Interpretive Jiggery-pokery; Part One

91237701A lot of electrons have been disturbed in commenting on the SCOTUS rulings last week. A lot more will be, some of them by me, but underlying the whole sordid mess, is a pernicious view of the law. Justice Kennedy opened his opinion of SSM with this:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

In the analysis section, he says this:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Those two statements are consistent with each other and with the school of thought that can find new rights (or make them up out of the whole cloth) in a two hundred year old document, whose authors meant no such thing, if (and that’s very doubtful) they even thought of such things. That school is what is often called ‘the living constitution’. And it is fully capable of finding rights that don’t exist and were never intended.

Yesterday, No Mans Land published on All along the Watchtower, an excellent history of marriage in Christianity. But that, while interesting, has little to do with the court ruling, because like Roe v. Wade, the court simply decided what it wanted without recourse to the law. I probably should add that while I’ve always thought Marbury v. Madison was right, I’m beginning to doubt my conclusion.

Because the real problem isn’t with any of that, the real problem is the conception of the law. What Kennedy works from is the old Roman conception of the law that flows strongly in European law. It holds that one can do anything that the law permits. It leads to many laws, and a fair percentage of them perverse, and is imposed from the top down, like these SCOTUS opinions.

But American law, like English law, is based on the Common Law, and law that has built up over time, using precedents. We spoke the other day of the start of the written Common Law, in the days of King Æthelberht of Kent. Contemporary with St. Augustine of Canterbury, King Æthelberht’s Law was the first written version of the Common Law, indeed the first written law code in any of the Germanic languages. This was the basis of King Alfred the Great’s Code, and all subsequent English/American law, including Magna Charta.

The key takeaway here is that Anglo-American law is based on a different principle, that one can do anything that the law does not forbid. That difference is fundamental. That is also the basis of the Ten Commandments. That is an entire law code, in ten simple “Thou shalt not’s. More on that in an earlier post of mine, here, and Jessica postulated that Jesus boiled it down even more  here.

And so we see that there is a fundamental flaw in these decrees from SCOTUS, the court simply chooses to violate the fundamental basis of our law to grant non-existant rights.

More to come on this, of course.


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5 Responses to Interpretive Jiggery-pokery; Part One

  1. No Man's Land says:

    Very true. The distinction is fundamental. Yet it has eluded me until today. Thank you. 🙂

    Liked by 1 person

    • NEO says:

      Hah! It’s one of my pet causes, you’ll hear it a lot from me! 🙂

      Liked by 1 person

  2. John Doe says:

    I’d like to see some primary sources supporting your interpretation of Roman Law. I’d also like to see some evidence that the US is not based on Roman models, particularly since many of the FF’s were avid Classicists.

    But as to the post, I think you are making the same mistake with marriage as you made with the Confederate Flag, in that you want it to be something that it is not, and what it is, you do not want to admit. NoMan’sLand may have a fine synopsis of Marriage in Christianity, but this is completely irrelevant to a multifaith nation where Christianity itself has a lackluster history of respecting marriage.

    Consider, if you go to get married at a JoP, you sign a paper, and you are married. The State expects almost nothing of you. You do not have to love, honor, cherish, have sex, have children, raise a family, or anything that we commonly associate with marriage. The State expects you to file your taxes, and that is about it.

    Nothing in my marriage that makes it a marriage has anything to do with the state certificate that I was issued. If the certificate burned down in a courthouse fire, and there was no evidence, I would still consider myself married, we had a religious ceremony, despite the State not recognizing the union. Letting homosexuals have access to the State certificate, is an almost pointless concession, and it makes a lot of of my gay friends happy, so I am not opposed to it. In reality I could not really care less.

    Your position is also wildly unConservative. Nothing in Conservative beliefs would ever want, need, implore, or ask the US Government to define what a marriage is. The government deals with laws and legal frameworks, and I want them as far away as possible from marriage as I can get them. The fact that we recognize the JoP’s ceremony as a marriage is where that battle was lost. If a drunken set of 20-somethings can stumble into a Vegas wedding chapel, get married by a Dolly Parton lookalike, while having an Elvis impersonator as a witness, then sober up and realize it was a giant mistake and get a divorce a few days later….letting gays marry is hardly a blip on the outrage meter.


  3. Reblogged this on Boudica2015 and commented:

    Interpretive Jiggery-pokery; Part One


  4. Pingback: My Article Read (7-2-2015) (7-3-2015) | My Daily Musing

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