1/20/2004
DID I HEAR THAT RIGHT?
Did Bush actually tell judges not to subvert the will of the people?
Some would say he might not be making the State of the Union address tonight had they not done exactly that . . .
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The whole SOTU speech was weak, weak, weak. Even I was impressed at how lukewarm the thing was. GWB missed his chance to make an impact in his last big speech before the Convention. Now, all the attention will be on the Democratic candidates.
I know this is entirely unrelated, but MT-style comments (sans HTML) are working at my site. Stop by any time you want to start another philosophical debate or somesuch.
Comment by Dave — 1/21/2004 @ 1:09 am
Indeed. W’s bounce didn’t even last until the end of the evening.
I’ll be sure to pick a knife fightERRstart a debate with you again, Dave. The last one warmed my philosophy-major heart.
Comment by Mark Hasty — 1/21/2004 @ 11:43 am
Nice snark, there RE:judicial legislation Mark (I smiled, really), but the Prez does raise an interesting and thorny issue.
The argument is when and if courts make new law. There is a difference when a court interprets an existing and well-established right in some potentially controversial way; ex. flag-burning. Although divisive in itself, the decision rested on a firmly established idea: that of free speech.
The Prez was, I believe, making an allusion to gay marriage here (and let me go on record as saying I fully support the right of gay people to get married). Marriage laws have been left to the states, but its a not unreasonable question to ask to what degree a state court can order the state legislature to do something, as in Massachusetts.
Comment by Jim Roberts-Miller — 1/21/2004 @ 12:28 pm
The problem, Jammer, is that it’s a generally-accepted principle of law that a marriage in one state is valid in all states. There was a flap a few months ago about an Iowa judge granting dissolution of a domestic partnership that was solemnized in Vermont; many of the state’s “pro-family” advocates wanted the dissolution rescinded because, in a sense, the dissolution lended legal credence to the partnership. The activists feared that this could–could–be used to force the state of Iowa to recognize and even grant such partnerships.
Of course, one of my more legally-minded readers may correct me if I’m wrong. It’s been a while since my undergrad civil liberties class.
Comment by Mark Hasty — 1/21/2004 @ 12:47 pm
What you’re talking about there is called the full faith and credit clause (Article 4, Sec 1 of the Constitution). Folks have generally felt that this applies to marriage which is after all a sort of contract as far as the state is concerned.
Now, for my money, this is relevant to the judical legislation argument only in this way: Can the courts of state A create a binding situtaion for state B in an area where states have traditionally been allowed to run things their own way?
Lets put it this way: In 1850, to what extent is a Free state bound to respect the property rights of someone from a slave state? Can he pass through with his slave? Visit for a week? A month? At what point do the free state’s laws against slavery trump the slaveowners property rights as defined in the slave state?
Myself, I’d say that however much we disliked slavery, the slaveowner must be permitted to pass through the state with his “property” intact, or even visit briefly. But if he were to attempt to set up residency in the free state, then the laws against slavery there would then take hold.
Comment by Jim Roberts-Miller — 1/21/2004 @ 1:30 pm
If the slave got sick during a visit, who should have the right to make health care decisions?
That is a huge sticky wicket in any scenario in which individual states are allowed to choose if they will or will not recognize gay marriages.
Comment by Mark Hasty — 1/21/2004 @ 5:21 pm
Under my scenario, the marriage would be recognized for brief visits (for some undetermined value of brief), and thus a gay spouse would indeed have the right to make health care decisions.
Its only if they attempted to set up residency that things would get sticky. Its far worse than raising the drinking age on people who were leagl for a year or more.
Comment by Jim Roberts-Miller — 1/22/2004 @ 9:19 am