Constitutional Remedies With An Expiration Date? Affirmative Action and Marriage Neutrality. Again. (December 10, 2012)

. . .

A          “By my simple way of thinking, a constitutional right is either a constitutional right or it is not a constitutional right.  So you say that we treat everyone equally by not treating everyone equally for twenty-five years starting in 2003.  And then the unequal treatment in the name of equal treatment expires in 2028.”

B          “Yup.”

A          “The handiwork of Justice O’Connor.”

B          “Yup.  Not very tidy but workable.” 

A          “But when it comes to marriage neutrality, there is no public incubation period.”

B          “Nope.”

A          “In twenty-five years, no one will even pause when two guys or two gals get married.  But then there is the countervailing contention that society needs to change at its own pace and the law should follow.  Yet you maintain that the Supremes should simply state that it is the law of the land now.”

B          “Yup.  Because it is the law of the land.”

A          “And one person is now elected to make that decision in and for America.  Our friend Tony Kennedy.  The guy who could have been Bork.”

B          “Yup.  Another rich White boy who is a byproduct of one of the two most profitable law schools and an adherent of one of the two most powerful religions.  The youngster who always crayoned within the lines and then as a teenager completely penciled in the designated oval with a number 2 lead pencil is assigned to pen a decision that impacts the lives and the liberties and the pursuit of happiness of millions.”

A          “At the end of the day, the answer is simple.  You need to review the Protest Poem – The Declaration of Independence – quill penned before the Owners Manual – the Constitution.  ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’”

B          “Yup.  That will work.”

A          “And reference the Equal Protection provisions of the Constitution for good measure.”

B          “Yup.  Absent attacks such as 12/7 and 9/11 that trigger a sea change in public opinion, no public consensus has emerged as rapidly in American history.”

A          “If the vote at the Conference is 5 – 4 in favor of marriage neutrality, Kennedy will write the defining opinion of his career.”

B          “Yup.  The minority will write the Plessy v. Ferguson decision for this century.”        

A          “Some guys get all the luck.”

B          “Yup.  They are reactionary guys.  You have got to give it to them.  The polite description is to note that they are off the wall.”

A          “If Roberts sees the writing on the wall, however, he may switch to the majority and opt to write the opinion himself.”

B          “Maybe.  Roberts took some history courses in college and is shrewd enough to foresee Clio’s ultimate verdict.”

A          “By my simple way of thinking, a constitutional right is either a constitutional right or it is not a constitutional right.  Marriage neutrality is a right.”

B          “What is gestating will be revealing.” 

. . .

[See the “e-ssays” titled The Conservative Solution To Affirmative Action (October 15, 2012), The Supreme Court – Unrepresentative and Illegitimate: The 33.3 Percent Solution (October 1, 2012) and September 17 – Constitution Day (September 19, 2011) and the “e-ssay” titled “Strict Construction” Strictly Construed (March 14, 2005) discussing Loving v. Virginia (1967) where the Supreme Court in an unanimous opinion affirmed the right to marry as a fundamental constitutional freedom.]

Bumper stickers of the week:

Marriage – the fundamental Constitutional right of every person to be miserable

Marriage = one consenting adult and one consenting adult

Marriage Neutrality – the government stays out of the picture and away from the altar

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind.  As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times.  We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

Thomas Jefferson (engraved on the Jefferson Memorial)

Women: 2; Men: 3; Boys: 4 – A winning combination

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