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PaperclipPerfector  5mo ago (text post)   3298 thread views

Small-Scale Question Sunday for June 22, 2025

Do you have a dumb question that you're kind of embarrassed to ask in the main thread? Is there something you're just not sure about?

This is your opportunity to ask questions. No question too simple or too silly.

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Apparently some Amish people about 15 years ago were charged with hate crimes for cutting other Amish men's beards.

They tried to argue that the federal government had no constitutional authority to prosecute them, but the judge ruled that since the scissors used to cut the hair, and the vans used to drive to the men, had at some point crossed state lines, this was a valid prosecution under the interstate commerce clause.

I don't really have the time right now to make this into an effortpost for the main thread. But this is crazy. I'm living in crazytown. How we reached the point where such rulings aren't immediate grounds for revolution, I'll never know.

That "interstate commerce" stuff has been going for a while now. I remember a case where a guy grew weed on his own backyard, and was prosecuted under "interstate commerce" with the logic somewhat like: if you grow it, then you would consume it or sell it. If you'd consume it, you wouldn't buy any other weed on the market, and if you sell it, you participate in the weed market. Since weed is sold and transported across the state lines, participating in the weed market influences interstate commerce, therefore the interstate commerce clause gives the state power to regulate what you grow on your own backyard and smoke in your own house. Yeah, it's nuts and nobody cares. Welcome to the clown world, we have cookies.

Gonzales v. Raich

Thank you! I haven't remembered all the details from 20 years ago (the anniversary this month!). Re-reading it, the especially evil part is that the weed in question was absolutely undoubtedly for personal consumption, to treat a severe debilitating condition, with medical approval and supervision, allowed by state law - and yet Feds were absolutely adamant torturing a couple of women to death is what is right and proper to do.

And the dissent was all conservatives. The Democrats were happy to throw chronic pain patients under the bus in order to preserve an obviously wrong interpretation of the Commerce Clause because it's the source of the Federal Government's power to regulate purely intrastate affairs.

Did they die?

As far as I know, they did not, and continued to use cannabis despite the loss of this case. Eventually the policy of USDOJ changed to a less insane one towards medical marijuana patients (thanks Obama), so the feds stopped harassing them. The SCOTUS decision, however, remains as another milestone in the long road from the limited federalist government to "you got only the rights that the feds want to give to you".

Scalia's concurrence in that case, relying on the Necessary and Proper Clause, made a lot more sense than the majority opinion.

It’s no hair off my chin.

Seriously. On the long list of questionable bits of jurisprudence, intervening in an interfaith beard dispute is incredibly niche. There’s plenty of things more threatening than the government overstepping its prosecution authority.

Part of the answer is that some people wait-and-seed, and eventually the hate crime convictions were overturned for boring technical reasons, and their sentences reduced. There's a fair argument that the results still weren't fair -- the sentencing judge overtly said that he was still trying to give sentence enhancements for the religious focus of the crime, which is kinda sketchy even if specifically authorized by statute -- but it's enough that people who weren't that interested in philosophy of law could claim that everyone had a fair day in court and a neutral law was applied, whether or not it actually was.

Part of the answer is that the Amish are considered weird, and breakaway Amish weirder, and most people don't care about weirdos even where the court is unfair or the law illegitimate. As the list of awful things the government does to weirdos go, it's not going to take a top ten slot, and the people who do care about those top ten slots don't exactly get invited to a lot of parties.

Hell, even as sketchy trials before biased judges go, I can point to worse in pretty recent times.

Reality all adds up to normal. The fiction where one action by a government is so corrupt, awful, self-dealing, evil, and malicious as to result in major political upheaval or revolution is... not impossible, but it's the exception, rather than the rule, and usually downstream of a large mass of other motivating factors. If you look at the motivations for times these sorta things do go hot, there are patterns, and they're often not about anything so prosaic or useful.

It's an unpleasant revelation. Sorry.

If you like that, then you will love Wickard v. Filburn, where the supreme court ruled that the federal government had a right to prevent a farmer from growing wheat in his own land for his own use because, if a bunch of farmers did that, it would substantially lower the price of wheat in the national market, thus affecting interstate commerce.

And of course, we have all heard about Roe v. Wade and Obergefell v. Hodges, so it's not a problem specific to the commerce clause; a court that can find the right to abortion and gay "marriage" in the fourteenth amendment is a court that can find anything in anything.

If you like that, then you will love Wickard v. Filburn,

I purchased this mousepad my 1L year.

Obergefell is correct. The right to marriage does not distinguish between same-sex and opposite-sex couples just as it doesn’t distinguish between same- or mixed-race ones.

Referencing the shortest AAQC I’ve ever gotten, that is because a same sex marriage is not real under historical understandings of marriage.

What the Supreme Court actually did was impose a new definition of marriage on the states.

I mean, if we had a clean EPC opinion, you might have a case. (Of course, Skrmetti is already casting doubt on whether there's support to push the (often claimed dubious) Bostock reasoning in Title VII into EPC.) But we didn't get that opinion. We got the cluster that is Obergefell. It should be pretty high on the list of people who are pro-SSM-from-a-policy-perspective for "opinions where I agree with the outcome, but disagree with the reasoning".

Is the right to marriage written into the constitution?

As I understand it, Virginia v. Loving says yes.

I will admit that I’m not an expert. But I don’t think the dissents rejected the idea that marriage was a right protected by the 14th. They were more concerned with 1) whether the historical use of the term included the opposite-sex qualifier and 2) whether the due process clause protected positive rights in addition to negative ones. Or maybe that was just Thomas?

As I understand it, Virginia v. Loving says yes

No, I don't care about rulings, I mean the actual text of the actual constitution.

Maybe if one reads the 10th amendment broadly?

I suppose the real question is about what relation the founders would have intended the common law to have to the state governments, and what would they have considered to lie within their powers.

I would say that marriage is firmly under “equal protection under the law.”

That never held water. All people, regardless of their sex or sexual orientation, can marry someone of the opposite sex of any sexual orientation. Gay men are just as free and equally allowed to marry a woman as any straight man. If the gay man doesn't want to marry a woman, that's his choice, but he's legally allowed to.

And pretty much all of the equality under the law anti-discrimination stuff has carveouts for compelling state interests. Like, say, bearing and raising children and ensuring the survival of the species.

Telling gay people that it's illegal to have sex with each other would be one thing: the state intervening in a place where it has little compelling interest or jurisdiction (an argument could be made about preventing the spread of STDs, but it's weak, and promiscuous straight people do that too). But marriage, at least from a legal perspective, is a privilege the state recognizes for people to incentivize the formation of healthy and stable families, which gay people do not do. Arguing it's "equal protection under the law" is like arguing that childless people should get the same tax deductions and/or welfare aid as people with seven children because otherwise you're discriminating against the childless.

This was the same argument that Virginia made in Loving and the court rejected it then. Black people are free to marry other black people and white people are free to marry other white people so what's the problem?

But marriage, at least from a legal perspective, is a privilege the state recognizes for people to incentivize the formation of healthy and stable families, which gay people do not do.

Well, at least that's the conservative fantasy. If you look at the way the laws surrounding marriage actually operate, and have historically operated, it's pretty clear that the legal purpose is to regulate property transfers among family members. The only historical precedent which has to do with natural children is the legal presumption that a woman's husband is the father of her children, absent other evidence. While this may be a useful feature these days, it's no longer a necessary one, as states have been keeping records of these things for over a century, and technology has allowed paternity disputes to be resolve fairly easily. Beyond that, historical laws relating to marriage were based on the presumption that women couldn't own property in their own name, that wealth was basically synonymous with real property, and that widows were likely to be an undue burden on society. Today, of course, we live in a property where women are more economically equal than men, where the family farm isn't the primary source of income (or, realisitically, doesn't exist), cash is more important than real property, birth control exists, Social Security exists, etc. As a consequence, the laws surrounding marriage have changed since the turn of the last century to keep up with the times.

An along the way, we've created a whole host of new rights relating to marriage, notably ones concerning medical matters like the right to make certain decisions and the right of visitation. In other words, as the circumstances surrounding marriage have changed historically, the laws have changed along with it, and if you want to figure out the legal purpose of marriage, you have to look at those laws. If you want to believe in an idealized version where the laws that matter are the ones that have "stable families" or whatever as their obvious goal, you're going to be left with very little.

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This would be an interesting case if some state decided it wasn't going to recognize marriage at all.

Exactly. Maybe there’s something analogous in the way certain states recognize different corporate structures? There are only a few which allow forming anonymous LLCs.

I would say it's a massive rabbit-hole with the outcome being far from certain. How do you determine "equal protection under the law" for people who aren't the same? We're kind of debating it with the trans stuff right now. Does a man have a right to women's facilities, explicitly demanded by various "equality acts", for example? Some people say "yes", other's say "men are not women, so a law demanding the creation of women's facilities does not demand that men are given access to them". I would say that whatever the answer is, it's not written in the constitution, and we should stop pretending that it is.

Roe wasn’t a 14th amendment ruling, it was a right to privacy under the ‘penumbra’ of the constitution. Famously Ruth Bader Ginsburg thought it was badly written and not grounded in anything.

It missed its chance to be the one and only 10th Amendment precedent.

10th Amendment

The one that was supposed to be the most powerful of them all and ended up being the most useless. We've got the concept of "enumerated rights" instead, which is a diametrical opposite of what 10th amendment says. The Federalists were absolutely right - they warned us this will happen, and it happened. Though without the Bill of Rights it probably would be even worse.

The Federalists were absolutely right

The Federalists were against adding an explicit Bill of Rights, and only chose to do so as a compromise. The Anti-Federalists wanted to enumerate the rights, and I think have ultimately been proven right.

The Federalists were against adding an explicit Bill of Rights, and only chose to do so as a compromise.

Yes, but why they were against? Because they argued if you explicitly make a list "there's a right to X, right to Y, right to Z" - and then somebody comes with the question about whether or not the government can regulate R, then people would say "well, it's not X, Y or Z, and there's a list and it must be for a reason, those are clearly more important than others, so R not a real right, it's kinda secondary one, so let's regulate the heck out of it" - completely opposite of what 10th Amendment was intended. And they were right - we hear arguments like these all the time now. If it's not mentioned in the plain text of the Constitution, good luck limiting the government reach into it. The Anti-Federalists were kinda right too, in that that without Bill of Rights, we probably wouldn't be able to hold on even on those enumerated rights either - see Europe as an example. At least this way we got something out of it, even though much less than we were originally supposed to.

A lack of revolution is understandable, it's not a trivial matter, and the regime is otherwise not that terrible. What I have very little patience for is our local lawcells acting, and expecting that others act, like law texts are meaningful, and that matters of law be debated within their framework.

A lack of revolution is understandable

Critically, this is a federalism issue with no important underlying policy disagreement. Non-consensually cutting people's hair (except in specific situations like the military draft) is uncontroversially illegal everywhere. In the modern US, nobody cares whether the same policy is implemented by the States or the Feds except in so far as it works as a litigation maneuver. (This isn't true in Europe, where the EU is not a country and the member states are still seen by their electorates as countries, and a substantial minorities of people are deeply attached to the idea that certain types of decision are made at country level)

Since America became a country and the individual States ceased to be countries (which a lot of people date to the Civil War, but I think happened somewhere between the Monroe and Jackson administrations) federalism ceased to be a principle people actually believed in and became a peace treaty. (Compare the infamous Yonatan Zunger essay making the same argument about liberal tolerance.) And right now, politically engaged Americans on both sides unfortunately don't seem to believe in abiding by the long-standing peace treaties between the Red and Blue tribes.

Critically, this is a federalism issue with no important underlying policy disagreement.

No, critically this is an issue of whether words in legal texts mean anything at all, whether George Bush was right about the constitution, and of whether, as erwgv3g34 points out, "rule of law" is even a coherent concept. Whether or not I agree with a given policy, or the manners in which powers are delegated between administrative units is completely irrelevant to whether or not judges are making shit up out of thin air.

Since America became a country and the individual States ceased to be countries (which a lot of people date to the Civil War, but I think happened somewhere between the Monroe and Jackson administrations) federalism ceased to be a principle people actually believed in and became a peace treaty

Then they should have changed the constitution to reflect that. By not doing so, they are either admitting to be in it's blatant violation, or to it not having any meaning to start with.

"A government of laws, not of men", as John Adams put it, is an incoherent fantasy. Laws are nothing more than ink on paper; only men can rule.

Rulers rule by codifying their rules into written laws out of a pragmatism that allows them to rule more effectively.

This thread smells of "there's a law I disagree with, therefore all law is illegitimate".

Rules are the peace treaty after the war was fought, and are only binding as long as all parties agree to be bound by them. If the parties agreed tomorrow that the laws against slavery would no longer be enforced, you’d have slavery. The law against it still exists in the constitution, but if no one will enforce it, it’s a dead letter.

No.

The problem is that there are enforcement of laws that people disagree with, which have very overt parallels to matters where the other tribe received broad victories, which any reasonable reading of the text of the law would not permit, and where defendants either lose in court or never have a fair day to start with. It's a problem when the Constitution seems a scam, and where the BATNA looks like a direct improvement on the very measures that negotiated agreement is advertising itself on.

Rulers rule by codifying their rules into written laws out of a pragmatism that allows them to rule more effectively.

Some rulers do that. Other rulers claim they're doing that and then rely on manipulation of procedural outcomes instead. And likewise, some critics are pointing to actual abuses, and some are simply mad because they got caught breaking black-letter law.

I believe I and others here are pointing to actual abuses. Between formal complexity, subjective interpretation, selective enforcement and corruption, Rule of Law is not a sustainable assumption in the United States. We cannot passively trust the legal system to fulfill its promises to us; pressure must be constantly applied, and some of that pressure must be illegible and outside the formal bounds of the law.

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