Redstate

Morals is a job for parents. Then the church.

But with respect to Lawrence, what business is it of SCOTUS to tell the states they can't legislate against sodomy? Why shouldn't they be able to do it?

There is no compelling federal issue that allows them to strike down state law.
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CongressCritter™: Never have so few felt like they were owed so much by so many for so little.

O'Connor gave a rationale for this opinion that seprates it from Roe and other 14th amendmant based opinions. I think she is right that under Equal Protection one cannot right a law agaisnt sodomy that is restricted to sodomy between men - on that basis this law did violate constitutional principles and could be struck down.

Justice O'Connor did try an equal protection argument in Lawrence -- but that equal protection angle has also been trotted out in the context of abortion rights. That is not an argument that works any better for a self-proclaimed social conservative. Again, for social liberals or libertarians, this can be a consistent position. (Although I still would suggest it is in error.) For a social conservative, it is not a consistent position.

Of legislating SSM from the bench, by the way. Even if this is what he was going for, it is still grossly inconsistent with his SoCon cred.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

Impossible. It hardly seems necessary to legislate when nature already has physical laws in place.
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"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777

...but the definition from the Texas statute actually would make that combination possible.

There's no way an original understanding of the 14th Amendment meant to make homosexual behavior a protected category.

They that are with us are more than they that are against us.

I admit defeat on this one. But I think there should be such a law, but there isn't. :o(
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American First, Conservative Second, Republican Third

Because it goes against the right to pursuit happyness.

If taking it in the butt makes some man happy, who are you to tell him he can't do it - so long as he isn't hurting anyone in the process?

I am a social conservative myself, but unlike some I believe in freedom. Apparently Huck does too. For him to agree with this decision was a very conservative thing to say.

The Constitution created a Federal government that was limited to the powers specifically enumerated to it by the Constitution itself. All powers not specifically given to the Federal government by the Consitution is reserved to the states.

What does that mean?

That means certain 'subject matters' like the definition of permissible and impermissible sexual activities are reserved for states to decide, not the federal government. That's why Lawrence and Roe are HORRIBLE decisions. In those cases, the federal government (SCOTUS) decided what the law should be in 'subject matters' that the Constitution didn't specifically give the Federal government the power to legislate in.

That's why Huckabee has no idea what he's talking about when he says Roe wasn't decided well, but Lawrence was decided well.

If Huckabee is the candidate for gay rights social conservatives, so be it, although I have a hard time seeing what exactly that group is or how large it would be. But you will face some significant problems if you want to attack Roe v. Wade. Once you decide the Court can create rights out of whole cloth, you cannot complain about Roe being illegitimate, you can only regret that the imperial judiciary has not chosen to agree with you.

Nothing in the Constitution authorizes the Supreme Court to strike down laws whenever it feels they violate "the right to pursuit happyness."

If you are for some reason thinking that the Declaration of Independence is part of the Constitution (it isn't), there's zero reason to believe that the "pursuit of happiness" mentioned in the Declaration was a right to indulge one's preference in sexual behavior.

They that are with us are more than they that are against us.

Didn't we go through this with Shay's Rebellion, state legislatures run amok during the Articles of Confederation, the Civil War, Jim Crow, etc?

State legislatures do not have the right to take away inalienable rights of the minority just because they don't agree with the minority.

As a hypothetical, what if a state in the US had a majority of homosexuals, and they wanted to ban hetereosexual sex? Would that be fair to hetereosexuals? Should that law be struck down based on basic rights secured at the federal level for all citizens?

I thought the working principle was that states have a right to legislate, but not an absolute right. States can't break the contract of the Constitution just because they don't agree with something. States can't legislate black people out of equal access so long as that access doesn't rob other people of their access/rights.

I think the Court was establishing (rightly) that there must be some precedent for a legal threshold for state legislation. A state can't take away rights given at the federal level without a very good reason.

In this case, just not condoning someone's homosexuality is not a good enough reason to ban consenting constitutionally protected Americans from their right to free association in their own homes. We have that threshold on search and seizure as well. You have to have probable cause to go into someone's home to search.

Much in the same way a state needs probable cause to ban consenting adults from private sexual acts.

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I am a Positivist Pastafarian for the alliteration alone.

Are there limits on what the states can do? Sure, but as you implicitly acknowledge, they are in the contract -- the social contract, i.e., the Constitution itself. Now, I have to suggest a more careful reading of it.

There is no general grant of inalieable rights; otherwise rights created from whole cloth could be used to deprive citizens of the rights of self-governance. There is no right of privacy; there is no right to be left alone; and the Lawrence case involved no "rights given at the federal level". Furthermore, the rights of speech and assembly which protect political and social association do not turn into a constitutional right to engage in consensual sexual activity.

The libertarian position is a viable position, but it is not enshrined by the Constitution. You have to fight it out at the ballot box just like the rest of us.

That is to say if we all agree with you on how to read the Constitution itself.

There are a lot of things that aren't in the Constitution that we uphold. Just like any other document you have to take into account the time it was written compared to the present, the necessities of the present (pragmatism), the effectiveness of a strict interpretation, etc.

You are absolutely correct and undefeated if we all live in the dream world where only a strict interpretation is valid. We don't live in that world though. It would be like me arguing against the Flying Spaghetti Monster and then claiming victory over the Christian God.

I don't dispute your argument on the merits. I dispute it as a working way the Courts look at law. I dispute that your way of reading the document is practical or workable in our society.

So, I don't mean to insult or question your intelligence. It is clear you are very smart. I just think you are impractical and your constitutional view is impossibly idealistic.

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I am a Positivist Pastafarian for the alliteration alone.

...to Scalia or Thomas? Because it is their philosophy you are calling impractical and impossibly idealistic. Hey, if you want to live in an oligarchy though, more power to you.

I am a legal realist and pragmatist. I do think Scalia and Thomas are impractical if they believe we can't find things in documents based on interpretation, timeframe, societal needs, practicality, etc.

Holmes created the "clear and present danger" threshold. Is that wrong because it isn't in the original document? '

How many things have people found in the Bible even though the words never appear? We have a whole theology based on The Rapture in America and the word rapture never appears.

It gets a little silly, IMO to say that the word privacy, for example, has to appear in the Constitution for us to have a right to it.

It also gets silly, IMO, to think we have to go down with the ship rather than be practical and use the Constitution as a guide rather than use it as a albatross.

I think there are definitely things implied or can be built upon the foundation of the Constitution. If I have the right to free speech, religion, and petition of my government what does that imply? I can say what I want so long as it doesn't strip the rights of others. I can practice my CHOICE of religion or no religion without cost. Now that is key. I can say what I want and believe what I want without penalty. Does that not imply that I can do what I want so long as it doesn't strip rights from other people? I don't know how that doesn't follow.

If there is a logical progression I say we follow it even if it isn't written in the document. I can believe what I want and say what I want based on the Constitution. How can we then say that it isn't Constitutional to have sex with another consenting adult no matter what gender?

That is just my view. I fully understand that Thomas and Scalia are brilliant and their view and those of the diarists are very intelligent and well thought out. I just happen to think they are impractial and idealistic. That is my concern with them. Not their intelligence. Or your intelligence.

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I am a Positivist Pastafarian for the alliteration alone.

I don't see a textual approach to Constitutional Law as impractical. For most of our history, the Court consisted entirely of textualists. Right now, we have four justices who are textualists. And many of the others are pretty darn old. The opportunity to restore constitutional supremacy is here and now. The 2008 election is critical to the next thirty years of constitutional interpretation.

It could be argued I suppose. Holmes was not a textualist. Neither was the court of the 60s-70s.

I would argue the courts arguing Plessy and Dred Scott are not textualists.

Even Marbury v. Madison could be seen as a non-textualist decision and I think some said it wasn't.

The Court, IMO, is designed to be a check on the other branches and with the growth of the other branches the Court had to grow to maintain a viable check. It is just that simple. The Executive power expansion and the legislative power expansion we've seen requires a Judiciary that is powerful enough to check them just as it was designed.

The tyranny of the majority via legislature or the tyranny of the executive is just as dangerous as the tyranny of the court.

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I am a Positivist Pastafarian for the alliteration alone.

You found a couple of the time periods that are the exceptions. And crafting a standard that applies the language of the text is not a non-textual approach. Crafting a rule without any text is.

Look, I understand libertarians often want the imperial court because you cannot get your way at the ballot box. Sorry. I am not willing to bow to your supposedly superior wisdom. Democracy is the worst form of government, except for all of the others that have been tried. Convince the rest of us that your policy preferences make sense.

There are a lot of time periods where textualists didn't prevail on decisions.

I think the law is a tool. So long as it is practical and works we use it. I would like to protect the rights of minority lifestyles to ensure my protection in case I ever all into the minority.

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I am a Positivist Pastafarian for the alliteration alone.

That's fine. You want nine judges to protect you from democracy, even at the cost of democracy. I don't. The price is too steep.

As long as we have dropped the pretense that your position follows the Constitution, I am fine. Our positions are irreconcilble.

As to your list: Dred Scott, Plessy, and Roe are already in the list of three time periods I indentified when the Court drifted from the text. (Plessy is a contemporary of Lochner.)

The other cases are faithful to the text.

That just goes to show the oddness of your position.

How is Brown different than the striking down of anti-sodomy laws?

The states provided seperate institutions for African Americans. It was law voted for and supported by majorities in the south. How is that wrong? The wonderful voters picked out those guidelines. If people don't want to live under that then they can move. I don't think the Constitution says you have to have integrated schools. Integration isn't even in the Constitution. That is a state's right issue.

Marbury introduced judicial review...where was that in the Constitution? They picked that one out of thin air.

Bush/Gore? What happened to states having their own electoral process. Where does it say the federal court can halt a recount? Is that in the Constitution?

My point here is not that any of these decisions are wrongly decided, but that they aren't textualist positions. Even Scalia and Thomas said the Bush/Gore position was isolated because they were fearful of this federal court expansion of power being extended past the one case.

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I am a Positivist Pastafarian for the alliteration alone.

In Marbury, Chief Justice Marshall spells out four reasons why judicial review exists. Furthermore, the Court had already asserted that it had the power, it just had not exercised it -- Calder v. Bull (1796).

Brwon is different because there is this thing called the Equal Protection Clause. Interesting piece of work -- actually in the Constitution!

Your position is silly. Of course, the Constitution does not mention recounts. Do not create a caricature of the textualist position and then attack your own straw man. Bush v. Gore was decided under the Equal Protection Clause -- also in the text.

How is Plessy a contemporary Lochner? Lochner was 30 years after Plessy, and a fine example of judicial activism if there ever was one.

Honestly I would like to know when this supposed of textual interpretation occured. I would especially like to know when it was after the 14th.

There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy

Plessy (1896). Lochner (1905). They are contemporary cases. Largely the same membership on the Court. And th epoint was that both cases reflected a time period when the Court was not faithful to the text.

Actually, the constitution itslef does acknowleged that not all rights contained within the social contract are enumerated in teh constitution - and your reasoning was the main argumetn agaisnt adding the Bill of Rights at all; fear that people may think that it excluded all that was not included.

Now, Equal Protection under the law was enshrined in the constituion in the 14th amendmant, and while it may not have inteded to apply to Homosexuals as a group it clearly applies to males and females as a group - and the law in question in Lawerence distinguishes treatment of the same physical act (not some broad 'love making' or 'sex' but specific physical acts) when only males are involved from when females are involved.

I have already addressed the Ninth Amendment. It is an anti-preemption device.

The Texas law in Lawrence did not distinguish between males and females. Sorry. Reading makes it easier to comment intelligently.

The Texas statute absolutely distinguishes between males and females performing the same act- if enganging in a sodomous exercise is okay if a female is recieivng but not when a male is reciveing they are being treated differntly. Sometimes, comprehension goes beyond just reading.

The policy we espouse on consenting sodomy is not the issue. The issue is where in the constitution does it say anything about a right to engage in sodomy. The same place it says there is a right to an abortion - nowhere. It's not there. Huck's agreement with the Lawrence decision and his opposition to Roe shows that he suffers from bi-polar disorder when it comes to interpreting the constitution.

does it say you can't engage in sodomy? Right there next to the part about abortion.

Bottom line, it's a state issue not a federal issue.
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CongressCritter™: Never have so few felt like they were owed so much by so many for so little.

as per the sections where the Founders set up Congress.

They that are with us are more than they that are against us.

You didn't even bother citing Justice Thomas, but you tried a variant on that argument anyway. Maybe states shouldn't have this kind of legislation. But, the question here is whether the Supreme Court can legitimately impose that view onto the rest of the nation. As a libertarian/conservative you may believe that it can and should. As a constitutional textualist, I suggest you achieve your goals at the ballot box, not through an imperial judiciary.

I have to admit defeat on this one. Okay, there should be, but there is not. I stand corrected.
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American First, Conservative Second, Republican Third

Okay, there should be, but there is not.

Do you really want a right to privacy to be written into the constitution? I guess it beats pretending it is there when it isn't, but I wouldn't support it.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

Kripto -- I am not wanting to be too harsh. Your position that the law is unwise is a respectable position. The problem is of course trying to justify that as judicial policy and trying to reconcile it with the social conservative position (which I recognize is not yours).

Of course, all the Governor Huckabee supporters -- who really need this assignment -- are still markedly absent from the discussion.

can be reconciled within the text of the US Constitution.

Penumbras, formed by emanations, were cited in order to hide the fact that a majority of the Court willfully manufactured rulings from whole-cloth which satisfied their personal policy preferences.

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“Well, the trouble with our liberal friends is not that they are ignorant, but that they know so much that isn't so.” – Ronald Reagan

Oliver Wendell Holmes and Richard Posner are two of my favorites.

I suggest we don't worship documents to our own detriment.
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I am a Positivist Pastafarian for the alliteration alone.

Better to adhere to the document than to surrender my sovereignty to a panel of judges. I'll take my chances with my fellow citizens. I have a chance to persuade them. Just protect me from benevolent dictators, even if they travel in packs of nine.

We've been through this again and again in our history. That is the joy of having checks and balances. The courts have been wrong. So have the legislatures. Look at Rhode Island legislatures during the Articles. They were passing legislation that destroyed their currency and economy just becaue the majority were in debt and wanted to pay back debts without interest or concern for the value of money. But the glorious people voted to destroy themselves.

If that isn't the best example of tyranny of the majority look at the Jim Crow laws that stripped African Americans of their rights in the South because they didn't have the votes. It was a majority of great voters that did that. It was a popular set of laws. It was still in desperate need of a check.

If you read things like The Federalist 10, I think it is hard to see great faith in the voters. Otherwise we wouldn't need checks to the legislature. The Articles of Confederation proved the legislatures and majority can't always be trusted.

Benevolent dictators of nine or nine million are still dictators.

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I am a Positivist Pastafarian for the alliteration alone.

Tyranny is bad. And the framers set out rules to prevent it. But in many instances tyranny is in the eye of the beholder. Is it tyranny to protect unborn children or to reserve the rights of marriage to a man and a woman?

The framers did not set up the Supreme Court as the ultimate tyrants to root out tyranny. They prohibited the majoritarian tyrannies with which they were familiar -- ex post facto laws, bills of attainder, etc., and they gave us the tools to add to the list by Constitutional amendment.

If we cannot figure out how to protect ourselves, they would certainly say it is our own darn fault. Or maybe they would simply acknowldedge that the people are not ready to declare that practice or policy tyranny. And if we are so afraid of ourselves that we hand over our power of self-governance to a panel of judges, well that would be a sign that we did not appreciate or understand the sacrifices of our forebears.

I'd rather be governed by the majority than be elite lawyers. Democracy ain't great, but it beats judicial oligarchy like a red-headed stepchild.

You're being short-sighted, you know. You think having a tyranny is great because till now they've sided with your pro-abortion, pro-promiscuity, pro-pornography type positions. But there's no particular reason that has to be the case. If the country comes round to your point of view that doing politics through the Supreme Court is legitimate, we could well end up with a reverse Roe v. Wade making abortion a crime everywhere. My judicial philosophy says that's wrong.

They that are with us are more than they that are against us.

I don't see how anybody reading the plain text of the Constitution plus amendments in place by 1890 could think that the text justified the ruling in Plessy v Ferguson. So if you get judges who ignore the plain text, who knows what "rights" will be created ... or destroyed.

I have already identified Plessy as one of the cases coming from a time period when the Court ignored the text. That the Court sometimes has failed to follow the text (although it is still the historical exception not the rule) is not an excuse to give up on democracy and turn everything over to the Court.

The Constitution does not enact your views, as far as the states are concerned.

They that are with us are more than they that are against us.

This isn't about whether we should have such laws. The question is whether there is any constitutional basis - that is, any basis conservatives would accept - for striking down such laws as unconstitutional.

"There isn't a man alive who hasn't wanted to boot an infant." - W.C. Fields

I get the point of this exercise but I am also curious why this is still considered a defining issue for social conservatives and why Huckabee should be judged on his credentials as a true social conservative based on his agreement that the SC properly lifted the ban on sodomy between consenting adults.

The issue here is BJ's understanding of the constitution and how that might translatr into judicial nominees.
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CongressCritter™: Never have so few felt like they were owed so much by so many for so little.

I haven't been a fan of Huck but I can certainly now see his appeal. Whereas another politician might have only stated his personal opinion, Huckabee took the time to give a deeply considered judgement on the constitutionality of sexual privacy.

Even if he was dead wrong from a socially conservative perspective, I certainly have to admire his thoroughness.

My guy is McCain but I don't think that he could stand up to this challenge of addressing Constitutional fundamentals every time he's opened his mouth. I guess I need to look for someone who has never spoken 'off the cuff'.

That's what Supreme Court decisions kind of revolve around... if you say something was "probably correctly decided" by the court, you are making a judgment about its constitutionality.

Unless your argument is that he doesn't understand the function of the Supreme Court and is always getting it confused with the Texas legislature, you don't have one.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

The candidate who uses the word 'SODOMY' least during this campaign wins.

Huck, NOT MY CANDIDATE BY A LONG SHOT, is so darned appealing because he both socially regressive but really, really kind about it.

He has made it clear that he doesn't approve of homosexuality.
I personally don't care what form of sexuality he approves of, but I do think he's masterful in handling his prejudice. He's sly enough not to discuss it too much.

His critics would love for him to dispute(or in any way comment) on this 'SODOMY' decision. But he knows that either acceptance or outright prejudice is poison with the voters. THEY JUST DON'T WANT TO HEAR ABOUT IT.

But there is one candidate who will brave this topic, anywhere/anytime you like. ALAN KEYES will gladly entertain you and deftly(daftly) quote the Constitution.

True conservatives believe that the Federal Judiciary should adhere to the limitations set forth in Article III. Period. Full stop.

Huckabee's agreement with the ruling in Lawrence clearly indicates that he is willing to abandon the US Constitution in favor of personal policy preferences.

Are there other core principles of conservatism that Huckabee is willing to abandon?

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“Well, the trouble with our liberal friends is not that they are ignorant, but that they know so much that isn't so.” – Ronald Reagan

Tyranny is acceptable as long as you like its policies?

They that are with us are more than they that are against us.

This is still a bad misreading of the Justice Thomas argument, i.e., that the law is a bad idea. The catch of course is that Justice Thomas realized calling the law silly does not make it unconstitutional.

Undoubtedly the voters in some states would not want anti-sodomy laws. Perhaps the voters in all states would not want anti-sodomy laws. Where does the Supreme Court get the authority to usurp that choice from the citizens?

And once we have decided that the Court does have the power to find rights outside the constitutional text, how do we explain which ones are okay to find (privacy in sex perhaps?) and which ones are not okay to find ("privacy" in deciding what to do about the natural consequences of sex perhaps?).

There is no way to distinguish Roe v. Wade from Lawrence v. Texas. One who agrees with either case has admitted that the Court may create rights outside the Constitutional text; now all you are quibbling over is unhappiness that the Platonic guardians* are not the ones you would have picked.

* For those unfamiliar with the quote, the great Judge Learned Hand, discussing this very issue of judicially created rights, said: "For myself it would be most irksome to be ruled by a bevy of Platonic guardians, even if I knew how to choose them, which I assuredly do not."

After all, if judicial "Platonic guardians" can arrogate to themselves the power to create new rights outside of the Constitutional text, as your not, the same guardians can also arrogate the power to take away rights enumerated in the text. Indeed, the federal courts have been usurping the rights of states for years, what's to stop them from taking away individual rights - or subrogating our Constitutional rights to international laws. We're already seeing the foundations being laid for the latter.

And Rightly So!

Substitute "as you note" for "as your not"

And Rightly So!

The Constitution is supposed to be bedrock, not quicksand.

Campaign Finance Reform. When the SC decided it was appropriate to restrain political speech to avoid the _appearance_ of impropriety, they ignored rule #1.

I meant what I said and I said what I meant. An elephant's faithful 100 percent.

This is the last paragraph from an article by James Stoner, LSU professor and one of the finest critics of judicial supremacy. (In fact, I think his forthcoming book is on judicial supremacy.)

http://www.claremont.org/publications/crb/id.1119/article_detail.asp

"In the long run there is no substitute for an elected official's willingness to defy activist judicial claims to the full extent of his constitutional authority... At issue in the competition is not raw power but reputation: who can persuade the public mind that they have the public interest and the Constitution on their side? It is good to have Supreme Court judges who profess adherence to the principle of judicial self-restraint. It would be even better if that self-restraint were reinforced by awareness that they are not infallibly final in the American constitutional system—that they must content themselves with exercising "neither force nor will but merely judgment," proud and confident in doing justice according to law, nothing less and nothing more.

"There isn't a man alive who hasn't wanted to boot an infant." - W.C. Fields

without exposing one's belief that said constitution is a living breathing document which can be shaped and molded with impunity to fit one's personal policy preferences.

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“Well, the trouble with our liberal friends is not that they are ignorant, but that they know so much that isn't so.” – Ronald Reagan

has made that point eminently clear, in his own succinct way. I wonder if our friends who would and have been arguing otherwise have learned anything from this or are they still busy reinforcing their own denial?

"Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual."

Thomas Jefferson

Thanks, Mahler. Of course you were the first person I saw that really picked up on this and started pushing for an explanation.

So what's the explanation??

Here is the relevant portion of the article:

A Southern Baptist preacher, Huckabee has been a favorite among social conservatives for his vocal opposition to gay marriage. In 2003, Huckabee said that the U.S. Supreme Court was probably right to strike down anti-sodomy laws, but that states still should be able to restrict things such as gay marriage or domestic partner benefits.

"What people do in the privacy of their own lives as adults is their business," Huckabee said. "If they bring it into the public square and ask me as a taxpayer to support it or to endorse it, then it becomes a matter of public discussion and discourse."

A couple of things to note:

1. Note the word "probably". It was a dodge of the reporter's original question for political reasons. Look at the quote itself -- Huck was saying something about the merits of law itself (Clarence Thomas himself said that the law was silly).

2. I did not like this ruling, and neither did many evangelicals. That's why there was the united effort to push through the Federal Marriage Amendment! This is the current battlefront on this issue, and Huck supports it while neither Fred nor McCain support it. That is what matters in this issue, and what social conservatives are looking for. Another thing that matters is that we can see that Huck's entire record has been a socially conservative one:

http://www.mikehuckabee.com/index.cfm?FuseAction=Blogs.View&Blog_id=697

3. Here is an interesting (perhaps you may think convoluted) perspective:

"Well, the good news is that [the ruling] opens the door to reversing Roe v. Wade," Mrs. Schlafly said."If the court can overturn a decision made 17 years ago, they can now overturn Roe," she said in reference to Bowers v. Hardwick, a 1986 ruling that said there was no constitutional right to engage in homosexual relations in private.

4. If Fred or Mitt wants to attack Mike on social conservatism based on this particular issue (which is most likely a simple political dodge), go right ahead.

"1. Note the word "probably". It was a dodge of the reporter's original question for political reasons."

And you still just don't understand that piece of paper with all the rules on it for how the country is supposed to work.

You bring up some interesting, yet terribly misguided arguments:
1. Huckabee is guilty of equating the results of the decision with a disagreement with the law itself. Once again, SCOTUS is most assuredly not the vector to use to affect social change. It's actually insulting to compare his position to Thomas here. But, let's buy your argument for a second; it was all some political dodge. What other positions has Huckabee been deftly dodging? Oh, right, pretty much all of them. See: Taxes, Immigration, etc... How are we supposed to trust any of his so-called conservative credentials, again?

2. FMA has about as much of a chance of passing as the Earth does of being destroyed by aliens before New Years Eve. Face the truth: there is absolutely no way it will ever get by 2/3 of both houses, let alone 3/4 of all states. Also, I find the amendment, as do Fred and McCain, abhorrent on the grounds of Federalism. It ought never be the duty of the Federal government to deliver edicts on social issues.

3. I'm glad the Constitution was the sacrificial lamb in that one. Do you really think the liberal justices would listen to any of that?

4. It's a well-founded attack because it shows a complete ignorance of any constitutional philosophy whatsoever. As someone deftly put it in another thread, Huckabee probably has no idea what the difference between Roy Moore and William Pryor is.

Sorry, try again.

That blog posting you gave is actually quite chilling. It shows a lot of state-level nanny social accomplishments, but speaks nothing about the policies that would actually be relevant as president. Hmm, I wonder what matters more, sound fiscal and judicial policy or supporting "Internet Safety in Public Schools and Libraries"

He gives a shaky and in fact wrong answer on the most relevant means of effecting social change, but that's ok cause it was just a 'political dodge.' However, Fred is absolutely rock solid on judges but refuses to pander by pushing for an absolutely unpassable amendment, and that is enough to make him poison to socons? And wait, the FMA is the "battlefront" on this issue? Are you serious? It has a zero percent chance of getting passed in the two terms of whoever is elected. Furthermore, I've never understood what was the big deal about whether a presidential candidate supported an amendment or not, since they don't even affect the process.

As for the Schlafly quote, 2 things. One, she was referring to a completely and utterly different part of the opinion ("stare decisis is not an inexorable command"), not to the part that Huck supports. Two, if you want to quote her approvingly, would you like to also endorse her statement that he "left the arkansas state republican party in shambles"?

...and so-cons know that.

and you'll lose the War.
And the war on Roe as well.

But keep supportin the guy. You'll wonder what happened when it's all said and done.

Not at all... Not only can you not understand the political reality in which Mike Huckabee would be elected President (here's a hint, America won't become this great Theocracy with Pastor/President Huckabee in charge come January 2009)

The FMA and the HLA have about as much chance of becoming part of the Constitution as Prohibition has with coming back... or for that matter, you following the plot.

Get a grip... you aren't just a huckbot... you're bordering on the Huckabee version of the Paultards.

Let me take your positions seriatim.

(1) Everything is okay because Governor Huckabee said probably. That is just as good as saying the Supreme Court probably made the right decision in allowing a woman privacy in her choice not to take a pregnancy full term. You have ignored tip #2 -- do not pretend there is a difference between Roe and Lawrence. They are cut from the same constitutional cloth.

(2) It is okay because Governor Huckabee supports the Federal Marriage Amendment and other people don't. Double dip -- you ignored tip #3 and tip #5 in the same sentence. Very impressive. In case you don't comprehend this, let me spell it out slowly. The need for a Federal Marriage Amendment has arisen because judges have decided on their own that the people cannot be trusted to pass laws on this subject. The need accelerated when the U.S. Supreme Court took away the states' power to address homosexual sodomy.

It was impossible to argue that there is a federal constitutional right to gay marriage as long as states could ban sodomy. When the Court removed that power (in a case called ...... oh, yeah, Lawrence!), it noted that "Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." The reasoning is already in place to force states to allow gay marriage, and Governor Huckabee approved that message.

(3) Phyllis Schlafly's comment tracked the dissent of Justice Scalia, who noted the ease with which the majority that had upheld Roe v. Wade with a paean to stare decisis suddenly ignored stare decisis and dumped Bowers v. Hardwick -- a more recent case that had upheld state power. It is essentially a tongue in cheek argument making fun of the result oriented lawmaking of the Supreme Court majority. It is not a serious or substantive statement that Lawrence undermines the doctrinal foundations of Roe at all.

(4) Congratulations. You ignored tip #5 again. The problem with trying to compare your guy to other candidates is that they have (a) shown sufficient intelligence to understand the issues and (b) not built their campaign on deceiving people about their positions. I am still waiting for someone to show me that the same is true of Governor Huckabee. So far, no one can do it.

Everything is okay because Governor Huckabee said probably.

At worst, it's a political dodge.

The need for a Federal Marriage Amendment has arisen because judges have decided on their own that the people cannot be trusted to pass laws on this subject. The need accelerated when the U.S. Supreme Court took away the states' power to address homosexual sodomy.

Absolutely. FMA is the only permanent solution.

The reasoning is already in place to force states to allow gay marriage, and Governor Huckabee approved that message.

Show me a quote showing that Huck supports the actual reasoning.

It is essentially a tongue in cheek argument making fun of the result oriented lawmaking of the Supreme Court majority. It is not a serious or substantive statement that Lawrence undermines the doctrinal foundations of Roe at all.

Actually Phyllis was trying to console herself -- she was actually serious. But I just threw out that quote for fun.

The problem with trying to compare your guy to other candidates is that they have (a) shown sufficient intelligence to understand the issues and (b) not built their campaign on deceiving people about their positions.

Choosing a candidate to support is a comparative affair. We look at positions as well as one's record. Fred and Mitt don't stand a candle to Huck in terms of social conservatism.

You'll probably want to sit down... you gotta be dizzy from all that spinning.

4. If Fred or Mitt wants to attack Mike on social conservatism based on this particular issue (which is most likely a simple political dodge), go right ahead..

With all due respect, who gives an argle-fargle about whether this can be translated into an effective attack ad or not? The problem here is that Huckabee appears to be one of those social conservatives who thinks that the Constitution lines up with his personal policy preferences. Huck doesn't much like sodomy laws, so the Constitution is against them. BS.

With all due respect, the next President is far more likely to appoint appellate judges and Supreme Court justices than he is to persuade Congress to pass the Marriage Amendment. It matters, a lot, whether the President is appointing judges who will overturn Roe because they're against abortion or who will overturn Roe because its a horrible constitutional interpretation. The second kind will honor and respect the Constitution. The first kind will continue our descent into treating the Constitution as a political football.

and after they comment here, they bounce over to my latest blog on the HLA toss in w cents. :)
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CongressCritter™: Never have so few felt like they were owed so much by so many for so little.

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"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777

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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

But I'll take point #1: 1. Reconcile Lawrence v. Texas with social conservatism.

For me, social conservatism is about supporting traditional values (by supporting school prayer and not teaching very young public school students about homosexuality, for instance) and supporting human life as valuable (opposition to abortion and embryonic stem cell research).

It should not be about making sin illegal. It is wrong to ban adultery, and it is wrong to ban sodomy.

Now, you're going to tell me I haven't made an argument as to why anti-sodomy laws are unconstitutional. I won't make that argument. They're not unconstitutional. If your concern is that Huckabee won't appoint originalist judges, I'm not sure I can remove that concern. However, I do believe he would appoint justices who generally view the constitution in a conservative manner.

www.mikehuckabee.com

So, in other words it is okay if a President Huckabee appoints judges who strike down state laws with which they disagree as long as they don't strike down the laws with which you agree. And you know that a President Huckabee will be able to tell who these people are because ... ?

Furthermore, social conservatism cares not one whit about the homosexual agenda (except as it is taught in the earliest grades in public school) and not one whit about gay marriage (which draws its chief jurisprudential support from Lawrence). That's news to me.

Once you surrender to the Court the power to make rights out of whole cloth, you can no longer control how it is used. But the same power you think is irrelevant to your agenda is the one that has permitted abortion on demand -- a central point of your agenda.

You guys must like the fellow. You are willing to sell all of your principles to elect him.

And, I could care less that you are annoyed. I am annoyed that people who have given precious little thought to the implications of their choices are trying to muster support for such a dangerous candidate.

I always thought social conservatism was defined in part by opposition to gay marriage and, on occasion, support for a Federal Marriage Amendment. If it's not, all the better for me as a gay marriage supporter.

You're making a big guess on my principles. I never said I believed in the principle of a limited judicial branch. I said I was a social conservative. Thus, I welcome activism that helps the socially conservative cause. As for Huckabee being able to tell, there are plenty of justices out there that have shown that temperment, and some are actually considered moderate justices overall. My ideal justice would probably be like Mike McConnell.

I'm sorry that's not a consistent enough position for you. I understand that it is probably very distasteful. But I can't be convinced that we should have no judicial activism when there are so many activist rulings that I feel have done great good: Brown v. Board, Lawrence v. Texas, and (obviously since overturned, and probably unpopular here) Furman v. Georgia. In all three cases, the court protected things I consider to be fundamental human rights (though the third probably because of my religion). I believe Roe v. Wade was wrong because it put one person's rights over another, and a decision like that is not a decision the court should make.

^Hopefully, this is coherent, even if you disagree. It's 2 AM where I am, and I may not be making full sense.

And by the way, I shouldn't have said or implied I was annoyed only for myself. I just thought it was poor form to call out Huckabee supporters by name--especially all of them, since it seemed a little stalker-y. Maybe we're just that loud though. I guess I'd prefer that was in the post, so we'd see the direct challenge. Personally, I prefer to only write positive responses to posts, so I tend not to post in diaries I disagree with.

www.mikehuckabee.com

You started off by saying in your first post that you would reconcile social conservatism with Lawrence, but now you seem to acknowledge that your own positions -- which you call socially conservative -- are out of step with most social conservatives in key areas like gay rights and capital punishment.

Fine. I am not challenging your views. But please realize that gets me back to my basic point -- what are traditional social conservatives doing supporting Huckabee? Your position, put in jurisprudential terms, is that the Court should create rights out of whole cloth, and you see Huckabee as most likely to fit with your combination of opposition to abortion and stem-cell research, support for gay rights, and oppsition to the death penalty. Under those circumstances, you should support him.

But please understand why I find it unusual for traditional social conservatives to support him. Traditional social conservatives would disagree with every variation on privacy --the major unenumerated right of our era. They would reject abortion on demand, gay rights, gay marriage, and anything related to them. Given that consistency of rejecting privacy rights, they would more often choose not to support unenumerated rights of any sort. While you may disagree with Roe and agree with Lawrence, the essence is that you want judges who will find the rights you want found. There is no overarching principle of constitutional law that is going to reach your position; privacy covers Roe as well as Lawrence. But for someone who opposes both Roe and Lawrence, there is an overarching principle of constitutional law, i.e., rejecting privacy; and I continue to wonder how traditional social conservatives can support a candidate who does not agree with them on the overarching principle.

Two quick points -- First, my objection is to judicially creating rights not in the text; I have no problem with enforcing the text. Brown v. Board was correctly decided. Second, Judge McConnell would be a fine addition to the Court. If I thought Huckabee would appoint him -- and, for the sake of his additional appointments, know why it was good to appoint him, I would feel better about Huckabee.

And I appreciate it. If traditional social conservatives reject a right to privacy, then I am not a traditional social conservative, and cannot reconcile Huckabee's position within that framework.

www.mikehuckabee.com

I've sworn an oath to uphold the Constitution. Apparently you haven't. But if you are willing to subvert the Constitution to achieve your political goals, you're no friend of mine.

They that are with us are more than they that are against us.

I just believe that the Supreme Court has fairly broad powers under the Constitution, and so I'd prefer they use those powers to uphold certain rights for individuals.

www.mikehuckabee.com

First of all, I don't appreciate you insinuating that I was somehow avoiding you or afraid to face you. Just because someone doesn't respond to you right away, it doesn't mean that they're a coward. I'm sorry, but you're just not that scary. I was busy trying to clean my house and bake some pies (and get some studying done), in order to prepare for the Christmas party that I'm throwing tomorrow night. You know, I do have a life outside of posting on Redstate.

Since I'm not a Constitutional scholar or a law professor, I'm not going to pretend to know more about the law than you. By the way, I'm a medical student, but I wouldn't call people out, who aren't in the medical field, to debate me on practicing medicine. That would not seem very fair to me.

Now, I'm pretty sure that Huckabee is not a Constitutional scholar or lawyer either. However, from your above quote of Huck, I might deduce that he's just agreeing with Justice Thomas that the anti-sodomy laws should be repealed by the state legislatures, because it's a dumb law.

Now, if you're asking me as a private citizen, I'll tell you that I don't want the government in my bedroom or telling consenting adults what they can and cannot do. By the way, in some states, the anti-sodomy laws included restricting certain heterosexual acts, even amongst married couples. As I previously stated, I don't want the government in MY bedroom and I would never vote for any politician running on an anti-sodomy platform. I don't claim to be a political analyst either. However, I do think that the average voter (not Constitutional scholars) would see this as the "peeping tom/peeping policeman" platform--and it would definitely be a bust in any election.

By the way, Giuliani states he will appoint strict constructionist judges--how do reconcile this with his enforcing strict gun control laws in NYC? Also, Romney and Giuliani are both attorneys, but they seem to disagree about the constitutionality of a line-item veto. Considering the fact that Huck is not an attorney, aren't you holding him to unreasonable standards?

I was just looking for someone from the Huckabee camp to make sense, and they were pretty darned scarce for a long time. Of course, once they arrived they didn't make any sense any way.

Good luck with the exams and I hope the party goes well. When you have some time, read through the posts here. As a medical student, you obviously have excellent intellectual skills. I think you will find some interesting information about constitutional law, the role of judges, and the importance of presidential appointments to the Court.

Now, of course, the Justice Thomas argument you raise fails because Thomas dissented and Huckabee agreed. Jstice Thomas realized that just because a law is silly, it is not unconstitutional. The problem, as I have noted elsewhere, is that wisdom is in the eye of the beholder and under the Constitution, the only beholders are the voters. If we let the Court judge the wisdom of our legislative choices, we get cases like Roe v. Wade (and Lawrence v. Texas).

Again, I have no trouble with the position that laws against sodomy are bad policy. But that is not what Lawrence addressed. Governor Huckabee cast his lot in that case with Justices Stevens, Souter, Breyer, and Ginsburg -- bad company for a self-proclaimed social conservative.

Finally, the argument about Giuliani is irrelevant. I know what his positions are. I am trying to figure out what Huckabee's are. Based on what his supporters claim about him, I would expect to agree with him at least on the judges issue. But the facts contradict the supporters' claims.

If someone from the Huckabee camp would say that Huckabee has explained this statement or that Huckabee said he was misquoted or misunderstood, that would be fine. If someone would say, you're right, that is disturbing on its face but I am sure there is an error, let me contact someone I know in the campaign for an explanation, that too would be fine.

But when I get woefully mistaken claims that the position matches Justice Thomas's or claims that Lawrence doesn't matter or theories that Huckabee doesn't understand the importance of judges or notions that he is somehow still a better social conservative than candidates who comprehend and condemn judicial usurpation of the rights of democracy, well then, I am very, very disturbed.

By the way, I'm not a socon, although I am a deeply religious person. Technically, I'm still a Democrat, so strict constructionist judges aren't a real priority to me. Contrary to popular belief not everyone who supports Huckabee is a socon. I like Huck because I think that he's right on when it comes to preventative health care lowering health care costs (instead of socialized medicine), he's extremely passionate about education, I like his environmental policies and his advocacy for energy independence, I agree with what says about the war in Iraq, and I think that he's such a great communicator, that he can unify the country and end the awful polarization. I just don't think that a divided country can win the GWOT.

My Justice Thomas argument does not fail, because I respectfully disagree with your interpretation of the quote regarding Huck's comments. Also, Giuliani and Romney's positions are relevant, because they are examples of attorneys with varying opinions regarding constitutional issues. Huckabee is not an attorney; therefore, he does not possess their level of expertise on constitutional law--ergo, he might not be as precise when speaking about constitutional matters.

I'm fading. I have to check on my pies, and then get some sleep. When I have time, I will look up and read more posts here on the subject of constitutional law. Have a good night. :-)

When you get back to this, Susannah, please remember that my basic questions related to social conservative support for Huckabee. I asked for an explanation of how his position was socially conservative or how it could be reconciled with social conservatism.

Now the upshot of this is not that I find your positions irrelevant nor that I challenge them. In fact, as with GOPaisano, it seems to me that Huckabee makes lots of sense for you given your positions. He is undoubtedly the best choice for someone focused as you are on preventive health, energy independence, etc.

What still mystifies me is the support among social conservatives. Now maybe that is a great myth, and you and GOPaisano are really the prototype Huckabee fans. If so, fine. And if that segment of the party has the votes to win the nomination for its candidate, fine. I disagree with you on some issues, but I am perfectly willing to engage you on the issues and see how things come out.

If social conservatives are still a major part of Huckabee's backing, I am still mystified as to how they match his view of Lawrence with their typical views.

I must respectfully disagree as to whether Governor Huckabee was adopting Justice Thomas's position. This is not a sophisticated legal argument. In fact, the Thomas opinion was only a few lines long, and the basic ideas long predate his opinion. In fact they have been at the core of the social conservative push for judges for years now.

Either the Court does have power to create rights with no supporting text or it does not. If it does, then Roe and Lawrence are legitimate decisions. One might hope for different choices as the Court finds and enforces our rights for us, but the power exists. If on the other hand, the power does not exist, there is no legitimacy to Roe or Lawrence or any other case creating rights outside the text.

Until recently, traditional social conservatives have held that there is no legitimacy to finding rights outside the text. Have they changed positions? When and why?

Oddly enough, even with GOPaisano and you coming into the discussion, while I have interesting perspectives of articulate Huckabee supporters, I have no rational explanation from traditional social conservatives as to why they are backing someone who whiffed on a pretty simple social conservative tenet.

Now maybe that is a great myth, and you and GOPaisano are really the prototype Huckabee fans.

Interestlying, the polls show that Huckabee is getting lots of his voters from Giuliani(!). So maybe his support among social conservatives is overrated. I wouldn't be surprised if the Huck coalition were composed of independents who weren't scared off by religion and by voters who politically are evangelicals first and social conservatives second (Jimmy Carter voters, e.g.).

Huck's statement would not line up with what most SoCon's would agree with.

Like every other candidate, he has said or done things that are contrary to what he says now.
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Saying that the Huckabee supporters hadn't shown up is one thing. Calling them out by name is another. As Susannah said, some of us have lives outside of RedState, and you never know when we're doing human things, like going away, caring for a relative, going to a game, or any of the other wonderful things that people do other than sit at a computer. Now it's fair enough to complain that none of the regulars had commented yet, as there are enough of them that at least one or two had probably seen the post and not responded. It's another to call them out by name because you have no idea what any one of them in particular is doing.

www.republicansenate.org

the Hucksters are avoiding these like the plague.
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CongressCritter™: Never have so few felt like they were owed so much by so many for so little.

If you can read "said that the U.S. Supreme Court was probably right to strike down anti-sodomy laws" and conclude that you do "not know[] what he said with respect to Lawrence", you have mastered revisionist history.

Let's see now -- where is the ambiguity? In how many cases has the Supreme Court stuck down anti-sodomy laws? One. How many of those cases were named Lawrence? All. Could it be merely a guide to the "proper approach for elected officials to take"? Only if Governor Huckabee believes the United States Supreme Court is an elected body or has the authority to issue binding rules on how legislators should legislate. (Well, now that is the issue, isn't it?)

I said I will accept it if someone can show me where Governor Huckabee has "retooled" his position on this issue. I am not accepting someone else retooling it for him.

The ambiguity lies in the fact that you have presented no quote of Huckabee's words on this point. All you have is the characterization of an AP reporter in indirect speech—i.e., not within quotation marks. This might well be a perfectly accurate characterization, but reporters have been known to fail to make the distinctions that conservatives are accustomed to making between the desirability of an outcome and its constitutionality, which would make for a very plausible basis for a misunderstanding on the reporter's part.

So I ask again: Does anybody have any actual quotes addressing the point in question from the 2003 interview, wherever it was? I did some googling but was unable to find a reference. Perhaps someone else might have better luck.

And not that it should matter, but I'm no supporter of Huckabee. In fact, I would rather he dropped out in favor of a more well-rounded conservative. If you can find an actual quote of him saying what he is said to be saying, that might be of some use towards that end. But the facts you have brought to the table so far are insufficient.

For the record, I agree with Huckabee's comments as a matter of public policy - but it's terrible constitutional law. This is another example of how Huckabee basically has no interest in things like constitutional law or federalism or other checks on the government doing whatever it is that Huckabee thinks is right.

"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill

His response will run along the lines of "Greedlawprof is only interested in making disgusting personal attacks, and I won't dignify them with an answer."

Indeed he ought to clarify, and I'm sure that he will have occasion to do so.

But that's his campaign's job, not his supporters'. This was an indirect quote at the end of an article about something quite different from what we're talking about. I imagine it didn't even register with most of them, and if it did, it wasn't taken terribly seriously. And if your question raised any concern amongst them to the point that they would start contacting the campaign, a Friday night is not the best time to get an answer.

The fact that they are not eager to jump down the throat of their preferred candidate should not be taken as evidence of their lack of intelligence, their bad faith, or their lack of credibility. Rather, it would seem to imply nothing more than that they tend to think the best of the candidate they like the best—a failing which is hardly unique to them, if it is a failing at all. The candidates are all fair game, but I'm baffled at vitriol so many people seem to have against others whose only offense is that they intend to vote for a different candidate.

That is all fine except the topic has been kicking around here most of the week -- with the same complete failure to engage it. My problem is two fold. Governor Huckabee should answer this; I suspect he will somehow eventually. But people who support him as a social conservative without an explanation for this quote are foolish.

Come on, it's the holidays. Can't you give your fellow conservatives at least ten days, and maybe some solid evidence, before you start calling them fools?

I can always change my mind about their foolishness if they start to show signs of intelligence.

Just negligible character. His positions have and continue to be pure pandering and triangulation.

The obviousness of it, is their shift as he goes from state level to national.
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"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777

It is a sort of snake oil salesman intelligence. The ability to fool lots of people really well. It is his supporters that make me shake my head. How is he being sold as the anointed one to social conservatives? The only defenses I see are (1) he doesn't really understand the issues or (2) Lawrence really doesn't matter to social conservatives. That is some powerful snake oil if people are willing to excuse the first or believe te second.

Many of Huck's followers seem to adhere to the policy that making confession of their social con dogmas (e.g. I'm against abortion, for HLA and FMA, etc.) is more important than taking a stand to build the foundation (e.g. appointing judges who practice conservative jurisprudence, strengthening federalism) that will actually be effective in making their goals feasible.

As a result, I think that judicial philosophy is underweighted among many of the social con supports of Huck. This may also explain why you've gotten so little interaction with Huck supporters on this issue - they don't weight it as high as you (and I) would, who realize that the next president may well be in a position to recast the prevailing jurisprudence of the Supreme Court for the next 20-30 years, which will far exceed in impact on the future of the U.S. any programs that they could enact in the next 4-8 years.

Or to put it another way, many of Huck's supporters are motivated in their support by his orthodoxy on "social" issues, his sincerity, etc. rather than his judicial philosophy. Inconsistent, true, but that's the way humans are.

And Rightly So!

In other words, they think it is better to be 100% right and 100% impotent than 95% right and 95% potent. If so, it is all the more reason to derail this train.

I too am seeing that as the more likely scenario. Pushing for answers here was my way of trying to sort it out.

They that are with us are more than they that are against us.

You wrote:

"The inability of Governor Huckabee's supporters to explain why he is a social conservative despite this statement tells me they have not asked about this. That indicates one of two things: (1) They don't understand the connection between social conservatism and judicial appointments or (2) They really don't care whether he understands judicial appointments."

I don't think the average SoCon on this board has ANY idea what the difference between judicial activism and strict constructionism is and how their social causes are affected by a court that leans one way or the other.

This is eminently demonstrated by their ridiculous rants that Rudy, a trained lawyer who understands the difference between judicial activism and strict constructionism, will throw them under the bus and appoint 'liberal' judges. When pro Rudy posters tried to explain why strict constructionist judges would overturn Roe, a result SoCons want, the SoCons on the board suffered a case of collective neural dysfunction and continued their ranting as if they were deaf. I now attribute it not to a deficiency of their hearing, but rather to their inability to read large blocks of text and understand the information contained in them properly.

I fear we are starting to see a schism between social conservatives and what I would call judicial conservatives. The Terri Schiavo case was an early example of the differences, but I think we expected the common ground to keep us working together for the long-term. The Huckabee candidacy is placing some strains there because the only reason judicial conservatives (who tend to be fairly well rounded in their conservatism -- fiscal, defense, etc., as well as judges) would seem willing to support Huckabee is if he is reliable on judges, and there are no present adequate assurances or his supporters understand or care about the judges issue.

Frankly I am a judicial and a social conservative and I do think Giuliani would throw me under the bus. Yes, he is a "trained lawyer." So are all the living Constitution people.

I have seen no evidence in Giuliani's career that he is a judicial conservative--certainly not in the actual legal battles he's fought--and his refusal to point out that Roe is bad law doesn't inspire confidence either.

They that are with us are more than they that are against us.

just a little above.

I am not insulting your intelligence. I merely claim that social conservatism can be reconciled with Lawrence v. Texas, but that I agree with you that Lawrence v. Texas was probably wrongly decided. However, I may be more accepting than you of judges who take conservative positions even if they're not strictly constitutionalist ones.

www.mikehuckabee.com

Yes, the wisdom those wonderful oligarchs displayed in Roe and Casey led to wonderful rulings. I would've hated for Harry Blackmun or Anthony Kennedy to be ideologically pure; what would I have done if I hadn't been informed that it was my right to unravel my own concept of existence and the mysteries of the universe.

And the only authorized beholders under the Constitution are the voters.

The judge most in tune with American voters is JUDGE JUDY.

Tough. Fair. Easily Understood. That's the sort of wisdom voters are looking for.

Huckabee has got a simple populist appeal. Legal scholars and judicial idealists aren't going to be satisfied by his rhetoric. But he isn't dumb enough to engage you either.

He's just got to be smart enough to make the average Judge Judy viewer think he understands fairness and decency. He's a preacher; I'm guessing he'll do alright.

I hope you underestimate the collective wisdom of the electorate; otherwise, we will have overestimated the security of our democracy. Huckabee may be a fine snake oil salesman, but snake oil will not find quality judges, balance the budget, or defeat the terrorist threat.

That wasn't what stealthlawprof was talking about; the laws themselves ought be decided by the people. Clearly, those who are most qualified ought be on the bench, and Huckabee has proved himself unable to make that judgment.

But dealing with your discussion: that's exactly what makes his popularity so disconcerting. The question isn't whether or not he'll do alright, it's whether or not he'll rend the Constitution asunder with appointments in the mold of Harriet Miers. We need someone who would rather appoint an Easterbrook than a I fear that this one man may do the GOP, and the country as a whole, great harm.

That second part should have read:

But dealing with your discussion: that's exactly what makes his popularity so disconcerting. The question isn't whether or not he'll do alright, it's whether or not he'll rend the Constitution asunder with appointments in the mold of Harriet Miers. We need someone who would rather appoint an Easterbrook than a Judge Judy. I fear that this one man may do the GOP, and the country as a whole, great harm.

The wisdom of judges is to let the democratic branches of government do their work unless the Constitution clearly says otherwise.

They that are with us are more than they that are against us.

I will allow politicians their silly inconsistencies on legal issues until they run for President of the United States or a seat in the United States Senate. Those people are responsible for the nomination, confirmation, and appointment of federal judges. If they don't understand the issues, I'll find someone who does. That is doubly true for the president, since his role is so much more critical.

Again, as I have stressed in this thread. It is not the question of the policy behind the law that is at issue here. It is the role of the Court -- does it have the power to impose its will on society without regard to the constitutional text? A president needs to know his answer to that question and people voting for a candidate for president need to pay heed to that answer.

Huckabee gets extra scrutiny because he is running as the social conservative candidate. This is his biggest issue, and I am supposed to accept that he really has no idea what he is talking about?

Lawrence was not a conservative ruling; it was not a conservative result. There is no conservative principle one can manufacture that will support that decision. Huckabee's support of it should be immediately disqualifying for the vast majority of social and judicial conservatives, yet he asks for their votes claiming to be the only true social conservative in the race. I am appalled at the gall of the man and the gullibility of his present supporters.

But with respect, I don't buy that there are really many politicians with ANY grasp of constitutional law or theory. An example is (forgive me for opening this can of worms) the Harriet Miers debacle. The president wanted a true conservative who was a gifted lawyer. But even she had no experience in constitutional law (White House Counsel is not a constitutional expert position, despite common belief). In fact, she had almost no courtroom experience either.

I think most presidents (and senators) are only good for wanting results oriented judges, but they at least surround themselves with scholars or judicial experts who try to steer them (the politicians) towards picks that are more (sorry for the pun) "judicious".

Consider Rudy, who states that he would appoint "strict constructionists", but also says that Stare Decisis would lead such a justice to uphold Roe. Also consider McCain, who supported (in fact drove) the CFR, despite the fact that it is a constitutional trainwreck. Consider Romney and his law background (none) and his ever changing "convictions".

I lean towards Thompson (a former federal attorney), but don't see him trying very hard. I know the story is meant to go after Huck, but I really don't see any of these candidates giving us much hope.

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

Most politicians understand legal issues enough to make a sense of the proper role of the Court. And they have lawyers to advise them on how to implement that general sense. Much of what was so displeasing about the Harriet Miers affair was that it showed how little the current president understood and how precarious the process of getting solid choices from him was. Fortunately, he has typically followed good advice in this area -- with that one gigantic exception.

Thompson, Giuliani, and Romney are all law school graduates. Romney did a joint JD/MBA program at Harvard and graduated cum laude from the law school. Of course, Thompson and Giuliani are more readily connected with their legal backgrounds. I also think McCain understands the issues well enough although his campaign finance position is a major, major, gigantic obstacle for me.

Really, I am not intending to go after Huck. I want to know where he really stands and why his supporters are so enamored with him. I think, based on other positions, he would not crack my top two, but I could become comfortable with him if I felt he knew what he was doing with judges. I certainly would not expend any major effort opposing him per se rather than just supporting my own preferred candidate (in a more localized effort).

But if he does not know what he is doing on judges, he has way too little else to recommend him, and I would consider him by far more dangerous than anyone else in the top five.

At present, the lack of suitable responses to my question tells me a lot of people are backing him based on some loose matter of feeling good about him and assuming that since he makes them feel good, he will do what they want. If that remains the case, I will fight him tooth and nail -- just like I fought Harriet Miers tooth and nail.

Huck isn't running for SCOTUS, he's a member of a political branch running for a political branch, not a judicial branch

Presidents appoint justices. Presidents who think justices are politicos in robes will appoint bad justices.

They that are with us are more than they that are against us.

I tracked down the Advocate article in question, found here, with the relevant section given my emphasis below:

Conservative Arkansas Governor Supports Sodomy Ruling

The Advocate, July 4, 2003

Arkansas governor Mike Huckabee, a Baptist preacher, says the nation’s high court was probably right to strike down sodomy laws but says states still should be able to restrict things such as same-sex marriage or domestic-partner benefits. Huckabee said Wednesday that government should stay out of the private lives of gay and lesbian people unless their behavior involves public policy. “What people do in the privacy of their own lives as adults is their business,” said Huckabee, a favorite of Christian conservatives and a former president of the Arkansas Baptist State Convention. “If they bring it into the public square and ask me as a taxpayer to support it or to endorse it, then it becomes a matter of public discussion and discourse.” Huckabee’s comments came in response to a caller to his monthly statewide radio call-in show. He said the ruling appears to be the appropriate one because of the difficulty of enforcing laws regulating private behavior as well as the policy questions involved.

This still isn't a direct quote, and The Advocate might reasonably be suspected of bias, but this may give a better sense of what he was thinking. It seems that there is some audio out there that would clarify the issue, and which might be of considerable interest to opposing campaigns—or else to Huckabee's, if the characterization above is inaccurate.

Huckabee practically guaranteed himself a free ride with the MSM when he started attacking GWB.

Which is the main problem for Republicans. Huckabee, like the rest of the candidates has a record. Some of it offends liberals, some of it offends conservatives. Precious little of it is making the news.

Whether Huck is getting a free ride because the MSM likes his liberal leanings, or because they think he will be easy to beat in the general, matters not at all. He is getting a free ride: Dumond, looting the governors mansion on the way out the door, soliciting donations (selling appointments?
www.politico.com/news/stories/1207/7401.html
), immigration, higher taxes, Iraq, GTMO, Cuba, waterboarding.

Sounds like 1992 all over again. It all worked with Clinton, why wouldn't it work for the Huck?

Will Republican candidates go "negative"? Do they have any choice?

1) You're correct.
2) Federalism is a simple principle and it is, like it or not, one of the great and ingenious principles of our Republic.
3) You indeed do need to have what you call "awfully sophisticated legal argument" to argue that Huckabee was correct and Thomas was wrong.
4) I've known people who can not only think of those arguments but rattle them off in an endless blue streak.
5) That doesn't make them correct.
6) Huckabee tried to "cross the streams" legalistically speaking, I think, and just as Bill Murray famously said in Ghosbusters: "Don't cross the streams. Important safety tip."
7) In engineering, over-complicated "awfully sophisticated" solutions are almost always wrong, or become wrong because the number of potential failure modes increases exponentially.

I have always suspected that part of the reason for a lack of substance in some blogs is the lightning speed at which blogging runs. I cannot count the number of times I have posted the last idea in a thread. By the time I had formed my thoughts and typed them out, everyone had moved on. Others, I suspect, move faster to register their reactions, but those posts sometimes come across as shrill and emotional recitations of negative reactions rather than carefully crafted analyses of why the negative reaction came and why it makes sense.

Unfortunately, Clarence Thomas and Antonin Scalia would not. But I guess those two don't respect tradition and the law, right??

" on abortion and homosexual sodomy. In other words, "opposing" Roe as illegitimate and praising Lawrence is speaking out of both sides of the mouth."

"tell the abortion and gay rights movements and all other political movements to take their agendas through the legislative process"

The only link I see in these issues is that one(abortion) involves the fight for the freedom to live while the other(gay rights) is about allowing people to live as they are.

I see that bumpersticker plenty often around Atlanta. I think gays are smart to unlink the issues and I think those fighting against abortion ought to do the same.

Sorry, that may be the only link YOU see between the issues. Constitutionally, they are part and parcel, built on the same precedents. You can't have one without the other. To put it in the simplest possible terms, here is how Lawrence is built
Griswold-->Eisenstadt-->Roe-->Casey-->Lawrence

Simply put, if you take out Roe (really the problem goes all the way back to Griswold, but whatever), everything that comes after it gets destroyed.

Read the cases. If you removed the citations to Griswold and its progeny from Lawrence, it would lose even the illusory appearance of being law.

NOT in the courts. NOT in any reasoning mind. NOT in the court of public opinion.

It's a link for political convenience. I suspect that most people who oppose abortion are also fierce opponents of littering. Though laudable, 'Stop Abortion & Littering' would be a dumb campaign. So is 'Stop Abortion & Gay Rights'.

One can easily oppose both. Many do. But I suggest that you use the Bible rather than the Constitution for the purpose of opposing homosexuality.

I don't oppose homosexuality at all. I've said several times that the law in Lawrence was absurd. I know it puts me at odds with a lot of people on this site, but I wouldn't really care if they were allowed to marry. However, that has zero impact whatsoever on the constitutional implications of anything.

Look, you are just flat out wrong on this one. This isn't a matter of opinion. You can say "abortion doesn't lead to gay rights" all you want, but in Lawrence it did. Plain and simple. Go read the &^@% case. Lawrence was built on Casey and Roe, plain and simple. If you are unable to comprehend that, that is your problem, but stop acting like you have a clue. By this point, it is clear that you don't.

" I know it puts me at odds with a lot of people on this site, but I wouldn't really care if they were allowed to marry."

It's good to see common sense winning out. That I can comprehend.

The source of power to oppose homosexuality is neither the Constitution nor the Bible. It is democracy.

But this discussion is not about the people's power to legislate, it is about the Court's power to interfere with legislation. The Court's claim of power to find privacy rights not in the Constitution comes from Roe v. Wade. Without Roe, there is no precedent to support Lawrence.

Sure, you can decide that you want a Court roaming around making up rights out of whole cloth. And when you do, feel free to hope the Court finds the rights you wish it will find. But when you lose on that gamble and the Court finds other rights -- like the right to destroy the unborn -- you have lost any claim that the Court acted illegitimately. You already ceded the power to the Court. You accepted the risk. You lost. Tough.

The only people who can complain about the Court creating rights out of whole cloth are the ones who consistently oppose it -- without regard to whether the right is one they would support politically.

Think of this as helping your communication skills.

And I truly appreciate your point. How a ruling is arrived at is essential for our longterm survival as a constitutional democracy.

I think of how close we came to having Harriet Miers---and then I worry again that considerations of the Constitution are easily threatened by the more powerful urge to "do good".

I can't disagree with that. Much of the furor over Harriet Miers was the sense that she was being appointed not because she knew what she was doing but because she would deliver preferred results. It betrayed the entire judges debate from the past 20-30 years. Now we see a candidate who seems to show the same lack of fundamental understanding. It is far too risky.

The legal basis for saying that the Constitution creates a right to abortion is also the legal basis for saying that the Constitution creates a right to sodomy. There's just no dispute about that. Politically they are separable issues, yeah. But judicially they aren't right now.

is that many Conservatives aren't conservative. Just as liberal is not really an apt description of the coercive utopians and socialists on the Left, conservative is not an apt description of many on the Right who use "conservative" as the guise to pursue their own, often activist, agendae. The problem that many self-described social conservatives seem to have with so-called judicial activism is that it is not their agenda that the activists are pursuing. To my mind, a federal ban on abortion, gay marriage, homosexual sodomy, etc. is just as activist as a federal ban on banning the same things.

To the underlying question, the 14th Am. has a strange career. I'm no Constitutional scholar nor even a lawyer and I didn't stay in a Holiday Inn last night either, but I'll give it a whack. First, it was arguably never properly adopted, but history and the courts have allowed that question to pass into the mists. Second, the controversial part was the repudiation of CS state debt and the guarantee that all US war debt would be repaid in gold, the origin of the "Cross of Gold" that bedeviled the res publica for the next fifty years or so. And, third, we get to what the Country had ostensibly just fought a war over: guaranteeing the rights of citizenship to the former slaves freed by the 13th Am. by assuring any PERSON the equal protection of STATE law and of due process. It's that person part that is vexatious in today's world. At the essence, I think the state of the law is that you cannot put an adjective in front of person and have a Constitutionally permissible law. A more narrow, or conservative, view of Lawrence would say that if the state had banned all forms of anal or oral sex without regard to the gender, proclivities, or marital status of the persons involved, no equal protection question would arise. A more expansive, or liberal, view would be that such a law would allow some persons the sexual activity of their choosing but deprive other persons the activity of their choosing. (Purposely leaving aside the privacy argument.) It seems that SCs, state and federal, are saying that the people and the states cannot enact a law that acts to confer a right or benefit to one person or group while denying that right or benefit to all other persons or groups. That is one Helluva ways from trying to assure that the former slave states didn't have one body of law for former slaves and another for others. Then there's the equally vexatious question of just what rights and privileges merit this Constitutional protection? The logical though absurd end of the argument is that all things must be infinitely egalitarian. The same equal protection argument that confers HI benefits on homosexual partners since they are conferred on married heterosexuals can rather easily be used to say that nothing can be permitted or prohibited to any unless it is prohibited or permitted to all. I don't think that fits into truly conservative notions like the retained powers of the People and the States and notions like consent of the governed.

This is one where even notions of judicial conservatism don't really satisfy. If I take a textualist view, I can't quarrel on the words alone with the expansive view of equal protection. Is that conservative? Only if I get to original intent and understanding can I get to the fact that this was understood only as a way to guarantee the same rights of citizenship to former slaves as were enjoyed by white citizens. That would seem to be the conservative position, but then anyone who's ever been around any form of adjudication knows that evidence as to intent, or any parole evidence, is often a game of liars' poker. For example, perhaps the greatest equal protection case, Brown v. Board, was underlain by the notion that The South's segregation laws and segregation itself were transitory phenomena predicated largely on The South's dire economic conditions postbellum and all it would take was a federal nudge, holding separate but equal to be inherently unequal, to end The Strange Career of Jim Crow. In his later years, C. Vann Woodward, the author of the book by that name that contributed greatly to the USSC's thinking in Brown, admitted that much of the argument was a contrivance for the specific purpose of pursuading the Court. Thus does one step on to slippery slopes.

In Vino Veritas

I agree completely. It is rather sad to see that many who supposedly supported judicial restraint were merely allied out of political convenience.

I'll take being a "heartless manhattan conservative" over being completely blind to the actual principles of conservatism. How anyone could be so unwilling to see how much harm putting absolute confidence in nine lawyers for deciding social policy would be, no matter how much you might trust them, boggles me. It becomes clear that some are more than willing to have the Constitution as a sacrificial lamb in enacting a social agenda.

I wonder how many Huckanuts would say that a SCOTUS decision banning abortion would be, somehow, magically, similarly correct. Or maybe they would say that Stromberg v California was wrongly decided. Both positions would be consistent with what has been said on this thread.

In your seconde point, you did identify the analytical error. The Declaration of Independence is not part of the Constitution. The framers of the Bill of Rights -- likely anticipating the impossible conundrum a right to pursue happiness would cause -- reverted to the traditional phrasing of those rights: life, liberty, and property. None of those are implicated by state laws prohibiting forms of consensual sex -- whether adult consensual incest or polygamy or homosexual sodomy.

Just so I understand, your stance is that the Declaration has no influence whatsoever on matters concerning the Constitution or Bill of Rights?

That seems to contradict many of the results I have found via google with the search of "supreme court and the Declaration of Independence".

http://writ.news.findlaw.com/commentary/20020704_mylchreest.html
http://candst.tripod.com/doisussc.htm (granted, a 'tripod' site, but it has some more good links.

Naturally, on the flip side, I have found some sites that support you're position(but, since it doesn't support mine, I wont post those links ;). It would seem that the influence of the DoI in terms of of the Constitution is hardly a settled debate, no?

I know you said "not part of", but being "part of the Constitution" wasn't my argument. My argument was "state laws cannot trump the Constitution, etc" and I view the DoI as a helpful guide when there are matters of ambiguity regarding the supreme laws of the land.

Regardless, I appreciate you response.

David

Constitutionally protecting someone's right to "pursue happiness" could be somewhat analogized to protecting their "right to define their own concept of existence," Kennedy's famous passage from Casey and Lawrence. To quote from Scalia's Lawrence DISSENT, "if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law."

with a question:

If life is analogous to existence, isn't that what people are doing in the abortion debate (strictly speaking from a legal standpoint)? Meaning, some are defining existence (life) as starting at conception, while others define it at some other (viable) point.

If this "defining existence" is good for one (life), why can't it be applied to the other (happiness)?

Unless I misread you and the answer is: it isn't, and shouldn't be. Which means there isn't a definitive legal definition of when (human) life begins.

This is probably getting a little off topic, though.

David

With regards to existing law, there is no definitive legal definition of when life begins. To the conservative judge, this means that you defer legal judgments about when life begins until such laws are passed in the future. To the liberal judge, this void opens the door to manipulating existing laws to create a legal definition to your liking.

And Rightly So!

The Declaration was a political manifesto written by representatives of states under the rule of the British Crown seeking to disassociate themselves from the authority of that ruling entity. It doesn't create any kind of binding contract (except among the individual signers) that would order the affairs of the citizens of what was then thirteen British colonies. No legislative body ever voted or enacted the provisions of the Declaration. While the ideas and principles of the DOI informed the authors of the Constitution, they themselves are not a legal foundation for the U.S.A.

By contrast, the Constitution was written by representatives of the various states, appointed under the authority established by the Articles of Confederation, and the document was subsequent ratified by the legislatures of these states to form the legal foundation for a new contract of government for these thirteen states and their relationships to each other.

If you're going to have a nation under the rule of law, you have to basis your system on laws duly enacted. The Constitution is such a document; the Declaration of Independence is not.

And Rightly So!

The question posed by the professor is NOT whether social conservatives have reasonable grounds to oppose anti-sodomy law. Very few if any of the posters here have defended maintaining such statutues, but in any case, that's not relevant to the question. In other words, the controversy is not over the wisdom or merits of anti-sodomy laws

Rather, the controversy is whether the federal court (and in particular the Supreme Court) were correct in arrogating to themselves the authority under the Constitution to declare as null the power of states to enact anti-sodomy laws - and specifically whether the foundation on which they claimed the right to arrogate (privacy, equal protection) can be reconciled with the principles of conservative judicial jurisprudence.

The professor's question is whether social conservatives (and in particular those who support Huckabee) still subscribe to conservative jurisprudence, and his litmus test is the grounds on which they agree or disagree with the Lawrence decision - which represents a repudiation of conservative jurisprudence.

He is particularly interested in the basis by which one would argue that Lawrence was correctly decided and that Roe was incorrectly decided. The suspicion, as some have pointed out above, is that socially conservative Huckabee supporters are in fact acting not out of conservative jurisprudence but rather out of a (liberal) activist, results-oriented jursiprudence, in which they want the courts to find a way to produce results that match their antecedent socially conservative political & moral beliefs.

In brief, the question is whether social conservatives subscribe to a conservative or liberal jurisprudence to achieve their ends (which, to oversimplify, translates to putting one's ultimate political trust in judges vs. the ballot box).

And Rightly So!

Romney, Thompson, Giuliani, and McCain have all addressed this issue. All have shown an understanding of the issue, and all have pledged to appoint judges who will follow the text. Huckabee says he will appoint judges who follow the text, but whether he understands what that means is an open issue. Still.

Loving draws a statutory line based on race. That is a textbook example of a violation of equal protection.

As to calling out folks, I asked an honest question and never got a really honest answer. I heard from Huckabee supporters who reject the socal conservative position, but I never had a true social conservative Huckabee supporter explain how Lawrence can be correct without Roe being within the power of the Court.

Of course, there is a reason for that. It is an impossible argument. But no Huckabee supporter would admit that. They are willing to risk the courts on someone whose heart they believe is right without regard to whether they know if his brain understands this vital issue. He is the Harriet Miers presidential candidate.

You have any links to any of the candidates advocating for the reversal of Lawrence or saying it was a bad decision?

So you do believe that equal protection is a valid legal protection?

It is impossible to argue against your assertions because they are political arguments asking for a legal defense of a ruling.

If you were looking for a legal interpretation you would have referenced the LEGAL opinion of the majority in the case rather than create your own terms and definitions that ignore legal issues such as stare decisis.

I don't support Huckabee but, much like Erick, I feel a need to defend him because the attacks on him seem to be based just about ANY rationalization that the attackers can make of his comments.

There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy

And where's the direct quote that says that Huck supports the thought process behind Lawrence?

While I am by no means convinced of the legitimacy of a broad right to privacy being defined in the Constitution, distinguishing Roe and Lawrence can certainly be done by arguing that Roe affects the rights of someone other than the mother, and that the Constitution either is silent on the question of whether or not a foetus has rights or defines them in the Fourteenth. Either way, it involves a clear second determination over and above the right to privacy at issue in Lawrence.

Quentin Langley
Editor of http://www.quentinlangley.net

International Editor of

You left out the arguments about what social conservatism is.

www.republicansenate.org

Plainly, it does allow for unenumerated rights. It seems to me that it only refers to rights that were understood and accepted in English or American law prior to adoption of the BoR. The only halfway decent argument that supports the broad privacy right described in Roe I have ever heard defines privacy as one of those rights. This seems to me to be halfway decent because it claims that SCOTUS did not invent the right out of whole cloth but asserted a right which Madison would have recognised as being contained within the Ninth. It is only halfway decent because it is factually incorrect. Courts in England have lately been developing a right of privacy developing from confidentiality, and can find statutory support for such in the Human Rights Act of (iirc) 1999. But the Ninth cannot be taken to assume that the UK Parliament retained the right to legislate for US. English case law is informative in an advisory capacity in American courts, but only insofar as it refers to laws which exist in both countries - contract for example.

One right which I do find in the Ninth, which is hinted at in the Second but not specifically enumerated there, is self defence. This was well understood in Common Law prior to the BoR and would have been recognised by Madison.

Quentin Langley
Editor of http://www.quentinlangley.net

International Editor of