No, not where the coolest strip club in Atlanta is, though you can bet I’m hauling my brothers there if we’re ever all in Atlanta at the same time.
No, here’s the most important thing I’ve learned from the libertarians–the utter kick-ass nature of the ninth and tenth amendments.
Shall we look at them?
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Just linger on that word there in the ninth amendment–retained. This is so utterly foreign to how we understand how the government works that it’s good to go back and look at it.
The government does not grant us rights. Rights are inherent to us and we lend the government the power to constrain some of those rights so that we can function as a society–we delegate power to the government. But the government doesn’t inherently have power, especially not the power to grant us rights.
I’ve been thinking a lot about gay marriage, I presume for the same reason Kleinheider has, because they’re going to vote on possibly amending the Constitution to expressly prohibit it on the 5th.
What has happened to conservatives, who are usually strict Constitutionalists, that they would support an amendment that is so clearly against the spirit of the Constitution?
Well, let’s ask the question more broadly, because it’s not just gay marriage, it’s the wire-tapping and the non-trial having and the expansion of the executive branch and the assaults on civil liberties and on and on. What has happened to us that we’d just sit back and say “Go ahead, make explicit that you believe that some folks don’t have inherent rights that others of us have!”
I start to despair. I honestly don’t believe that democracy can work, at least not on a scale as large as we’re attempting. I just don’t think that people want to have control of their government. I don’t think they want to have rights inherent to them. I think they want to be told what to do and, when they get a little power, they want to tell others what to do and they want to punish people they don’t like.
None of these tendencies are healthy for a democracy.
And yet, rather than trying to overcome these tendencies, we just go ahead and knock out the legs of our republic and replace them with supports that seem sturdier but are thoroughly rotted on the inside.
Tiny Cat Pants 
But, B, those that support the gay marriage ban amendment argue that they are only doing it because those agenda-driven gays have gone to the courts to force the states to change their laws. It is the pro-gay side that is overriding states’ rights.
So banning gay marriage is a state’s rights issue now? Damn you’re smooth Ex. I bow before you.
Oh, Ex, you are smooth and I, too, eagerly await the opportunity to get on my knees before you, but let’s return to the Constitution for a second–states’ rights don’t trump individual rights.We, as Nine clearly shows, have inherent rights as individuals that we delegate to our government, first, as Ten says, at the state level and then at the federal level.It’s not that the federal government has to stay hands’ off but the state governments can be as fascist dictator as they want. That’s not the way it’s supposed to work–"Oh, well, we can’t use the federal government to oppress you, but we can use the state government."No. In a democracy such as ours, individual rights are the fundimental cornerstone of the country. If we have to override states’ rights in order to assure that individuals have optimum freedom to live how they want without hurting others, tough shit; that’s what we’ll do. If we have to override federal powers in order to assure that individuals have optimum freedom to live how they want without hurting others, tough shit; that’s what we’ll do.
The modern history of U.S. Law is fascinating. I’m a bad blogger because I can’t remember the names of the various books I’ve read (which is a shame because it’d make me look smart…), but this all goes back to how we make new laws. And it’s all the fault of Vietnam. (My own theory)For decades it all went through Congress, with a few bits of input from the Supremes to keep everything in line. But then the Civil Rights movement, specifically Brown V. Board of Education (1954), ushered in a move to legislation via precedent. Then came Vietnam, when you could avoid the draft by being in school. There were a heck of a lot of people who went to grad schools (including law school) in part to be out of the draft. [I imagine that decades from now we’ll even more clearly see the widespread cultural effects of the Vietnam-era Educational Aberration]All of these people who saw what BrownV.Board did, and were idealistic and had law degrees started realising that there was more than one way to skin a cat. In short, make your laws through the court system instead of the legislature. Hence LovingV.Virginia(1967) and RoeV.Wade(1973). The strength and weakness of legislating by legal precedent is that it overrides the States. (States elect members to Congress who theoretically represent them. Writing laws via the court robs the Congress of its ability to act in the best interests of their constituencies.) In cases where the States are not acting in the best interest of individual liberties this is theoretically a good thing. Should Arkansas schools still be segregated? Should Miscegenation still be on the books in Virginia? It’s a hard question, because the "right" answer on one hand is the "wrong" answer on the other. Those who would push for amendments (gay marriage ban, flag-burn ban) see themselves as using constitutionally proscribed methods to defend the rights of the states that were short-circuited by Court rulings. The third way to skin the cat, as it were.
Nice try, but debatable and (depending on the jurisdiction) tending towards wrong. The 14th amendment supercedes any state’s retrograde attempts to deny the full rights of citizenship to a particular class of persons. The courts aren’t creating law so much as they are undoing individual states’ unconstitutional attempts to undo the full force of the 14th Amendment.Just to review my favorite clause of the Constitution, here’s what it says (note the second sentence, which is the phrase that pays here):Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The US Constitution clearly notes that there is a limit to a state’s right to enforce discriminatory public policies for its citizens. This sprang out of another "states’ rights/history and tradition" conflict that got a hell of a lot of people killed in its resolution. Moreover, it’s a pretty well-settled point of law. If gays and lesbians are citizens (born or naturalized), they must be granted equal protection of laws — including those pertaining to property rights (marriage and spousal benefits), liberty (employment discrimination, housing), etc. In the realm of marital law, the states lost the power to make laws discriminatory in their effect in the matter of race in a series of cases, most notably Loving v Virginia. If gayness is an inherent biological characteristic (rather than an optional affective or cultural choice), then the precedent has already been in play for 50 years or so. That’s why the stakes are so high in determining whether being gay is primarily hard-wired or not — and probably why so much research money is being poured into the question.
Can I just make an aside and say that I am often delighted at just how much y’all know and can talk about smartly? I feel a little like Gertrude Stein.
Bridgett, I support gay marriage. I’m playing devil’s advocate and give an overview of the legal history as I understand it applying to the arguments of the other side.And as such, I’ll take issue with the constant assertion of individual freedoms being paramount. If we truly believe this, then federal taxation is the greatest violation of the civil rights of all Americans and we do nothing about that.BEFORE y’all jump down my throat about the roads I drive on and the armies that protect my freedom let me reiterate for the nine-thousandth time that I support a bill-for-services funding, with referendae/opt-in for additional programs. In short: Your share of basic services is $xxxx. If you would like to contribute to the arts, add $xxx. If you would like to contribute to such-and-another, add $xxx.Sort of like how the rest of the world works where it’s illegal to take someone else’s property and use it as you see fit.
I loved this post. I feel the same way. I think Democracy only works in a society free of bias, bigotry and religious mythology and only with people who are a tiny bit educated and a lot less greedy.I think I’m leaning towards a benevolent dictator. At least there’s benevolence and at least we’re calling the leader a dictator rather than having one but calling him a president.The current state of affairs leads me to despair.
KC — you and I were writing at the same time. I was responding to Exador and hadn’t yet read what you had written.Courts have been accused of making new law since there have been courts and juries often pressed judges to abet their attempts to determine what was just even if the legislature did not say so. This has been going on in the US since the 1780s and in the British mainland colonies since 1603. "Judicial activism" is a real and durable aspect of American jurisprudence. However, the claim that this is something else that went to hell after The Good War just isn’t supported in the historical record. (You, however, weren’t saying this, but saying that the GI Bill transformed the face of American ed in multi-generational ways, which is absolutely true. I merely address the common conservative saw that the 1960s are to blame for everything they don’t personally like.)While I wouldn’t jump up and shout hooray for the ruling in Plessy v Ferguson, I would point out that this is a familiar example of "judicial activism" stemming from the late 19th century that outraged southern legislatures who perceived it as social engineering of a most objectionable sort. Can I just note, sort of on topic, that there seems to be a couple of major misconceptions about democracy in play here? To wit, it seems like there’s a general idea that everyone has to feel good about every law that passes. If democracy’s working right, a bare minority will feel aggrieved most of the time and be energized to persuade others of the rightness of their position. Groups collude and cut deals and press their interests because that’s how our politics works — we rarely get exactly what we want and nothing’s accomplished without some compromises. I also think there’s a faction who’d like to persuade us that all this jumping, hollering, collective action, and legal manuevering as we work our way to the unsatisfactory compromise is indicative of some sort of desperate social ill. Nobody wants to hear this, but American democracy is just this messy. It’s designed like this. Most of us grew up in a rare moment of superficial consensus between public policy makers…and now that’s over and we’re back to the scrum. This is the give and take of it. It’s not for the weak-willed, the stupid, or the would-be demagogue. Don’t mourn. Organize.
B,The Constitution, or more specifically, the Bill of Rights, enumerates the RESTRICTIONS on the FEDERAL government. "Congress shall pass no law…"Amendment IX does not grant carte blanche that anything you THINK is a right, is one.They leave that to the states, excepting when, as bridgett points out, the states violate due process or equal protection.That gets us back to whether gay marriage relates to equal protection. The semantics of that one have already been beaten to death, but remain unresolved.
This is all sort of a moot point, since there’s no way in Hades that this is even going to get close to 2/3 of vote.How about we discuss what pathetic political posturing this bill represents? Or about how it’s really just designed to bring out the base and take attention away from real problems the republicans are having?Iraq, Gas prices, Illegal Immigration.
"How about we discuss what pathetic political posturing this bill represents? Or about how it’s really just designed to bring out the base and take attention away from real problems the republicans are having?"Well, duh. If only someone… like yourself.. had a blog and was conservative and could hash this shit out for us.Of course they’re doing all this stuff to make it look like they’re doing something vaguely conservative. It’d be funny if it wasn’t hurting us all.
Whoa. A post by Ex that I agree with entirely. You even got the order right on what we’re not talking about. You see, when the fuck-ups are huge, people of good will and good sense can speak the same language. All systems go on the great democratic experiment.
Anyone who can recognize that the present discussion of marriage and how it gets construed is a distraction from the Iraq/Gas Prices/Immigration issues…that’s impressive.