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Same-Sex Marriage, Federalism, and Judicial Restraint
Many conservatives are sympathetic to one argument against the Defense of Marriage Act: It's a violation of the principle of federalism.

So I'm teaching constitutional law this semester. The hardest thing to teach students is that bad laws and stupid laws are often perfectly constitutional. It's a big mistake to confuse constitutional judgments with policy preferences. It's an equally big mistake to think that social change should ordinarily be led by the Court. I'm follow the spirit of teaching con law here by keeping my eye on the constitutional issues, and saving my personal opinions for later.
Many conservatives are sympathetic to one argument against the Defense of Marriage Act: It's a violation of the principle of federalism. Each state, under our Constitution, answers the question "what is marriage?" for itself. And what Congress did was to impose a national definition of marriage—between a man and a woman—on the whole country. Now someone could easily respond that the point of the DOMA was to keep the understanding of marriage in one state from being compromised by having to give "full faith and credit" to changes occurring in others. Still, federalism is rarely talked up these days, and we can see why conservatives such as George Will are ready to listen.
With the DOMA, the issue is not judicial activism, but Congressional activism. It was Congress, allegedly, that trampled on the principle of federalism, and so an active Court has to defend what's reserved to the states from an imperial Congress. Now how often does the Court do that? It has, as the Anti-Federalists predicted, usually acted on behalf of the national government and to undermine the states. The Court was not really set up to be an impartial ref, as the Anti-Federalist Brutus complained. It plays, after all, on the national government's team.
It seems to me that a defender of the diversity of understandings of marriage in our country made possible by federalism should be equally against the Court imposing a single definition of marriage on the whole country. Let the issue of same-sex marriage be resolved by the states, as the Constitution commands. Public opinion, it seems, is changing. And there's quite the educational civic dialogue going on concerning "what is marriage?" Let the dialogue continue, and the people decide.
But for most opponents of the DOMA, the use of federalism is clearly tactical. They're using it to curb Congress, but not the Court. Federalism can be trumped by a "fundamental right" proclaimed by an activist Court.
Federalism turns out to be a weapon to curb Congressional activism, but not judicial activism. It's a weapon employed to influence which branch of the national government gets to dictate to our states.
It will probably turn out that the most significant Court decisions of 2012-13 will be the one that upheld the constitutionality of ObamaCare and the one soon to come that will or will not declare a constitutional right to same-sex marriage.
The most consistent defender of judicial restraint will be Chief Justice Roberts, who unexpectedly voted to uphold ObamaCare and will vote to uphold the laws on marriage of most of our states. Questions that can be resolved by elections and legislatures should not be determined by a 5-4 vote by our least democratic branch. The Court should give the benefit of the doubt to reasoned decisions of our legislatures state and national.
It might be the case that the most consistent and emphatic defender of judicial activism will be Justice Kennedy. He was all for defending individual rights against the ObamaCare mandate, the one justified by an unconstitutionally permissive interpretation of the power of Congress under the Commerce Clause. And it will be the precedents Kennedy set about constitutional respect for the autonomy of intimate personal decisions and relationships in Planned Parenthood v. Casey and Lawrence v. Texas—not to mention his stirring words about the meaning of constitutional liberty evolving from generation to generation—that will guide the Court if it rules that same-sex marriage is a constitutional right.
Kennedy's vote is not certain, seeing that he is also on record as wondering whether major social initiatives should come from nine old folks. In Planned Parenthood, he thought of himself as defending the precedent Roe from those who would disrupt our social life through its reversal. Still, if Kennedy doesn't vote to declare most of the laws on marriage of our states unconstitutional, he will be criticized with some justice for not following the logic of his previous opinions.
On the judicial restraint front, the other justices are clearly less consistent. I haven't shown, of course, that being inconsistent in this way is wrong.
I also haven't shown that Congress is all that against judicial activism. Back when ObamaCare was unpopular, many Democratic members of Congress would have been relieved to have been freed from the burden of defending it. And many Republican members would feel more secure if they could be freed from the burden of participating in the national dialogue mentioned above, especially because things don't seem to be going the Republican way right now. Something similar could be said, of course, about Democrats representing "red states."
I do think Congress should be more against judicial activism than it is. The theory of our Constitution is that each of our three branches will, in the service of its own ambition, work to check the power of the other two.
Iron Age discoveries uncovered outside London, including a ‘murder’ victim
A man's skeleton, found facedown with his hands bound, was unearthed near an ancient ceremonial circle during a high speed rail excavation project.
- A skeleton representing a man who was tossed face down into a ditch nearly 2,500 years ago with his hands bound in front of his hips was dug up during an excavation outside of London.
- The discovery was made during a high speed rail project that has been a bonanza for archaeology, as the area is home to more than 60 ancient sites along the planned route.
- An ornate grave of a high status individual from the Roman period and an ancient ceremonial circle were also discovered during the excavations.
Foul play?
<p>A skeleton representing a man who was tossed face down into a ditch nearly 2,500 years ago with his hands bound in front of his hips was dug up during a high speed rail excavation.</p><p>The positioning of the remains have led archaeologists to suspect that the man may have been a victim of an ancient murder or execution. Though any bindings have since decomposed, his hands were positioned together and pinned under his pelvis. There was also no sign of a grave or coffin. </p><p>"He seems to have had his hands tied, and he was face-down in the bottom of the ditch," <a href="https://www.livescience.com/iron-age-murder-victim-england.html" target="_blank">said archaeologist Rachel Wood</a>, who led the excavation. "There are not many ways that you end up that way."</p><p>Currently, archaeologists are examining the skeleton to uncover more information about the circumstances of the man's death. Fragments of pottery found in the ditch may offer some clues as to exactly when the man died. </p><p>"If he was struck across the head with a heavy object, you could find a mark of that on the back of the skull," Wood said to <a href="https://www.livescience.com/iron-age-murder-victim-england.html" target="_blank">Live Science</a>. "If he was stabbed, you could find blade marks on the ribs. So we're hoping to find something like that, to tell us how he died."</p>Other discoveries at Wellwick Farm
<p>The grim discovery was made at Wellwick Farm near Wendover. That is about 15 miles north-west of the outskirts of London, where <a href="https://www.hs2.org.uk/building-hs2/hs2-green-corridor/" target="_blank">a tunnel</a> is going to be built as part of a HS2 high-speed rail project due to open between London and several northern cities sometime after 2028. The infrastructure project has been something of a bonanza for archaeology as the area is home to more than 60 ancient sites along the planned route that are now being excavated before construction begins. </p><p>The farm sits less than a mile away from the ancient highway <a href="http://web.stanford.edu/group/texttechnologies/cgi-bin/stanfordnottingham/places/?icknield" target="_blank">Icknield Way</a> that runs along the tops of the Chiltern Hills. The route (now mostly trails) has been used since prehistoric times. Evidence at Wellwick Farm indicates that from the Neolithic to the Medieval eras, humans have occupied the region for more than 4,000 years, making it a rich area for archaeological finds. </p><p>Wood and her colleagues found some evidence of an ancient village occupied from the late Bronze Age (more than 3,000 years ago) until the Roman Empire's invasion of southern England about 2,000 years ago. At the site were the remains of animal pens, pits for disposing food, and a roundhouse — a standard British dwelling during the Bronze Age constructed with a circular plan made of stone or wood topped with a conical thatched roof.</p>Ceremonial burial site
<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yMzUzMTk0Ni9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY0NDgwNTIyMX0.I49n1-j8WVhKjIZS_wVWZissnk3W1583yYXB7qaGtN8/img.jpg?width=1245&coordinates=0%2C82%2C0%2C83&height=700" id="44da7" class="rm-shortcode" data-rm-shortcode-id="46cfc8ca1c64fc404b32014542221275" data-rm-shortcode-name="rebelmouse-image" alt="top down view of coffin" data-width="1245" data-height="700" />A high status burial in a lead-lined coffin dating back to Roman times.
Photo Credit: HS2
<p>While these ancient people moved away from Wellwick Farm before the Romans invaded, a large portion of the area was still used for ritual burials for high-status members of society, Wood told Live Science. The ceremonial burial site included a circular ditch (about 60 feet across) at the center, and was a bit of a distance away from the ditch where the (suspected) murder victim was uncovered. Additionally, archaeologists found an ornately detailed grave near the sacred burial site that dates back to the Roman period, hundreds of years later when the original Bronze Age burial site would have been overgrown.</p><p>The newer grave from the Roman period encapsulated an adult skeleton contained in a lead-lined coffin. It's likely that the outer coffin had been made of wood that rotted away. Since it was clearly an ornate burial, the occupant of the grave was probably a person of high status who could afford such a lavish burial. However, according to Wood, no treasures or tokens had been discovered. </p>Sacred timber circle
<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yMzUzMTk0Ny9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY2MDAwOTQ4Mn0.eVJAUcD0uBUkVMFuMOPSgH8EssGkfLf_MjwUv0zGCI8/img.jpg?width=1245&coordinates=0%2C149%2C0%2C149&height=700" id="9de6a" class="rm-shortcode" data-rm-shortcode-id="ee66520d470b26f5c055eaef0b95ec06" data-rm-shortcode-name="rebelmouse-image" alt="An aerial view of the sacred circular monument." data-width="1245" data-height="700" />An aerial view of the sacred circular monument.
Photo Credit: HS2
<p>One of the most compelling archaeological discoveries at Wellwick Farm are the indications of a huge ceremonial circle once circumscribed by timber posts lying south of the Bronze Age burial site. Though the wooden posts have rotted away, signs of the post holes remain. It's thought to date from the Neolithic period to 5,000 years ago, according to Wood.</p><p>This circle would have had a diameter stretching 210 feet across and consisted of two rings of hundreds of posts. There would have been an entry gap to the south-west. Five posts in the very center of the circle aligned with that same gap, which, according to Wood, appeared to have been in the direction of the rising sun on the day of the midwinter solstice. </p><p>Similar Neolithic timber circles have been discovered around Great Britain, such as one near <a href="https://bigthink.com/culture-religion/stonehenge-sarsens" target="_blank">Stonehenge</a> that is considered to date back to around the same time. </p>Surprising new feature of human evolution discovered
Research reveals a new evolutionary feature that separates humans from other primates.
Human evolution.
- Researchers find a new feature of human evolution.
- Humans have evolved to use less water per day than other primates.
- The nose is one of the factors that allows humans to be water efficient.
A model of water turnover for humans and chimpanzees who have similar fat free mass and body water pools.
Credit: Current Biology
Skepticism: Why critical thinking makes you smarter
Being skeptical isn't just about being contrarian. It's about asking the right questions of ourselves and others to gain understanding.
- It's not always easy to tell the difference between objective truth and what we believe to be true. Separating facts from opinions, according to skeptic Michael Shermer, theoretical physicist Lawrence Krauss, and others, requires research, self-reflection, and time.
- Recognizing your own biases and those of others, avoiding echo chambers, actively seeking out opposing voices, and asking smart, testable questions are a few of the ways that skepticism can be a useful tool for learning and growth.
- As Derren Brown points out, being "skeptical of skepticism" can also lead to interesting revelations and teach us new things about ourselves and our psychology.
New study suggests placebo might be as powerful as psychedelics
New study suggests the placebo effect can be as powerful as microdosing LSD.
