Larry Tribei nigh-on trips all over himself discussing the recent Scalia dissent in the Windsor case :
The pair of decisions taken together left the most contentious questions about same-sex marriage for the political process to continue grappling with – postponing to another day, when the generational wave that is moving this question to an inevitable conclusion has proceeded still further, the Court’s next encounter with the questions of equal human liberty and dignity that lie at its constitutional core.
No doubt in my mind : the stuff Americans write today will be as discredible in retrospect as the stuff Russians were writing in the 1970s. Here you have some guy who's supposedly a competent legal mind, at least on paper, harping on about the relentless march of the soviets + the inescapable future of the Revolution and all I can hear is Michurin berating actual scientists on the grounds that "he has no time for reunions of the Flat Earth Society".ii Incidentally, do you know how Miciurin died ? No ? He fell to his death. From atop a strawberry-tree.
Let's consider for a moment what Scalia actually says :
For this reason we are quite forbidden to say what the law is whenever (as today’s opinion asserts) “an Act of Congress is alleged to conflict with the Constitution.” We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. The “judicial Power” is not, as the majority believes, the power “to say what the law is,” giving the Supreme Court the “primary role in determining the constitutionality of laws.” The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons. Sometimes (though not always) the parties before the court disagree not with regard to the facts of their case (or not only with regard to the facts) but with regard to the applicable law—in which event (and only in which event) it becomes the “province and duty of the judicial department to say what the law is.”
In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, freestanding role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become “the province and duty of the judicial department to say what the law is.” That is why, in 1793, we politely declined the Washington Administration’s request to “say what the law is” on a particular treaty matter that was not the subject of a concrete legal controversy. And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit.
That's it, that's the problem right there. I cut a deal with Joe that he should each year prune my trees. He dies, but I am immortal, and so in turn his sons Moe and Noe come to inherit his tree pruning tools. Moe wishes to prune the trees, on the grounds that we had such and such deal with his reposed father, Joe, and since I've never rescinded it one would construe it's still standing. Noe wishes to talk my ear off with considerations about where the plums go when they go. What to do ?
I frankly do not see any possibility to bridge this gap. Outside of the complete physical destruction of the soviets (for the n-th time) there exists no way to resolve this dispute. Just as soon as the crazed lose track of what things are in order to focus on what things "could" be or "should" be or "might" be the only solution comes in the form of a stick, to be applied liberally to the respective crazed until either a) death or b) re-focusing actually occurs. So I guess that while Moe and his offspring continues anually pruning my trees, I shall employ the branches to the task of beating Noe and his offspring black and blue.
What else ?
Sure, the crazed could organise a little parade calling each other whatever they will, giving each other little titles and little straw hats with colored bands. They could deem each other professors emeritaiii of shouldbeism, they could be megasuperchairs of
cluelessness righteousness. What difference is all that likely to make, in the end ? Before they "changed" what marriage means other people "changed" other words in other languages, for about the same actual reasons, making about the same feigns and pretenses, obtaining in the end about the same results.
Because, again, what else ?———
- a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University [↩]
- This may appear to you a joke, but in point of fact this occured, the "enlightened" representative of "Soviet" science - as if science could ever be national - disdaining the counter-revolutionary, burgeois and decadent "elements" following Mendel (aka sanity), "enmitously" unconvinced by his own unverifiable, bizarre claims. [↩]
- Apparatus, apparata, emeritus, emerita, right ? [↩]