By your logic, Lochner wasn’t a power grab either.  I can only presume you therefore view anti-Lochner sentiment as hatred of workers.  There is a difference between being pro-choice and buying into the the logic of Roe (which is why it’s so maddening when the two are conflated).

In any other context, right-wingers would be enraged by the notion that an all-powerful state doles out our rights to us. When pressed on this issue, they will say that the scope of our rights is to be determined at the state level. Yet they will not apply this principle to their Second Amendment rights.

In other words, libertarian principles end where your vulva begins.

Allen, nice try, but I’m talking about the reality of Supreme Court decisions, not the wanking hopes that one can overturn Roe and re-ban abortion by disingenuously concern trolling it.

A while ago, you posted about how the conservative system of codes is breaking down—how once you use a euphemism often enough, the subtext becomes the text.

I think that’s the real problem with the conservatives today.  They can’t break our code, because there isn’t one.  Therefore “liberty and justice for ALL” must mean socialism, because no one could possibly mean Liberty and Justice for other than white men.

In this case, “liberty for women” must mean the Supreme Court wants more power.  Because no one could possibly ACTUALLY want liberty for women.

Combined with the crap stories they’ve been writing about Sotomayor (on top of all their previous crap reporting going back to Judy Miller and beyond), their continued promotion of jackass rightard columnists like Kristol and now Douthat has me ready to yawn when the smoldering hulk of what was once a great newspaper finally goes out of business.

Amanda, nice try, but you didn’t actually say how to distinguish between Lochner and Roe.  Both involve the court striking down laws by reading rights into the Constitution.  A person can in good faith support both, or neither, based on their interpretation of the Constitution and the proper role of the Supreme Court.  Those who support only Lochner or only Roe are pretty much just lining up with the policy results they like, however—there is no principled way to distinguish between the logic of the two except by policy preference.

even the more modest liberal theories of jurisprudence tend to depict the Justices as soldiers in the progressive cause

Did he happen to say who is promoting these “liberal theories of jurisprudence”? ‘Cause if he didn’t, I think he pulled that one right outta his butt.

By your logic, Lochner wasn’t a power grab either.

What does a Supreme Court decision that allowed employers to exploit their employees without those pesky state labor laws getting in the way have to do with Roe v Wade?

Those who support only Lochner or only Roe are pretty much just lining up with the policy results they like, however—there is no principled way to distinguish between the logic of the two except by policy preference.

If your policy preference is to allow powerful citizens to exploit the weaker ones by invalidating labor laws, I suppose you could support Lochner.  I’m still not seeing what a labor law decision involving the contract between employer and employee has to do with the medical privacy inherent Roe v Wade, however.  Are you still really upset that your parents made you do chores at home or something?

Mnemosyne, have you actually read Lochner?  The Supreme Court read an unemurated right to enter into contracts.  The logic and structure of Lochner and Roe are nearly identical.  You characterize the cases differently because you support the state forbidding certain labor agreements, but not the state forbidding certain medical agreements.  That’s fine as a policy preference, but saying one is legitimate while the other is not is simply trying to turn those policy preferences into constitutional law.

It’s not going to happen, Allen.  There’s a political reality here, which is that Roe was a victory for feminism in the real world, Douthat’s objection is to that, and really, he doesn’t seem to grasp that women can have independent minds.  I couldn’t be less in the mood for concern trolls trying to trick feminists into giving anti-choicers some tiny bullshit irrelevant vindication of their soft-minded inability to understand legal and political realities.

And no, I don’t believe that a person in good faith (meaning pro-choice) can really be against Roe.  I used to believe that, and then I spoke to them and realized they’re mostly men who, if not anti-choice, care so little about the fates of women that as long as they have reasonable assurance that anyone they fuck could get an abortion, then they’ll indulge anti-choice concern trolling.

I haven’t heard Amanda or any other liberals saying they disagree with the notion that we have an unenumerated right to enter into contracts. The issue is the extent to which the government can interfere to prevent bullying and exploitation of a less powerful group by a more powerful group. 

I find telling Allen’s attempt to analogize abortion (i.e. “certain medical agreements”) to contracts between differently situated parties.  He seems to be headed down the road towards arguing that regulation or outlawing of abortion is actually about protecting women from being coerced into abortions by mean doctors.

Amanda—One’s political preferences would, ideally, have nothing to do with how they interpret the constitution.  There is no contradiction between holding a law is constitutional and also believing that the law is wrong—Thomas’s dissent in Lawrence, for instance, called the laws in question “uncommonly silly” or similar.  You make no attempt to distinguish between Roe and Lochner; your talk about how Roe is a political victory shows that you view the Supreme Court as just politics by other means.  Fine, but then you have no good faith grounds to complain when things don’t go your way and the Supreme Court stretches and distorts the constitution to reach results you don’t like.

Yeah, he got that from the anti-choice trolling mill. They don’t really understand politics or law, but they’re always spinning around looking for new ways to confuse the issue in order to trick people into agreeing with them.  That anti-choicers rely so much on bullshit and deceit shows what kind of situation we’re dealing with.  They really do think they’re above the basic moral rules, that they get a pass because they’re the self-righteous defenders of the fetal faith.  When you start to accept lying, trickery, deceit, threats, and intimidation, it’s just more lies and deceit when you pretend to be shocked that one of yours moves on to murder.

Lochner?  Seriously, Allen?  What’s the difference?  Well in the case of Lochner it’s been struck down for 62 freaking years (see West Coast Hotel v. Parrish) and Roe is the law of the land.  It has been the law of the land for longer than Lochner ever was.

In the case of Lochner the Court did the bidding of the corporations by stating that workers had the right to contract with companies as they saw fit, creating a legal fiction that the two sides are equal in power.  Oliver Wendell Holmes, Jr. wrote a brilliant dissent noting that government had limited the power of contracts for centuries; e.g., usury laws.

The most glaring difference is that Lochner struck down a state law that gave people rights and Roe struck down state laws that limited rights. 

I’ll give you righties one thing.  You never give up.  To think that Lochner (1905) still has anything to do with American jurisprudence is beyond belief.

As for reading rights into the Constitution, Lochner dealt with contract law.  Do you seriously mean to tell us that contract law is not implicit in the Constitution?

As for Roe it dealt with the concept of “retained rights.”  Why is it that you righties totally ignore the IXth and Xth Amendments?  Rights are “presumed” absent a “compelling state interest” to limit them.  Rights are not handed down from our masters.

Yeah, Allen, I’d just leave if I were you.  Everyone here realizes that you couldn’t be more full of shit, even if you were a “contestant” on a VH1 dating show.

Peeps, I wouldn’t argue with him. He got this from the same place where anti-choicers think everything is about them—-remember, we’re talking about people who think Dred Scott was about abortion.

I mean, he made a bad faith claim about good faith. That’s not amateur liar stuff.  That’s the sort of hostility to the truth that takes years of practice.

Amanda—Nice, um, ‘rebuttal.’  You either don’t understand or aren’t willing to seriously talk about legal issues.

Magis—Both Roe and Lochner struck down laws that curtailed individual rights, both on the basis of an unenumerated constitutional right.  You seem to have completely missed this point.  Your attempt to distinguish the two focuses on how you like one type of right, but not the other.  And note that I never asserted Lochner is still the law, just that it was conceptually identical to Roe.

Heh. I know we shouldn’t argue with him.  But I get a huge kick out of the fact that this guy thinks he can cow everyone with an obscure legal analogy between two entirely unrelated cases, along with a lecture about how to think consistently. 

Magis’s comment was awesome.

No, you’re not the one who’s willing.  You started off by lying about yourself, which of course is an immediate indicator that you shouldn’t be dealt with, because you can’t even make an honest argument.  Look, I’m not stupid.  I know that anti-choicers are encouraged to use pseudo-clever rhetorical tricks in an attempt to confuse people and distract them from the real issue, and to lie about your position in order to lure people into a discussion that they think is about X, but is really about Y.  It’s nasty and evil, but of course not surprising when compared to the fact that we’re talking about people who want state-mandated childbirth. 

Now run along and go play with someone stupid enough to fall for your tricks.

The reasoning for Roe comes out of Griswold. The reasoning for Griswold grew out of cases establishing privacy law which said that states could not regulate personal decisions parents made about their families (Meyer v. Nebraska).

It’s hard to read anything about contract law into this that would relate to Lochner. However, since Lochner was struck down, members anti-abortion movement have consoled themselves with the hope that if Lochner was struck down, then Roe, too, could be struck down, using the same reasoning. That’s where Allen gets his ideas from.

However, Roe hinges on a right to privacy, which comes from a completely separate thread of caselaw.

Fair enough, Laurie.  Apologies, Magis.  I guess I’m still just not in the mood, since I’ve been doing some work with anti-choice training materials that encourage Allen’s strategy of sowing confusion, lying outright, and concealing your true feelings in order to trick people into thinking they’re having a a good faith conversation with a decent person, instead of a bad faith one with a nasty misogynist.

Why do people think that the supreme courts are comprised of people who aren’t beholden to the same prejudices and preferences as the rest of us?  There’s a reason why we know how every judge will rule on every case and it’s because we know that Scalia will do everything in his power to find previous holdings to uphold his opinion that women and minorities should be second class citizen.  We know that Ginsburg will do everything in her power to find the opposite.  There’s no parallel between the court who decided Lochner and the court who decided Roe.  They were 9 entirely different people with 9 entirely different goals for the country. 

Hell, the reason that Lochner was even overturned had more to do with the fact that Roosevelt was threatening to add judges to the court in order to get his way than it had to do with legal jurisprudence “finding” that a right to contract didn’t exist.  Politics as usual, that’s what everything is about, including the court system.

Honestly, I cannot understand how this man got a job writing for the New York times. It’s not just the subjects he chooses or his warped world view. His logic is so flawed & his arguments are so twisted that even if we held similiar positions, I wouldn’t be able to tell from his columns.

I’ve honestly never understood the bizarre thought processes of people like Douthat and Allen. Is it actually possible to believe that women shouldn’t have rights, don’t have the ability to think, aren’t as fully human as men are?

I mean, my dad has always been very, very conservative, but hating women is something he just can’t get into. What kind of glitch actually leads people to think bizarre bullshit like that?

Amanda, nice try, but you didn’t actually say how to distinguish between Lochner and Roe.

There’s also the issue of practical usage of precedent: during its heyday, Lochner was used almost exclusively to benefit corporate entities at the expense of individual human ones in economic arrangement; Roe has been used to benefit human entities in personal arrangements at no-one’s expense (except, of course, if you’re one of those “reasonable” anti-choice Libertarians who believes a Sky Fairie made a blastocyst the equivalent of a fully cognizant human being).

See, Allen, if you’re an anti-choice Libertarian, it’s always gonna come down to a self-professed rationalist basing their argument on invisible men. Which is why you’re not taken seriously.

Genuine question here, one I’ve been mulling over for years:  is it so bad to say that we don’t give a shit *how* a right to abortion is found, as long as it *is* found?  Why do I have to dress my argument up in legal bullshit and procedural theory, as though Robert’s Rules of Order or Federal Rules of Procedure are just as, if not more, important than my right to control my body?  I don’t care if it’s not procedurally coherent to not support Lochner but to support Roe.  Roe gave me the right to abortion, Lochner would have kept me poverty and working in unsafe conditions.  Who cares about the argument behind them, the policy, the actual consequences that come from those cases, are much more important than the reasons they were decided.

Both Roe and Lochner struck down laws that curtailed individual rights…

Sorry Amanda, but I can’t resist….

Allen:

What the hell individual right did Roe strike down?  Did it strike down the right to deed ownership of your womb to a third party?  I missed the point?  Jeeezus, man.  The two cases have nothing to do with each other!  Contracts are an unenumerated right.  Please read Article I §10.

Shoot.  My comment wasn’t meant as a criticism of Amanda’s decision to say we shouldn’t argue with Allen.  I agree that his injection of Lochner into this discussion is a deceitful effort to confuse issues and cow people who haven’t read all the case law—with a nice dose of condescension thrown in.

The Supreme Court read an unemurated right to enter into contracts.  The logic and structure of Lochner and Roe are nearly identical.  You characterize the cases differently because you support the state forbidding certain labor agreements, but not the state forbidding certain medical agreements.  That’s fine as a policy preference, but saying one is legitimate while the other is not is simply trying to turn those policy preferences into constitutional law.

In Roe, which two parties is the agreement between?

Well, Rachel, there’s a couple of levels.  There’s the bullshit game where everyone pretends they care about how they get their way—-conservatives are much worse at this, turning from “states rights” to nationalism, depending on the issue—-and that’s annoying and has caused everyone to speak about judicial appointments with a level of intricate euphemism that puts the complexities of rhyming slang to shame.

And then there’s the fact that we want decisions that turn into good precedent, and are hard to overturn.  That’s more legit, I’d say.

Rachel: In today’s “count to five” environment, probably not. In other words, is there any plausible legal theory that would sway Thomas, Scalia, Alito, or Roberts to support any sort of implied right of privacy in the Fourth Amendment? Hell, they don’t even support the express requirements of the Fourth Amendment as understood from the 18th century, allowing so many exceptions via things like random drug stops and government surveillance so that probable cause is read right out of it.

In any event, Douthat’s argument about the awfulness of game-changing 5-4 decisions are moot where Roe and Griswold (the real culprit) are concerned; they were both 7-2, if memory and wikipedia serve.

Genuine question here, one I’ve been mulling over for years:  is it so bad to say that we don’t give a shit *how* a right to abortion is found, as long as it *is* found?

It is for liberals, because we believe in Rule of Law and all that it implies (specific to your question, continuity, consistency, logical precedent).

Right-wing-authoritarians and Libertarians, on the other hand, both ultimately believe in Rule of Men (the former in authority figures, the latter in “natural aristocrats”).

The argument and process are very important to liberals, because the result codifies the Law just as surely as the Constitution (a legal document formulated with all the same pomp and circumstance as subsequent law) does. Tyro provides a good example of Roe’s legal “ancestry,” and hence its standing.

The other side finds argument and process useful only insofar as it can undermine the core values embodied in the country’s founding documents (both legally binding and non-binding). Allen has provided a good example of that shoddy practise.

Amanda, can you expand more on this line of false argument?  I genuinely fall for it because it does use smart-people language and references case law that I’m quasi-familiar with.  It’s good to run into this type of anti-choicer - prepares me for the real world with in-person douchebags who make me feel small if I can’t argue the intracies of Lochner or Dred Scott or whatever else.

Amanda—I can think of no better way to discuss issues than to assume that everybody who disagrees with you, even when broadly on your side, does so in bad faith.

Mnemosyne—Well, it would have been between Roe and a doctor.  Of course, that contract ended up never being entered into because by the time Roe was handed down, the pregnancy had already ended in birth.  Anti-abortion laws restrict the ability to enter into a certain type of agreement, just as the laws at issue in Lochner did.

Magis—I didn’t say Roe struck down an individual right—read the words you quoted again.  I said it struck down a law which curtailed individual rights, just like Lochner.

Scott—I’m pro-choice.  Pro-choice and Roe are not the same thing.  Everything that’s a good idea isn’t in the Constitution.  For instance, I support NYC’s mass transit program (I live and work in the city).  That doesn’t mean my metrocard is a constitutional right. 

Gracchus—Again with me being pro-choice.  Because Roe is so broad as to allow the Court to strike down any law it doesn’t favor, the logic of it is dangerous.  It works out for my policy preferences in this instance, but it’s a bit like letting a bad guy go away even when the state can’t prove guilt beyond a reasonable doubt—giving away that kind of power is dangerous.  And I’m not that libertarian either, although moreso than either political party at the moment.

Rachel—If you view the Supreme Court as nothing more than a political branch there to enact whatever policy preferences you like, then you have no principled means of objecting when it enacts preferences that you don’t like.  Anything the government can do for you, it can do against you.

I fail to see how conservative judges’ rigidly ideological, contrary positions on issues of women’s and gay rights are any less partisan or political than the decisions of liberal and moderate judges. To decide that due process protects an activity like abortion, same-sex intimacy, and the like, is just as much an act of intepretation as deciding it does not.

Perhaps conservative judges should be derided for their activism and power-grabbing, for inventing a narrow-framing requirement and a history-and-tradition requirement for due process claims, to deny people the right to die with dignity, and for trying (and failing) to get those requirements to apply to people’s right to same-sex intimacy and abortion.

Oh, but they won’t be, because somehow conservatives have a lock on the Judicial Activism ruse, such that their consitutional interpretations are never, ever political, partisan and faithless to the Constitution, but their opponents’ interpretations always are, even when conservatives are, just like liberals, using the Constitution to strike down democratically enacted legislation. New Jersey’s public accommodation law runs afoul of the First Amendment, and the Violence Against Women Act runs afoul of the Commerce Clause’s grant of power, and yet, this application of broadly worded constitutional provisions to prevent a democratically elected legislature from acting, is absolutely NOT activist!

Why can conservatives get away with monopolizing the specter of Judicial Activism?

By the way, I’m sure this is obvious, but I should disclose that I obviously am not the first person to talk about how Roe and Lochner are twin cases.  See, e.g., http://papers.ssrn.com/sol3/papers.cfm?abstract_id=395620 and the references in http://www.bu.edu/law/central/jd/organizations/journals/bulr/volume85n3/Balkin.pdf

I don’t assume everyone who argues with me does so in bad faith.

I know that you are, because you presented yourself falsely as a pro-choicer who had some obscure case law that you just happened to find compelling.  I recognize this strategy, which isn’t even close to as clever as anti-choicers think.  It’s genuine bad faith, an attempt to borrow the pro-choicer’s moral superiority as your own to lure people into your web of bullshit.  There’s no reason to argue with you, because I’ve read the handbook.  When you’re trumped, you lie more.  You act aggrieved when you’re spotted as a liar.  You pretend that calling an asshole an asshole is ad hominem.  You try to confuse the issue, and deliberately avoid speaking plainly.  When you actually come across someone, like Magis, who knows what you’re talking about, you bluster and wave your hands around in an attempt to seem like you know what you’re talking about.  You condescend to women, and assume everyone else shares your sexist contempt for women’s intelligence.

I’ve read the handbook. You’re not arguing in good faith, so why argue with you?

Because Roe is so broad as to allow the Court to strike down any law it doesn’t favor, the logic of it is dangerous.

Give us a specific example (preferably from a real case, but I’ll take a hypothetical) of this danger (by which I mean curtailment of someone’s rights).

It works out for my policy preferences in this instance, but it’s a bit like letting a bad guy go away even when the state can’t prove guilt beyond a reasonable doubt—giving away that kind of power is dangerous.

I just wanted to highlight that part, coming from someone who claims to be more libertarian than the Democratic party, for some laughs.

I don’t believe for a second that you’re pro-choice, by the way.  The Lochner thing is up there with the Dred Scott thing in grade A wingnuttery, which is that the only people who take it seriously, by definition, are people who are so immersed in the anti-choice movement that they can’t even pretend to be normal. 

By the way, one of the funniest things about this anti-choice activist handbook I’ve obtained is that the previous owner, one of the aforementioned picketers, wrote “JUST BE NORMAL AGAIN” on it.  Obviously, something the instructor emphasized to the class.  When trying to lure the pagans in, you should at least put up a front, and I suppose openly lie about your position if you need to.

Amanda, I am pro-choice.  Lochner is far from an obscure case—it is probably one of the ten most famous Supreme Court cases of all time and named an entire era of jurisprudence.  The fact that you could call it obscure just shows that you haven’t done the slightest bit of legal research on Roe; the theories I’m talking about are discussed and advanced by legal academics on a regular basis—the two links I shared above are just the tip of the iceberg.  There is no inconsistency between critiquing Roe and supporting abortion, any more than, say, one can support national healthcare but not believe that national healthcare is a constitutional right.

I’ve read the handbook. You’re not arguing in good faith, so why argue with you?

There’s a certain fun in playing poker with a cocky jerk whose “tells” can be seen a mile off.

I should clarify, in conservatives’ interpretive world, the NJ public accommodations law and the VAWA ran afoul of the Constitution. (In my own view, the NJ law was legitimate with the First Amendment being a fake process principle to harm gay people - as usual - and the VAWA probably not constitutional, but given the other activities the Court has held the Commerce Clause to grant the power to regulate, like intra-state medical marijuana dispensaries, an odd choice to be targeted for conservatives’ Commerce Clause activism. That was also an outcome-based argument disguised as principle, I suspect.)

Both decision were written in english obviously this makes them similar, if not identical.

Gracchus—I don’t think there’s any ambiguity in what I said—even when somebody is a bad guy and most likely guilty, they can’t be sent to jail without guilt beyond a reasonable doubt.  This is why the OJ acquittal was proper, for instance; he probably is a double-murderer, but the state botched the investigation so thoroughly that it’s impossible to prove beyond a reasonable doubt.  I say just after the bolded portion that such power is dangerous which, I thought implicitly, stood for the proposition that we shouldn’t do that.  This is, I believe, the libertarian position.

Really?  The right is latching on to *Lochner* now? 

Doucheat’s editorial conceals a line of argument that is much, much closer to Roe.  That is, the case that most nutbags see as starting the court down the road to Sodomyville is not Roe but Brown v Board.  Yes, the big POWER GRAB was desegregation.  But they won’t mention that what originally got their man-panties in a bunch was the extension of civil rights via the court system. (Never mind that Earl Warren was a Republican and that Eisenhower wanted the court to lead the way on desegregation so he wouldn’t have to make political waves)  This was the case trampling all over those state’s rights and so on.  But they like to obscure the real origins of the anti-court arguments because the hatred of the court stems from racism, pure and simple.  And, of course, this was also the era where the court took religious freedom very seriously.  So seriously, in fact, that they vigorously protected free exercise while vigorously avoiding any appearance of establishment.  The right also conveniently *forgets* that most mainstream religious organizations lined up with the ACLU (and the court) on these rulings.  Only recently have the godbags gotten up in arms over the fact they can’t make other peoples’ kids pray at school functions.  And, of course, the Rehnquist court did the most of any court to roll back free exercise with their decision in Smith. 

The characterization of the Supreme Court as a bunch of wild-eyed radicals is nothing short of laughable.  Thurgood Marshall HATED being on the court because, not surprisingly, a 9-person cocktail party of privileged folks who went to elite schools and spend their spare time attending opera and reading English Common Law is hardly a hot bed of progressive thought.

Rachel, I was actually being a little facetious, because I think the code words that people use to imply, incorrectly, that there’s something illegal about Roe make me want to gouge my eardrums out.  The rule of thumb is that anyone who dregs up really ancient cases like that and tries to make them fit into the privacy debate is almost surely an anti-choice wingnut, or at best a numbskull who likes to feel smart, despite the fact that his engagement of said stupid arguments indicates that he’s not. 

But Gracchus is right.  The reason the how is important is that democracies respect rule of law.  It takes some experience to see how misogynists exploit this respect in order to confuse the issue, and pretend like Roe wasn’t actually decided by the Supreme Court in a 7-2 decision, but was actually decided by bodysnatchers who only happened to be occupying their hosts in the years 1972-1973.

Allen, I’m sorry.  You can say you’re pro-choice until you’re blue in the face, but you’re engaging a far right wingnutty pipe dream that you only brought up because you knew it was so far right that real pro-choicers haven’t even heard it.  That’s like saying, never mind my fetus gear, I’m totally pro-choice.

Magis—I didn’t say Roe struck down an individual right—read the words you quoted again.  I said it struck down a law which curtailed individual rights, just like Lochner.

No, you read it again.  I didn’t ask you what right Texas was curtailing, I asked you what the net effect of Roe was.  The “Police Power” implicit but unenumerated allows the state to protect the “health, morals, safety and welfare of it’s citizens.  In the New York law, the state was attempting to protect its citizens from the predations of corporations.  In the Texas law, women were being protected from…what?

Roe is anything but broad.  How, do pray tell, does finding that a right of privacy exists under the IXth amendment give the Court the “power to strike down any law it doesn’t favor.”  What the hell is broad about it.  Has Roe every been used to strike down any law not directly related to reproduction?  If what you say is true, it must be the most widely used precedent in history.  Could you please cite a case using Roe as a precedent in unrelated matters?

Well, the case isn’t obscure.  But you’re running with an obscure argument swiped from the depths of the pro-life movement, and you’re trotting it out because you know real pro-choicers are unlikely to know the argument.  Which means you “win” because you’ve confused people.  Which isn’t a real win, but anti-choicers got to take what they can get.

The right is latching on to *Lochner* now?

The right as latched on to Lochner as an anti-abortion argument at least since the days when Robert Bork was nominated. I presume the the argument has retained currency among them for 20 years, now, just as the Dred Scott talking point is discussed among them as something they believe is relevant to Roe.

In the conservo-libertarian world, everything is viewed as a contract, so it doesn’t really surprise me that they erroneously see Roe as an issue of contract law rather than a privacy case.

Roe is a political victory shows that you view the Supreme Court as just politics by other means.

OK, I think you need to define how you mean to use the word “politics” and why you think the Judicial Branch isn’t or shouldn’t be involved in politics.  SCOTUS is the check and balance on the Executive and Legislative Branches.  It is political. 

“Roe” *is* a political victory for people who believe that women are human beings and not walking wombs, since it allows legal abortion. 

Even if its reasoning is wonky, even if the right to control your body should be expressed differently, the practical effect is that women are able to exercise their right of bodily autonomy.

This is a big reason why you’re being given a hard time.  Women are human beings.  They shouldn’t have to die because a pregnancy has gone wrong and the “baybee lovers” don’t want to think about or prepare for those contingencies.  They shouldn’t be forced to gestate against their will, just as they shouldn’t be forced to abort.  Women are human beings, and they are entitled to control their own bodies.

Any law or decision that limits that right is wrong and needs to be fought.  Any law that helps a woman exercise her rights as a human is a political victory for freedom and liberty, even if it could or should be improved.

*sighs*.  Yes, Amanda, the legal academy is an anti-choice hotbed.  Something tells me you’d never heard of either Bertstein or Balkin before today.

Magis—Roe and Lochner both stand for the proposition that the Court can read rights into the Constitution and therefore override the democratic process.  Whether that’s appropriate or not depends on your view of the proper role of the Court in the legal process.  Both cases increased the scope of contracts that people (well, in the case of Roe, only certain people) were allowed to enter into.  You attempt to evade this result by recharacterizing voluntary contracts as “predations of corporations,” rather than voluntary contracts.  That’s just as insulting and false as characterizing abortions as “predations of doctors.”

Gotta agree with Magis here.  Roe has hardly established some sort of broad-based set of rights that has bowled over all attempts at legislation.  Indeed, *honest* critics of Roe point out how generally ineffective Roe has been in establishing genuine reproductive rights. 

And if your issue is with unenumerated rights, then why don’t you attack the pre-Roe cases in which the right to privacy is articulated?  Shouldn’t you be fighting to overturn Griswald?  Meyer? What’s that?  Strategically uncomfortable to attack contraception (openly?) or, god forbid, to suggest parental rights may not be protected?

Allen, that’s disingenuous. Lochner is not obscure, but it’s role as an anti-Roe argument is obscure because Lochner and Roe are part of an unrelated line of cases dealing with unrelated issues.

The modern court applies a more rigorous standard of scrutiny to laws restricting one’s rights over one’s own person—rights to privacy, marriage, reproduction—and a more relaxed standard of scrutiny to economic liberties.  This seems consistent and makes sense to me.

You seem to recognize the logic in this yourself—which is why you are trying to make the right to an abortion about a contract between a doctor and patient rather than a choice a woman makes about her own body. 

You claim to be pro-choice but you don’t seem to see abortion in terms of the individual’s right over her own person. Tell me, Allen, do you think that states DO have a right to ban abortion? If not, why not?

“The reason the how is important is that democracies respect rule of law.  It takes some experience to see how misogynists exploit this respect in order to confuse the issue”

Amanda, yeah, that makes total sense.  I get that now.  I either fail at these arguments or win them, depending on one’s perspective, because I essentially don’t respect the rule of law in favor of how people actually live with the consequences of those laws.  Simply put, the consequence of Lochner was unsafe working conditions.  That is bad and needed to end.  The consequence of Roe is safe abortion, which is good and needs to continue.

My disrespect of law and refusal to play along with pretending judges are less partisan than anyone else is why I quit law school.  I have a hard time believing that it’s anything else but made-up bullshit.  For both sides, yes, but one side has morality on it.

Tyro, I don’t know if it’s that they view everything as contract law, so much as they have this tendency to fling a bunch of shit around, in hopes to derail the issue and confuse people.  Which, when it happens, they consider a victory, though no one is actually persuaded.  But confusion does help their cause.  For instance, many people seem to be unaware that “pro-life” is a term that brings specific policy recommendations (ban abortion, ban the birth control pill, terminate sex education, return to sending unmarried white pregnant teenagers to maternity homes so they can’t fight back when their babies are forcibly removed from their arms and put up for adoption), and think it’s a feel good term that makes other people like you.  This is a direct result of sowing confusion about what’s at stake here.

Allen, your condescending tone is merely reinforcing my suspicions.  You thought your gamble of faux concern for the pro-choice cause would work, but I’ve seen your kind one million times before, and I’m not convinced.  Bad faith is not welcome here.  So please leave.

In the conservo-libertarian world, everything is viewed as a contract, so it doesn’t really surprise me that they erroneously see Roe as an issue of contract law rather than a privacy case.

Thanks Tyro.  This makes it abundantly clear.  Though I’ve always found the conservo-libertarian line on this to be highly specious (not surprisingly).  Their argument about allowing the democratic process to work seems to hold mysteriously when the democratic process upholds their policy preferences.  When, however, the democratic process leads to outcomes they don’t like they are mortified.  Just like the whole state’s rights shenanigans.  All well and good until someone gets same-sex marriage.

Eh, or don’t.  People are enjoying arguing with you, so feel free to stay.  But know that I’ll be issuing reminders that you’re lying about where you’re coming from.

Simply put, the consequence of Lochner was unsafe working conditions.  That is bad and needed to end.  The consequence of Roe is safe abortion, which is good and needs to continue.

I’d really be uneasy with judges making decisions on this basis - it *would* be overriding democratic governance.  Consider judges who came to the conclusion that saving the itty-bitty unborn babies was a good thing, and would be willing to torture the law to come to that conclusion (not that hypothetical).  Hell, consider Bush v Gore!

Thank you for your explanation, Laurie.

I say just after the bolded portion that such power is dangerous which, I thought implicitly, stood for the proposition that we shouldn’t do that.  This is, I believe, the libertarian position.

No, you said:

It works out for my policy preferences in this instance, but it’s a bit like letting a bad guy go away even when the state can’t prove guilt beyond a reasonable doubt—giving away that kind of power is dangerous.

You implied that it’s (i.e. Lochner, and also Roe, to which you draw an equivalence) a bit like “letting a bad guy go away even when the state can’t prove guilt beyond a reasonable doubt” (i.e. properly following due process), and then further implying that “giving away” (to or from whom?) both are “dangerous.”

And I see you still haven’t come up with an example of this danger vis-a-vis Roe.

Laurie—I do not support any anti-choice law, including without limitation parental notification, spousal notification, mandatory ultrasounds, waiting periods, second doctor referrals, or the legion I am doubtless forgetting.  Whether such laws are permissible is a much more difficult question—the burden of removing an issue from all democratic consideration is a high one.  I do not see how people consistently argue that the state can’t regulate abortion, but are more than happy to intrude when two people enter into a labor contract that has a wage lower than they would like. 

Rachel—Fair enough.  Not respecting the rule of law is one way to resolve the problem.

If you view the Supreme Court as nothing more than a political branch there to enact whatever policy preferences you like, then you have no principled means of objecting when it enacts preferences that you don’t like.  Anything the government can do for you, it can do against you.

The Supreme Court *is* nothing more than a political branch there to enact whatever policy preferences whoever is in power likes. That’s what the state is, n’en deplaise my liberal friends. I have a principled objection to them enacting preferences that I don’t like. It’s called ‘anarchist politics’. I, however, am a pragmatic person. If the state, which is illegitimate, happens to rule in favor of the working class or the downtrodden every once in a while (most often due to pressure from popular struggle), we’d be stupid to refuse to use these failures of government for our own ends (called thus because the purpose of the state is to protect the powerful’s interests, any time when they happen to protect the interests of the weak is a failure of design).

You know, prostate surgery can make a man infertile - doesn’t the state have a vested interest in banning it?

The modern court applies a more rigorous standard of scrutiny to laws restricting one’s rights over one’s own person—rights to privacy, marriage, reproduction—and a more relaxed standard of scrutiny to economic liberties.  This seems consistent and makes sense to me.

Just a small point, the Rehnquist/Roberts court have been very quietly chipping away at that relaxed standard relative to economic liberties.  They have been resoundingly pro-big business.  Otherwise, though, the point is correct that in the second half of the 20th century the court has been increasingly dealing with cases about reproduction, bodily autonomy, etc. in part because when women were not considered equals under the law these sorts of restrictions were not of much importance or interest to constitutional law scholars or legislators since hey—not our bodies!

And I’m repeating myself here but Roe did *not* invent the right to privacy.

Gracchus—I see the ambiguity.  “Go away” was intended to be as “go away TO JAIL.”  That misunderstanding is entirely my fault.

As for the danger, what would you like?  I have no idea what you would view as a dangerous example of the Supreme Court overreaching. 

Amanda—You accusing me of being dismissive and condescending is my favorite example of projection all day.

Phoenician—We agree, yes, there is a tremendous danger to judges making decisions based on policy preferences.  That’s the point I’ve been trying to make since day one.

In the conservo-libertarian world, everything is viewed as a contract, so it doesn’t really surprise me that they erroneously see Roe as an issue of contract law rather than a privacy case.

More specifically, an economic contract. Everything, even marriage, is cast in those (highly traditionalist, anti-equality) terms. That’s why they’re anti-choice (the woman is defaulting on her end of the baby-making contract with the bread-winning sperm donor!) and anti-same-sex-marriage (two males or females entering into a baby-making contract? Preposterous!).

That’s also why they’re more than happy to ignore the tyranny of a corporate “person,” and why the social liberties of actual persons are a secondary concern to them.

Allen, making statements about what you do and don’t support is just making your presence more irritating, since you’ve already indicated a strong unwillingness to be honest about who you are and where you’re coming from.

It is a funny statement, because while I did call you condescending, I didn’t say you were dismissive.  So alas, I’m afraid you’re projecting your projection, a nice super wingnut move, which makes it all the more clear that you’re a lying sack of shit who will happily misrepresent your position because you think you can “win” by confusing people.  I’m glad people will play ball with your arguments, even if they’re fundamentally dishonest.  I don’t have that sort of patience.

I do not see how people consistently argue that the state can’t regulate abortion, but are more than happy to intrude when two people enter into a labor contract that has a wage lower than they would like.

Yup, here’s the issue.  1.) The court defines some things as fundamental rights, the restrictions of which would substantially impair one’s ability to exercise their liberty.  If you honestly believe that being forced to carry a child to term and give birth is the equivalent of being forced to pay minimum wage then I think this conversation is over.  Reproductive rights are not about simple contracts.  2.)  There is a real issue of power in wage contracts in which the bargaining power of individual employees vis a vis their employers is a fundamental imbalance (not to mention the social effects of failing to regulate that relationship).

I see the ambiguity.  “Go away” was intended to be as “go away TO JAIL.” That misunderstanding is entirely my fault.

I’m glad you do, O Precise Legal Scholar. The term that real lawyers use for what you describe is “be found guilty.”

As for the danger, what would you like?  I have no idea what you would view as a dangerous example of the Supreme Court overreaching.

You’re the one who brought up danger, “counselor”—it’s not what I’d like to hear, it’s what you had in mind when you used the term.

In Roe, which two parties is the agreement between?

The passenger and the ferryboat captain.

A peek into Russ Douthat’s writing process:

The right tends to blame the left for the Supreme Court’s expanded ambit, and not unjustly, since we blame the left for everything including the weather, the traffic and our own failures that we trumpeted as successes at the time. Becuase it really IS their fault! All of it! ALL! OF! IT! WAAAAAH!!!

(Thinks) No, wait a minute; I got this gig because I’m the REASONABLE, INTELLECTUAL conservative. Gotta be reasonable!

(Crumples up paper, tries again)

The right tends to blame the left for the Supreme Court’s expanded ambit, and not unjustly, since only we on the right think that the Supreme Court is an unnecessary appendage of government that, if it must exist at all, must be turned into a rubber stamp for the executive branch (when we control it in perpetuity, which we’re working on, recent setbacks notwithstanding).

(Thinks) Hmm. Better. A few long words - that’s intellectual-like. But I better stay undercover until I get my contract renewed. Don’t wanna do another Kristol flame-out.

(Crumples ...)

Another reason Lochner is out-of-date is that the Supreme Court has taken a broader view of the (federal) government’s right to interfere with business under the Commerce Clause.  I take no position on whether this is right or wrong, but this fact illustrates why abortion and progressive economic regulation are different scenarios not just factually but legally as well. 

I do note that this kind of statement doesn’t help you establish your good faith bona fides:

*sighs*.  Yes, Amanda, the legal academy is an anti-choice hotbed.  Something tells me you’d never heard of either Bertstein or Balkin before today.

At best, it is a fallacy to imply that knowledge of certain legal scholars determines whether a person is right or wrong on a particular issue. At worst, it is arrogant bullying designed to shut down debate.

Rachel, I’m probably repeating what others, most notably Amanda have said.

On the one hand, no, there’s nothing “wrong” in celebrating that something you think is right has happened, regardless of how it came about.

At the same time, how it came about matters a lot, mostly because of what can come next. It is easy to get caught up in the results this time, but what precedents are set - what does the next person get to do because of it?

It might be a “good” thing if a lying vicious rapist gets taken out of society by a passerby with a gun, but it is not a good thing for society to say “hey, go ahead and shoot people, as long as you think you have a really good reason.”

Similarly, a lot of times, we have to take a principled view of things that are partisan. If we strike out checks and balances just because we think the people in charge are good people who can be trusted, what happens when the next group takes over. There were people who (God knows why) who supported some of things Bush did but disapproved of the power grab for the Presidency, and specifically said so in terms of “Can you imagine Hillary Clinton with this kind of power.”  While I disagree with their cast of characters, the point is still valid.

That’s what the rule of law is all about. Oversight of trustworthy cops because the next ones might not be. Checks and balances between houses of Congress or Congress and the President because the next batch might abuse the power. And so on.

At the same time, I am always skeptical of anyone who says “I fully support policy A, but think it should be struck down because it was put in the wrong way.” That’s a great tactic by bigots of all stripes, and extremely common. We see it a lot about marriage equality these days.

I do, however, support people who say, “We did the right thing the wrong way here. Let’s do the groundwork to get it more solidly in place the right way without destroying it in the process, and make sure that the wrong way doesn’t get used again for something else in the future.”

Blackbloc, I like how you think.  I’m glad I’m not alone.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, <u>or Law impairing the Obligation of Contracts</u>, or grant any Title of Nobility.

Magis—Roe and Lochner both stand for the proposition that the Court can read rights into the Constitution and therefore override the democratic process.

This first is the basis of Roe.  The second is the basis of Lochner

They are the same, how?

What, do pray tell, right did the Court read into the Constitution under Lochner?  By the way, repeating it over and over don’t make it so.  I’m still waiting for an example of Roe as a “super-duper” precedent.

I used to be buffaloed by guys like Allen, until I realized how they would never argue in good faith; defeat one argument, they immediately switch to another, ad infinitum, because they are not having a discussion, they are trying to wear you down and “win”.  There is no give and take, no communication or desire to learn or inform. Just a lot of posturing.

Also, the use of “Sigh”, or “you have clearly never thought of X, or Y” is a clear asshat tell.

I am all about a good discussion; but pecker-flexing point-scoring exercises are *not* good discussion, nor a sign of anything but the perpetrator’s own insecurity.  This ain’t a Yo Mama contest, this is about whether we grant women the rights to their own bodies or not.

“Apparently, conservatives understand the struggle as that between the rightful owners of uteruses (conservative men…) and illegitimate thieves (the federal government…)
The idea of liberty for women just doesn’t compute.”

The existence of women doesn’t compute either.  Two types of actors show up in Douthat’s column: Real Men (translation: conservative males) and Activist Wusses (translation: the Feds).  Women as such are invisible.  The language Douthat uses is more that of man objecting to a resource grab than that of man objecting to a power grab.  Just saying. 

Alien, analysis is supposed to clarify the issue to which it is applied.  It’s not supposed to render it opaque.  Just saying.

Allen said: “I do not see how people consistently argue that the state can’t regulate abortion, but are more than happy to intrude when two people enter into a labor contract that has a wage lower than they would like.”

There’s a bit of moving goalposts inherent in this comparison.
The state most certainly can regulate commercial aspects of abortion: advertising, licensing requirements for doctors, safety standards for patients and workers, minimum wage and maximum hours requirements for those working in abortion clinics, etc… you know, all the things that the state regulates when two people enter into a labor contract.
However, what the state can most certainly not do is ban abortion entirely, or place such undue burdens on it that it is equivalent to a ban… you know, just like the state can most certainly not ban private contracts or place such undue burdens on them that they are equivalent to a ban.

Frankly, when you compare apples to apples and oranges to oranges, your inconsistency disappears.

I do, however, support people who say, “We did the right thing the wrong way here. Let’s do the groundwork to get it more solidly in place the right way without destroying it in the process, and make sure that the wrong way doesn’t get used again for something else in the future.”

Right.  Ginsberg (as in Ruth Bader) has written critically of Roe on the grounds of timing, quality of argument, etc. but she is interested in fixing it, rather than abandoning it because she understands the consequences of overturning it is many, many dead women.  See, here’s that empathy thing—the comparison of Lochner and Roe is based on such broad legal abstraction that obfuscates the consequences of each.

Allen reminds me of a guy my partner used to date. Basically he had this habit of trying to start conversations on topics he thought she was ignorant in and basically coming up with one or two examples on that field. When she claimed ignorance, he would sigh loudly and chuckle to himself about how he loved her anyways, even if she was dim.

So, being without self esteem back then, she started reading heavily into the fields he kept going into to do these games and whenever he tried that trick, she’d respond with full knowledge of the topic being covered and begin bringing in a host of other cases he hadn’t read up on. He would immediately claim those weren’t representative or immediately switch to a new topic he was pretty sure she was ignorant on and ham-fistedly try and relate it to the topic. When she exhausted all of his topics, he shifted to his real tactic, that of finding any fault or failing no matter how trivial and commenting how she really was no good at that task.

Essentially, what he wanted was someone he could intellectually lord over in order to get over his feelings of inferiority regarding being a not very smart person in a company of rather smart people. Knowing women couldn’t be smart because of their ovaries, he beat up on her self esteem in order to try and get that need fulfilled.

Allen seems to have the same need. We need to be ignorant about his one topic of almost knowledge otherwise he can’t chuckle and feel superior. By pointing out the deliberate tactic and being knowledgeable about the subject both at the same time, he has little ground to get his psychological jollies fulfilled.

What, do pray tell, right did the Court read into the Constitution under Lochner? By the way, repeating it over and over don’t make it so.  I’m still waiting for an example of Roe as a “super-duper” precedent.

Why, the right to do whatever Herbert Spencer says you should do.

Duh.

It’s a little known fact that Herbert Spencer was an OB/GYN.

Allen, it’s kind of stupid to accuse Amanda of projection re: your condescension, when we can all still see the comment where you actually typed out “*sighs*” at her.

emjaybee:

I used to be buffaloed by guys like Allen, until I realized how they would never argue in good faith; defeat one argument, they immediately switch to another, ad infinitum, because they are not having a discussion, they are trying to wear you down and “win”.  There is no give and take, no communication or desire to learn or inform. Just a lot of posturing.

Also, the use of “Sigh”, or “you have clearly never thought of X, or Y” is a clear asshat tell.

Ding ding ding.

Also characteristic is the habit of accusing others of not addressing the issue whilst never addressing the points on which he has been totally schooled.  That and limiting one’s responses to what is, in effect, just shaking your head and saying “no” then expecting to be taken seriously.

About 2 of the last 50 comments since have actually addressed the column that appeared in the New York Times. Somebody’s unfurling a “mission accomplished” banner.

I don’t know, he’s not quite as bad as one debate opponent I had who had a bad habit of starting with falsehood A and then only respond to sub-arguments and the least strong of multiple examples until he would then use my initial refutation of falsehood A in his response to the 90th some sub-example pathway as if that wasn’t the whole point of the debate to begin with. And when you pointed out that he had just used the point the whole debate was on, he would immediately begin obfuscating and swear that it was central to his point all the time which was now the side-debate as it had always been.

I’ll take a good ol’ fashioned, I can’t see points that refute mine any day of the week over that.

True, norbizness, but then he has to live with the fact that his only source of self-esteem is being an obtuse moron on the internets who, because he can’t have a reasonable discussion like a real human being, has to thwart others who try.

About 2 of the last 50 comments since have actually addressed the column that appeared in the New York Times. Somebody’s unfurling a “mission accomplished” banner.

Most of them effectively do address the column, because Allen’s argument (with the addition of the Lochner strawman to make things “fair n balanced”) is roughly the same as Do-That’s: “Librul activist judges! LIBRUL Activist judges!!” It’s just as easy (and educational—I’ve learned some new things) to show the intellectual bankruptcy of the comment troll and the MSM troll.

Thanks for the story, Cerberus.  I meet guys like that occasionally, and sadly, they tend to be drawn to women that are smarter than they are (though it’s not hard to be that), so they can rack up self-esteem points by exploiting feminine training to be kind and treat people like they’re coming from a position of good faith.

From Douthat’s linked column:

Complaints about the Supreme Court’s power are almost as old as the Constitution, but they have more merit now than ever.

Change “have more merit now” to “have just as little merit since Marbury v. Madison” and I would agree with it. 

In the conservo-libertarian world, everything is viewed as a contract, so it doesn’t really surprise me that they erroneously see Roe as an issue of contract law rather than a privacy case.
Tyro on 06/02 at 11:56 AM

Bingo.

norbizness-

Yes, but really what can you add but that Douthat is a douchehat?

But on that topic, since becoming all in on this issue I noticed that it does not at all take long for any anti-choice argument eventually comes down to wanting their to be state-sponsored punishment for women’s sexualities.

I also find really interesting the whole O’Reilly-esque “Sluts who change their mind” line of attack, specifically how closely that argument relates to pro-rapist comments that are denying a rape occurred (you know, the whole, women after sex suddenly change their minds and decide it was a bad choice, so blame the man).

With the Prop 8 arguments and the pro-lifers out in swarm lately, it’s interesting that for a significant portion of the population, that all of these things seem on some level to be based on disdain and incomprehension of consent.

Thanks for the story, Cerberus.  I meet guys like that occasionally, and sadly, they tend to be drawn to women that are smarter than they are (though it’s not hard to be that), so they can rack up self-esteem points by exploiting feminine training to be kind and treat people like they’re coming from a position of good faith.

I have attracted men like this all my life!!!! It amazes me that they seem to think that it is an effective courtship tactic to say things like, “Surely, you’re not saying you have never heard of [plug in random thing he has deemed important]?  Hey, wanna go on a date?” I was always torn whether to be more insulted by the initial condescension or by the assumption that I would want to date someone who had just insulted me.

Oh and Douthat’s argument that Supreme Court justices should have term limits is so wrong.  The Supreme Court can hardly serve as a check on the popular will if it is subject to the popular will every so many years.  To my mind, the main value of the court is to protect me (and others) from the mob.  It can only do that if it is independent.

Laurie, you might want to follow some of the occasional discussions over at LGM where some pretty interesting threads on limiting terms have occurred.  The one that I found most convincing was one for 18 years.

Amanda-

Yes.

I’m pretty sure that feminine training is also why the pro-life movement can push so terroristically hard without significant push-back. Most women have accepted that getting standard medical care will come with disdain. And most will play sympathy to the bullshit fetus arguments because they are supposed to be “above anger” and try and see the side of abusers.

It also explains how they get crazier as compromises are made. The abuser didn’t want his stated goals met, he wanted to feel better than dumb sluts. It’s the same for the racism side. They didn’t really want Sonia Sotomayor, bootstrap raising latina who worked hard to make it in America like you’re “supposed to”. They just wanted to be “naturally” better than the damn spics.

Well, it would have been between Roe and a doctor.  Of course, that contract ended up never being entered into because by the time Roe was handed down, the pregnancy had already ended in birth.  Anti-abortion laws restrict the ability to enter into a certain type of agreement, just as the laws at issue in Lochner did.

Uh, no, anti-abortion laws restrict a certain activity.  In the abortion laws pre-Roe, procuring or performing an abortion was an act that was punishable by law.  They weren’t punishing people for entering into illegal contracts—they were punishing them for performing an action that was forbidden by law.

So, again, with your comparison, what activity was banned by Lochner?  It needs to be something that is banned in all circumstances and permutations, as was the case in Roe.  Under Roe, doing a self-abortion—that is, not entering into a contract with anyone but performing the activity yourself—was just as illegal as hiring someone else to do it.  Unless you’re trying to argue that a woman with a coathanger has just contracted with herself to perform a service, Lochner has no bearing whatsoever on Roe.

Oh, and I love your theory that there are no conservative law professors.  I guess you’ve really bought into Glenn Reynolds’ protestations that it was libertarian principles that led him to support every action of the Bush administration, even the ones where Bush claimed that habeus corpus didn’t exist anymore.

It amazes me that they seem to think that it is an effective courtship tactic to say things like, “Surely, you’re not saying you have never heard of [plug in random thing he has deemed important]?  Hey, wanna go on a date?”

If you consider that these are the kinds of nerds who thought they’d get girls (not the cheerleaders, mind you, “just” the smart girls) by joining the HS debate team and showing off their mad obfuscation skillz, and that they never grew out of that mentality, you wouldn’t be so amazed.

But on that topic, since becoming all in on this issue I noticed that it does not at all take long for any anti-choice argument eventually comes down to wanting their to be state-sponsored punishment for women’s sexualities.

Oh this is so evident in Douthat.  I think this column in which he argues that the decriminalization of abortion (rather than the regulation of reproduction) is a government “power grab” and his previous one in which he claimed that pro-choice advocates are not about liberty are quite telling.  A world in which women have full control over their bodies is, in fact, a restriction on his liberty.  I think Allen suffers from a similar lack of imagination in which a woman’s right to bodily autonomy is no more or less significant than Wal-Mart’s right to pay their workers in loose change. 

Ugh.  I do believe the Learned Professor may be a dude-type as common as the Nice Guy (though I am certain they also overlap to a great degree.)  Let me issue a condescending *sigh* in your direction.

Seeker, I will check it out.

D’oh!  Of course, in my second ‘graf above, I meant “Before Roe” in the third sentence, not “Under Roe.”  Preview is my friend.

Laurie-

The supreme court hate on the right is also hilarious not only because it’s pretty much opposition to two and only two decisions: Roe v Wade and Brown v Board of Education that went against them, but because the Supreme Court by its very nature is conservative. It’s role is a check against radical change and often rules in favor of the status quo.

The conservative hate-a-thon is all because a system they relied upon to protect the right of the powerful and old against young “upstart” agitators suddenly betrayed them and started treating the niggers and whores like actual people with human rights equal to that of proper people. It’s sort of like how various people are suddenly leftist traitors and non-Republicans for criticizing Limbaugh.

I suspect its the result of the greed-heads being co-opted by the Fundamentalists who pretty much believe that someone “tainted” with the outside world must now be shunned and kept from the remaining “pure” people.

pennylane-

Yeah, it’s way too common, especially in college and the tech sector. Maybe Smart Guy TM. Beta Male Syndrome?

I dunno. Suggestions from the pithy people?

Something that captures the intense intellectual insecurity and total disregard for the possibility of smart women.

I dunno. Suggestions from the pithy people?

Debate Clubber

I don’t know, but one thing I’ve also noticed with that type is they often try to convince themselves that women who don’t really like them actually do, and they make a fuss over what they think is clingy female behavior, even when there’s no indication that the woman being slurred is clinging, and sometimes said woman is running away.

I don’t know, Gracchus—-a lot of people who like to debate know what they’re talking about and prefer to engage with people who also do.  We’re talking about men who ignore it when their arguments are smashed because they refuse to accept that women (or, in Allen’s case, anyone who accepts women are human) are capable of intelligence.  There’s also the intellectual dishonesty, the willingness to argue in bad faith, and pretending to be a devil’s advocate when actually stating your actual beliefs.

Douchehat is scart that a more balanced Supreme Court will extend Loving to all adults, and the resulting marriage equality will cause his bawls to fall off.

I like Smart Guy (TM)—that’s perfect!

You are right Cerebrus.  I don’t see the courts as liberal bastions, but boy do I love it when they do step in to protect minorities.  Don’t forget Lawrence v. Texas!

Allen - of course courts can read rights into the Constitution, you ninny—have you heard of a case called Marbury v. Madison?  For those who may not know, Marbury was the 1803 Supreme Court decision establishing that courts have the authority to determine what the Constitution means.  That is what courts do.  It is their job.

I don’t know, Gracchus—-a lot of people who like to debate know what they’re talking about and prefer to engage with people who also do.

I’m talking about the type I mentioned at 01:21 PM (they also tend toward Objectivism or Libertarianism). High school debate clubbers aren’t generally interested in the topic of debate—they’re just interested in winning the debate by whatever means necessary. Whatever topic’s handed to them on the note card, pro or con, they’ll argue it. Of course, if the position they’re handed dovetails with their sense of entitlement, they’ll argue it all the more vociferously.

Really, though, it’s a nerdy sub-set of your NiceGuy® : “I’m so different from those nasty, unintellectual alpha jocks—you’re a smart girl, you can see that because I can wear you down in a debate, so give me the sex that a man is due from a girl.”

In the conservo-libertarian world, everything is viewed as a contract, so it doesn’t really surprise me that they erroneously see Roe as an issue of contract law rather than a privacy case.

Tyro

Right on Tyro.
Actually I would extend this into saying that the right-wing, white male conservo-bots are BORN into this line of thinking. Everything and everyone (that isn’t a white male) is beneath them.
Then they have big shirtless, hairy chested battles for dominance and breeding rights. Because if all the white males are equal then the only way to establish dominance is violence.
See also evo-psych.
See also murder of doctors.
It’s so scary to be a white male!

gah.

it’s a nerdy sub-set of your NiceGuy® : “I’m so different from those nasty, unintellectual alpha jocks-you’re a smart girl, you can see that because I can wear you down in a debate

Hm. I’m not so sure about that. It strikes me as more the weak perception of how they think an “alpha male” works: “Women like someone who makes them made, so I’ll argue with those women to get their blood pumping, because that’s how loud alpha males get the wimmins.”

Whereas the actual tactic is to be the loud, obnoxious male to everyone else.

Allen, for crying out loud—just because substantive due process exists, doesn’t mean that all claims based on substantive due perocess are equally valid.

The modern approach is to balance the interests of the state in the regulation at issue agaisnt the severity of the infringment on the protected right.  That’s why Roe permits abortion to be restricted in certain situations not involving the life or health of the mother, but not banned altogether.  The balancing comes out a bit different when what you are talkig about is the right of a 7-year-old to contract to work an 80 hour week. 

Really, there are several people here who are reasonably knowledgeable on constitutional issues—you don’t appear to be one of them, but you insist on displaying your ignorance.

Yeah, I can buy that too, Tyro—I don’t think the concepts are necessarily at odds. The NiceGuy® is a complex creature.

As a bona fide smart person, I hearby endorse the use of “Smart Guy™” (pronounced “smartguy”) to describe the overgrown high-school-debate-team libertarian.

As a bona fide smart person….

Yes, and with an oak-leaf cluster to boot!  :D

Allen’s strategy of sowing confusion, lying outright, and concealing your true feelings in order to trick people into thinking they’re having a a good faith conversation with a decent person

Yup. The radical “pro-life” excel in sweet talk about their love for babies and how everyone else is a murderer or a slut. Except that you don’t see them doing anything for live babies. Ever. You do see the pro-life murdering and harassing people though.

A lot of good faith people do get taken by the sweet talk and the lies the Allen’s of the world tell though. That is why I think it is important to look for “common ground” with people who oppose abortion. Because a lot of them have just been so lied to and so spun with pro-life baloney that they don’t really see what the real issue is. If they knew they wouldn’t be voting and sending money to those murderers and terrorists of the “pro-life” movement.

The first thing I always ask to someone who supports a pro-life fund is what day care facility does that pro-life fund has. I get a cluelles surprised look and I say “Surely if you want those mothers to have the babies you are making it easier for them to work after the baby is born ?”.  A person with real good faith immediately sees the contradiction: The “pro-life” place has no care for new mothers, i.e. they couldn’t care less about mothers and babies. Lie unmasked.

Douchehat is scart that a more balanced Supreme Court will extend Loving to all adults, and the resulting marriage equality will cause his bawls to fall off.
Ms Kate on 06/02 at 01:43 PM

My nomination for internet post of the day.

It’s a different topic, but I can’t quite understand the psychological or emotional reasons behind opposition to same-sex marriage.  Is it because they’re just viscerally grossed out by the visual idea of it?  Would they agree with same-sex marriage if all public displays of affection were banned so they don’t have to think about it?  (I’m not suggesting such a thing, mind you.)

It’s a different topic, but I can’t quite understand the psychological or emotional reasons behind opposition to same-sex marriage.

From what I’ve seen, it comes down to people who never outgrew their childhood fears of people who were different—arrested development combined with living a sheltered life (with religion hardening the cement).

Two observations:
(1) Douthat’s article has selectively represented statistics (read: conservative? or perhaps “SmartGuy?”) at their best. He overlooks the (I see much discussed above!) rabid-libertarian Lochner era, circa 1890-1937, which struck down over 200 state laws and regulations in that time—which he manages to cut off by saying “about 4 a year” in the late 1800s… and then jumps to the last half of the 20th century!  Smooth! I want a republican history wand where I skip the parts I don’t like, too!  Then Douchehat notes the uptick in federal law invalidation, without mentioning the fact we have a whole lot more “federal government” in the last 70 or so years than we used to (New Deal, anyone?) Oh, those evil activist judges, taking us out of the good old days when women and minorities knew their places and we didn’t have all those pesky laws allowing them in courtrooms and voting booths and such.  Sigh!

(2) Coming late to the party here (I was at, seriously!, a constitutional law bar review session), but here’s the bridge btw Lochner and Roe: the famous Carolene Products fn 4 (which isn’t mentioned in Balkin’s law review article!), aka the (ahem) official end of the Lochner era…

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments [applied to the states through the 14th] . . .

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the 14th Amendment than are most other types of legislation.

Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities [like, oh women!] may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

(Emphasis and brackets mine).

So, um yeah… when it’s that pesky Bill of Rights stuff working against a particular group of people, the higher scrutiny (like in Roe) is valid.

MiddleageLiberal-

As best as I can figure, the main opposition comes from a fear of the loss of male privilege and strong gender divisions. That is, the “traditional marriage” they are defending and that which gay marriage actually does threaten is the idea of a marriage not of equals but lord and servant, where a man goes to work and wins the bread and the wife stays home raising the kids and submitting to her husband’s sexual advances without input. By being a marriage based on consent and love, they fear the rules-based view of marriage, already long damaged will be impossible to impose on their chattel.

There is also intense anxiety that if they publicly admit to the existence of gay males, then men could be put into the “woman” role and thus be under constant threat from unwanted sexual advances and rape. A lot of jokes about prison rape, and which one of you is the woman, belies that fear that transgression of the gender split could make them fall from the precarious not-woman position into the besieged woman role.

That’s the main response from the hardcore fighters and leaders. I imagine the stooges are the same as for the pro-life movement. Well-meaning in general people squicked out about gay male sex or lesbian sex if female and letting that be used as a rod towards supporting the “marriage is not about love” activists, much like “babies” is used to crowbar an attempt to reimpose exclusion from the public sphere for women.

MiddleageLiberal-

Of course, there’s also a possibility of it being MUCH easier than that considering that by the look of animals, bisexuality may be MUCH MUCH higher in this country than is currently expressed or admitted to. Basically it could just be that the leaders are all gay or bi and are scared to death that if homosexuality became more socially acceptable, it really would end their sham marriages.

Especially worrisome for them if they believe that women are practically a separate a species and thus why would anyone go with them or tolerate them, thus if another option came up, they’d have to balance their desire for free manual labor in the home with indulging their strong homosocial desires and letting it drift into the sexual.

There also seems to be a general fear of sexuality in general. Entirely extrapolating on anecdotes (I know, bad scientist), there does seem to be fear in repressed cultures and those escaping them that allowing a “strong” emotion like lust and sexuality to be fully explored and considered risks causing some indeterminate bad that will be supernaturally punished. Possibly a combination God-scare-tactic raising and people’s general caution with looking for the catch on what seems like a great thing.

I don’t know. I think my first response is the most likely, but it could be as simple as they fear if gays get married, it’ll become more acceptable to really consider and compare sex and sexuality and they’re irrationally terrified about what they’ll find out about themselves or their friends.

it’ll become more acceptable to really consider and compare

(Totally evil smile.)

Trust me, Cerberus, their men are indeed terrified of comparisons.  It’s just not one of the comparisons that you specifically mentioned.

There also seems to be a general fear of sexuality in general. Entirely extrapolating on anecdotes (I know, bad scientist), there does seem to be fear in repressed cultures and those escaping them that allowing a “strong” emotion like lust and sexuality to be fully explored and considered risks causing some indeterminate bad that will be supernaturally punished. Possibly a combination God-scare-tactic raising and people’s general caution with looking for the catch on what seems like a great thing.
Cerberus on 06/02 at 02:45 PM

I think you are onto something there.  I don’t know what the polls say about gender differences on the issue but there are significant numbers of women who oppose same-sex marriage, too, so the idea that it’s a male enforced taboo doesn’t resonate with me.  The fact that sexually repressive societies seem to be even more homophobic than ours supports your point. 

Arguably the U.K. is more sexually repressed than the U.S. but is less religious.  But all the states in the U.K. recognize civil unions with the same status as marriage.  What does that say?

Sorry about the threadjack but it does seem that Douthat and Allen have been thoroughly thrashed.

seeker-

True, if their wives can “shop around”, they might find out about things like orgasms and cunnilingus and then why settle for their patented thrust around really fast and then collapse on top of them technique.

And they’re right.

Basically it could just be that the leaders are all gay or bi and are scared to death that if homosexuality became more socially acceptable, it really would end their sham marriages.

This is the possibility I have the hardest time believing. I don’t think your average wingnut homophobe would be any happier with another man than he is with his wife. Most of these guys are going to be miserable and unfulfilled no matter who they’re sleeping with, and I don’t think it has anything to do with suppressed gay desires. I’m sure it does have to do with being half-conscious of never having given your partner an orgasm, and knowing she doesn’t really like you all that much, and a vague jealousy of gays because they’re perceived as choosing to be in relationships out of love rather than duty or boredom or loneliness. But I don’t think other men’s penises are necessarily the problem or the solution for them.

MiddleageLiberal-

Not sure its a full threadjack because many of the same raw fears of sex and fully sexual women are shared factors between the two issues.

Sometimes, I wonder if the solution to all of the issues at once would be for everyone to go on a massive TMI campaign so that the sexual was all out in the open and uncloseted and we could all collectively get over our massive anxiety about sex.

junk science-

It’s more of a leader thing for that. Many of the leaders seem to take it rather personally if you will.

I think for the general group, there is a bit of message conflicting with motivation. The idea is that women and men are separate and thus for deep friendship and genuine intimacy, you need to go to other men because women will never understand and are just there for fucking and cleaning. So there’s that you can never be emotionally intimate with a woman, they’re just too different, ha ha, fighting against the Revolutionary Road desire of having a free maid/sex servant to fully take care of your home. The availability of another option destroys the excuse for the dichotomy and forces one to either admit that they really want to keep the women down, they really can and want to bond emotionally with women as well, or that the emotional bond genuinely is stronger so there’s no excuse for hanging on with the house slave.

But yeah, hypotheses all, rather than theories. Or shorter, they’re pulled out of my ass from trying to figure out why they do what they do against their general interests.

he availability of another option destroys the excuse for the dichotomy and forces one to either admit that they really want to keep the women down, they really can and want to bond emotionally with women as well, or that the emotional bond genuinely is stronger so there’s no excuse for hanging on with the house slave.

Or you get a boyfriend with low self-esteem and treat him like shit and let him clean the house while you go hang out with your real friends. Not that that possibility would occur to and not terribly confuse a wingnut homophobe, I agree with you.

“remember, we’re talking about people who think Dred Scott was about abortion.”

WTF, somebody just used that one on me earlier today, on that dumb political message board that I really have to stop posting on.  Dred Scott.  I couldn’t believe it.  And this guy claims to be personal friends, no shit, with Tom “I hire people who beat up black women while calling them the n word” Tancredo.

As if they were so fucking outraged by Dred Scott to begin with, we are talking about the natural supporters of that decision.  And then of course, one cannot escape the lunacy of abortion=slavery and roe v wade = dred scott in the first place.  They never cease to amaze these idiots.

Tom “I hire people who beat up black women while calling them the n word” Tancredo.

eh?

Oh, seeker, it’s a thing of the ugliest beauty.

Seeker, Auguste put up a link.  Also, Talking Points Memo has been out in front with this story, and Josh has some really fascinating tidbits.  IN fact TPM interviewed Bay Buchanan, sister of Pat, because this guy also works for them.  Of course, she has completely forgiven this guy for what he did, so, its okay.

I think I’m in love with the note from UV Law.

Ta for the link and info Auguste and Caton.  What a charming young man.

This is much more fun than trolls.

Youth for Western Civilization?? Do they fight the Mongol hordes?

... and what does it say about the modern GOP that when I read ““I hire people who beat up black women while calling them the n word”  I just assumed that the employee was one who hired black prostitutes upon whom he could inflict these things.

Allen writes, “Roe and Lochner both stand for the proposition that the Court can read rights into the Constitution and therefore override the democratic process.  Whether that’s appropriate or not depends on your view of the proper role of the Court in the legal process.”

No, that such a role for the judiciary is appropriate has been long settled by Marbury v. Madison (as Gator90 pointed out) and before that by the founding majority’s vision for judicial powers, as set forth in the Constitution, the provisions on which the Marbury decision rests. That both Lochner and Roe use the Constitution to invalidate democratically elected laws does not mean they are of equal soundness and are rooted in the same reasoning. As has been pointed out to you, Allen, Roe and other cases involving rights to private and family life are rooted in specific provisions of the Constitution, relying on the reasoning that, in order to realize fully one’s entitlement to fair legal processes, one must be protected from state regulation of certain activities.

Liberal and moderate judges have set forth a compelling case for this interpretation, and for the necessity of including private and family life concerns, such as the right to abortion or same-sex
intimacy, in the sphere of protection, to ensure due process of law. The right to enter into public contracts is obviously irrelevant to the reasoning these cases and rationales for respect for private life, in order to ensure fair treatment in democratic decision-making. Yet, conservatives have responded, not only with a ruse, correctly characterized by Amanda as a disingenuous one, of lumping together all invalidation of laws on constitutional grounds (“Well, if you support Roe, you have to support Lochner and our Commerce Clause activism, so nyah nyah!”) but also with a process argument that (1) ignores the substantive moral reasoning in favor of protecting private and family life, by falling back on procedural criticism; (2) in its procedural criticism, fails to address liberals’ point that procedural fairness is not ensured in the first place without such protections in place; and (3) defeats itself anyway, inasmuch as a supermajority enacted due process of law, along with a number of other individual entitlements implying a sphere of personal privacy, in order to restrain democratic bargaining in future generations, hence rendering judicial application of the supermajority’s restraints democratically legitimate in the first place.

Also, Allen, you have this annoying tendency not to respond with substance to other posters’ arguments in response to your points, so how can we not conclude you approach the debate in anything other than bad faith? I will reiterate a key point from my last post: Support for one invalidation of a democratically enacted law, on constitutional grounds, does not require support for all invalidation of democratically enacted laws, on constitutional grounds. Reasonable people look at the justitifications on which the Court relies, for invalidating the laws, and then evaluate the justifications. Conservatives, on the other hand, have adopted a ruse of framing everything in procedural terms no matter what the substantive reasoning, such that, every time their opponents interpret the Constitution in a way they don’t like, they scream that proper procedures must not have been followed. But when they interpret the Constitution in a way they like, of course procedure is totally proper and unexamined. If I may presume, Allen: Hence your breathtaking disregard for such a core constitutional case as Marbury.

Wing nuts act as tho Roe was decided by a renegade court in a vacuum.

Nothing could be further from the truth:

“The suppression of abortion in the decades immediately preceding Roe v. Wade was unique in the history of abortion. That repressive system, and its deadly results, played a crucial role in producing a movement to legalize abortion. The abortion rights movement arose out of the deteriorating conditions of abortion and the frustrations of both women and physicians. As part of their campaign to liberalize state laws, reformers exposed the new and devastating conditions of abortion as intolerable and discriminatory. The social movement to decriminalize abortion drew upon and brought into the open a longstanding acceptance of abortion.

Explanations for the transformation of abortion law that point to media coverage of celebrated abortion cases or changes in medical technology or emphasize the personalities of the Supreme Court justices all simplify the origins of legal and social change. They cannot explain the strength of popular support for legal change. Nor can they explain why members of a socially conservative profession, the medical profession, initiated reform or why the majority of that profession came to support the radical demand for repeal. The abortion cases reached the U.S. Supreme Court as a result of a grassroots movement in which women as well as doctors played a prominent role. The court’s decisions arose out of a particularly repressive period and were rooted in both the historical acceptance of abortion and in the contemporary resistance to the law.

The discriminatory and dangerous abortion system bred fear, frustration, and ultimately a movement to change the laws governing abortion. Despite the hazardous character of abortion, women were not the first to articulate publicly and politically their dissatisfaction with the law. In the mid-1950s a small group of physicians and public-health workers initiated the earliest efforts to reform the abortion laws. The hospital system itself, which prevented doctors from providing abortions to patients and forced them to care for the damages resulting from illegal abortions, generated physicians’ demands for legal change. Medical reformers soon linked up with leaders in the legal profession, and this professional alliance advocated reform of abortion law. For professionals, the solution to the abortion problem was enlarging the legal space in which physicians could perform abortions.

As women entered the professional abortion discourse they brought their own experiences and insights to bear on political analysis. Feminists retheorized the meaning of abortion. Abortion, as the new feminists analyzed it, was more than an individual need, private crisis, or public-health problem; it was a collective problem for all women. Furthermore, the criminal status of abortion was a fundamental feature of the subordination of women. Feminists found that the assumptions underlying the law and medical practice toward abortion denied women’s right to make decisions about their own reproduction, denigrated their moral judgment, and limited their freedom.

Women and professionals looked at the abortion problem from different standpoints, but women, as patients and political actors, moved physicians to a more radical political position. As they had for generations, women insisted that the medical profession listen. Though these “discussions” often took the form of nasty debates, even pickets, much of the medical profession heard the feminist message, just as they had individually heard their individual patients’ demands. Now, however, communication and negotiation occurred in public forums between institutions, organizations, and mass movements rather than in conversations in physicians’ offices. What had been the private problem of abortion had become political, and what had been the subject of personal discussions had turned into a public debate.

The oppressiveness of the postwar years alone did not produce a movement to legalize abortion, as oppressiveness had not in earlier decades. The changing political context of the period helped produce a mass movement for women’s reproductive rights. A movement for abortion rights developed at a time when many in the Civil Rights and antiwar movements mobilized for radical change, a time that gave rise to the second wave of feminism.”

—From the online version of the book “When Abortion was a Crime” (sorry for the long excerpt, but it’s not possible to link to passages in the book, only the entirety of the text.)

http://www.escholarship.org/editions/view?docId=ft967nb5z5&chunk;.id=d0e4663&toc;.depth=1&toc;.id=d0e4663&brand=eschol

MiddleageLiberal at 03:08 PM:

I don’t know what the polls say about gender differences on the issue but there are significant numbers of women who oppose same-sex marriage, too, so the idea that it’s a male enforced taboo doesn’t resonate with me.

Patriarchal != male enforced. Women eat, drink and breathe patriarchy just as much as men do, and many end up subscribing to the very same values that oppress them. Even without going quite that far, I think it’s highly plausible that women should object to something they see as undermining an institution that gives them a sense of identity and security in a woman-hostile world.

Speaking of marriage, the various descriptions above of SmartGuy(tm) fit my ex husband rather too well for comfort - all of them!

I moved half way across the world to be with him, so despite the fact that I was never in any doubt about my own intelligence, it was easy for him to do the condescending chuckle thing on me - there were obviously scores and scores of things that everyone around me had grown up with but I’d never heard of, so I was constantly at a disadvantage.

Which makes me think, on a wider note, isn’t that often the case? I mean, quite apart from the “female training” Amanda mentioned, isn’t it the case that this is so much a Man’s World that women are at a simple cultural disadvantage, even within their own culture?

Another tactic of the SmartGuy (TM) is to lecture the other person at length on a blindingly obvious point as though she is too stupid to have understand it. As in: “See, Amanda, sometimes the reasoning in case law can be applied to areas other than the case at hand. So you need to think about making sure your arguments are consistent.”  This of course is said while ignoring any evidnece that the arguments ARE consistent or unrelated to each other.

Oh, there are loads more tactics in the SmartGuy(tm) toolbag, Laurie. One of my ex’s favourites was to make a completely outrageous, often hateful argument under cover of it being “a joke”. He’d use his intimate knowledge of my emotional buttons to make sure I lost my temper, then revel in his “proof” that a) feminists have no sense of humour and b) liberals and progressives are all mindless sheep whose feeble have knee-jerk reactions are pre programmed by a clandestine and all-powerful political-correctness-run-mad commissariat.

He liked to use the baiting-until-she-snaps tactic on other women - his mother, sister, and friends as well as me. I think there was something in the female loss of control and irepressible rage that he got off on.

I think guys like that actually get off on the distress, not just the illusion of intellectual superiority; it’s not fun just winning an argument, you have to humiliate your opponent, and it’s no fun being with a woman you’re not humiliating.

I think you are onto something there.  I don’t know what the polls say about gender differences on the issue but there are significant numbers of women who oppose same-sex marriage, too, so the idea that it’s a male enforced taboo doesn’t resonate with me.  The fact that sexually repressive societies seem to be even more homophobic than ours supports your point.

As mentioned above, plenty of women buy into sexist ideas.  That said, most of the vocal, knee-jerk homophobes I’ve encountered have been men.  Like abortion rights, it’s an issue where the “con” side is predominantly male, especially at the extreme end of the debate, but has enough women that people can pretend it’s not mostly about patriarchal anxieties.

George Lakoff’s books on conservative vs. progressive “frameworks” helped me understand the puzzling question of homophobia, not to mention the larger question of why the people who oppose gay rights tend to be the same people who oppose abortion, feminism, civil rights, environmentalism, and a host of apparently unrelated issues.  It becomes much easier to understand when you realize that conservative morality is largely built on the following frameworks:

1. There is a strict, natural set of laws governing the world.  Good people follow the laws and are rewarded, while bad people disobey the laws and are punished.  Good and evil are strictly divided, with no grey areas; everything not compulsory is forbidden.

2. Everything and everyone falls into natural hierarchies: people above animals, adults above children, men above women, whites above non-whites, Americans above foreigners, etc.  When everyone is an obedient servant to their superiors and a responsible master to their inferiors, the world works perfectly.  Good people know their place.

(I don’t mean to imply that conservatives always think this way.  Everyone is capable of thinking in both conservative and progressive frameworks.  In fact, the right-wing noise machine is adept at spinning an issue in such a way that everyone is forced to think and argue about it from a conservative point of view.  See, to take just one example, conservatives’ frequent success at passing parental-consent laws to restrict abortion.  Such laws only make sense from a conservative framework in which underage girls are subject to the mastery of their parents, preferably their fathers, and are disrupting the natural order of things by making medical decisions on their own.)

Gay marriage doesn’t work within a conservative moral framework.  There’s no obvious hierarchy as there is in a straight marriage, where, traditionally, the husband is understood to be the head of the household and the master of his wife and children.  In a gay marriage, you can’t tell who’s in charge.  This is what conservatives are referring to when they talk about gay marriage threatening “traditional marriage.”

Of course, most modern heterosexual marriages are closer to being marriages between equals than the traditional master-and-chattel arrangement.  Conservatives are kicking up such a fuss about gay marriage in part because they know they’re losing the battle to preserve their version of “traditional marriage” as the norm.  They know society is leaving them behind.

In general, any blurring of gender roles tends to upset people who think in this framework.  They don’t see it as men and women being treated equally; they see it as women trying to climb up the hierarchy and take the place of men, or men falling down the ladder and taking the place of women.  And being reduced to the level of a woman is the worst thing some men can contemplate.

In addition, there’s free-floating squickiness about gay sex borne from the idea that any kind of fun, non-procreative sex is morally suspect (remember, everything not compulsory is forbidden), coupled, in the case of many misogynistic men, with jealousy that gay men get away with all kinds of crazy awesome kinky sex and don’t even have to be nice to women to do it!  The section on homosexuality on Conservapedia boils over with adolescent fantasies about bizarre, thrilling, often fictional sex acts apparently only available to gay men.  Tellingly, there’s almost nothing about lesbians.

TheLady-

That was actually the preferred tactic of Abusive Boyfriend #2 for my partner. He would often openly abuse her and torture her, especially in front of his friends or even her friends and then lambaste her if she protested the treatment because she “needed a new sense of humor”. It was a bit different than Smart Guy TM behavior though as what he was mainly obsessed with was that he wasn’t manly enough, because he wasn’t abusing a woman regularly enough. He had been getting flak from his friends because my partner wasn’t putting out enough and thus “diminishing his man cred” at the same time he was realizing that he was probably bi and the same friends were deeply homophobic. So yeah, closet case taking it out on the vagina stupid enough to stay.

I think it’s sort of separate from the Smart Guy TM type though by all means, Smart Guy TMs can still indulge in that sort of behavior. The Smart Guy TM is more an intense insecurity about one’s intelligence combined with that general misogyny that assumes women just physically can’t be as smart or smarter than you.

I think you’re correct on the motivation of the joke thing though. I think the baiting technique is about getting off on distress and humiliating people. But I also think it might also be about the weird notion that “dispassionate” equals “right”. That is that someone cedes their entire argument no matter how right and no matter how inane your bait was if they show the slightest emotion about the topic. That is the distress somehow proves that women are emotional and thus dismissed, because the sexist common wisdom is that women are emotional and thus need to be dismissed.

These same people are also usually the first to praise a man getting worked up about feminists into a frothy incoherent rage as being “passionate”.

Argh, my posts are way too long.

Love the SmartGuy(TM) stories, though.  As Amanda notes, they’re not usually guys who are particularly smart.  More often, they’re guys who would like to think of themselves as intellectuals, know they’re not smart enough to win a debate without verbal bullying (and to them every conversation is a debate to be won), and rely on the tendency of women to be more polite to bullies than men are.

Another tactic of the SmartGuy (TM) is to lecture the other person at length on a blindingly obvious point as though she is too stupid to have understand it.

My experience is that this is frequently found among those who are slightly-above-average in intellect but were never exposed to actual smart people and were especially never exposed to smart people outside their field. Because if there’s one thing you learn if you choose to challenge yourself intellectually it’s how little you know and how difficult some topics are to master. These are also the men with the most to lose if they have to compete with women on an equal footing… in a traditionally patriarchal society, they could at least be assured that they were on a higher intellectual footing than more than 50% of the population, but putting themselves up against women as well as other men would expose them as being in a much lower percentile than they would be otherwise, so women are especially threatening to them.

It becomes much easier to understand when you realize that conservative morality is largely built on the following frameworks:

Jonathan Haidt made many points similar to Lakoff, specifically that conservatives are motivated by principles related to:

ingroup/loyalty (involving mechanisms that evolved during the long human history of tribalism), authority/respect (involving ancient primate mechanisms for managing social rank, tempered by the obligation of superiors to protect and provide for subordinates), and purity/sanctity (a relatively new part of the moral mind, related to the evolution of disgust, that makes us see carnality as degrading and renunciation as noble).

It’s a bit more complicated than the simple point I’m extracting, but the point was that gay people getting married was an affront to both “the rules” of traditional marriage as well as “impurifying” society. So the law-abiding lives that people choose for themselves are considered by conservatives to be a threat to everyone else. It’s basically a twisted version of “we’re all in this together” where society isn’t supposed to help people be who they are, it’s to help people be who society wants them to be.

The Lady, Your ex sounds awful. 

I am so excited to witness the first descriptions of the SmartGuy (TM). I wonder if he will ever become as well known as the Nice Guy (TM)?

Laurie, it doesn’t matter if we are down to one SmartGuy (TM) and one Nice Guy (TM) in all of America.  Both of them will be guaranteed jobs on the NYT Op-Ed page long before a feminist.

Shaeonon:

everything not compulsory is forbidden.

This goes a VERY long way to explaining the general hostility from the right to most kinds of pleasure (MS magazine, to my delighted, cheerfully tagged it The Great AntiPleasure Conspiracy).  It also goes a long way to explaining the anti-drug, anti-sex, anti-drinking and anti-urban subsets of that outlook.

I’m not sure the baiting-till-they-snap SmartGuy(TM) tactic is so much about enjoying the rage as about a 4-year-old-intellect level commitment to the idea that men are brilliantly logical while women are prisoners of their emotions and unable to compete in the realm of Pure Intellect (also TM). Some SGs seem to actually believe that their behavior isn’t offensive as long as they stay within the letter of whatever rules they were taught for polite behavior, and think they’re being terribly clever by making “jokes” or using stupid point-scoring debating tactics or just making factual observations or whatever other passive-aggressive shit they pull. Then, when a woman tells them to cut the crap, they have another point of evidence for their belief that all women are emotionally-driven fuzzythinkers. Or if a man tells them, that they’re really smarter than that supposed alpha male…

(And yes, I can offer an actual 4-year-old’s protestations that he was just tapping the fork on the table, not banging it, for comparison.)

For information, the Supreme Court in Planned Parenthood v. Casey, watered down the protections women got in Roe v. Wade. The interest of a woman in having an abortion was always balanced against the state’s interest in the welfare of its citizens. Viability was set as the crossover point. In Casey, because technology has enabled younger fetuses to survive outside the womb, the point of viability was pushed closer to conception. Late-term abortions are still allowed to preserve the life or health of the mother. And the right to abortion is no longer fundamental, so laws impacting abortion no longer receive strict scrutiny. Instead, they are tested to see if they impose an “undue burden.” Wikipedia has a good summary:

The plurality then overturned the strict trimester formula used in Roe to weigh the woman’s interest in obtaining an abortion against the State’s interest in the life of the fetus. Continuing advancements in medical technology meant that at the time Casey was decided, a fetus might be considered viable at 22 or 23 weeks rather than at the 28 weeks that was more common at the time of Roe. The plurality recognized viability as the point at which the state interest in the life of the fetus outweighs the rights of the woman and abortion may be banned entirely “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother”.

Some SGs seem to actually believe that their behavior isn’t offensive as long as they stay within the letter of whatever rules they were taught for polite behavior

That’s Debating with Conservatives 101. They can be condescending, call you a subhuman to your face, as long as it’s all hidden under flowery words it’s all good and if you get offended you’re ‘thin skinned’. But you say one ‘fuck off’ and your entire argument is moot because you’re a vile trashtalking emotional leftie moonbat.

It’s all about the *illusion* of a proper debate between equals. The only problem is if you’re so *gauche* as to rip off the mask and show it for what it actually is, by using real words instead of weasel words.

That’s Debating with Conservatives 101. They can be condescending, call you a subhuman to your face, as long as it’s all hidden under flowery words it’s all good and if you get offended you’re ‘thin skinned’. But you say one ‘fuck off’ and your entire argument is moot because you’re a vile trashtalking emotional leftie moonbat.

Don’t forget that if you are all proper and decorous and choking down your rage you are invisible.  If you yell loud enough that they listen the vile trashtalking emotional probably menstruating leftie moonbat stuff kicks in.

Well if I’m menstruating my doctor is going to be pretty surprised and get some sort of recognition in his field after he writes an article detailing this very rare condition in the human male.

Heh, Gordon Liddy actually went there with Sotomayor.. As if GOP female judges didn’t menstruate!

I do not see how people consistently argue that the state can’t regulate abortion, but are more than happy to intrude when two people enter into a labor contract that has a wage lower than they would like.

I can give you one compelling and practical reason for it:  Low wage employers (and those who don’t provide benefits or safe working conditions) put a strain on the government, since their employees use more government services.  That may not have been as much of an issue during the Lochner era but it is now with the number of mandated social programs in existence in every state.  WalMart alone costs the state of California hundreds of millions for Medicaid, school lunch programs, etc.  Low wages and lack of benefits are how Big Biz externalizes costs and maximizes profits.  So yeah, the state has an interest in regulating those contracts and, frankly, I wish it would be a lot more active in pursuing it.

Here’s why the anti-choice “there’s no implied right to privacy in the Constitution” argument is so stupid:  Back in the late 18th Century when the Constitution was written, the word privacy referred to using the toilet.  So of course that right wasn’t enumerated or implied.  The right to use the chamber pot or outhouse undisturbed would fall under the category of a retained right.  By the time Roe came around, the commonly accepted meaning of privacy had changed to the extent that it became compatible with existing concepts of liberty and due process in the 5th and 14th amendments.