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Dahlia Lithwick is Not My Strange Bedfellow

Damn it, it's getting hard to say how dumb Dahlia Lithwick is without everyone beating you to it. Maybe this time I can at least scoop the Clerk.

OK, Volokh has already pointed out that supporters of the Federal Marriage Amendment probably don't think they're bigots, and Unlearned Hand wonders how she can expect Bush to become "the guy who first used the Constitution to codify bigotry" when the document supported slavery from the day it was founded until the Civil War. Fortunately, Lithwick is generous to her critics, and almost every paragraph she writes can be mocked without mercy. For instance:

So what is the downside of letting Massachusetts set its own rules and letting the courts chew over the whole mess for a few years? A lack of uniformity. For a while, we'd have a crazy quilt of policies across the country, with some states permitting gay marriage and others banning it. So what? A lack of uniformity is the norm where marriage law is concerned. The only other negative, to the minds of the far right, is that some Americans might be allowed to live in states that accord them the right to marry.

We call that "federalism."

And we call this triumphant (almost orgasmic) moment of self-satisfaction the consummation of a "marriage of convenience." Until Roe v. Wade, a lack of uniformity in abortion was also the norm. A quick Google search shows that Lithwick isn't backing Scalia in any federalist revolution. She mentions in her own article that the Defense of Marriage Act is quite possibly (probably?) waiting to be struck down as unconstitutional. Yet she seems blind to the very idea that FMA proponents fear most: that after Massachusetts, not only the federal DOMA but all the state acts as well are struck down by the same band of federalists who gave us Lawrence v. Texas. With, it's noted, her applause.

She's called Bush a bigot... do we get to call her a fair-weather federalist?


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» Bigotry and the Constitution from The Curmudgeonly Clerk
The admirably mild-mannered Eugene Volokh is on a roll concerning Dahlia Lithwick's argumentation about the proposed Federal Marriage Amendment. Setting... [Read More]

» Bigotry and the Constitution from The Curmudgeonly Clerk
The admirably mild-mannered Eugene Volokh is on a roll concerning Dahlia Lithwick's argumentation about the proposed Federal Marriage Amendment. Setting... [Read More]

» Bigotry and the Constitution from The Curmudgeonly Clerk
The admirably mild-mannered Eugene Volokh is on a roll concerning Dahlia Lithwick's argumentation about the proposed Federal Marriage Amendment. Setting... [Read More]

» Bigotry and the Constitution from The Curmudgeonly Clerk
The admirably mild-mannered Eugene Volokh is on a roll concerning Dahlia Lithwick's argumentation about the proposed Federal Marriage Amendment. Setting... [Read More]


Her piece on the Donald Trump reality show was even sillier.
I thought the constitution only supported slavery if you read it in a 'this supports slavery' kind of way. Might be wrong though.
I think you can make an argument that marriage should be left to the states, whereas a lot of other things shouldn't be. I don't see her making that argument.
Oi! I think this is my third comment today---Anthony, you must get a fact checker! Actually, for the bulk of time before Roe v. Wade, abortion law was indeed pretty uniform in this country. That is, it was illegal pretty much everywhere. From the 1960s to 1973 the states did start legalizing it (the two big newsmakers being California and New York)---indeed, the remarkable character of the pre-Roe period was how fast and how universal the tendency towards abortion-on-demand was. But this change started very late and happened very fast once it began. It didn't get very far, as the familiar lament goes, because the Court stilled a popular movement in its infancy. Gerry Rosenberg's book is probably the seminal text on this, and a fascinating alternative perspective on law. Highly recommend. So... wrong on the facts. Also on the theory, tho' that's dictum. But just for show and tell: No one denies that states are at liberty to create additional rights or duties beyond what the federal government creates, or seriously questions the value in allowing such experimentation on a state-by-state basis. And everyone calls that "federalism." The debate over federalism arises, not over the question whether it's a good thing or a bad thing (for the record: good thing), but whether it's allowed to trump the Supremacy Clause. That is, when people complain that Alabama allows the NAACP fewer free speech rights than other states, they're not objecting to federalist diversity. They're objecting that Alabama is violating an independent norm: the First Amendment.
(rolls eyes) I know this, TtP. However, it's not 'wrong on the facts,' nor 'wrong on the facts as Lithwick portrays them.' First, abortion was pretty much illegal everywhere in exactly the same way as, say, theft is: illegal in many different forms, with several different penalties, in each state. Nonetheless, this difference was the norm, and each state could change it. Lithwick, however, is a big supporter of Roe, which federalized what had previously been a state question. And by the way, if California and New York were legalizing it, then the statement is correct on its face even if you don't recognize a difference in penalties as a 'difference': that was the norm as of 1972. I'll leave the 'dictum' as an exercise until I get my moot court brief done...
Fair enough, I'm looking forward to reading them. But surely if the following happened, you wouldn't think that lack-of-uniformity were the appropriate signifier: 1) For the first 150 years of the Republic abortion were illegal everywhere 2) Then one day California legalized it 3) Then the next day New York did 4) Then New Jersey &c &c until 50 states in 50 days had legalized abortion. So the presence of some disparity as some time isn't really enough to destroy uniformity, is it? And what's really signified by the tag is something else---something else, I won't deny you, that may have been present here. (For the record: It wasn't. But you could make the argument that it was.) So I'm objecting that you've shifted the goal posts a little. You can still kick it through the uprights, but not the ones you were pointing at. Oh, god, that's a terrible metaphor. Sorry.
uh, original text of the constitution is inherently not code, so no...it was not 'codified' with slavery.

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