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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, April 28, 2011

A careful path

In the midst of the Clement/K&S issue, I got in a bit of a dispute with someone who I felt was providing a too simplistic take on the issues. Or, rather, in effect sweating the small stuff. This is a tricky business, since it is with someone both very intelligent (many of his posts are excellent) and mostly on my side overall. But, he makes arguments that I think are wrong. How far do you go here? Note the penultimate comment suggesting I was arguing trivial things. This was not the first time that popped up. At times, I was deemed "the enemy" for my comments.

My general philosophy is to take an issue as a general matter and get a general understanding of where I'm leaning. On various issues, and his reference to Dred Scott is but one, I'm pretty interested and knowledgeable about the details. [I just read not only the opinions but other material on the case just in the last week or so. I wrote a paper on the case a long time ago. etc. Simplistic takes on that case annoy me almost as much as simplistic takes on Roe.] There are loads of details, however, so it's best not to try to do too much. This applies to general arguments. People repeatedly, however, feel a need to speak broadly in ways that I disagree with (or are simply wrong), even though I'm simpatico on their bottom line.

When arguing a side on message boards and so forth, I find this tendency somewhat foolhardy. I understand the power of advocacy and passion, but usually you don't need to go all the way to make your point. Again, my "generalist" philosophy should temper my opposition here, if the basics are right. So, I respect Glenn Greenwald even though I find him overblown a bit too often. If you are right most of the way, a few problems are acceptable. It even makes things a bit interesting. And, if you are a somewhat wrong, as you will be from time to time, it keeps you somewhat humble. Some rather not compromise like that; it is best to let it go up to a point.

And, not try to unnecessarily correct little things. As someone who likes relatively trivial details more than many, this is not always easy for me, sure enough. The eventual reply that I was arguing trivial things to me seems silly. The Dred Scott thing was something the person brought up and simplistic substantive due process based attacks on that opinion is a usual trope for conservatives, including those who attack SDP when used to support gay rights. Disagreeing on his take on the case is not trivial. The top of the thread might suggest he likes to comment and discuss, but being challenged might annoy him after awhile. As with the "my betters" debate (see earlier post), it is best to try to stay even-keeled here. It might be hard, especially if the other person simply doesn't want to take the effort to seriously engage. If you do, as even that person did to an extent, your sparring partner will respect you more. I have seen it -- it is like they are surprised you are not lashing out or are being temperate. Within reason, that has its place.

The other part of the discussion is in effect over the public policy exception to the Full Faith and Credit Clause.* He relied on a literal reading of the clause, which seems to be absolute about giving full faith and credit to other states' actions in the categories provided. This argument is made by others. But, the clause is not and never has been absolutely applied. If something is in violation of public policy (as in general, I speak generally here, the specific nuances not my concern), a state has some discretion ("judgments" like child custody matters are different here) in not giving full faith and credit. This applies to marriage. Thus, that aspect of DOMA was gratuitous.

Now, this doesn't mean DOMA is home-free and I cited this in the past. The clause allows Congress to regulate (though they rarely have) in the area but the "effects" have to regulated by "general laws." Some argue that this blocks discriminatory laws akin to DOMA, though I'm not aware of any courts that have accepted the theory. But, the best way to attack DOMA is on simple equal protection principles. And, maybe a bit of federalism, though the courts are selective there. Again, however, that aspect of his comments were not trivial and as a matter of framing of the argument, problematic.

After all, on a core issue, I agree with "Xando" there, though writ large, I surely don't. Anyway, back to your schedule program; "commenting commentary" over.


* He also combined Full Faith and Credit with Privileges and Immunities of Citizenship [again, why do they change it to "or" in the 14A? does it matter?], related, but not really the same things. "States" practice full faith and credit; "citizens" have privileges and immunities. Again, though some don't, it's best not to struggle among the weeds here. It might amuse you, but the result is getting off on tangents.

Still, states aren't giving up something here, as I noted. They each have a right to use the public policy exemption, so the exception to the rule benefits everyone. I don't think my point there was really answered. But, you know, I see that a lot -- I'm just not important enough to get a response, even when asking someone challenging me to clarify what they are saying. Oh well.

Seriously, sometimes I find people rather debate the same old tired things than answer something that might complicate it. I find this distressing (probably take it too seriously sometimes) and even a bit boring. Complexity is more fun, though sure, you always have some basics. You know, like Mets over Phillies etc.