Well, what I said is “it’s perfectly compatible with …” rather than “it’s also true that …”. But:
Gallup polling finds that the US population splits roughly 2:3:5 between unconditionally illegal, conditional, and unconditionally legal. More than 50% of people polled way Roe v Wade should not be overturned; fewer than 30% say it should be. (There are a lot of undecideds.) On the other hand, further questioning of the ~50% who say abortion should be legal sometimes but not always shows that they mostly want it to be available in “few” rather than “many” cases, which may mean that they want it to be more restricted than it is now, which I’m not sure how to square with opinions on Roe v Wade.
So. US law permits abortion in some cases. A large majority of US citizens think US law should permit abortion in some cases. It’s been many years since Roe v Wade and the people of the US have conspicuously not voted in governments that have tried to get Roe v Wade overturned. So yeah, I think it’s fair to say that for abortion to be sometimes legal is the Will of the People.
It may indeed not be the Will of the People of Texas. It very likely isn’t the Will of the People of (say) Odessa, Texas. But it’s a matter of federal law, rather than anything more local.
(Same-sex marriage is currently a matter of state rather than federal law in the US, and in the particular state under discussion it’s legal. Given how it became so and that because it was fairly recent it’s hard to gauge public opinion from subsequent events, I concede that we don’t know that legal same-sex marriage is the Will of the People of Idaho. It is, however, the law of Idaho.)
I concede that we don’t know that legal same-sex marriage is the Will of the People of Idaho. It is, however, the law of Idaho.
Consider who it came to be the “law” of Idaho. Did the Idaho legislator pass legislation permitting it? No, the Idaho supreme court re-interpreted the existing laws to basically declare that it is and has always been the law.
This is very strange. I say: actually, considering how it came about, it isn’t necessarily the Will of the People. You say: Hey, you need to consider how it came about, and then you might realise that it isn’t necessarily the Will of the People.
(Perhaps you’re saying that we shouldn’t regard the process that made it law in Idaho as legitimate. If so, I think rather more argument needs deploying to that end than you have presented so far. In particular, the ideas (1) that laws can turn out to be unconstitutional and need undoing and (2) that interpretation of the constitution can change over time so that different things are deemed unconstitutional at different times, are both pretty firmly established in US jurisprudence, and all you’re pointing out here is that this is an example of that process.)
It means what the people actually want. That’s kinda ill-defined given that different people want different things, so we have systems for aggregating the wills of individual people to make decisions.
Example: It is the will of the people in the US, collectively, that abortion be legal in certain circumstances. The fact that the law actually permits it is on its own only weak evidence for this (what it shows is that the people elected presidents who nominated SC judges who interpreted the constitution that way, and that’s a lot of indirection), but it’s also what opinion polls say, and The People have had plenty of chances to elect people who might change the law and it hasn’t happened.
There are individuals and communities whose will is something else. It happens that in US law the scale at which the WotP is aggregated is national. (For this specific issue.)
It’s not very clear to me what the best scale is for aggregating the WotP about same-sex marriage, nor what the actual WotP is nationally, nor what the actual WotP is in Idaho. All of which is why, on reflection, I retracted my earlier claim that legal same-sex marriage is the WotP in this context.
I repeat: the WotP isn’t perfectly well defined. In some cases there will be no answer, or at least no answer not subject to vigorous disagreement even between reasonable and well-informed people.
what it shows is that the people elected presidents who nominated SC judges who interpreted the constitution that way, and that’s a lot of indirection
(..)
It’s not very clear to me what the best scale is for aggregating the WotP about same-sex marriage, nor what the actual WotP is nationally, nor what the actual WotP is in Idaho.
Well, the fact that support for gay marriage is strongly correlated with the amount of indirection should give you a hint.
For example, look at what actually happened in Idaho, the people’s direct representatives passed a law (and then a constitutional amendment) against gay marriage, and a federal judge (who isn’t even appointed by the state) declared it unconstitutional.
Or look what happened in Oregon (which is where the case under discussion happened), a county official started issuing same-sex “marriage” licenses, the People then passed a constitutional amendment banning it. Then a federal court declared the ban unconstitutional.
the fact that support for gay marriage is strongly correlated with the amount of indirection
Is it? Could you show me the numbers?
I’m not saying it isn’t, by the way. It might well be. But what would be particularly uninteresting would be if what you mean is this: that among states where same-sex marriage is legal, there is a correlation between popular support for same-sex marriage and how direct the most direct sort of WotP-ness of same-sex marriage is there. Because that is automatically true whatever the actual facts.
What I’m saying is that ballot initiatives almost always (maybe there are one or two exceptions) go against gay “marriage”. Legislators mostly vote against gay “marriage”. Most places where gay “marriage” is legal it is this way due to court decisions.
It seems like that (assuming it’s true, which I haven’t checked) might be telling us much more about the strategies of different lobbying groups than about actual popular support for same-sex marriage.
Legislators [...]
For obvious reasons legislators’ opinions may lag voters’ by a couple of years. Support for same-sex marriage has been on the increase recently. So if it’s true that legislators usually vote against, even though popular support is somewhere around 60% nationally, that might be why. But, again, I haven’t checked whether it’s true that legislators mostly vote against. (This, also, might be a function more of when the question gets put to the vote rather than of general opinion among legislators.)
Most places [...]
This one, again, I haven’t checked, and I’m a bit skeptical about it. Do you have figures? Yet again, though, this could be true for reasons that have nothing to do with the one I take it you’re trying to suggest (i.e., that same-sex marriage is unpopular and foisted on the populace by the judiciary). For instance, consider a hypothetical world where the following things are true:
It is clear to most judges that the constitution implies, or will be interpreted by SCOTUS as implying, that laws forbidding same-sex marriage are improper.
Opponents of same-sex marriage choose to adopt a strategy of getting anti-same-sex-marriage laws on the books via ballot initiatives.
There is enough popular opposition to same-sex marriage for many of those initiatives to succeed.
However, popular opinion is shifting in the direction of same-sex marriage.
(Note that all these things could be true for a wide range of actual national popular support for same-sex marriage.)
In this hypothetical world, many states pass anti-SSM laws which are subsequently overturned when they are challenged on constitutional grounds; in those places there is no need for further action to make same-sex marriage legal; accordingly, where it’s legal the proximate cause is usually that a court has decided it must be. After a while, though, even in most of those places there is in fact enough popular support for same-sex marriage that a law explicitly permitting it would pass—but there’s no need for such a law, because the question has been effectively resolved at national level.
It is clear to most judges that the constitution implies, or will be interpreted by SCOTUS as implying, that laws forbidding same-sex marriage are improper.
This is a complete dodge, since it dodges the question of why the SCOTUS will make this interpritation, or whether it should.
Opponents of same-sex marriage choose to adopt a strategy of getting anti-same-sex-marriage laws on the books via ballot initiatives.
And why would they adopt that strategy? Is it because they have popular support behind their position?
However, popular opinion is shifting in the direction of same-sex marriage.
Again you avoid the issue of why the popular opinion is shifting. Especially when a lot of it may well be preference falsification, given what can happen to people who openly oppose it.
The implicit argument you seem to be trying to make is “we must support gay marriage because it is the wave of the future”. The problem is that this argument is basically circular.
In what sense? I’m not proposing that the possible world I described is an admirable one, only that it’s a possible one that somewhat resembles the real world and that in it (1) the pattern of SSM legislation you describe obtains and (2) popular sentiment favours SSM.
And why would they adopt that strategy?
Popular support would be one reason (though that would roughly-equally favour the different strategy of electing politicians who would vote for anti-SSM laws). Other possible reasons: it’s a more effective way of publicizing the issue, it’s easier to raise funds for (look e.g. at the huge sums raised for the Prop 8 vote in California), if you make it a constitutional amendment you can make it harder for elected politicians to reverse later, it avoids entanglement with other political issues.
Again you avoid the issue of why the popular opinion is shifting.
I’m not deliberately avoiding that issue; I wasn’t aware it was an issue. Why do you think it’s an issue?
preference falsification
Yeah, that can happen. But unless you have actual evidence for it and some quantification, appealing to it leaves you with an unfalsifiable theory: the people oppose same-sex marriage, and the fact that 60% of them tell pollsters they approve of it is no evidence against it because maybe 1⁄6 of the people who say that are lying about their preferences. That figure could be 100% and for all I know you’d just say “That shows how strong the social pressure is!”. Is there any possible evidence that you would accept as showing that same-sex marriage actually has majority popular support in the US?
given what can happen
There’s a lot that could be said about that, but rather than getting into a lengthy digression here I’ll just say: At most, that indicates that there are risks in making sizeable public donations to an anti-SSM campaign. It doesn’t indicate that any risk attaches to giving an honest answer in an anonymous poll.
“we must support gay marriage because it is the wave of the future”
I promise you that that in no way resembles any argument I was trying to make or ever intend to make. I have not, in fact, argued that we must support same-sex marriage; I have not made any claim about its likely support in the future; I think you must be wildly misinterpreting my hypothetical example—which, I repeat, is intended descriptively and not normatively.
Whether something is “the wave of the future” has approximately nothing to do with whether we should support it now. (Not exactly nothing; sometimes we might have reason to think that the people of the future will have a clearer view than we have now; or we might choose not to change something now on pragmatic grounds, because it will only be overturned in a few years.)
Incidentally, it seems that every time I have a reply from you I also have a freshly minted downvote. Is it your opinion that there’s something wrong with my comments other than that you disagree with them? If you make a habit of downvoting everyone you disagree with, you may find that some people choose to respond to you with downvotes instead of disagreement. (That is not my practice; I don’t think I’ve downvoted anything you’ve written in this discussion.)
(though that would roughly-equally favour the different strategy of electing politicians who would vote for anti-SSM laws).
Less so, since that strategy results in you getting it mixed up with other random issues, and also relies on politicians keeping their promises.
it’s easier to raise funds for (look e.g. at the huge sums raised for the Prop 8 vote in California),
Much smaller then the funds raised against it.
if you make it a constitutional amendment you can make it harder for elected politicians to reverse later,
Or more importantly state supreme courts. In fact, in many cases, e.g California, the reason for the amendment was to reverse a state supreme court decision.
it avoids entanglement with other political issues.
Yes, which is only to your advantage if you have popular support for this particular issue.
Is it your opinion that there’s something wrong with my comments other than that you disagree with them?
The fact that your trying to pass of large amounts of dark arts and indirection as an argument.
The fact that your trying to pass large amounts of dark arts and indirection as an argument.
Not intentionally; could you please be specific? I remark that you have made at least one extremely wrong claim about what I’m arguing (claiming I’m saying “we must support gay marriage because it is the wave of the future”, which I am not and never have and never would), and suggest that you consider the possibility that you are wrong about what I am trying to do.
[EDITED to add: oops, sorry, you didn’t claim I’m saying that, only that I’m implicitly trying to argue that. Again, that is no part of my intention.]
Well, what I said is “it’s perfectly compatible with …” rather than “it’s also true that …”. But:
Gallup polling finds that the US population splits roughly 2:3:5 between unconditionally illegal, conditional, and unconditionally legal. More than 50% of people polled way Roe v Wade should not be overturned; fewer than 30% say it should be. (There are a lot of undecideds.) On the other hand, further questioning of the ~50% who say abortion should be legal sometimes but not always shows that they mostly want it to be available in “few” rather than “many” cases, which may mean that they want it to be more restricted than it is now, which I’m not sure how to square with opinions on Roe v Wade.
So. US law permits abortion in some cases. A large majority of US citizens think US law should permit abortion in some cases. It’s been many years since Roe v Wade and the people of the US have conspicuously not voted in governments that have tried to get Roe v Wade overturned. So yeah, I think it’s fair to say that for abortion to be sometimes legal is the Will of the People.
It may indeed not be the Will of the People of Texas. It very likely isn’t the Will of the People of (say) Odessa, Texas. But it’s a matter of federal law, rather than anything more local.
(Same-sex marriage is currently a matter of state rather than federal law in the US, and in the particular state under discussion it’s legal. Given how it became so and that because it was fairly recent it’s hard to gauge public opinion from subsequent events, I concede that we don’t know that legal same-sex marriage is the Will of the People of Idaho. It is, however, the law of Idaho.)
Consider who it came to be the “law” of Idaho. Did the Idaho legislator pass legislation permitting it? No, the Idaho supreme court re-interpreted the existing laws to basically declare that it is and has always been the law.
This is very strange. I say: actually, considering how it came about, it isn’t necessarily the Will of the People. You say: Hey, you need to consider how it came about, and then you might realise that it isn’t necessarily the Will of the People.
(Perhaps you’re saying that we shouldn’t regard the process that made it law in Idaho as legitimate. If so, I think rather more argument needs deploying to that end than you have presented so far. In particular, the ideas (1) that laws can turn out to be unconstitutional and need undoing and (2) that interpretation of the constitution can change over time so that different things are deemed unconstitutional at different times, are both pretty firmly established in US jurisprudence, and all you’re pointing out here is that this is an example of that process.)
Ok, now I officially have no idea what you mean by “Will of the People” since it seems to bear no relation to what the people actually want.
It means what the people actually want. That’s kinda ill-defined given that different people want different things, so we have systems for aggregating the wills of individual people to make decisions.
Example: It is the will of the people in the US, collectively, that abortion be legal in certain circumstances. The fact that the law actually permits it is on its own only weak evidence for this (what it shows is that the people elected presidents who nominated SC judges who interpreted the constitution that way, and that’s a lot of indirection), but it’s also what opinion polls say, and The People have had plenty of chances to elect people who might change the law and it hasn’t happened.
There are individuals and communities whose will is something else. It happens that in US law the scale at which the WotP is aggregated is national. (For this specific issue.)
It’s not very clear to me what the best scale is for aggregating the WotP about same-sex marriage, nor what the actual WotP is nationally, nor what the actual WotP is in Idaho. All of which is why, on reflection, I retracted my earlier claim that legal same-sex marriage is the WotP in this context.
I repeat: the WotP isn’t perfectly well defined. In some cases there will be no answer, or at least no answer not subject to vigorous disagreement even between reasonable and well-informed people.
Well, the fact that support for gay marriage is strongly correlated with the amount of indirection should give you a hint.
For example, look at what actually happened in Idaho, the people’s direct representatives passed a law (and then a constitutional amendment) against gay marriage, and a federal judge (who isn’t even appointed by the state) declared it unconstitutional.
Or look what happened in Oregon (which is where the case under discussion happened), a county official started issuing same-sex “marriage” licenses, the People then passed a constitutional amendment banning it. Then a federal court declared the ban unconstitutional.
Is it? Could you show me the numbers?
I’m not saying it isn’t, by the way. It might well be. But what would be particularly uninteresting would be if what you mean is this: that among states where same-sex marriage is legal, there is a correlation between popular support for same-sex marriage and how direct the most direct sort of WotP-ness of same-sex marriage is there. Because that is automatically true whatever the actual facts.
What I’m saying is that ballot initiatives almost always (maybe there are one or two exceptions) go against gay “marriage”. Legislators mostly vote against gay “marriage”. Most places where gay “marriage” is legal it is this way due to court decisions.
It seems like that (assuming it’s true, which I haven’t checked) might be telling us much more about the strategies of different lobbying groups than about actual popular support for same-sex marriage.
For obvious reasons legislators’ opinions may lag voters’ by a couple of years. Support for same-sex marriage has been on the increase recently. So if it’s true that legislators usually vote against, even though popular support is somewhere around 60% nationally, that might be why. But, again, I haven’t checked whether it’s true that legislators mostly vote against. (This, also, might be a function more of when the question gets put to the vote rather than of general opinion among legislators.)
This one, again, I haven’t checked, and I’m a bit skeptical about it. Do you have figures? Yet again, though, this could be true for reasons that have nothing to do with the one I take it you’re trying to suggest (i.e., that same-sex marriage is unpopular and foisted on the populace by the judiciary). For instance, consider a hypothetical world where the following things are true:
It is clear to most judges that the constitution implies, or will be interpreted by SCOTUS as implying, that laws forbidding same-sex marriage are improper.
Opponents of same-sex marriage choose to adopt a strategy of getting anti-same-sex-marriage laws on the books via ballot initiatives.
There is enough popular opposition to same-sex marriage for many of those initiatives to succeed.
However, popular opinion is shifting in the direction of same-sex marriage.
(Note that all these things could be true for a wide range of actual national popular support for same-sex marriage.)
In this hypothetical world, many states pass anti-SSM laws which are subsequently overturned when they are challenged on constitutional grounds; in those places there is no need for further action to make same-sex marriage legal; accordingly, where it’s legal the proximate cause is usually that a court has decided it must be. After a while, though, even in most of those places there is in fact enough popular support for same-sex marriage that a law explicitly permitting it would pass—but there’s no need for such a law, because the question has been effectively resolved at national level.
This is a complete dodge, since it dodges the question of why the SCOTUS will make this interpritation, or whether it should.
And why would they adopt that strategy? Is it because they have popular support behind their position?
Again you avoid the issue of why the popular opinion is shifting. Especially when a lot of it may well be preference falsification, given what can happen to people who openly oppose it.
The implicit argument you seem to be trying to make is “we must support gay marriage because it is the wave of the future”. The problem is that this argument is basically circular.
In what sense? I’m not proposing that the possible world I described is an admirable one, only that it’s a possible one that somewhat resembles the real world and that in it (1) the pattern of SSM legislation you describe obtains and (2) popular sentiment favours SSM.
Popular support would be one reason (though that would roughly-equally favour the different strategy of electing politicians who would vote for anti-SSM laws). Other possible reasons: it’s a more effective way of publicizing the issue, it’s easier to raise funds for (look e.g. at the huge sums raised for the Prop 8 vote in California), if you make it a constitutional amendment you can make it harder for elected politicians to reverse later, it avoids entanglement with other political issues.
I’m not deliberately avoiding that issue; I wasn’t aware it was an issue. Why do you think it’s an issue?
Yeah, that can happen. But unless you have actual evidence for it and some quantification, appealing to it leaves you with an unfalsifiable theory: the people oppose same-sex marriage, and the fact that 60% of them tell pollsters they approve of it is no evidence against it because maybe 1⁄6 of the people who say that are lying about their preferences. That figure could be 100% and for all I know you’d just say “That shows how strong the social pressure is!”. Is there any possible evidence that you would accept as showing that same-sex marriage actually has majority popular support in the US?
There’s a lot that could be said about that, but rather than getting into a lengthy digression here I’ll just say: At most, that indicates that there are risks in making sizeable public donations to an anti-SSM campaign. It doesn’t indicate that any risk attaches to giving an honest answer in an anonymous poll.
I promise you that that in no way resembles any argument I was trying to make or ever intend to make. I have not, in fact, argued that we must support same-sex marriage; I have not made any claim about its likely support in the future; I think you must be wildly misinterpreting my hypothetical example—which, I repeat, is intended descriptively and not normatively.
Whether something is “the wave of the future” has approximately nothing to do with whether we should support it now. (Not exactly nothing; sometimes we might have reason to think that the people of the future will have a clearer view than we have now; or we might choose not to change something now on pragmatic grounds, because it will only be overturned in a few years.)
Incidentally, it seems that every time I have a reply from you I also have a freshly minted downvote. Is it your opinion that there’s something wrong with my comments other than that you disagree with them? If you make a habit of downvoting everyone you disagree with, you may find that some people choose to respond to you with downvotes instead of disagreement. (That is not my practice; I don’t think I’ve downvoted anything you’ve written in this discussion.)
Less so, since that strategy results in you getting it mixed up with other random issues, and also relies on politicians keeping their promises.
Much smaller then the funds raised against it.
Or more importantly state supreme courts. In fact, in many cases, e.g California, the reason for the amendment was to reverse a state supreme court decision.
Yes, which is only to your advantage if you have popular support for this particular issue.
The fact that your trying to pass of large amounts of dark arts and indirection as an argument.
$39M for, $44M against. Much smaller?
Not intentionally; could you please be specific? I remark that you have made at least one extremely wrong claim about what I’m arguing (claiming I’m saying “we must support gay marriage because it is the wave of the future”, which I am not and never have and never would), and suggest that you consider the possibility that you are wrong about what I am trying to do.
[EDITED to add: oops, sorry, you didn’t claim I’m saying that, only that I’m implicitly trying to argue that. Again, that is no part of my intention.]