Lew Rockwell argues that since marriage and immigration are “mentioned nowhere in the constitution,” it follows that each is “no business of the federal congress.” Hence “no federal judge has authority” to strike down either California’s ban on same-sex marriage or Arizona’s harassment of immigrants.
I disagree. The 14th Amendment states: “nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.”
My present concern is not with the merits of the 14th Amendment (or indeed of the Constitution generally) – just with its interpretation. (That means that, for one thing, I am not concerned with whether the 14th Amendment was legitimately ratified; after all, I think the entire Constitution was illegitimately ratified so I don’t much care whether there’s some additional procedural problem with one particular piece of it. I am also not concerned, for the purposes of this post, with whether imposing libertarian standards on the states is a good or bad strategy (I’ve said a bit about it elsewhere). As Lew writes, “I have many problems with the US constitution, but it is the legal regime we are told we live under,” and all I’m discussing at present is what the Constitution, as we currently have it, actually implies.)
So what does “equal protection of the laws” mean? Clearly, it must mean that the states are forbidden to grant special privileges to or impose special burdens on some people and not others.
Hence if the state of California denies to same-sex couples a right it grants to opposite-sex couples, or if the state of Arizona treats immigrants from Mexico differently from the way it treats immigrants from New Mexico (note that the clause’s language concerns persons, not citizens), how is this not a violation of the equal protection clause? Indeed, how could any law that violates Spencer’s Law of Equal Freedom fail to run afoul of the 14th Amendment? (Justice Holmes famously opined that “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” I think he was wrong about that.) Hence neither California’s marriage-apartheid law nor Arizona’s ethnic-cleansing law (and yes, those are the descriptions we should be using) passes constitutional muster.
Lew goes on to add: “Unfortunately, in the American system, there are only states rights. This was a mistake. There should also be town rights, county rights, etc. as Jefferson noted.”
Now it’s true that the Constitution makes no mention of town rights or county rights. But it doesn’t follow that it specifies only states’ rights. It also specifies individual rights. And while some of these individual rights, as originally described, were rights against the federal government only (the First Amendment explicitly so), the individual rights in the 14th Amendment are clearly rights against the states.
Indeed, the 14th Amendment, consistently applied, acknowledges a right of secession by towns, counties, and even individuals. Here’s why.
First, the Constitution cannot forbid state secession, since in view of the 10th Amendment it could do so only if the power to sever a state’s connection with the union were either reserved to the federal government or denied to the states, and no language in the Constitution does either. Hence any state has a constitutional right to secede.
But once we conjoin the 10th Amendment with the 14th, we see that if a state, while remaining in the union, were to deny to individuals or subdivisions within its population the right to secede from it, it would be denying to its populace a privilege it enjoys itself, and thus would be in violation of the 14th Amendment’s equal protection clause. (Logically, equal protection of the laws must imply not just equality among those governed but also equality between governor and governed.)
It may be objected that those who wrote and/or ratified the equal protection clause did not intend thereby to establish such sweeping libertarian conclusions. I agree that they did not (though making generalisations about the “intent” of a diverse collection of hundreds of people is risky; at best we can say that most of them probably did not). But for reasons I’ve explained elsewhere (see here and here), I also agree with Spooner that the interpretation of legal language should be based upon the public meanings of the words and not upon the (in any case unascertainable) private intentions of the authors and/or ratifiers.
I’ll suggest another road: The 14th Amendment does not grant federal courts any special power to strike down state laws. The amendment, read as a whole, is an expansion of Congress’s Article I legislative authority. That is why Section 5 of the Amendment states, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” So as I read it, Congress has the legislative power to preempt state bans on gay marriage pursuant to the Equal Protection clause, but federal courts may not assume such authority for themselves.
But there’s already an existing provision that The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution. Why doesn’t the violation of a constitutional amendment constitute a case arising under the Constitution?
Ah, but Congress may also limit the judicial power by statute. The judicial power is not self-executing. Determining the scope of what constitutes “equal protection” is a question for Congress under the text of the 14th amendment, not the courts.
A judicial power established by the Constitution can’t be limited except by constitutional amendment.
Roderick, Art. III of the Constitution says “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
There is much talk about Congress using this power to simply prevent the court from even hearing, say, abortion cases.
see e.g. http://works.bepress.com/lloyd_anderson/6/
Good point. But interpreting that language is tricky in light of the 14th Amendment. At the time Article III was written, cases “in which a state shall be a party” and cases subject to the federal judiciary’s “appellate jurisdiction” had no clear overlap. But once the 14th Amendment specifies that certain citizen-state clashes are now cases “under the Constitution,” and a dispute between a state and its citizen is appealed to the federal courts, then we have a case that seems to fall in the overlap: it’s a case to which a state is a party, so Congress can’t exclude it, but it’s an appellate case, so Congress can exclude it.
Oh Lew: fusionist extraordinaire.
Are there any anti-fusionism sights around here?
Roderick, in my view the equal protection argument is–arguably–ludicrous. For one reason, a reasonable way to construe it is in light of its original public meaning (the original understanding); and I don’t see how anyone can deny that the Ratifiers would have laughed at the idea that it prohibits recognition of regular marriage only. Further, there is no end to this reasoning: it could extend to polygamy, sibling-cohabitation rights, etc.–and these things are so different it’s not a violation of equal protection–it’s not discrimination to treat unalike things differently.
But I also agree w/ John Hasnas’s “crits” type argument that the meaning of the Constitution is not that objective (see his classic The Myth of the Rule of Law); this is a problem that is inherent in all artificial “law”–legislation and written constitutions alike. They are the product of compromise and sometimes are obscure on purpose. Plus there is no guarantee of internal consistency or coherency even in the Constitution. So I don’t think there really is a “right” interpretation for many if not most of the provisions. I do think that there is good legal, constitutional, historical, and libertarian reason to have a rule of construction of clauses of the federal Constitution that construes it against a grant of power to the feds, unless it’s clear. And it’s not clear–clearly. Therefore, it doesn’t suffice to grant this power to the feds. Or so I would argue.
(By the way I am in favor of the ruling–which I think will be overturned–despite its weak reasoning– see my California Gay Marriage Law Overturned: What Should Libertarians Think?.)
But let me axe you this, Roderick. Let’s assume you are right. Suppose California has a law that recognizes marriage between heterosexuals. The caption of the statute, say, Article 17.07 of the California Family Code (I’m making this up), is “Heterosexual unions (marriage)”
Then Article 17.08 has exactly the same provisions, but is captioned “Same-sex unions” or perhaps “Civil unions”. It provides EXACTLY the same default presumptions about inheritance, coownership, alimony, “divorce” (termination), child guardianship, visitation rights, medical power of attorney, whatever.
Now, in this case, I would argue that there is no plausible equal protection argument. The only difference is the word used in a caption of a statute, to describe the substantive rights and recognitions granted.
Do you agree?
(That said, I think this is also why the whole opposition to gay marriage is stupid: it comes down to an argument about what word the state should use in the caption of the statute. Which is not necessarily even part of the official law–it’s just a title.)
But “public meaning” (or “original understanding”) is ambiguous. We need to distinguish between what’s actually entailed by the public meaning of the words, and what is publicly recognised as being entailed by them. A prohibition on theft, for example, would not be widely recognised in a statist culture as banning taxation; but given what people in a statist culture actually mean by terms like “taxation,” “theft,” “property,” etc., the law’s public meaning entails a ban on taxation.
Suppose I sign a contract offering to pay someone 20 percent of something or other; but although I mean by “20” and “percent” what everyone else means by it, I’m really bad at math and so I expect to pay much less than I’ve actually committed myself to pay. What my words actually entail and how I expect them to be applied are two different things.
It’s not discrimination to treat relevantly different things differently. But I don’t see polygamy as relevantly different (for legal purposes) from monogamy, so yes, I think bans on polygamy are inconsistent with the 14th amendment too.
No, for the reason I gave in my other post.
[…G]iven what people in a statist culture actually mean by terms like “taxation,” “theft,” “property,” etc., the law’s public meaning entails a ban on taxation.
Unless a ban on taxation would result in even more egregious instances of theft. Like the theft of derivative positive rights.
“Unless a ban on taxation would result in even more egregious instances of theft.”
No; Roderick was talking about a “prohibition on theft,” not a “prohibition on those instances of theft which are not necessary for preventing even more egregious instances of theft.”
No. You left out the context. Roderick is talking about what, in a statist culture, the public meaning of “prohibition on theft” would be. And in a statist culture — at least the only kind worth living in — taxation is a way to buy time for the new society to grow within the shell of the old.
Taxation involves transferring resources from the voluntary to the coercive sector. Building the new society within the shell of the old involves transferring resources from the coercive to the voluntary sector. There seems to be a bit of a tension.
Taxation involves transferring resources from the voluntary to the coercive sector.
I think that’s a hasty generalization. What about the taxes that state employees pay?
Not every turtle
has to be fertile
but if none was fertile
there would be no turtle
The Wittgensteinian says “you’re criss-crossing language-games.” Theft is not a piece on the taxation board. You go Socratic on him.
(a) Compelling people by threat of force to surrender their assets is theft.
(b) Taxation compels people by threat of force to surrender their assets.
(c) Taxation is theft.
But the Wittgensteinian won’t accept this move. “Philosophy cannot help with non-philosophical problems. You’re saying that (a), (b), and (c) are true by definition. Yet you assume that the nouns in (c) can be placed on the same board. You cannot answer for the fact that there is no definition for ‘theft’ in the taxation language-game. (b) may be true but, in the relevant context, (c) says that: taxation is @#%&! or @#%&! is theft. You’re interfering with the actual use of language. You’re showing the fly back into the bottle.”
And since Wittgenstein was a statist himself, let’s imagine that he says this to you. How would you respond?
I think that state employees don’t pay taxes. The withholding is just a slight of hand.
I think that response underestimates the complexity of language-games. More precisely, I think the sorts of examples that Putnam, Kripke, Donnellan, et al. give of referring to something under a mistaken belief about it are actually giving us not an alternative to Wittgensteinian grammar but a more accurate account of how it works. To use an analogy: the rules of chess themselves guarantee that a checkmate can occur even if neither player notices it.
I talk a bit about how to reconcile Wittgensteinian and Socratic approaches in ch. 10 of my draft.
To the extent that Wittgenstein holds this, I disagree with him. But Wittgenstein certainly doesn’t hold it consistently. When Norman Malcolm suggested that rumors that the British government might be engaged in covert assassinations must be false because they were inconsistent with the British “national character,” Wittgenstein replied:
“What is the use of studying philosophy if all that it does for you is to enable you to talk with some plausibility about some abstruse questions of logic, etc., & if it does not improve your thinking about the important questions of everyday life, if it does not make you more conscientious than any … journalist in the use of the DANGEROUS phrases such people use for their own ends?” (See the Monk bio, p. 424; I assume the “…” is Wiggy’s own substitute for an expletive rather than a sign that Monk has left out part of the quote.)
“[…I]f [philosophy] does not improve your thinking about the important questions of everyday life, if it does not make you more conscientious than any [fucking] journalist in the use of the DANGEROUS phrases such people use for their own ends?”
To that end, this is how “tax is theft” is being employed: to re-empower conservatives without conscience. I know what you mean by “tax is theft” and I know how you personally employ the meaning. That’s not my beef. What bothers me is “tax is theft” in its contemporary conventional public meaning: “throw out the democrat party.” And you know 99% of “tax is theft” talk is used in that way. All this tea party nonsense is just a way for Republicans to run for office with a brand name that doesn’t have shit all over it. “Rush and Glenn would straighten out Washington.” That’s what it means today. For Zeus’s sake dude, what you mean by it is verging on a private language!
To use an analogy: the rules of chess themselves guarantee that a checkmate can occur even if neither player notices it.
I get that. But 99% of the “tax is theft” business comes from grammar (or lack thereof) analogous to this:
(1) A pawn can move diagonally when capturing an opponent’s piece.
(2) A checker moves diagonally.
(Therefore, 3) A checker is operating on a chess-board.
Well, of course. Those who support the power structures always try to co-opt the language of their opponents. That’s why you get right-wing statists talking about “liberty” and left-wing statists calling themselves “liberals”; that’s why generals quote peacenik Jesus while orchestrating mass murder. That’s why the Soviet government used the language of proletarian anarchism, and why our government quotes the Declaration of Independence.
But I think it’s a mistake to describe what they’re doing as changing the meaning. If the language was really being used with a totally new meaning it wouldn’t have its rhetorical effectiveness, which depends on its maintaining its proper meaning while at the same time being associated with other meanings incompatible with it.
I don’t think that’s right. Meaning isn’t isolated to opportunistic utterances. After a minute of equilibration, you see that these guys mean “tax is theft even though it wasn’t under Bush and it’s still not when the taxes go towards war.” How can you possibly say that Newt Gingrich means “tax is theft” the same way you do?
Because if the words “tax” and “theft” meant something different from ordinary usage then the rhetorical effect will be lost. (And seeing how someone uses words in a political speech is not the best criterion to what he means by them; you have to look at his ordinary usage.)
So context be damned? I’m not gonna lie Roderick: you’re giving me a creepy fusionist vibe.
Huh? You’re giving me that “mysterious & incomprehensible” vibe.
You know, fusionism. When you ignore the context and the speaker, it makes me weary.
But treating context differently from the way you do isn’t ignoring context; and even if it were, it has nothing to do with fusionism.
The meaning of the words “tax” and “theft” are determined by how they’re used. To say that Newt Gingrich means “tax is theft” the same way you do, is to ignore how he uses those words. And when you give someone like Newt Gingrich a pass, you’re implicitly playing the fusionist game.
Agreed.
No, because language is public. From the true claim that meaning is determined by use, it does not follow that the meaning of a particular sentence is determined solely by the use the speaker is attempting to make of it at that moment; that’s way too simplistic an understanding of how logical grammar works. That’s why I keep citing Kripke/Putnam’s work, for example, as giving us a more sophisticated view of how logical grammar works.
On my interpretation, Gingrich’s use of the phrase is dishonest. On your interpretation, his use is honest. Which of us is giving him a pass?
[…L]anguage is public. From the true claim that meaning is determined by use, it does not follow that the meaning of a particular sentence is determined solely by the use the speaker is attempting to make of it at that moment[…]
I’m not saying that though. I’m not including speaker intention in my story at all. I’m saying that how Newt Gingrich historically applies the concepts “tax” and “theft” — through action — is more relevant to his meaning of “tax is theft” than is his arrangement of the words in the proposition “tax is theft.”
On your interpretation, his use is honest.
On my interpretation, he has historically applied the words “tax” and “theft” in consistently dishonest ways.
“You’re giving me that “mysterious & incomprehensible” vibe.”
That’s a very familiar vibe when dealing with MBH.
Five.
But we need to consider not just how and his confrères use those terms when they’re engaged in political rhetoric, but also how they (and their audience) use those terms in ordinary contexts — since the rhetorical use is parasitic on the ordinary use.
How so, on your interpretation?
Terrapin.
But we need to consider not just how and his confrères use those terms when they’re engaged in political rhetoric, but also how they (and their audience) use those terms in ordinary contexts — since the rhetorical use is parasitic on the ordinary use.
But their ordinary use takes place in two totally different language-games. I can see how what you’re saying would be helpfully in providing analogies. For instance, checkers players say “I win” once they jump the last of the opponents pieces. Chess players say “checkmate” when the opponents king cannot move into a non-checked position. If I jumped your last piece in checkers, I might say “checkmate” and you would know what I meant, but it wouldn’t be literally correct. In the same way, tax is analogous to theft. But to say that tax is literally theft is like saying “king me” when a pawn reaches the other side of the board.
How so, on your interpretation?
For instance, the idea that “taxes add to the deficit.” And the idea that “Theft of property is not present when deporting Mexican families from their long-time homes.” (I don’t know that he’s said either of those things, but he’s certainly logically committed to those ideas) The predicates in both uses make the subjects unintelligible. “Gobbledygook” as Kelly might say.
Terrapin.
Chili garlic sauce on an gyro.
But when the rhetorical force of a term’s use in one language game depends entirely on its borrowed connotations from another game, how can you describe the language-games as “totally different”? It’s more as though I convinced you to put your money in the riverbank by exploiting the connotation of “bank” in the other sense — both language-games in that case are implicated and entangled.
But when the rhetorical force of a term’s use in one language game depends entirely on its borrowed connotations from another game, how can you describe the language-games as “totally different”?
But, as you said, “the rhetorical use is parasitic on the ordinary use.” So why is the rhetorical game suddenly the criteria for whether or not the ordinary uses are “implicated and entangled?” You’ve already admitted that the rhetorical game is going to get these things improperly mixed up…
You may want to put the rhetorical game on the same footing as the ordinary uses. I don’t think that move is allowed, but sure, at some level of abstraction all language-games operate through a single logic and so no two games are “totally different” in every sense. But, on that level of abstraction — where you could say that taxation is literally theft — you also can’t distinguish between different language-games (since they’re all “implicated and entangled” on that level). And so if you want to say “taxation is literally theft” then you also have to say that “coffee is literally black” (meaning: not colored black, it just is blackness). And there you’ve lost the descriptive power of language-games-as-separate.
It’s not. I’m saying the opposite — that the ordinary use is the criterion for the rhetorical use’s being entangled.
Remember, my position is that “Taxation is theft” as libertarians understand it is true according to the ordinary use — not because people would ordinarily assent to it (they wouldn’t) but because their ordinary use commits them to accepting it. I took your position to be that even granting that, the Republican use of “Taxation is theft” isn’t true because it means something different. And my reply is that although the Repugs use it differently from the way libertarians (in their best moments anyway) use it, the Repug use depends for its rhetorical effectiveness on being parasitic on the ordinary use of the terms.
Saying one use is parasitic on another isn’t putting them on the same level.
I agree that that would be a weak move, but it’s not my move. I’m not saying that the ordinary and rhetorical senses are entangled because they operate through the same logic. I’m saying that the ordinary and rhetorical senses are entangled because the rhetorical sense in this case is piggybacking on the ordinary sense.
To recur to my analogy: if I try to use the connotations of “bank” in the financial sense to convince you to deposit your money in the bank of the Chattahoochee, my use of “bank” is no longer purely riverbank-y; I’m illicitly trying to hitch my riverbank-y sense to the financial-bank-y sense. So in my usage the two senses are entangled.
But again, my claim is that taxation is literally theft according to the ordinary use.
I think there’s more subtle and relevant instances of language-game knots than river/financial banks. I’m inclined to distinguish between ordinary and original use. I mean, you can imagine a world where people ordinarily employ the river/financial bank knot. Similarly, in this world, people ordinarily knot up entire games — not just words from different games. For instance, soul-talk is ordinarily entangled with materialism-talk. My claim is that taxation-talk is ordinarily entangled with theft-talk by libertarians. Repugs don’t even get that far.
I dunno, Roderick–how else to explain “substantive due process”? Or appealing to the Bill of Rights–limits on federal power–as a grant of power to the feds (to review state law in federal courts)? Or the use of the word “rights” in such an expansive way as to empower the state to tax and redistribute (right to education, freedom from want, etc.)
They think that “due” is a normative term (and I think they’re right).
Well, the 14th Amendment extends to the states a prohibition on violating the “privileges and immunities of American citizens.” While there’s dispute about what that means, it’s not crazy to suggest that it includes the Bill of Rights.
And even before the 14th Amendment, it wasn’t crazy to think that those provisions in the Bill of Rights that take the “there shall be no” form rather than the “Congress shall make no” form might apply to the contracting states as well as to the Feds.
A correct recognition that the word “rights” refers to whatever rights actually exist in moral reality, coupled with an incorrect theory as to which rights those are.
The state is not its own citizen. Thus for a state to claim the right to secede from the federation but to deny such a right to its own citizens does not violate the 14th Amendment. Nor does it violate a citizen’s right granted by the 10th Amendment and extended by the 14th, as the 10th is intentionally nonspecific who gets the powers the federal government doesn’t. Equality between governor and governed would only be an issue if the governor’s hometown had a special right to secede, or some such thing.
Polygamy bans are not the same as homosexual marriage bans. The law against polygamy prevents anyone from forming a marriage with more than two people. Marriage apartheid grants or denies citizens rights based solely on their sex: men cannot marry men, though women can; women cannot marry women, though men can.
I already covered this in my original post; the equal protection clause is about “persons,” not about “citizens.”
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Each part of the Amendment’s most famous sentence has a different object. The privileges and immunities clause is about citizens; the equal protection clause is about persons within a state’s jurisdiction; the due process clause is about persons generally.
But I wasn’t deriving it from the 10th alone, but from the 10th in conjunction with the 14th.
Gay men can still marry women and gay women can still marry men. That’s technically equal protection.
As for state secession, I think the federal government has already made it clear that it’s not allowed. Given that the Constitution gives the power to interpret it to the Supreme Court, and they at the very least tacitly complied with Lincoln’s war, they’ve basically made their decision. Perhaps that could change in the future; then again, we could have a constitutional amendment to legalize pot, or repeal the commerce clause, but I don’t see either of those happening, either.
Hindus have the right to worship Shiva and Christians have the right to worship Shiva. Equal protection?
Sure, but we’re not arguing about what the supreme court is actually likely to do. There’s zero chance of the court’s adopting any of the various libertarian theories of constitutional interpretation floating around; it’s not like they’re going to adopt Stephan’s or mine or Randy Barnett’s or Gene Healy’s or Lysander Spooner’s (either early or late). And my preferred strategy for social change is not “get adherents of libertarian theory X appointed to the supreme court” anyway. I’m just making a limited point about how to interpret a certain document that a) is completely illegitimate to begin with, and b) would never be interpreted in a consistently correct way by government courts even if it were legitimate.
That is equal protection for gay and straight people. But it is still different rights for male and female people.
Seems like the case Lochner vs New York would be somewhat trick y for you to dismiss so easily, since the NY law involved was supposed to protect bakers from being overworked. Notice, for example, that while the law seems to restrict bakers from working more than 60 hours per week it was the baker’s manager who was being charged as a violator, not the baker himself. I.e. Lochner was “exploiting” the bakers making them work more than 60 hours per week so he was the one brought to court over it. From a left-libertarian perspective wouldn’t this be a good law since it is protecting bakers from tyrannical bosses?
No. The best way to protect bakers from tyrannical bosses is to free up competition so as to increase bakers’ bargaining power, not to impose a cookie-cutter regulation on everyone that would forbid bakers from working longer even if they wanted to.
Anon73:
That sounds more like a left-paternalist perspective than a left-libertarian one. Left-libertarians generally believe that workers ought to defend ourselves from tyrannical bosses, through the economic means, rather than depending on legislatures or courts to protect us through the political means.
Justus, “secession” is not settled at all: legally, the Court was wrong; and there is more to law than what the Court says. As for practically, which is all that really matters: suppose Texans overwhelmingly want to peacefuly secede, and the governor approaches Washington, they make their case to the nation, they just ask for peaceful separation, maintaining other relevant ties–treaties of support etc. Would Washington send in the tanks? Would the people of the other 49 states support this? Maybe not. Probably not, I think.
Probably not, I think.
There’s only one way to find out, I suppose.
The very fact that the u.s. govt. has framed the Civil War as being solely about slavery might actually backfire on them, as it weakens their case for prohibiting the secession of states that don’t practice (chattel) slavery.
If there is a distinction between a supposed “right to get married,” and the supposed “rights” that only married people have with respect to each other…
And people do not have “intra-marital” or spousal rights with respect to others who are not their spouses… your point, Dr. Long, is that such rights are a violation of “equal protection”?
Well, it depends. There are some marital rights that are the result of contract, and it’s okay that only the contracting parties have those. It’s a violation for the state to forbid certain classes of people from entering into such contracts, though.
There are other rights that everyone should have (like the right not to be deported), and in those cases it’s a violation to restrict those rights to those who’ve entered a contract, and an additional violation not to let some people enter such contracts.
“Now it’s true that the Constitution makes no mention of town rights or county rights. But it doesn’t follow that it specifies only states’ rights. It also specifies individual rights.”
Actually, as far as I can tell, the Constitution does not mention “states’ rights” at all. A few times it mentions states’ powers, but powers are not rights. Rights are only individual.
This is not even a question of rights. It is preposterous that there are people who believe they have a constitutional right that a state recognise them as belonging to a special class that receives benefits not available to those outside that class. The whole point of rights is that they are universal. It’s obvious that their cannot be a universal right to be treated differently.
Gays chief complaint is not really that they are victims of discrimination. It is that they are being prevented from joining in as victors of discrimination.
Exactly. The only problem with what you said is that you seem to think you’re describing gays when you’re actually describing straight opponents of gay marriage.
“But “public meaning” (or “original understanding”) is ambiguous. We need to distinguish between what’s actually entailed by the public meaning of the words, and what is publicly recognised as being entailed by them. A prohibition on theft, for example, would not be widely recognised in a statist culture as banning taxation; but given what people in a statist culture actually mean by terms like “taxation,” “theft,” “property,” etc., the law’s public meaning entails a ban on taxation.”
I don’t think I see the difference, or the relevant difference (your following example doesn’t make sense to me unfortunately). If taxation is not considered theft by those who use both words, then it doesn’t make sense to me to consider it theft just because taxation is theft to libertarians, or because theft can be redefined as a violation of a person’s property in any instance, not just instances of theft as defined by the law in the first place. If the lebensform that the words “theft” and “taxation” are used in is a statist lebensform, I don’t get how you can find an argument for how they should be interpreted outside of that.
Can you say what your problem was with the example?
But the word “theft” doesn’t mean different things to libertarians and nonlibertarians. If it did, they wouldn’t be disagreeing. (By analogy, if A says “a bank is a safe place to keep your money” and B says “a bank is not a safe place to keep your money,” if it turns out that one means a financial institution and the other means the edge of a river then they’re not disagreeing. All disagreement over truth and falsity presupposes agreement over meaning.) So I reject your reference to “redefinition”; the switch from a nonlibertarian to a libertarian understanding of theft is not a change of meaning. And once it’s granted that libertarians and nonlibertarians are talking about the same thing when they use the term “theft,” then it’s possible to have correct and incorrect theories about the nature of that thing, and it’s the correct theory that specifies the reference, even for those who hold to the incorrect theory — just as people who mistake iron pyrites for gold still don’t mean iron pyrites by “gold.”
Here is theft for both groups: an unjusified taking of a persons assets. So taxation is theft if and only if it is unjust.
Some interesting background on the California court case.