I wasn't going to write about this here, but oh, well.
I posted on Common Sense Political Thought about the celebration going on with the announcement that Jesurgislac wasn't going to comment there anymore.
Jes took up resident at Jeromy Brown's site Iowa Liberal, where Jes has continued peddling the same hash of lies and mischaracterizations as usual: first that I seemingly deleted its comments because I disagreed with them (even though there are lots of comments here that disagree with me) and that I "lied" about the reasons for deleting them. Then Jes went on to lie about why it threw a temper tantrum and left CSPT. Anyone who actually read the comments at this post would recognize why Jes had to lie about the situation (even a Pandagon commenter agreed that Jes's interpretation of events was stretching the truth, to describe it kindly.
But now Jes has found a soul mate in Jeromy Brown, who also believes that if you can't fight the arguments presented, just make up your own version and go with that.
The discussion centered around gay marriage, starting because I praised Dana's arguments at Jeromy's site. Jeromy decided to come to CSPT to debate the issue, sure that he could win any discussion on the issue.
I’ve been stomping on the same-old, same-old arguments for ten years, and every time your ilk just scurries away like rats, going back to your echo chambers where somebody can tell you, “It’s okay, Sharon, teh gay is wrong, the Bible tells me so! Let’s work on some more rhetorical mishmash flabberjabbery to keep them hommasectuals at bay!”
Make your attempt, Sharon, and get yer scurryin’ boots on. (Comment 4)
Well, unfortunately, the discussion didn't go the way Jeromy wanted,but that didn't stop him from talking smack.
Again, Sharon, if you actually want to contribute to the discussion, or support pretty much anything you’ve said, I’m waiting. I’m not sure if my arguments are outstanding, but they’re good enough to handle anything you’ve got, babe. (Comment 5)
and
This is hardly my first attempt to outline the distinctions, but there you go again. It’s easy for you to claim projection, but I claim it too, Sharon.
And you will steadily realize that on the merits, I shall earn my claim. (Comment 12)
and
Not because you’re right, Sharon, but because you’re lost without that. The next step is conceding the argument to me, and people just don’t work that way. So I’ll expect your exit soon. (Comment 15)
Well, you get the idea. Every comment ended with the sort of argumentation I expect off a WWE event. Not very enlightening, not very intelligent.
Jeromy's technique reminded me of Wile E. Coyote, super genius. And it had about the same results.
He even went on with this technique at this post, where I showed that there truly is a slippery slope (and not the logical fallacy kind) between gay marriage and polygamy. That is, the polygamists are starting to use the exact arguments used in Lawrence v. Texas.
But the crux of Jeromy's argument is that the Ninth Amendment prevents the state or federal government from denying homosexuals the right to marry. The text of the amendment says:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
How can one construe this amendment to support gay marriage? According to Jeromy, this link I gave him supports his argument. Only...it doesn't.
Jeromy relies on a concurrence from Justice Goldberg that says,
The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . .
But there are a couple of problems with interpreting his statement as an endorsement of homosexual marriage. First, it is a concurrence. That means it isn't a binding opinion, but merely one (or several) justice's theory about why the holding of the case is correct. Only the sections of a ruling in which the majority all agree can typically be considered binding. Concurring opinions are just opinions.
Secondly, while Justice Goldberg may, indeed, have believed that there are fundamental rights protected by the Ninth Amendment, that is an extremely minority view. And more recent case law debunks the theory propagated by Jeromy and his ilk.
There's the Sixth Circuit Court of Appeals decision in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991):
[T]he ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution.
And, from the Wikipedia entry:
Professor Laurence Tribe shares this view: "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution."[6] Likewise, Justice Antonin Scalia has expressed the same view, in Troxel v. Granville (2000):The Declaration of Independence...is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.
But more than just these arguments, there's this argument:
In the libertarian tradition — and (Randy) Barnett is a libertarian — liberty is understood not as the presence of something, but as the absence of something; specifically, liberty is the absence of state action. Or, to put it another way, we’re at liberty wherever the Government just leaves us alone and does not act to restrain us. This is the liberty man possesses in his natural, pre-societal (and pre-governmental) condition, and all the rights found therein are his natural rights. And it is these rights, according to Barnett, that the Ninth Amendment conserves, for these are the rights “retained by the people” even following the establishment of Government.
But a man’s natural rights hardly include the non sequitur of a right to affirmative state action (i.e., the granting of a marriage license) in the service of his personal relationships. Government doesn’t exist in man’s natural, unrelated condition, and he cannot therefore claim a natural right to Government action on his behalf.
IMO, this is the best argument against the Ninth Amendment argument Jeromy tried to use. Our rights are to be free of government interference. We don't have a right to demand an affirmative state action. After all, if Jeromy Brown could demand that gay marriage be legal because of the Ninth Amendment, why couldn't he demand a pony from the government, as well?
The fact is, the best Constitutional argument for gay marriage is a Fourteenth Amendment Due Process clause one. As a commenter at Right Side of the Rainbow noted, the court hasn't elevated sexual orientation to the status of a "suspect class," which makes an Equal Protection argument unlikely.
Jeromy bragged repeatedly that I would run from his argument because he "always" wins this discussion. I warned him that I didn't run from arguments. Pity he didn't believe me.
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