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If it's an unconstitutional law, then no, I don't particularly support the government enforcing that, and I think the executive should be smart enough to declin

by geofft 6y ago

If it's an unconstitutional law, then no, I don't particularly support the government enforcing that, and I think the executive should be smart enough to decline to defend unconstitutional laws so the courts can overturn them more quickly - see e.g. https://www.justice.gov/opa/pr/statement-attorney-general-litigation-involving-defense-marriage-act https://www.justice.gov/opa/pr/statement-attorney-general-li... about DOMA section 3 in particular. (That said, as it happens, I am supportive of the end result of Hodges trying to defend his state's law all the way to the Supreme Court, because it caused all such laws nationwide, including all of DOMA, to be declared unconstitutional.) If it's an "immoral" but constitutional law, then I'm in a harder place. As a leftist Christian I'm pretty aware that my personal views on morality are not particularly widely shared by my fellow citizens (even though I happen to agree about DOMA being immoral), and part of the deal of living in a constitutional democracy (as opposed to an absolute monarchy or a theocracy) is that I don't get to impose the entirety of my morality on others and they don't get to impose theirs on me. And that's a great deal for me, knowing just how many Christians think merely being left-leaning is immoral and just how many left-leaning folks think merely being Christian is immoral. Our society has decided to enshrine a subset of widely-agreed morality into the Constitution - that certain laws are so unjust that they may not be made - and then we agree that the rest of it is up to the mechanisms of democracy. So if it's constitutional, I'll certainly do my best to argue that the law should be repealed, through the legislative process, and I'll try to convince others to convince their representatives in turn to repeal the law. But if it's constitutional, and it's popular - what exactly should I advocate when I say the government shouldn't enforce it? Should I say that the government should spontaneously decide not to enforce this one law? Besides the obvious problem of it remaining on the books unchallenged, which would have made the process of overturning it even longer, it seems directly contrary to the rule of law to support laws going unenforced because of one person's view of morality. What happens when someone convinces the SEC it's immoral to go after ICOs because the growth of cryptocurrency is important to humanity, or whatever? What happens when someone convinces the IRS it's immoral to enforce tax laws against business owners, based on the morality described in Atlas Shrugged? Were I to support the principle of not enforcing laws that someone calls immoral, I suspect it would not actually achieve my political goals. Should I say that the government should get out of the business of enforcing all laws about a certain subject? That also would go poorly - in the case of DOMA, I'd be saying that the government should not regulate marriage at all and should refrain from enforcing laws that ban child marriages, non-consensual marriages of adults, polygamy, immigration fraud, and so forth. I won't say that. Should I say that the Constitution should be amended to enshrine my view of morality? Sure, but I think that's an extremely arduous process, and I think it's great that it requires so much of the country to agree on it, because, again, I don't want to be subject to other people's view of morality. I'll happily try to convince enough people that we should amend the Constitution, but it's easier - by design - to convince enough people that we should just repeal the law.

refurb 6y ago
How do you know if it’s unconstitutional until the court rules on it?
- jeltz 6y ago
  Which is exactly why the poster you just replied to was a strong supporter of trying cases in court. I do not get your argument.
- geofft 6y ago
  A lot more easily than you can know if something's immoral until you get to the world to come and ask God directly, that's for sure. :) But what do you think lawyers arguing cases before the courts do? They don't simply say "Please, O smart judge, tell me if this is constitutional." They come up with their own argument for or against it, as strong as they can make it, and they try to persuade the court. You can do that same analysis and just not argue before any court. The DOJ memo I linked has them doing exactly that: the president (who was a trained lawyer) concluded that DOMA was unconstitutional and told the DOJ, and the lawyers there looked at it and agreed. There's an interesting distinction made there between "professionally responsible" arguments and "reasonable" ones.
  - refurb 6y ago
    Sure. But no doubt the courts and your opinion don’t always align? Before it ever gets to court, how would you know a law is unconstitutional? Or are you willing to make that call yourself? If you’re willing to make that call yourself, what happens when the courts disagree? Do you then change your mind? Or do you continue to hold your belief? I’m trying to understand how your approach works in the real world.
    - geofft 6y ago
      Yes, I expect that my opinion won't always line up with what the courts decide. I think that's part of the deal in living under a form of government where we have courts and we make it the courts' job to decide such things. Or in other words, my support of the constitutional system of government is not a confidence in my interpretation of the Constitution, it's a confidence in the system established by that Constitution reaching good results. Frankly, I don't often have a strong opinion on whether something is constitutional or not, because I'm not a constitutional law scholar, and both the judges and the lawyers are more qualified than I am. If you asked me in 2015 whether Obergefell had a constitutional right to get married, I probably would have looked at the circuit split and shrugged. Who am I to have the right answer when a bunch of experts can't agree? You may as well ask a Supreme Court justice to code-review a kernel patch I wrote - on what basis should they have an opinion on it? But there are rare times when an obviously unconstitutional law gets passed. I did believe that the "heartbeat bills" that were recently proposed and passed were unconstitutional, because of Roe v. Wade, and it seems like the courts have generally reached that conclusion too. Those are great examples of laws where I'd be supportive of the state attorneys not wasting resources on defending them, because I think it would pretty clearly be a waste. (But if the courts were to say there's some reason that these laws don't run afoul of Roe, then I would suspect they understand the Constitution better than I do and I would try to understand their reasoning. That likely wouldn't change my mind on whether the law is moral, but I would feel like I should hear them out on whether it's constitutional.) Sometimes I continue to believe that the courts made a mistake, but I understand that my opinion isn't the one that counts, the courts' opinion is, unless I can change who's on the courts (by voting for them or for the people who appoint them, or by supporting those election campaigns). If it ever happens that I see something where it seems like the courts are so obviously wrong about some law's constitutionality, to the point where I can no longer trust the courts to enact justice in their conclusions about anything, then I would be obligated to oppose the whole system of government. But that's a very high bar. Even after Dred Scott v. Sandford, the primary conclusion in terms of the constitutional merits of the decision (as opposed to the moral merits) seems to have been that the Constitution needed amending, not to that the system reached the wrong conclusion with the Constitution as it existed. (To be clear, there is an argument that Dred Scott was wrong given the Constitution at the time for trying to interpret Sanford's right to property in the way it did. That argument was used by Scalia to dissent in Planned Parenthood v. Casey and by Roberts to dissent in Obergefell v. Hodges. If my goal is morally-good decisions aligned with my morality, it would be counterproductive to agree with Scalia and Roberts' argument that Dred Scott was bad because it was invalid.) So far, I have not seen anything from our present government - not DOMA, not asset forfeiture, not the immoral restrictions on medical care that certain states are passing lately, not the deaths of innocents both by domestic police and overseas soldiers, not our treatment of people trying to cross the border, much as I hate all of those things - that is bad enough to compel me to question the whole system of government. Every year I decide to pay my taxes (or, more practically, to keep my high-paying tech job that results in more tax revenue from me than the government spends on me), I decide I don't have a moral objection to the system of government, and I can satisfy my moral obligations by using the levers that system gives me as a voter.

by geofft 6y ago

refurb 6y ago

How do you know if it’s unconstitutional until the court rules on it?

jeltz 6y ago
Which is exactly why the poster you just replied to was a strong supporter of trying cases in court. I do not get your argument.
geofft 6y ago
A lot more easily than you can know if something's immoral until you get to the world to come and ask God directly, that's for sure. :) But what do you think lawyers arguing cases before the courts do? They don't simply say "Please, O smart judge, tell me if this is constitutional." They come up with their own argument for or against it, as strong as they can make it, and they try to persuade the court. You can do that same analysis and just not argue before any court. The DOJ memo I linked has them doing exactly that: the president (who was a trained lawyer) concluded that DOMA was unconstitutional and told the DOJ, and the lawyers there looked at it and agreed. There's an interesting distinction made there between "professionally responsible" arguments and "reasonable" ones.
- refurb 6y ago
  Sure. But no doubt the courts and your opinion don’t always align? Before it ever gets to court, how would you know a law is unconstitutional? Or are you willing to make that call yourself? If you’re willing to make that call yourself, what happens when the courts disagree? Do you then change your mind? Or do you continue to hold your belief? I’m trying to understand how your approach works in the real world.
  - geofft 6y ago
    Yes, I expect that my opinion won't always line up with what the courts decide. I think that's part of the deal in living under a form of government where we have courts and we make it the courts' job to decide such things. Or in other words, my support of the constitutional system of government is not a confidence in my interpretation of the Constitution, it's a confidence in the system established by that Constitution reaching good results. Frankly, I don't often have a strong opinion on whether something is constitutional or not, because I'm not a constitutional law scholar, and both the judges and the lawyers are more qualified than I am. If you asked me in 2015 whether Obergefell had a constitutional right to get married, I probably would have looked at the circuit split and shrugged. Who am I to have the right answer when a bunch of experts can't agree? You may as well ask a Supreme Court justice to code-review a kernel patch I wrote - on what basis should they have an opinion on it? But there are rare times when an obviously unconstitutional law gets passed. I did believe that the "heartbeat bills" that were recently proposed and passed were unconstitutional, because of Roe v. Wade, and it seems like the courts have generally reached that conclusion too. Those are great examples of laws where I'd be supportive of the state attorneys not wasting resources on defending them, because I think it would pretty clearly be a waste. (But if the courts were to say there's some reason that these laws don't run afoul of Roe, then I would suspect they understand the Constitution better than I do and I would try to understand their reasoning. That likely wouldn't change my mind on whether the law is moral, but I would feel like I should hear them out on whether it's constitutional.) Sometimes I continue to believe that the courts made a mistake, but I understand that my opinion isn't the one that counts, the courts' opinion is, unless I can change who's on the courts (by voting for them or for the people who appoint them, or by supporting those election campaigns). If it ever happens that I see something where it seems like the courts are so obviously wrong about some law's constitutionality, to the point where I can no longer trust the courts to enact justice in their conclusions about anything, then I would be obligated to oppose the whole system of government. But that's a very high bar. Even after Dred Scott v. Sandford, the primary conclusion in terms of the constitutional merits of the decision (as opposed to the moral merits) seems to have been that the Constitution needed amending, not to that the system reached the wrong conclusion with the Constitution as it existed. (To be clear, there is an argument that Dred Scott was wrong given the Constitution at the time for trying to interpret Sanford's right to property in the way it did. That argument was used by Scalia to dissent in Planned Parenthood v. Casey and by Roberts to dissent in Obergefell v. Hodges. If my goal is morally-good decisions aligned with my morality, it would be counterproductive to agree with Scalia and Roberts' argument that Dred Scott was bad because it was invalid.) So far, I have not seen anything from our present government - not DOMA, not asset forfeiture, not the immoral restrictions on medical care that certain states are passing lately, not the deaths of innocents both by domestic police and overseas soldiers, not our treatment of people trying to cross the border, much as I hate all of those things - that is bad enough to compel me to question the whole system of government. Every year I decide to pay my taxes (or, more practically, to keep my high-paying tech job that results in more tax revenue from me than the government spends on me), I decide I don't have a moral objection to the system of government, and I can satisfy my moral obligations by using the levers that system gives me as a voter.