|*FINALLY* figured it out...
||[Apr. 14th, 2005|08:29 am]
A lot of extremists use the "Dred Scott" decision as a kind of code to talk about the problems with the courts. |
Now, the Dred Scott decision was a sad one, but, by the law of the land, it was a necessary one. Slaves were property; leaving a slave state should not deprive you of your property. It puts a bad taste in my mouth to do so much as *write* those words, but that's the way the law was written, and the Dred Scott decision was solid legal reasoning. Painful, but solid.
Now, reading a link about the courts, I finally understand.
The Dred Scott decision said that free states must accept certain laws from other states... if one state declares something right and lawful, other states must declare it lawful, and at least acceptable.
Kind of like saying if you're married in one state, you're married, period.
*THAT* finally clears up a bit of a puzzle that's been niggling at me for a long time.
2005-04-14 04:07 pm (UTC)
now I have not studied that decision
"... that free states must accept certain laws from other states... if one state declares something right and lawful, other states must declare it lawful, and at least acceptable."
that conclusion in its generalness I will not accept. I will concede that it is in the interest of cooperation and free exchange of goods between states that laws should be mutually respected - however there are limits to that - and indeed I dare say any civilized state today[!] would argue that people cannot be property and that any contract saying so is null and void from beginning - and so a hypothetical slave would be free automatically when he sets foot in one of those states.
And this implies that we may yet get to the point where states refuse to recognize a marriage from another state.
And if you ever tried to get your university ( or highschool ) diploma validated as 'equivalent' in another country you would know that such non_acceptance is not even rare.
2005-04-14 04:19 pm (UTC)
Re: now I have not studied that decision
Ah, but a highschool diploma (or college degree) from another *state* is accepted. Now, licenses and certifications are a whole different matter.
I agree with John on this one. Even if we posit that *today* it is illegal for on person to own another in this country, we can't apply our present-day values to the past. But, going back to the country argument, that is why so many slaves fled to Canada.
I think marriages have more international recognition than any other institution. Hmmm...I'll have to think more about this.
2005-04-14 06:07 pm (UTC)
Re: now I have not studied that decision
Andreas, I think you're using a broader definition of "state" than John is; he's talking about US states, which under our somewhat unusual constitution are both sovereign entities and part of the confederation that constitutes the US republic. You're using "state" to mean independent nation-states, yes?
Alas, there are already states in the US which refuse to recognize marriages from other states, if the married people are of the same sex. And others scrambling to get that refusal into law.
2005-04-15 01:03 am (UTC)
I suspected that might be the case
(and btw Germany has states and they are not simple provices either ) And here some conservative states appealed to the constitutional court when the civil union for same sex couples was introduced - and lost. As yet it can't be called a marriage because eof the wording in the (national ) constitution : " the 'state' ( law, government, administration) specially protects family and marriage..." to change that wording one would need a 2/3 majority which is not likely to happen over any emotional subject like this.
Still wheather state is a stae (part of a federal system) or a nation-state ( and those are part of a larger system in the European union and/or the UN ) while in the normal course of events "public Acts, Records and judicial Proceedings" of foreign states are accepted there is a limit to those : Things that are legally impossible here would not be accepted . Thus anyone sentenced to death in his home country would have good chances of getting some sort of asylum her because there is no capital punishment in Germany ( I have a feeling that in the case of Osama some way around that would be found and he would end up in the US ) - The idea of states stopping to regard other states wedding certificates as valid is intriguing : Does that mean I can be legally married to Annabel in NY, Bettina in Pennsylvania, Kathrin in Texas and Zenobia in Alaska ? ( and a double dozen others between ). Interesting times for traveling men ( or women ).
The intention of the clause to which you're alluding (Article IV, Section 1) was to insure that someone couldn't step across state lines and evade debt, criminal conviction or contractual obligations. However, it simply specifies "public Acts, Records and judicial Proceedings" (marriage surely falls within those). As an aside, it gives the Congress substantial leeway to determine how the validity of such acts, records and proceedings is proven.
That said, it seems pretty clear that on its face, a publicly recorded gay marriage in Massachusetts would have to be recognized by other states, and the Defense of Marriage Act in its current form isn't enough to stop that. The Congress can strengthen that act, and remove the Supreme Court's right to review it (Article III, Section 2). One way or another, though, gay marriage won't be recognized in most states for a very long time, and may not last in the states which nominally recognize it now. I may not like that, but we've already seen lots of state constitutional amendments. If Adam and Steve or Audra and Eve get the Supremes to bless their marriages, things could get interesting.
I'm one of those extremists (a constitutional strict constructionist), but I'd rather use Plessy v Ferguson and Brown v Topeka as examples of (rather obvious) problems with the courts (and not in code, either). :-)
The Plessy court said separate but equal passed constitutional muster, and the Brown court said it didn't, and both courts were operating with the same Constitution (the amendments passed in the interim had no relevance to those cases). The only change was in the political makeup of the courts, and however one feels about either decision, they simply couldn't both have been right (I personally believe, contrary to popular belief and the sensibilities of the people whom I love the most, that though segregation is morally wrong, separate but equal isn't unconstitutional - more of that painful but solid legal reasoning you mentioned).