of them where they exist is an absolute political red-line for me that I refuse to compromise on.