Skip to main content

View Diary: Sen. Lindsey Graham moves the goalposts on LBGT rights (75 comments)

Comment Preferences

  •  You couldn't fairly read that into his remarks. (0+ / 0-)

    The Court wasn't being asked to decide on the constitutionality of slavery in "Dred Scott", something that none of the parties seriously disputed.

    •  Alright, you tell me (0+ / 0-)

      The great distance between these philosophies.  

      No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.
      The people decided. The question for us is who should decide these things? Should it be a handful of judges or should it be the people themselves? And I come out on the side of the people themselves. Different people will look at it differently. But slavery was outlawed by a Constitutional amendment. If you want to propose a Constitutional amendment legalizing same-sex marriage and it passes, that’s the law of the land.
      The Taney Court said - hey, slavery might be unfortunate, but it's not our job to change the Constitution, which clearly denied civil rights.

      Lindsey Graham says - gay people not having equality may be unfortunate, but it's not the Court's job to change the Constitution, even if they are denied civil rights.  

      •  I'm not aware of any school of thought (0+ / 0-)

        that believes the Court has the ability to change fundamentally understood rules of the Constitution.  There's no serious argument that the Constitution didn't allow slavery, and nobody in "Dred Scott" was arguing otherwise; it's nonsensical to compare that to arguments about the Equal Protection Clause.  "Dred Scott" wasn't about that.  It was about whether the traditional understanding of how slavery within the federal system worked should be upheld; the court said no, and completely rewrote the history of American jurisprudence with regard to slavery jurisdiction.

        "Dred Scott" is an outrageous decision because Taney and co. completely trashed the existing law of the United States, and massively overreached on the case in front of them while doing so.  Curtis and McLean's dissents meticulously document all the bullshit they're trying to sell as established law and history.

        If anything, frankly, that decision is an example of what Graham was arguing against.  Among other things, they tried to oust all power to decide the question of slavery in the territories from both Congress and the territorial legislatures, removing the power of the people to democratically make rules on that subject by law.

        •  To add: Obviously, the Court has the *ability* (0+ / 0-)

          to do that; it can put forward any interpretation it wants.  That's what it did in "Dred Scott", in fact.  But I don't know of any school of constitutional interpretation that suggests judges can discard parts of it whenever they feel like it (as opposed to enumerating and interpreting new rights under existing grants of rights).

        •  Forget about the technicalities of Dread Scott. (0+ / 0-)

          How is it that now, with this issue, Graham is ready to trash one entire wing of the three pillars of our government and feels that the Supreme Court should not have their say?

          All of these morons are going around worshiping the Constitution, 24/7, but they seem to be willing to disregard anything the SCOTUS says when it doesn't fit into their worldview.  

          Except when they declare George Bush President, that is.

      •  Lindsay does so with one eye over his shoulder (0+ / 0-)

        looking at the number of legislatures and state houses currentlycontrolled by Tea Bag republicans, 25 or maybe 30. Eight more and he gets anything he wants under his States' Rights theory and can put the lot into the Constitution.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site