I agree:

Over in Slate, Michael Kinsley advocates Abolish Marriage: Let's really get the government out of our bedrooms.

More musings on Greene and constitutional interpretation:

I thought about this some last night. Here are some more considerations on the topic, not a true continuation of what came before, but probably more coherent.

I don't think that constitutional interpretations have the same degree of fatalism as Greene does. Greene doesn't expect or require his Muslim shopkeeper or Anglican widow to live by the same rules as his Catholic detective does. But there's also not much choice in the matter. The centerpoint of The End of the Affair for me is Sarah's conversation with God, begging him not to exist so that she does not have to follow through on her rash promise to dump Maurice as a lover in favor of God. Maurice, as he comes to suspect that Sarah's God does exist, goes through a similar crisis of trying not to believe because he can only live unrestricted without belief. For those who accept God, the chain of events seems to be (1) desire to sin against the laws (2) non-repentance because to repent would be a denial of identity (3) death. The chain doesn't seem to admit of any place at which it will break. I'm not sure if my reading of Greene is proper, because it doesn't seem to me that he rails against the chain. He just presents it as an occurance, a lifecycle, like those bugs who lay their eggs in other animals; the larvae hatch, crawl out, killing the host; such is the natural way.

Assuming that this interpretation of Greene is correct, I think the next question is whether the analogy holds. That is to say, is originalism as inflexible as Greene's Catholicism? After that, is originalism protective or destructive? Finally, if the mode of interpretation is the law, should its end effect matter?

Originalism, like G's C, certainly can be broken. Instead of a not-so-distant death one is met with a pliable Constitution into which not-so-distant death one is met with a pliabe Constitution into which people are more likely to read their desired outcomes into their interpretations rather than heading the Founders' wisdom. By ignoring the commands of originalism the nation gets an end to sodomy laws and certain restrictions on the death penalty (to me, good things, but I have no Kantian approval of the method). Under strict originalism, there'd probably be no issuance of paper money or incorporation of the Bill of Rights against the states; there'd also be no "parade of horribles" that must be constitutional if X is constitutional, and no cause for a Scalia dissent arguing that the dominoes that overturned Bowers must logically also take down Roe. Originalism admits of an escape-hatch from rocks and hard places that G's C doesn't have: the ability to amend the laws. If the rules of the game chafe, there is the option to change them while still playing by the same consistent system.

Is originalism protective or destructive? This is the question of St. Thomas More. Those whose interests align with the Founders will complain less. Properly and consistently applied originalism is protective of a vision of America set forth c.1787. It seems like a wise vision, and since the vision can be ammended, I'll say yes to this question which now strikes me as misguided.

Does the end effect matter? Justice Thomas is willing to write that Texas's statute is silly but within the realm of legislative prerogative. Others might weigh what they've seen happen, and decide that they prefer the decisions of the nine on the bench to a pack of people with a demonstrated tendency to run off to Oklahoma so that a quorum can't convene. Those who jump ship are more likely to erect a theory of constitutional interpretation in which a justice can bring his own wisdom to bear on a certain topic, rather than a wisdom that does not quickly admit of the desired end result. When enough people jump ship, originalism appears to have sounded its own death knoll. Originalism wouldn't have fallen because it is per se flawed or invalid. The people who strayed from it were weak in favor of the liberties they thought essential to life, to the American vision. It begins to resemble a cycle of nature as the idea of a country in which people can life free, the good life, takes on its own shape. And maybe the Devil will come bounding out, unchecked at last, and maybe he won't.

Nauru is in the news again:

The United States has suspended military aid from Nauru. It's nothing special though.

The United States on Tuesday suspended military assistance to almost 50 countries, including Colombia and six nations seeking Nato membership, because they have supported the International Criminal Court and failed to exempt Americans from possible prosecution.

So, the US has suspended military aid to Lichtenstein, San Marino, and Switzerland. I wonder how much we'd been providing to those nations.

Some 22 of countries who supported the ICC without exempting the US from prosecution got temporary grace periods from the halt of military aid. They include Afghanistan, Djibouti, Democratic Republic of Congo, East Timor, Ghana, Honduras and Romania. Columbia, however, did not make the privileged list.

All Deliberate Speed:

Though the new blogger has forced him to break his posts up, Donald has much commentary on the recent doings of the court (and also a compliment for our blog; thanks). But he thinks that I'm wrong not to be impressed by the distinction Lawrence tries to draw-- that laws based on "moral" reasons are not okay, but laws based on other reasons are fine.

The Texas law was aimed at proscribing private conduct between consenting adults and offered only "the protection of morality" as its legitimate interest. Such an interest has never, standing alone, been deemed legitimate by the Court. The other acts, though, can be prohibited for other reasons: prostitution because it involves an economic contract, thus turning private conduct public; consensual necrophilia for health reasons (as well as the problems inherent in determining whether a dead person can ever truly "consent"); bestiality for the prevention of cruelty to animals; adult consensual incest because sexual acts between close relatives have a tendency to produce offspring with genetic defects.

They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

The language of Justice Kennedy's opinion is surprising both in its breadth and in its majesty. . . . Frankly, I was unaware that Justice Kennedy was capable of such an opinion.

Thomas:

I was originally going to respond to this senseless USA Today op-ed (did you know that in the dictionary under redundant, it says "see redundant"?-- ed.) but the Curmudgeonly Clerk and Tim Sandefur have rendered that unnecessary. Thanks.

Welcome:

If you're coming here from Jacob Levy's much-appreciated plug on Volokh.com, welcome. I'm at work at the moment so my substantive posts sometimes have to wait until the evenings... but you'll find we're full of surprises.

And further thanks to Diotima for (finally!) putting us on the blogroll...