Presidential candidate Fred Thompson announced his idea for a constitutional amendment to “ban” gay marriage. Rather than using the constitution to define marriage, his proposal would essentially use the Constitution to strip states courts of jurisdiction over same-sex marriage cases, even when such cases are brought under state law. States could still recognize gay marriage, but only through ballot initiative or legislative effort.

The rationale should be familiar to those who know how proponents of these sorts of amendments think. Judges, drunk with power, are, sing it with me, “legislating from the bench”, and thus using the power of the courts illegitimately.

Just so we’re clear on terminology, judge-made law as I’m using it means judicial decisions with no basis in either statutes or administrative agency decisions. Naturally, a court decision about whether someone followed administrative agency regulation or whether a statute was violated is not controversial. Even people who rail against judicial activism regard this as a proper exercise of judicial power. I intend to focus solely on those legal acts and decisions with no statutory or Constitutional underpinnings, since these are the acts that seem to garner the most complaint.

To anyone who knows how law in the United States works, the claim that judges cannot “make law” should sound obviously wrong. Courts have just as much right to create law as legislatures do, and they have done so since their inception. Take the following basic examples of courts acting with absolutely no authority from any other branch. Alan hires three men to paint his house. They take their payment up front, ostensibly to buy supplies with, and skip town with Alan’s money. Alan finds them, and sues them for breach of contract. Absent special circumstances, there is no law saying that a contract of this nature is legally binding. A judge somewhere made that up out of whole cloth. Does that make contract law an illegitimate function of the courts? I should hope not.

Here’s another example. Bethany is walking along a quiet suburban street and stops to give a passing car directions. While she’s talking to the driver, a four year old riding a tricycle runs over Bethany’s foot, breaking a bone in it. Bethany sues the four year old and her parents for the medical expenses she incurs. The suit is dismissed because the “law” states that four year olds cannot be held legally liable for personal injuries they accidentally inflict. Again, there’s no statute saying this in most states. A judge simply decided that suing a four-year-old made no sense and dismissed the case, and other judges have been following suit (no pun intended) ever since. Tort law is riddled with these sorts of rules with no statutory authority whatsoever. Is does not make personal injury suits illegitimate.

Third example. In the early 50s, President Truman ordered all the steel mills in the United States to be seized to assist with the war effort in Korea. A steel sheet and tube maker sued the Secretary of Commerce, claiming that he, and the president, did not have legal authority to act as they did. But nowhere in the United States Code, or in the laws creating the Federal court system, is the court authorized to stop Federal officials from performing the duties the president tells them to do. So why did this Court do that? Again, the court created the right to enjoin Federal officials from acting illegally out of whole cloth. But is this illegitimate? Is this ‘legislating from the bench’?

The notion that Congress is the sole source of law and Courts are stuck with it is both historically ludicrous and problematic at a systemic level.

They’re both originalists, apparently.

Columbia Law professor Michael Dorf has a brilliant article on FindLaw where he uses the recent news that J.K. Rowling intended Dumbledore to be gay to explain philosophical problems in Constitutional interpretation.

His general point can be summed up like this. Does J.K. Rowling’s intent to make Dumbledore a gay character without explicitly mentioning it in the text in fact make the character gay? If you say yes, then you are an Originalist, like Justices Scalia and Thomas, who believe that the Constitution should mean what its writers intended it to mean.

Dorf makes his own views on the matter fairly clear. “Rowling explained that she was prompted to out the fictional Dumbledore when she noticed a reference to a female romantic interest of his in a draft of the screenplay for the planned sixth Potter film.

… But given that the Potter books, now complete, make no mention of Dumbledore’s sexuality, Rowling would not appear to have any authority to declare the print version of Dumbledore gay, straight or bi. Her views on such matters are naturally of interest to fans of her books, but the work must stand on its own.”

Dorf’s views are quite un-originalist, as are mine. I lean towards textualism, which would literally require that the books “stand on their own”.  But there are other legal philosophies that would approach the notion of Dumbledore’s sexuality (if it were a legal matter) very differently.

Textualism: Nowhere in the Harry Potter books is Dumbledore’s sexuality mentioned in any way. There are passages that some believe suggest Dumbledore is in fact gay. But the plain and ordinary meanings of passages do not in fact suggest that. It is therefore improper to draw any conclusion about Dumbledore’s sexuality from the books.

Critical Legal Studies: Interpreting Dumbledore as a homosexual empowers the GLBT community by showing revered characters in popular media as gay, and this is a social good inasmuch as it balances the social power straight white males have disproportionately held for generations. Such balancing should be encouraged. Therefore Dumbledore should be interpreted as being gay.

Virtue Jurisprudence: Interpreting a popular children’s character as a homosexual encourages children to accept, and possibly experiment with homosexuality. If homosexuality is immoral, then Dumbledore should not be interpreted to be gay so as to encourage virtue and discourage vice.

I apologize for boring you all with this, but I have a mild fetish for these sorts of law & sci-fi/fantasy crossovers.

There are some web sites that, when you see them, actually cause the speech centers of your brain to shut down. This site is one of those.

Ladies! Has your daughter succumbed to societal brainwashing? Does she refuse toy soldiers for Barbie and pass up BB guns for My Little Pony or Hello Kitty items? Have you despaired of interesting her in the practical aspects of life, such as weaponry and self-defense?

If so, this site is for YOU!

At GlamGuns.com, we’ve combined the girliness of glamor with the practicality of military expertise and have created a collection that will make your child shriek with joy! From the My Little M4 Carbine to the Hello Kitty “HK-AK-47″, you’ll find something for the little girl in everyone!

“Can anything be stupider than that a man has the right to kill me because he lives on the other side of a river and his ruler has a quarrel with mine, though I have not quarreled with him?”
– Blaise Pascal

“I offer to sell Sharon Stone my Cadillac on Sunday.  The next day, in the shower, I say ‘I changed my mind.  You can’t have my car, Sharon.’  Two days after that, Ms. Stone tries to accept the offer.  Does Ms. Stone have contract rights?  Yes.  Thus, my rule: if you want to revoke your offer, it is vital that Sharon Stone be in the shower with you when you do.”

One of the best publications out there, Reason, has put together Reason TV, which looks to be a collection of libertarian themed videos, including interviews with Reason staff members, as well as some an independent set of productions by Drew Carey. I’ve been browsing this for the past hour or so and it’s got some great stuff. Especially wonderful is this interview of Jacob Sullum by blowhard Bill O’Reilly. It’s amazing to watch the rational part of Bill’s brain actually shut down in the face of reasoned, responsible argument. Check it out!

“Under certain circumstances, profanity provides a relief denied even to prayer.”
– Mark Twain

[Ed. This was originally intended to be a short series of posts on the ethics of mind control. However, with Warren Jeffs being found guilty of accomplice to rape, I'm going to do that part of my series now and postpone my planned mind control posts.]

Warren Jeffs, the Mormon fundamentalist who was recently convicted of accomplice to rape for arranging the polygamous and incestuous marriages of underage girls to male members of his church. But what is he actually charged with? But how did he do this? According to the AP, the prosecution’s theory is that he used his influence as leader of his church to coerce these marriages which resulted in this girl being raped by her arranged husband.

First, just to clarify where this is going, I think this girl was this girl suffered through was an affront to human decency and the responsible parties deserve worse than prison. I’m just not sure the prosecution’s theory of this crime was very convincing.

The accomplice charge seems to stem entirely from the notion that Jeffs illegally coerced the victim into this rape-marriage. This is a tricky issue. A person who genuinely believes in the teachings of this religion is going to be highly influenced, probably to the point of coercion, by what church leaders say, perhaps even doing things they do not want to do in their heart of hearts because they feel compelled to out of fear of/love for a deity of some kind. But at what point is providing spiritual advice related to a god that demands obedience criminal coercion?

As church leader in a devoutly religious community, Jeffs clearly had extraordinary influence over those in his congregation. The authoritarian nature of his church only amplified that. But can exercising purely social influence really be a crime? Especially in the context of church doctrine? Jeffs’ attorney has pointed this out through cross-examination, demonstrating that the victim’s mother had at least as much influence over her decision as Jeffs did, and she used it to push the victim into marriage as well. The victim also testified that one of her concerns was that her was that she wouldn’t be able to enter Heaven unless she did as her church leaders told her to do. To me, this suggests that the pressure was largely social in nature and intrinsically tied up with her personal religious beliefs and possible crisis of faith. But no one else who coerced this girl into this marriage is being held responsible. It was her parents’ decision to raise her in the church, and clearly at least her mother supported the marriage and brought pressure to bear on this girl. So why isn’t she an accomplice to the rape? Is it because Jeffs leads a religion that is considered so patently offensive to our sensibilities that we ignore the fact that it’s a religion at all?

Which leads me to the thrust of my argument as to why this case is a little unsettling. Here’s my hypothetical: Mom & Dad consult with their baptist minister over concerns that they think their 13-year-old son F is gay. The minister advises them that being homosexual will lead F into a live of sin and decadence and put his soul in jeopardy. He suggests they discipline F as severely as it takes, and barring that, send him to a camp where he can be brainwashed back into straightness. The “discipline” the parents dole out ends up constituting criminal child abuse. When it becomes clear that the “discipline” isn’t working, the parents bring the preacher in to try and tell F why he needs to change his ways. Again F refuses to do so and so he is sent to a reeducation camp, which criminally abuses him further. Is the preacher criminally liable for what happened? Even if he knew there was a chance the child would wind up abused? I can’t help but think that most people would consider prosecuting a minister over this sort of incident a grave injustice, even while cheering on the prosecution of both the parents and the camp. I can’t see a difference in these two cases that would justify not charging the minister and charging Jeffs.

Marci Hamilton of Yeshiva’s Cardozo Law School has pointed out this case as a potential sign, along with the Catholic Church child abuse scandal of recent decades years, that First Amendment protection for religious matters may be taking a back seat to modern notions of child abuse. One can only hope she’s right, and that this isn’t purely a case of people being revolted by these weird facts and the fLDS’ bizarre beliefs.

“Oh, goodness. I don’t know. I’m black. How much of your life is determined by being male? I have no idea. I’m black. That’s a fact of life. I’m 5′8 1/2″ tall. I don’t know how much of my life is determined by being 5′8 1/2″ tall. It’s just a part of who I am.”

- Justice Clarence Thomas, in response to the question “How much of your life is determined by race?”

“Fragile Plaintiff cases occur against certain protected classes on the bar exam. Take young children for example. If I walk up to a 5 year girl on Main Street and say ‘You low down, no good, scum sucking son of a bitch! You make me sick!’. The kid will start crying and peeing herself. Same goes for the elderly. If I approach a 95 year old woman and say ‘You low down, no good, scum sucking son of a bitch! You make me sick!’, she’ll react the same way the child did. She’ll start crying and peeing herself.”