Recently, I have been having a set-to with ProteinWisdom (Jeff Goldstein*) on Twitter. Can’t really call it a debate,discussion, conversation, or even random ramblings as he resorted to the tactic of calling me a fascist nearly immediately. But the gist of our “engagement” regards the latest Supreme Court rulings for Same Sex Marriage, for the ACA, and against Housing Discrimination. Whatever one thinks of these decisions, ProteinWisdom argues, “…the process of how we interpret and apply law — and what counts as liberty, in the sense it was intended by the founders and framers and to the extent it exists in a representative republic — is crucial to the protection of the individual and a the frustration of the state, whose natural impulse is to forever increase it’s own power.” – See more at: http://proteinwisdom.com/?p=57127#sthash.XexBTpkJ.dpuf
It’s an interesting statement; one I’m not at odds with. This statement by itself is something I think most everyone would agree with. His conclusions from this point on are, however, entirely wrong.
To summarize his argument, he believes the interpretation of law requires that law always and forever be clear and essentially not open to interpretation, and that the Supreme Court, when they chose to uphold the ACA provisions providing subsidies to those not in “State” exchanges , when they chose to find for Same Sex Marriage, and when they chose to uphold the Fair Housing Act, were not just misinterpreting the law, they were making it. He argues that this court is not only misinterpreting the law, they are writing law in contradistinction to the legislature when they clarify what the law states and that this is in contradiction to what the founders and framers wanted and intended and how dare anyone disagree. This, of course, is his opinion, and he is allowed to have it. It is, of course, wrong.
Marbury vs. Madison, anyone?
From the very beginning, our country has held that The Court has the right of Judicial Review. That The Court could and should when it saw fit protect the rights of the people EVEN FROM their own legislators(or their fellow citizens). And to argue that The Constitution and what is Constitutional is not open to interpretation is to quite simply ignore how non-specifically The Constitution is written. Contrary to supposed Constitutional Originalists, The Constitution actually is alive and does change over time. It does not cover every instance of every law, nor can it. As for its mutability, one need only to look at the interpretation of the 2nd Amendment (a position, I’m sure, ProteinWisdom agrees with) in which The Court at the beginning of our nation used to hold that the first part of the Amendment was the defining characteristic of the Amendment but has shifted considerably to hold that the second part of the Amendment is now the defining element.
Nor, let us not forget just how Originalist these Originalists are. http://www.businessinsider.com/jon-stewart-blasts-scalia-2015-6 Even a “lowly” comedian can see just how much Originalists believe in the claptrap they spout.
Which brings us to the next part of ProteinWisdom’s rantings, in which he uses as his basis Scalia’s dissent in Obergfell as claiming a “right’ to not be lonely. Why, yes, let’s just dismiss equality as a “right” not to be lonely. That makes it so simple to ignore ALL the laws and rights which benefit married couples. Simple things, like being able to sit with your partner when they are dying, like inheritance, like income tax filing, like taking your child to school, etc. etc. But ProteinWisdom isn’t against Same Sex Marriage, per se. Oh, no. He’s quite all right with it if your state votes for it. After all, it should be left up to majority rule. Just like inter-racial marriage, slavery, and segregation. All of which, by the way, were ended by the Federal Government and the Supreme Court. Equal Protection under the Law means just that. The motto of the Supreme Court is “Equal Justice Under The Law.” Explain how Justice is equal when you deny someone the right to marry because of whatever characteristic you dislike. The only thing Obergfell upheld is that we are supposedly all equal under the Law; your ick factor, notwithstanding.
But ProteinWisdom doesn’t just attack Obergfell. He has decided to conflate it with the opinion on housing discrimination, arguing that the Court ruled for socialism and “equality of outcome” and granting special rights to certain groups. This is just the ramblings of an idiot. Again, he ignores redlining, he ignores all discriminatory practices which in some cases may not be intentional but do occur, just so he can create some strawman imbecility that he believes he’s vanquished.
And last but not least, he takes up the interpretation of the ACA, arguing that because it is not perfectly clear, in his estimation, The Court should not have upheld the Federal subsidies. To be clear, we are back in that place where every law is perfectly transparent, never mind that The Constitution itself isn’t. His argument, by the way, rests on one piece of defense, that Jonathan Gruber made some comments about dragging Governors kicking and screaming to get Federal funds. Never mind that with a Google search one can find GOP lawmakers (Olympia Snow for one) who point out that they understood very well all along that the exchange and subsidies meant the Federal exchange as well.
As for clarity of the law? Do we now get to go backwards and unmake corporations are people? Many of us would like that.
He then goes on to point out that the Civil War Amendments (meaning mostly the 14th), was never intended to mean what The Court has decided it means, that all of us are equal under the law. He makes quite a show of pointing out how the States voted for it, ignoring again, that the only States originally for it were the ones that were NOT rebelling against the Union at the time. So about half of those that would later be bound by the 13th and 14th Amendment actually were for them. The rest were busy trying to destroy the Union until forced to vote for them to regain their federal representation.
The rest of his essay is quite literally raving. It is not worth reading, as he attempts to argue that somehow allowing people to marry is denying rights to others. I shouldn’t have to say it isn’t, but we now live in a world where up is down. Where denying someone their rights is called religious liberty.
Again,let’s be clear: no one is making ProteinWisdom have a Same Sex Marriage. No one is saying he can’t say stupid things. The 1st Amendment is still in place, and he can spout idiocy all he wants. But the 1st Amendment does not mean that we have to listen to his stupidity without him having any repercussions. The 1st Amendment is very clear: it means no government interference. It says nothing about private individuals or even corporations taking action. ProteinWisdom is upset that he can’t just spout off without someone pointing out that he’s simply making bad arguments.
So I need to ask: What rights does he believe he’s lost with the expansion of other people’s rights?
Clearly, reality does not exist in his bubble world.
*Correction: In my initial post, I incorrectly identified ProteinWisdom as Jeff Goldberg, not Jeff Goldstein. For that, I humbly apologize. As to the rest of his essay, it is still the same stupid end of civilization tripe.