🚀 go-pugleaf

[Not particularly interested in the main topic of this thread...but I had
to respond to this point]

> >       This is bad news.
> 
> This is relative as well.  We both happen to agree that the devaluation
> of marriage is bad.  The government is *not* here to enforce morals (check
> out your copy of the constitution.  It *is* here to promote liberty.

I was looking through my Constitution, and I didn't see any clause saying
that the state or federal governments couldn't enforce morals.  In fact,
one's notion of liberty is highly morally grounded, in particular, based
on what you think the ideal place of citizen in society is.  Our modern
notion of liberty is framed negatively, it is freedom FROM various sorts
of interference, from government, from society, whatever.  The ancient
Greek republican notion of liberty was positive -- freedom TO do certain
things, to participate in political decision-making, to fight for the
polis in warfare.  All of our Constitutional notions (at least those not
bounded by narrow text) are morally founded.  What is "equal protection,"
what process are you "due," even better what is "cruel and unusual"
punishment.

I ask you to consider a debate between Lawrence Tribe and John Hart Ely. 
Ely is a fan of representation-reinforcement, in which the law works to
insure that minorities have access to change the political system (e.g.
voting rights).  Tribe, meanwhile, is the full-blown value-oriented
liberal activist.  Ely claims gays, as discrete and insular minorities
having a history of discrimination, should be accorded heightened equal
protection scrutiny on these grounds.  Tribe responds that this really is
a naked value choice, since Ely is implicitly assuming that gay status and
activities are at least morally neutral.  For example, we discriminate
heavily against criminals, yet the class of murderers are not a candidate
for heightened scrutiny because we find their actions morally
reprehensible.   Here the "neutral" efforts at procedural equality become
cover for value choices. 

The reason that I felt that I felt the above statement was worth
responding to is that it embodies a common misconception that there are
some political choices that are moral and some that are technical.  The
above writer concludes that the former are Constitutionally forbidden.  It
reminds me of a common argument for a constitutional right to abortion. 
People are pro-life because of their religious convictions, church and
state must be seperate under the First Amendment, therefore it is
illegitimate for people to vote according to religious beliefs.  Don't get
me wrong, I think there are valid Constitutional arguments over abortion
in terms of equal protection, but clearly not in the First Amend.  The
full application of this argument would be absurd.  Martin Luther King
openly appealed to Christian values to convince people that Jim Crow was
not only bad social policy, but also a moral evil.  Should civil rights
legislation be nullified on first amendment grounds.  The notion of due
process is morally grounded in a certain kind of Lockean natural law,
where you can't invade people's bodies and properties, and therefore that
goes out the window too.  Criminal sentencing makes all sorts of
distinctions between which crimes are more morally reprehensible than
others.   Especially considering that the mens rea requirements, which
could make a killing punishable between a one year suspended sentence and
execution, implies that good faith, not just good works count in terms of
culpability.  The debates between bad faith and bad works in the Model
Penal Code are the same sorts of debates that theologians have been
debating for centuries.  I suppose that goes out the window too...

Jake Minas

-- 
J.A. Minas
Columbia Law School
jam81@columbia.edu