Forum:That might not be what "Separation of Powers" means

< Index | Politics discussion

Longtime lurker, first-time poster.

There's a link on the Clogs page about U.S. Representative Steve King's putting forth a bill to strip Federal Courts of jurisdiction to hear and decide questions related to the "validity" of "any type" of marriage, which is understood as his trying to slow/stop/reverse the march of the judiciary to find a right of same sex marriage grounded in the Constitution.

Rep. King's proposal is mean-spirited, small-minded, and semi-hysterical, but neither necessarily "unconstitutional" nor anymore violative of "separation of powers" than the fact of judicial review itself.

The Other Wiki has a piece on "jurisdiction stripping" that does a good enough job of laying out the broad strokes of the issue. There's nothing conceptually radical about it; it just happens that lately it's trotted out by radical nutjobs.

To be clear, I do not think it wise or preferable as a general matter to strip courts of jurisdiction over categories of cases, particularly when motivated by sentiments such as those of Rep. King. My concern is that it's easy to dismiss him as preposterous rather than to engage the substance of the argument (such as it is), which seems the very definition of arguing from incredulity. What he's proposing isn't preposterous and it isn't necessarily forbidden by the Constitution; it's just a bad idea.

My analogy here would be the manner in which privacy interests (that is, the right to reproductive choice) gets trotted out on a near-decennial basis during a Supreme Court confirmation cycle. During the last such, the running line of the defenders of such interests was that Roe v. Wade was "settled law" and thus needed no examination. It's a fine dodge to the question but ultimately dissatisfying as an answer, by which I mean it won't pass muster on the next round. Defenders of that particular interest / right need to be able to articulate - in a full-throated and persuasive way - why it is preferable.

It is galling to have to engage arguments that have already been won, but the pace of democracy IRL is different than online; the rules of PRATT don't really apply. The rights which are worth defending need to be RE-defended in every generation or they slip away, and it's a lot easier to lose 'em than to recover 'em.

A bit of a tangent there. Tl;dr - Steve King's idea is bad not because jurisdiction stripping is "wrong," but because marriage equality - and judicial review of the issue - is "right." ^{— Unsigned, by: Iangoeswest / talk / contribs} 17:35, 25 April 2015 (UTC)