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Rereading Lochner

So we're up to Lochner in Constitutional Law. What it's made me realize is exactly how fragile judicially-based freedoms actually are. Once your particular Solons change, you're pretty-well screwed.

So here's a question for Massachusetts, for which I don't know the answer. When the Courts of the early 1900s was indulging in true conservative judicial activism in the name of a 'right to contract,' no lesser a liberal luminary than FDR suggested packing the Court: putting in place a greater number of justices so that he had his own majority. The idea wasn't particularly original: it had been proposed as a measure to control the House of Lords during Victoria's reign.

Now, I've checked, and California sets its number of Supreme Court justices in its constitution, but Massachusetts seems to do so by statute. "The supreme judicial court shall consist of one chief justice and six associate justices." ALM GL ch. 211, § 1. So supposing that the legislature and the governor are truly worried about judicial usurpation of their powers, why not indulge in a little court-packing?

Of course, I could be missing something in the Massachusetts constitution. It's a long and complex document, and I'll admit the possibility I've missed the point. But given that the SJC has set the goalposts too close for an amendment to take effect before gay marriages must be recognized, why not change the court instead of the constitution?


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I did a cursory search of the document using control-f for various terms, and think that you're right about the number of judges not being set in the constitution. I did, however, find that the initiative process cannot be used to invoke a "measure that relates to . . . the appointment, qualification, tenure, removal, recall or compensation of judges; or to the reversal of a judicial decision[.] The real answer to you question is probably political: If the legislature doesn't have the votes to get a gay marriage amendment, then they wouldn't have the votes to get a judge through--judges in MA appointed by the governor with the advice and consent of the Senate. There would also be immense political costs with this type of end run around the decision . . .
If you are being facetious I'm sorry and you can disregard my reply. The answer to your question is obvious: court packing leads to weak institutions. I suppose that you read Marbury - you should read it at least once a semester because it, and McCulloch v. Maryland, have the answers to all the big questions. The role of a court is to say what the law is. The SJC in Mass has done that. To pack the court to get a different result would be to admit that courts are really just legislatures and, even if that is true in some cases at some times, it is not and cannot be true most of the time. To admit that, and pack the court, would weaken the institution beyond repair. It would also open the ruling party up to the same type of thing when in a few years power changes hands. To amend the constitution on the other hand unquestionably and legitimately changes the law. While this may take more time the long term result is much more legitimacy.
Hmm, in 1910 Prime Minister Lloyd George threatened to pack the House of Lords. This was a fairly monumental undertaking requiring the creation of hundreds of peers. Alledgedly the Lords cracked when it emerged that Lloyd George had been up all night trying to finish his list of 2 or 3 hundred people he could ennoble. The result was the emminently sensible bit about the Lords not being able to block commons legislation (in this case a budget) more than twice.
But of course, in this case the SJC is acting like a legislature. And this entire debate has already veered past the 'weakening institutions stage.' Certainly if Mayor Newsom has the right to start deciding that laws are unconstitional and start making thousands of 'test case marriages,' and that's a 'legitimate' process, then strongarming the Court is the same. After all, it's more clearly within the legislature's power than what's in Newsom's. "Not Telling" (God, do I love folk's penchant for anonymity here), your argument might be a good reason that such a move is unwise. But I'm interested in why it might be impossible to do. 'Wise' then just becomes balancing the importance of other policy options. Obviously, if you think that keeping marriage a heterosexual institution isn't that important, messing with the judiciary is unwise. But that's not entirely convincing.
Let's see. Our host is both obsessed with criminalizing gay relationships AND "The Wizard of Oz." Self-loathing close case, anyone? Did we stumble onto David Gest's blog?
How droll. First, I defy you to find where I'd criminalize a gay relationship. Secondly, an obsession with the Wizard of Oz? Of course, the opposite of a host is a guest. Which is what you are. Debrett's, anyone?
Well to address an earlier comment, Marbury also says that "The province of the court is, solely, to decide the rights of indviduals...." So if the court oversteps its bounds and starts dictating public policy, then why isn't "court packing" a necessary and legitimate, though extraordinary, check against judicial overreaching? But on another note, this is a state court, and do the Massachusetts justices have life tenure? Changing the composition of the court may be done more easily another way than by court packing. Packing also sets a nasty precedent for how to deal with unpopular opinions, potentially leading to a court with 50 justices. In my opinion, this is not a good route to go down, unless the court reeeeeally oversteps its bounds.
Let me get this straight, so to speak. You have a blog, which is a public forum, and you invite comments. But you then remind commentators that they are guests, and guests should not contradict their hosts. Making gay marriage illegal is tantamount to criminalizing it. To deny a class of citizens a right that other citizens have is to say to them "your value, your very existence, as an American is of a second-rate status." If you're straight, then what difference does same sex marriage make to you? I "defy" you to demonstrate how it threatens you or our society in any way. If you want to attack it from a morality stand point, have the guts to stand up and do so. Instead you're taking a rather hacknyed approach by saying that the legal arguments in its favor are flawed. As for the Wizard of Oz, Dorothy, it's a sly reference to your endorsement of the novel "Wicked." Untwist your knickers. Yes, I'm fully aware that a self-important 1L at Columbia is pretty much at the zenith of post-modern wisdom and intellect, but even a philosopher king can lighten up now and then. It's difficult to explain to a 23 year old male that he DOESN'T know everything about the world just yet, especially when it comes to matters of his still evolving sexual personality. Don't worry, in a few years you'll come to realize that gay men do not want to rape you and that the ability for two people of the same sex to settle down and live a rather mundane life together is not a tremendous threat to our society.
Matto-- You are, of course, right about there being better ways of doing things, it being bad precedent, etc. But it is an option, and if people thought it important enough. Alex-- You make so many errors, so many assumptions, and finally an ass of yourself. How do I start? a) I remind commentators that they are guests, and should behave with a certain degree of decorum that your posts lack. You're welcome to disagree. Insults, however, are insults. b) First, not all things that are illegal are criminal. And to make a finer distinction, failing to advocate the civil recognition of gay marriage is not to criminalize conduct. Civil marriage is an action of the state, so how exactly one would make it criminal is beyond me. Maybe Mayor Newsom, if he were judged to have misinterpreted the constitution, could be considered criminal in recognizing a homosexual marriage, but that's a bit extreme. c) I've said several times I'm not particularly worried about the moral view, but annoyed at the idea of judicially imposing homosexual marriage. And if you're saying that I shouldn't criticize the legal arguments of a court case or the action of a mayor, why precisely should I not. d) If you want to explain something to a 23 year old male (and may I suggest you don't try to explain manners) I'd suggest you find one. In the meantime, if you want to make personal attacks on someone's blog, wouldn't it be nice to do so in a non-anonymous fashion? Oh, and finally, do you actually work at Willkie, Farr, and Gallagher?
"Don't worry, in a few years you'll come to realize that gay men do not want to rape you..." That was, by far, the strangest comment of that particular post, and probably most posts I have seen.
It sounds as if someone is jealous he didn't get into Columbia . . .
Alex -- (Note to self: You're about to strenuously defend Tony, are you sure about this? Answer from self: Easy, yes.) You had better try and understand something before messing with Tony. First, he's smart. Second, he's got a great sense of humor, so if your "Wicked" reference was even close to amusing he would have gotten it. Third, he's willing to have detailed, civil discussions about these issues. I, as you will see if you check out my blog, am a fairly (some would say very, but I think that's inaccurate) liberal, young, gay guy who is working tirelessly for marriage equality. At the same time, the discussions I have had with Tony both in the blogosphere and in private e-mails have led me to a position of respecting him greatly. Your response to his post is both inappropriate and irresponsible. Tony is the type of person who is willing to talk and listen. Even if he disagrees, there are far worse things.
IF this thing eats my comment one more time I'm giving up. ASDF: I'd take your insult more personally if it wasn't straight out of 11th grade and wasn't coming from someone who lists his e-mail address as "suckit@yahoo.com" But, hey, whatever works for you. A-rick: Points taken. Regarding insults, my mistake for lumping you in with snot-nosed bigots who use academic or legal arguments to mask their personal issues. I can blame having the president declare war on me for making me rush to judgment. I also was raised and educated down south, where plenty of those types exist. I stridently disagree with the premise that judges should not determine the context of marriage within the constituional framework. Marriage is determined by state law (at least until now). State laws of all types are subject to constitutional review. When the right throws out rhetoric like "judicial activism" it's code for "these judges want to let homos rape your sons." Sorry to be so blunt, but that's exactly what they're getting at. You'll notice "judicial activism" is never used to describe court decisions that the right favors. No, that's called "judicial restraint." As for my workplace, it's slow here this week. Don't you do any STUDYING at Columbia? As long as we're getting into this, I do feel it's a little inappropriate to reveal information about people in that manner. Because you requested people not to remain anonymous, I provided my name and personal e-mail address. Just because you have the ability to broadcast information about people who've ticked you off, doesn't mean you should exercise it. It's not a matter so much of my privacy. I put my name out there, and people could do the searching themselves and maybe find out whatever they wanted to about me. It's a matter of what's appropriate as a webhost I suppose. SeanS: see above about jumpig to conclusions, but the sodomy fear issue is not something I pulled out of thin air. I had a pretty traditional upbringing, again down south, playing high school sports, going to church, etc.. "I don't want no faggot near me" was something you'd hear nearly every day. This wasn't just in the locker room. Sunday school teachers would talk about how homosexuals were out to rape teenage boys. It's fairly ugly. My point was that post-adolescent men often have big issues about gay males. Maybe it comes from lack of sexual experience and perceived desirability by women, but until they have matured, a lot of young men tend to display homophobia. Once they're older and more secure in their own identities, these same men often cast those attitudes aside. Interesting visit to this site. Having stirred up a hornet's nest I think I'd better leave with my tail between my legs.
Yeah, good call dude. You show up at a random site and accuse its author—who has come out (no pun intended) in the past to advocate for states to get out of the defining marriage business altogether and in favor of secular civil unions for everyone, including gays—of being “self-loathing” and a closet homosexual (a la Gest). When I respond to this absurdity with more absurdity, you call my absurdity out and take the moral high ground. I’d write more, but I currently too busy scanning the area attempting to figure out which homosexuals out there are going to rape me. (BTW, as a gay marriage supporter myself, your inane rhetoric does nothing to help the cause)
Asdf: Suck it harder????? Cute. Nice try, but the "I took to the mud because you were already there" argument doesn't fly. In fact "I know you are but what am I" would have been more effective. Don't worry about the rape thing. I doubt anyone's interested.
By the way, I'm sure your multitude of gay friends, whose marriage rights you valiently support, appreciate the "suck me" response just as much as I do.
Have to admit, I didn't even catch the email addresses before. (Alex, FYI, ASDF normally uses a number of false email addresses.) Chill. I'm in class at the moment and don't have the time to administer the site. And Alex, I am interested at the rape thing, which I will address when next I get a chance to comment. (Incidentally, Alex, as long as I'm updating--the question regarding 'working' wasn't meant to ask whether you did any work, but whether you were using the computer systems as an employee, or if somehow the IP address routing was unclear. I do my tracking through IP addressing, not email addresses, but you might be working at another company that shares a server, etc. etc. Sorry if that was unclear. Whether I do any studying at Columbia is, of course, an open question. ;) )
[First, the housekeeping matters. All offensive email addresses have now been bowdlerized. I suppose I should modify my policy statement on this somewhere, but for the moment, please don't use potentially offensive email addresses as anonymous names. Mainly because I'll then take the time to go clean them up, and I don't relish the thought of doing it on a regular basis.] This topic is now closed. As for posting the source of IP addresses that occur in my log files, I suppose I should modify my "About Us" statement to make clear the obvious--IP addresses to this site are logged. If you decide to come in throwing about unfounded insults (and getting my age wrong by over half a decade) and trying to embarass me in front of my family, my friends, and my colleagues, don't be asking favors of me as a guest later. The discussion is now closed.

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