Someone at Quora asked me to suggest resolutions concerning open historical questions on which one could based a formal debate
I came up with five and I will simply quote myself here. I used the customary format- stating a proposition around which one could build either a "pro" ro a "con" case.
That the Egyptian Pharaoh Akhenaten was the first important monotheist in human history, and the fount of the monotheisms of the “peoples of the Book” ever since.
That the Roman Empire in the west didn’t end when we usually think it did — that essential social structures remained in place until the rise of Islam changed trade routes.
That the invention of the stirrup led to the social/political system known as feudalism.
That the medieval Catholic Church’s restrictions on usury were an important factor in the outbreak of Reformation.
That Henry VIII was entitled to an annulment of his marriage to Katherine under the law and ecclesiology of the day, and the Pope’s refusal to give it to him was politically motivated
Add to that a sixth. I recently discovered that last year, the NATIONAL REVIEW INSTITUTE hosted a debate between Alan Dershowitz and Ken Starr on the proposition, "Resolved: That the courts have gone too far in protecting the rights of individuals against the states." Ken Starr asserted that proposition, saying for example that the marriage-equality case was a prime example of how out-of-whack the courts can get.
Dershowitz tends to agree with Starr on Obergefell. He thinks marriage equality is a good thing, but thinks that good thing was coming into existence state-by-state democratically and that process should have been allowed to continue, it should not have been short-circuited by the Supreme Court.
But Dershowitz disagreed with Starr on the general proposition Starr advances. He quite early on in his main presentation brings up Buck v. Bell as an illustration of what happens when the courts abandon the task of keeping the states in line.
I don't have any use for either of them, but my friend at Quora could cook something up based on this debate.
Christopher, did Dershowitz offer a reason that he supports Buck v. Bell but not Obergefell, or is it just that he values protection from non-consensual sterilization more that he values protection from marriage discrimination based on sex?
ReplyDeleteI skimmed it at most, and don't plan to do anything more. Furthermore, since Dershowitz was arguing with Ken Starr, he was the "liberal" on the stage, and probably wasn't pressed by Starr to explain why he makes such a distinction.
ReplyDeleteMy GUESS, though, is that if we passed your question along to Dersh, he would say that the Court should let the political process work its way out when it seems to be going in the right direction anyway, and should intervene if it is going wrong.
He might have said that the court when it faced BUCK v. BELL had no re-assuring popular groundswell against eugenics before it, so that if it had been inclined to do its duty if would have ruled in a manner so as to substitute for that absent groundswell.
In the case of OBERGEFELL he seems to have believed that a satisfactory groundswell was underway, and the court should simply have allowed it to run its course.
I was mistaken to say that Deshowitz supports Buck v. Bell. The decision allowed the states to engage in forced sterilization, and Dershowitz thought that the Court should have kept the states in line -- that is, it should have denied them the power to engage in forced sterilization. But my mistake didn't affect my question, because I wrote that Dershowitz "values protection from non-consensual sterilization," which assumes correctly that he opposed Buck v. Bell.
ReplyDeleteYour answer appropriately ignores my mistake. I understand you to be saying that Dershowitz may believe that it is more important for the Court to do the right thing when the right thing will not occur on its own. In response, I'd say that, if the right thing will occur anyway, then the Court is not risking much to do it sooner and thereby enable people to enjoy their constitutional right (in this case to marry) sooner.