You know the definition of "take a flyer on..." is, don't you? I learned it early in my investment career.

It means "I'm gonna crash and burn and lose my entire investment, but in the meanwhile I'll have some beautiful dreams."

"Note well, though: this day marks the end of constitutional democracy."

Stop it. You're depressing me again.

The next date up on the legal calendar is the first day some state other than Massachusetts is sued for failing to recoginze that state's law on same-sex marriages. I would guess it should be sometime in the next few days and when that suit goes through the pipeline and makes it to its final destination, the Supreme Court won't be able to turn it away without comment.

Take heart; I guarantee that the "entire edifice of western civilization" has NOT "been fatally undermined."

For one thing, a military draft seems like a far worse offense against society than a few gays getting hitched: If citizens won't voluntarily join the military, a) Do they deserve to keep their nation
b) Perhaps the casus belli isn't convincing enough to a majority of citizens (see Vietnam and the American Civil War)
c) In a free nation, why should we allow Congress to force citizens to serve, instead of offering incentives sufficient to cause people to volunteer ? It artificially lowers the perceived cost of war, to the planners.

As to "the end of Constitutional democracy", didn't that happen when property-less people were allowed to vote ?
Or perhaps, when females gained suffrage.

The end of constitutional democracy arrived when the populace decided that judges can indeed stand supreme among the three branches of government. This is merely a fairly egregious example and public example. What about the Nevada judge who shredded their state constitution last year? I fear that some of the USSC justices on the left may figure that if people fairly meekly accept this, then tossing out the Pledge will cause only a brief stir and that will be that. It's inconceivable to imagine the executive and legislative branches telling the judiciary to go stuff themselves, and the reason is because we the people wouldn't comprehend it.

"Yarbrough, a part-time bartender who plans to wear leather pants, tuxedo shirt, and leather vest during the half-hour ceremony, has gotten hitched to Rogahn, a retired school superintendent, first in a civil commitment in Minnesota, then in Canada, and now in Massachusetts, the first U.S. state to recognize gay marriage.

But he says the concept of forever is``overrated'' and that he, as a bisexual, and Rogahn, who is gay, have chosen to enjoy an open marriage. ``I think it's possible to love more than one person and have more than one partner, not in the polygamist sense,'' he said.``In our case, it is, we have, an open marriage.''

wheeee

Michael:

Way to stay on topic!

Michael --

I'm going to hold you to that guarantee.

Your draft example strikes me as completely inapposite. As a democracy, we shouldn't have a draft unless we need to, but the point of the draft is that freedom must be denied to some citizens in order to safeguard the freedom of all citizens. Some most suffer for the good of the whole. The theory of gay marriage is exactly the opposite.

As for property and sex limitations for the franchise -- don't mistake me for OJ. I have no real problem with getting rid of others (although I do regret that it's not possible right now to have literacy tests). The difference is that both those reforms had to wait for action by the political branches.

In the comment above, "others" should be "either".

"Note well, though: this day marks the end of constitutional democracy."

Thomas Sowell disagrees:

Half a century after Brown

Where has Brown v. Board of Education been positively harmful?

The flimsy and cavalier reasoning used by the Supreme Court, which based its decision on grounds that would hardly sustain a conviction for jay-walking, set a pattern of judicial activism that has put American law in disarray on all sorts of issues that extend far beyond racial cases. The pretense that the Court was interpreting the Constitution of the United States added insult to injury.

Half a century after Brown: Part II

The key sentence in the Brown decision was: "Separate educational facilities are inherently unequal." It was not just that the previous "separate but equal" doctrine was not being followed in practice. Rather, the Supreme Court argued that there was no way to make separate schools equal. All-black schools were inherently inferior.

The judicial mythology of racial mixing has led to an absurd situation where a white student can get into a selective public high school in San Francisco with lower qualifications than a Chinese American student. This farcical consequence of judicial mythology about a need for racial mixing does nothing to improve education for blacks or anyone else.

Half a century after Brown: Part III

Although Brown v. Board of Education dealt with race and with schools, its judicial philosophy spread rapidly to issues having nothing to do with race or schools. In the half century since Brown, judges at all levels have become unelected legislators imposing the vision of the political left across a wide spectrum.

Brown v. Board of Education was not just about race or schools but was about a whole judicial mindset with ramifications across a whole spectrum of issues -- and reverberations that are still with us in the 21st century. Its pluses and minuses have to be added up with that in mind.

As Glenn Reynolds says: Read the whole thing or rather, all three.

Uncle:

Far be it from me to disagree with Mr. Sowell. I largely do agree with him about Brown. And yet I still think that the SJC's Goodridge opinion, rather than Brown, marks the end of our time as even a limited democracy.

I support Brown's narrow holding: segregated education in practice violated equal protection. I even support a possible broader reading of Brown: the government may not distinguish on the basis of race. More important than my agreement, though, is that these holdings of Brown fall well-within the scope of plausible readings of the 14th Amendment and of the Constitution. This was understood by the public at the time the 14th Amendment was ratified, by the Plessy court, and by the public in 1954. As Sowell implies, our experience in WWII made the end of segregation inevitable, because it's continued existence made the American public as a whole feel like hypocrits. At least under a broad reading of constitutional democracy (the government will make happen what the people want to happen), Brown is not anti-democratic.

Brown is different from Goodridge, though, because race is different from homosexuality. There are many differences, of course, but only one that I'll mention here. Homosexuality is not the rock on which the Republic will founder. Race is. The American original sin was to incorporate into the Union a race-based, multi-generational slavery from which there was no practical escape. Read Lincoln's Second Inaugural Address for a bleak view of what the Union deserved from G-d for its part in promoting and preserving slavery. On homosexuality, on the other hand, the US is no worse than other cultures and much better than some. In any event, it is not a particularly American shame.

Brown, to be sure, has not been universally benign. It has done much to destroy our cities; it has increased the seperation and mutual suspicion of blacks and whites; and it has promoted the terribly racist idea that the best and only cure for what ails blacks is to put them into close proximity with whites. Nonetheless, our self-image as a democracy easily survived Brown.

Goodridge is different. It involves an issue that is peripheral to American life. It does not reflect public consensus. It is actively hostile to democracy. Most importantly, it can only lessen the commitment of those citizens who feel themselves to have been disenfranchised to politics, compromise and the rule of law.

In Brown (and Roe, for that matter), the standard imposed on the states was at least a standard that was pre-existing in some of the states. Whether rightly or wrongly, both decisions were seen as anticipating change that was working its way through the states anyway. In Goodridge, no one has ever doubted that, had the matter been given to the electorate in a legitimate election, it would have lost. As a result, both the legislature and the plaintiffs went to extraordinary lengths to avoid giving the people a fair say.

When I added that comment about constitutional democracy, I was most concerned about the effect Goodridge will have on those citizens who feel shabbily treated. The Right has been played on this issue. All along the way, conservatives have noted that various changes in family law and criminal law were heading towards gay marriage. We were scoffed at. That was ridiculous. Now here we are. In Goodridge, the court both relied on those prior changes as showing the inevitability of gay marriage, and exhorted those opposed to gay marriage to respect the rule of law. Immediately thereafter, town clerks throughout Massachusetts announced that they would ignore the law denying a Massachusetts marriage to non-residents and the promoters of gay marriage, having argued that it was nonsense to suggest that other states would have to recognize Massachusetts gay marriages, announced their plans to file suit to force that recognition. At the same time, our political leaders failed to use any of the completely legitimate tactics at hand to postpone gay marriage until a vote could be held.

So, why should conservatives respect the rule of law? And if we don't, what's left of our democracy?

David:

America will handily survive this, it's really a tempest in a teapot.

When you imply that with gay marriage, the whole must suffer for the good of some, are you speaking simply of the way in which gay marriage became legal in Mass. ?

Or, are you saying that gay marriage, in and of itself, causes all of society to suffer ?
If the latter, how, exactly, does that manifest ?

Peter B:

Why, thank you very much !
I had just swung a chicken over my head, and was channeling the "light"...

Michael -- I was referring to the way in which gay marriage came about.

As to whether we have fatally undermined western civilization, I'm an optimist. I think that western civilization will withstand gay marrage. In wishing individual gay couples well, I am entirely sincere. I also think that there will be relatively few gay marriages and, of course, the left is making it ever more likely that in 25 years there won't be any more homosexuals.

I am, though, very worried that we have done real damage to the polis.

To add to David's terrific analysis, what is worrisome from both the political/legal and sociological standpoints is how quickly we were all convinced this was an issue of baseline human rights and that a huge oppression needed to be corrected urgently. I have a very hard time believing that gays of two generations ago even thought about marriage, but for ten years we've been innundated with stories of gay hearthrobs yearning--positively yearning-- to celebrate their love at the alter and suffering all manner of warping disabilities in the meantime. (By comparison, blacks have been very aware and clear-headed since the year dot about the injustices that befell them). It was a manufactured cause that became so closely associated with civil rights, etc. through propaganda and pure rhetorical silliness that I believe a lot of people are simply suspending their common sense rather than risk a charge akin to bigotry. Either that or there are an awful lot of people out there who are very confused as to why they are married.

So, what's next on the agenda?

Peter:

It is bittersweet to hear interviews of all the newly married gays saying that this is a "miracle" and "I never thought this could happen". That's more or less my position, too.