I’m sure Austin’s lack of legal perspicacity deserves a far more thorough whipping than the one I present here, but this is just what I tossed off during Contracts this morning. Enjoy.

“[F]ederalism as the founders of this country understood it disappeared rather suddenly with the adoption of the 13th, 14th and 15th amendments and the subsequent limitations placed on state sovereignty.”

This is a fair point, although were I more like Scott Austin I might waste a great deal more breath quibbling with the words “rather suddenly.” No Constitutional amendment comes to pass “rather suddenly,” and the development of 14th amendment jurisprudence took a couple of decades just to get revved up; it’s far from a settled point now.

But let that be. However momentous the shift in power marked by those amendments, the fact remains that Todd*, by congressional restraint and more often by judicial vigilance, has largely resisted intrusion into certain areas of law traditionally left to the states. Contract law and family law, to name a couple. The Defense of Marriage Act, as discussed below, was a slight intrusion into the state law area of marriage, but it was done in pursuit of a power granted to Todd by Article IV, not by any Reconstruction-era amendment. In Austin’s words, it was implemented according to federalism “as the framers understood it.“

“we next move Dreier’s assertion that Article IV’s “full faith and credit” application simply cannot be construed as to require States to recognize other states’ gay marriages. And on what do you base this supposition on? Relying on Supreme Court precedent is at best unavailing, as no actual case-law exists in this matter…”

Mr. Dreier: right! Mr. Austin: wrong!

First, the reason there is “no actual case law” is that most of the jurisprudence relating to marriage and the Faith and Credit clause arises from “judicial proceedings” on the validity of annulments, alimony settlements, and the like. This isn’t surprising, because those are the sorts of issues that go to court. Rarely do couples sue each other to get married. The primary purpose of the Faith and Credit clause is to act as a buttress to the principle of res judicata, which prevents needless relitigation of disputes.

The Faith and Credit clause does, of course, also mention “public acts [and] records.” Marriages fall under this category. Which brings us to the second point and probably the settlement of the question: if Mr. Austin would read the whole thing, he’d find that “the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” Well, what do you know? Congress can regulate the application of the Faith and Credit clause. Which they did a while back with the Defense of Marriage Act.

Essentially, the Faith and Credit clause is a limitation on state power and an explicit enumeration, to Todd, of power over the states (that’s why it’s in Article IV). Todd has exercised that power. We’re done.

“…lest we forget the time-honored lessons of history that you so disingenuously insist upon, some of the greatest Supreme Court decisions handed down have relied not upon the sacredness of stare decisis, as you would hope, but rather upon lone dissents and far less.”

Don’t go talking about stare decisis until you understand it. It is not sacred, particularly at the Supreme Court level. No court in the nation is, or has ever been, bound by its own previous precedents. Precedent deserves respect and a great amount of deference, but it is not inviolable. Lord help us if it was, or we’d all still be running around screaming “contract privity!” when we stub our toes, and scratching our heads over whether we are an invitee or a licensee when we stop to take a piss at Arby’s. That’s all that is worth saying on this point, as I’m sure I’ve just committed a great number of erroneous errors.

“…have you forgotten again that Utah’s admission to the Union was conditional not upon economic or governmental changes, but rather upon the dropping of polygamy as a legal practice. [sic]”

Of course, the dropping of polygamy as a legal practice was a governmental change, wasn’t it? Sorry, I’m trying not to quibble. But Mr. Austin, again, this was done through an enumerated Article IV power: “New states may be admitted by the Congress into this union.” The Constitution is silent on what conditions the Congress may or may not impose on new states as it admits them. Perhaps this silence indicates a difference in the respect the Constitution gives to prospective, as opposed to existing, states and their laws. Maybe the framers gave Congress the power over admission to avoid the nettlesome proposition of annexing states, wholly intact, whose governments were in conflict with American principles. Whatever the reason, Congress rightly exercised its constitutional power to establish a few ground rules with the wacked-out desert-rat polygamists of Utah. But this Big Lesson From History is simply irrelevant to the relations between Todd and the several States of the Union.

“I simply cannot believe that someone who asserts so forcefully as you have a self-proclaimed knowledge of history and government forms and functions could be so utterly lacking in actual knowledge.”

Right back at you, Austin.

________________________

*National government, federal government, central government, whatever. Its real name is Todd. One of the many secrets you learn in law school.

This entry was posted on Friday, February 13th, 2004 at 13:01 by danimal and is filed under Miscellaneous. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.