Following the decision by the Indiana Senate to allow HJR 3 concerning marriage inequality to pass second reading without reinserting the second sentence, Sen. Delph caused a stir by taking to Twitter with some out of the box thinking.
The one in particular that prompts this post is:
@situationgray But the liberal view of rights to clean water, air, a decent job, a house, car, health benefits is a modern perversion.
— Mike Delph (@MikeDelph) February 15, 2014
Now, a lot of respondents took the low hanging fruit and expressed astonishment at the notion that the right to clean water is a modern perversion. I get that, but I also get what I take to be Sen. Delph’s intent here. There is a distinction to be made between “rights” and “things we want.” The majority can’t vote to take away the former but the majority can decide to go a different way on the latter. He has also long taken the position that the judiciary has gone too far in anointing itself the body to decide what rights are and are not. In particular, he does not much like the bedrock judicial case of Marbury v. Madison.
It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.
As a historical matter, I have some sympathy for Sen. Delph’s position. Marbury v. Madison was a deft power grab by Chief Justice Marshall. However, if Chief Justice Marshall’s view of things was not the view of the Framers of the Constitution, he got it right and they got it wrong inasmuch as having the judiciary check the legislature in this fashion has contributed greatly to the stability of our form of government.
On the subject of rights, Sen. Delph is out of the mainstream in his view of who gets to discern and articulate those rights and also in his crabbed view of what rights citizens do and don’t have.
I’m out of the mainstream in that I don’t really buy the way the Framers (and Locke) marketed the idea of rights — that they are self-evident, God given, and inalienable. I don’t think rights are any of those things, and I’ve said so in the past. (See, e.g., here):
Americans, by and large, get very uncomfortable with the idea that property is a blessing of government. We like to pretend that government is a necessary evil (sometimes not even that) and don’t like to recognize that government is a fundamental underpinning for our whole way of life. When it comes to property, you’ll get some happy talk about natural rights or being endowed by our Creator with certain inalienable rights. But such talk is entirely inadequate for explaining why it is that the Native Americans don’t dominate the real estate market. The reason is that we alienated the hell out of their right to property and nature’s law didn’t lift a finger to stop us.
In short, I take the position that rights are a product of the law. Sen. Delph seems to embrace the more mainstream view that rights exist outside of and prior to the law. However, his view also permits the notion that rights are not a function of human consensus about right and wrong and, therefore, entails the ability to ignore those purported “rights.”
In my view, a right is something named and enforced as such by the machinery of the law. I would be interested in knowing whether there is a methodology of discerning a “natural right” and distinguishing it from a desire or policy preference. How does the desire for clean water become a right to clean water? How does the desire for property protection by the government become the right to property protection?
I agree most emphatically with your last statement and that’s bold thinking I hadn’t considered before.
“Modern” does not mean “wrong.”
We quite often know better than the Founders did. Part of that is because we simply know things they didn’t before, part of that is because of errors they made even in the context of their own times.
We should not be subordinate to the tyranny of the past. Mike Delph is an immoral, corrupt, depraved individual who has no right calling himself a Christian–the person who hates his fellow man but doesn’t curse, drink, or have sex is in fact less of a Christian, and less moral, than the person who loves his neighbor and also talks like a sailor, gets absolutely blotto five times a week, and has sex with anyone that’ll agree to it.
And if there is some disparity to the role of the Judicial branch between when the nation was founded and today, some measure of that is because there is an actual substantial body of law for the Judicial to interpret and “check” the other branches on. The Judicial Branch of government had less power then because there were fewer laws.
I’d also buy Delph’s argument about judicial overreach if the opponents of same-sex marriage weren’t so blatant about venue shopping their issue. They undermine their own arguments about “activist judges” and “let the majority decide” by running from one branch of government to another to pursue their cause. When they lose in the legislature and/or don’t win at the ballot, they don’t hesitate to pursue a judicial course by suing, so none of their rhetoric really washes.
Excellent observation, Steph. I’m reminded of the “creationism” issue, where you can almost hear them say, “So you don’t want to teach my religious perspective in the schools? What if I call it ‘science’? Or, what if I put another name on it and call it ‘intelligent design’, and then call it science? How about if I find a renegade science person who advocates for it and then call it science?” You can almost hear some of these people looking for a venue that will accept their position. In the end, it’s the expedient venue shopping that removes the integrity from their argument.
Does it protect the privilege of the currently-dominant group? If so, it’s a “natural right.” If not, it’s a “modern perversion.”
“Marbury v. Madison was a deft power grab by Chief Justice Marshall. However, if Chief Justice Marshall’s view of things was not the view of the Framers of the Constitution, he got it right and they got it wrong inasmuch as having the judiciary check the legislature in this fashion has contributed greatly to the stability of our form of government.”
That’s the story as told in HS civics class, but it’s not really true at all. I think the reason why so many otherwise educated people buy it is because it’s easy to believe in a power grab; it sounds so plausible.
But judicial review was contemplated by the Framers, explicitly. Federalist 78 discusses the issue at length; here’s a quote:
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”
Art. III, Sec. 2 of the Constitution itself is fairly specific, when it provides that “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties…”.
I’m not really sure how you could read that and not think that having “judicial power” to cases arising under the constitution would not include the power to declare statutes made contrary to the constitution void.
The issue was also widely discussed at the constitutional convention.
Now it is true that Marbury was the first supreme court case to clearly set out what it was doing, and it’s also true that Jefferson (president at the time Marbury was decided) was strongly opposed to judicial review. But Jefferson’s view was clearly in the minority at the time…and it’s not at all clear how his theory (that each branch has the authority to determine whether its own actions are constitutional) could have ever worked in practice. (The executive has determined that this search or seizure is constitutional, therefore your claim is non-justiciable?)
I fully agree. Marbury is huge, but it’s certainly not the beginning. That’s just the simple high school and undergrad-level story. Multiple cases in the 1790s decided upon the constitutionality of both state and federal legislation, as well as federal supremacy, long before Marshall was on the Court. (If I remember right, he actually argued one if those cases alongside Patrick Henry, whose small-government views make Jefferson look like a Federalist.)
Jefferson didn’t approve of judicial review, and apparently convinced Madison to change his mind on it in the Virginia and Kentucky Resolutions (1798). But no other state took up their position that states were the arbiters of constitutionality, and some — Rhode Island most notably (unruly, freedom-loving Rhode Island!) — issued resolutions of their own asserting that only the federal courts had that power.
Delph follows the American tradition of citing the opinion of a Founding Father to support a position and declaring the argument therefore settled in his favor. We forget that the Founders were a proud and varied group who rarely if ever agreed absolutely on anything. More importantly in this case, Jefferson’s opinion should carry far less weight on constitutional issues than most because HE WASN’T THERE! He was in France during the Philadelphia Convention and the ensuing ratification debates, and didn’t return until it had been adopted. He never liked much of its power structure and his narrow interpretations — at least when he wasn’t president — tried to limit it. But that certainly doesn’t make his views Gospel.
And who were often just flat-out wrong, and who also lacked the benefit of the increase in our knowledge of the world (including how societies work) over the past 225+ years.
Excellent back ground on judicial review. Thanks. Apparently I only ever learned the high school / undergrad version!
I’m coming from a social ethics perspective, not a legal perspective. It sounds like one of our classic distinctions between positivist vs natural law theory, although Delph clearly seems to have learned his legal theory from Jerry Falwell rather than his IU professors. I’m sure the natural law theory basis for his approach is popular at Liberty University, but would it still pass as credible theory at Stanford, Yale or Harvard? I honestly don’t know, but my guess is that faculty at the major schools would tend towards either a Rawlsian or positivist approach, the latter of which seems to be the preferred approach of Masson above, and the former closer to my approach.
I wonder if Delph would be open to an honest discussion about theories of justice, or if his presumptions about divinely inspired Bible texts being the foundation of modern law, and God-given “inalienable rights” would preclude him from thinking deeply about the limitations of his approach. Masson’s critique of the natural law perspective is apropos, as would be the inclusion of any recognition of the socially constructed nature of all cultural values and norms, including law. Such a recognition may cause fear and trembling for those convinced our moral depravity is a result of a “loss of absolutes” (meaning–the loss of cultural hegemony of white straight middle-class Fundamentalists), but it’s also a far stronger basis for theory. Not unlike the difference between whether you base your calculation of the age of the earth on the Bible, or science.
Could life be a natural right in your view? It is, after all, natural in the purest sense. I tend to agree with your view that rights are given, protected and taken by laws, which are chosen by men. But “life” as a right always gives me pause.
Relatedly, having something taken from you doesn’t mean it wasn’t yours by right — life, liberty, property, etc. — only that your right may have been violated. Even government can choose limit your rights as it chooses, but that doesn’t mean they’re not “rights.”
I don’t really have a point here; just musing. Thanks for providing food for thought.
Honestly, I have long struggled to figure out exactly what a “right” is. My sense is that it’s a benefit protected by law and the machinery of government.
For example, my property law professor taught us to think of “property” as the bundle of rights associated with a physical object. Without those rights, it’s just stuff you’re currently strong enough to hold until someone stronger takes it from you. I suppose you can say there is a “right” in the absence of government and legal enforcement mechanisms, but I have no idea how such rights manifest themselves in any practical or observable sense.
According to my Twitter feed, Delph is lighting himself on fire right now by declaring that he’ll try to put the second sentence back into HJR3, that David Long and other Republicans are worse than Satan for not doing that already, and that Christian conservatives are the biggest victims out there. And that if the second sentence isn’t reinserted, he’ll vote against HJR3. Holy shite.
However, he is right that if it doesn’t pass now, it’ll never happen. It explains a lot of the Republican desperation to cram through as much stuff as they can now.
What’s it take, like a 2/3 vote to get a bill sent back down to committee? If I’m right on that, good luck!
I don’t fully understand the dedication to that second sentence, however. My guess is that, had the second sentence never been part of the amendment, Sen. Delph would have no particular problem with the legislation. But, because – in contrast – the current version is weaker than what passed the first time, he sees it as a raw deal.
Mike Delph is not a moral man, and he is certainly not a Christian.
Not cursing, drinking, or having sex outside of marriage does not make you more moral than someone who does all of those things.
However, hating your neighbor certainly makes you less moral and less Christian than someone who does not.
Mike Delph is a depraved, corrupt, immoral person with a warped sense of right and wrong.
“Not cursing, drinking, or having sex outside of marriage does not make you more moral than someone who does all of those things.”
Actually, yes, it does.
If you’re slipping your Johnson inside someone besides your wife, you are being immoral.
One of the major problems with being a fundamentalist (of any stripe) is humorless rigidity. And the guy thinks he is on a crusade, where even martyrdom is on the table. That doesn’t make for good negotiation skills, but it can work well for the opposition.
I’m feeling sorrier for his brother, who I knew from being on the HS newspaper with him. Steve is going out of his way to be his brother’s keeper, not surprising given the Delph boys’ very chaotic upbringing (which Mike talked about with me for a freelance story about his Arizona-style papers-please bills). But Mike, despite (or because of) Steve’s best attempts to humanize him, is going more out of his way than usual to turn up the gay-hating, including publicly dragging his brother’s drug problems out in the open. Sad.
I suspect Mike sees Steve’s troubles as the evils of the “gay lifestyle,” not the aftereffects of being out at a young age, in Carmel, during the anti-gay worst of the AIDS crisis.
People like Mike Delph blame the problems of society’s victims on the victims themselves rather than on society because they are fundamentally lazy, shiftless bums. It’s much easier to wag your finger at someone than it is to do the actual hard work of fixing society’s problems (which would also mean pointing the finger, in part, at oneself).
Did anyone see his rant of a press conference today? I understand it was an epic of narcissism and accusations. And that he basically threw his brother under the bus again. In the end, the Rightwing wanted that thing on the ballot this year or else.
http://www.theindychannel.com/news/local-news/sen-mike-delph-takes-stage-to-discuss-recent-twitter-storm-feelings-on-hjr-3
“The press conference ended on a sour note, however. After discussing his brother’s alcohol- and substance-abuse problems, a reporter asked Delph, “Had you been drinking or using drugs during your Twitter barrage?”
“Delph did not take the question lightly.
“What kind of question is that? That is just asinine. I’d been drinking tea… and that’s… are you trying to make news? That’s an offensive, asinine question. And you know, that is indicative – that type of idiotic question is indicative of the public’s frustration with the media, who is supposed to report news, not make news. So I’m not even going to respond to that anymore. That’s ridiculous,” Delph said. He then turned to the room for more questions, “Yeah — anybody else?”
“Crickets greeted the question.
“That’s when Delph and his staff turned and left.”
From what I gathered, the question came from Dan Carden of the Northwest Indiana Times, who did not include that exchange in his own story.
http://www.nwitimes.com/news/local/govt-and-politics/senator-will-try-to-restore-original-marriage-amendment-today/article_7c0682b4-600d-5b06-9f8d-4d891c6214b1.html
So the future of marriage is in the hands of Indiana? Either this is a bit of histrionic overstatement or I will need to divorce my wife and find a male lover.
The whole audio is here, if you can suffer through it.
http://raysteele.wordpress.com/2014/02/17/mike-delph-on-marriage-senate-republicans-and-twitter/
The reporter who asked “What’s the point of all this?” was right on. The correct answer, of course, is “Nothing. It’s a Pyrrhic victory, in which we took our stand and were martyred while we served to defeat the bill we advocated”. These types with their Pyrrhic victories are such a drain on the purpose and direction of a democracy that’s supposed to function for the common good. The only good to come out of this seems to be the fact that Delph helped bring down the bill and that the people now have some insight into a crazy right wing. Maybe that’s not so bad.
It’s not crazy, just morally bankrupt.
I figured it was the beginning of his re-election campaign and appealing to his base.
I’d see it more as his play to woo the Rightwing in Indiana as it’s martyr/hero candidate for US Senate when Coats retires…
Steelydan, your point is excellent. A public that understands the details of how such an effort is morally bankrupt is more likely to distance itself from those individuals. All of us have our crazy moments, but you have to work at being morally bankrupt.
HJR3 passes 32-17 in Senate, Delph petulantly votes no, and then five minutes after vote, this happens:
https://twitter.com/AndyMarkle/status/435519204704260096
“I will be filing suit against the state government soon regarding #HJR3 and existing statutes restricting gay marriage.”
It’s from Andy Markle, a Republican gay activist who quit his party over the measure. Further explanation as to why he’s doing it:
https://twitter.com/AndyMarkle/status/435520564237582336
“Mostly because #HJR3 is now recorded law and is an intended constitutional amendment. It could stop the process.”
If he does file suit, then this is truly the beginning of the end for gay marriage bans in Indiana.
“In my view, a right is something named and enforced as such by the machinery of the law.”
Doug, please stop. You’re trying to have it both ways, and it’s dishonest.
I can’t very well say that “In my view, a cat is an animal that chews rawhide toys, barks at birds and chases mailmen.” I haven’t described a cat, at all, just as what you describe is nowhere close to a definition of rights.
Just say you don’t believe in rights, and say nothing further.
Oh good, Freedom’s back.
Ok, tell me your methodology for identifying a right and distinguishing it from a policy preference. What makes protection of your property a right while leaving clean water and air a mere desire? Show your work.
Evidently, you don’t understand how instruction works.
Here’s your current assignment: Show me how in the absence of law, you are not entitled to throw the rapist off your wife.
“I don’t know and can’t answer your question” would be a more honest response by you.
As for your question, in the absence of law there is no title and, therefore, no “entitlement.” I’m either strong enough to rip your tiny penis from your body or I’m not.
Running and hiding doesn’t excuse that you’re ducking out on your assignment.
“Title?” Some guy is raping your wife, and you engage in a title analysis?
In absence of statutory law, should everyone look at an ongoing rape with as much indifference as is given to a person taking a walk?
You’re the one who used the word entitled. If you meant something different, say something different.
What is with this meaningless, manufactured and faux dispute about “entitlement”? It seems you’ve comprehensively failed to understand anything.
You are not well acquitting the legal profession to produce thinkers in anything but the stilted conventions of the trade.
The rapist is still atop your wife, and you’re still without a means of action.
Do you even want to act?
It’s only the end of February and Doug is already the finalist for the Tolerance and Measured Response award for 2014.
Now he knows how it feels to be Mike Delph’s gay brother.
“Now he knows how it feels to be Mike Delph’s gay brother.”
What manner of comment is this, Doug?
“Evidently, you don’t understand how instruction works.”
From the guy who can’t win a debate around here, that’s pretty funny.
You were asked a question. Man up and answer that one. If you can’t, go away.
Failing an ability to handle Internet discourse like an adult, I retract my previous statement where I actually said it was a bad idea for you to not be banned from these parts. You’re not after debate, you’re just after pestering the site owner into not having a site.
That should have read
Take up his yoke, Joe. Will you defend his wife in absence of a statute?
If you’re going to be such radical extremists to argue against the existence of rights, the least decent thing you can do is to defend your argument.
The lot of you huddling in a corner won’t save you from embarrassment or defeat.
You were asked a question. Be a gentleman and answer it or apologize for your lack of manners.
Enough, Joe. Stop hiding. Hissing at me while cowering doesn’t save the lady’s virtue.
That you can’t summon the masculinity to stop an act that would have been repelled since the dawn of time tells me all I need to know about the veneer you call an argument.
Just be decent and admit you don’t have an argument. Just have the honesty to admit that this crazy non-rights position is just a theoretical exercise.
Please, just this once, do the right thing.
“the lady’s virtue”
“summon the masculinity”
You have nothing of value to add to this conversation, misogynist pig. You don’t even understand the actual reason rape is bad.
And, in fact, the particular form in which your lack of understanding has manifested itself, only contributes to further rape.
Once again, you’ve demonstrated that you neither have any clue what you’re talking about nor any desire to actually think about things, and that you view both of those as some sort of badge of pride.
It’s interesting, “Freedom” how you hide in a corner with your anonymity, while you accuse others of your own behavior. That is a habit of yours. It’s also interesting how you can’t have a discussion without insulting and abusing people, like you think that nastiness is part of rational and normal conversation. A recent article was published in SciendeDirect about trolls and the sort of folks you seem to represent (http://www.sciencedirect.com/science/article/pii/S0191886914000324), but that research article was described in detail in a recent Slate article (http://www.slate.com/articles/health_and_science/climate_desk/2014/02/internet_troll_personality_study_machiavellianism_narcissism_psychopathy.html). I don’t think the article will change your behavior, but it may help you understand it.
If you’d bother to read my contributions to the thread previous to your entry, you’d see I don’t have a position one way or the other.
Someone asked a question of you. Answer it or go away shamed.
Stuart and SDF are hiding behind ad hominem but not really taking up their leader’s cause. Do both of you deny rights as existing prior to statutory law?
“You don’t even understand the actual reason rape is bad.”
At last, a soldier to the fight, though he’s entered my camp.
In absence of statutory law, go ahead and tell Doug why rape is bad.
Like I said, you continue to accuse others of your own behavior, namely “hiding behind ad hominem”. That’s called “projection”. I only reported what you write, and it was not an attempt to insult you or change the subject, which is the very thing you are doing, as I just pointed out. Read my comment carefully and try to understand it.
Actually, no, Doug’s right on that question, and my response supports it, as you’d know if you actually thought about things.
SDF, you can’t have it both ways. Is rape bad, or is it not? “Bad” is a pre-statutory concept. There’s no law against tracking mud all over your wife’s clean floor, but it’s a bad thing to do to her.
Why do you think rape is bad? If the legislators in some new country haven’t got around to proscribing it, yet, would it not be “bad”?
You keep attempting to shift the debate. You talk about statutes – but my assertion is that rights don’t exist in the absence of law. Any kind of law: statutory, common, constitutional, whatever. But these are all man made things.
You talk about whether rape is good or bad being tied to the notion of rights. It’s bad. But that doesn’t matter in the context of this particular discussion, and it doesn’t mean we have rights with respect to rape one way or another in the absence of law.
When law does not exist, you do not have rights. You have force. You can use that force as you will.
He’s not interesting in debating any topics. Debate would require that he respond to your questions directly. That you have the patience to deal with the clown is commendable.
He’s one of those shiny balloons that kids get for their birthday – looks nice on the outside, nothing of substance on the inside.
“From the guy who can’t win a debate around here, that’s pretty funny.”
What manner of comment is this, Doug?
I can do this for tens of posts. Admit it, you have a nasty and strident group who attacks anyone who stands outside the liberal orthodoxy.
It’s pretty pathetic when the gang can’t win a gang fight against one guy, but to claim victim status when the dogpile results in defeat is really too much.
You troll the comment section, get a predictably frosty reception, then when you’re called out on for being a schmuck in the way you present your opinions, you claim to be the real victim. I get it.
In any case, I’m not going to argue with you about it. When I’ve had enough, I’ll pull out the ban hammer and you can set up your own blog and complain about how unfair and thin skinned I am.
“As a historical matter, I have some sympathy for Sen. Delph’s position. Marbury v. Madison was a deft power grab by Chief Justice Marshall. However, if Chief Justice Marshall’s view of things was not the view of the Framers of the Constitution, he got it right and they got it wrong inasmuch as having the judiciary check the legislature in this fashion has contributed greatly to the stability of our form of government.”
So the ends justify the means, and to Hell with constitutional process and consent, as long as you like how it shakes out? Marshall pulled a coup on the Constitution, and you’re fine with it, because it added “stability?”
Many measures and governmental schemes are stable. So what? Stability is utterly irrelevant to the question of what form of government we are constituted to be.
Until the recent deterioration, this was an excellent discussion and a pleasure to follow. The posters were respectful and thoughtful, and I owe them a lot. Thanks.
“Until the recent…”
It isn’t the measure of an apostle to have a contented congregation.
This guy is preaching that you have no rights, and you prefer that position?
Remember, why did Doug (and the rest of you) recently lose the gay marriage argument to me? Because neither he nor you were able to articulate a rights argument. Nowhere close. Stripping away all the shrillness and invective, your side was left utterly bereft of an argument, merely possessing a position, a preference. I carried the day, quite handily.
When you understand rights, you have a logically satisfying and defensible foundation for creating government and ordering social intercourse. Without a rights anchor, you’re just engaged in issue advocacy, and you could easily argue against yourself, tomorrow.
Says the guy who, when asked for support to some of his claims, can only post links to opinion pieces in college newspapers and to the website of a guy who got clowned on the Daily Show. And, by the way, whose website was blocked as a “hate site” when I tried to access it.
https://www.masson.us/blog/hjr-3-being-moved-from-house-judiciary-to-house-elections-committee/#comments
https://www.masson.us/blog/hjr-3-passes-house-elections-committee-9-3/#comments
Did you seriously just openly acknowledge that you’re not part of the reality-based community?
Whoa. I’ve been away for a while. I forgot about the inadvertent hilariousness of Freedumb. I just wasted entirely too much time following the past 3 HJR3 discussions to find more of them. /smh
David Long put the smack down on Delph, include one punishment that for him is a fate worse than death — being moved to sit with the Democrats.
http://www.indystar.com/article/20140221/NEWS/302210015/Senate-leader-punishes-Mike-Delph-over-tweet
The better to build his cred as a martyr / hero for the Rightwing and it’s Unholy Trinity when he runs for the US Senate.
I guess Mr. Delph forgot to open a note from 2000 years ago. It was from Jesus who said ““Don’t pick on people, jump on their failures, criticize their faults— unless, of course, you want the same treatment. That critical spirit has a way of boomeranging.” (The Message Translation, Matthew 7:1 -2)
As I’ve said before: Mike Delph is no Christian, and he has no business calling himself one.