Posted on 03/04/2004 7:35:53 AM PST by rface
Edited on 04/13/2004 2:11:45 AM PDT by Jim Robinson. [history]
Betty, you didn't make clear why you think an amendment is necessary.
What terrible thing will happen when the "Full Faith and Credit" issue rears its head?
It's my understanding that States can simply refuse to honor licenses issued by other States that are not up to their standards, -- or are repugnant to the US Constitution.
Hello tpaine! It's so good to see you again. Long time no see....
RE: The above italics. I don't see how this understanding squares with the plain language of the text of Article IV, which is that part of the Constitution pertaining to relations between the several States. At Section 1 we read:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And Congress may by general laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
The first sentence does not seem to leave the several states with much discretion WRT recognizing gay marriages contracted in another state. When gay marriage licenses start to be issued in Massachusetts this coming May, each license grant will be a public act supposedly legitimated by the judicial proceeding of the Massachusetts Supreme Judicial Court of last November, ordering the state legislature to accommodate gay marriage in Massachusetts. Questions of the constitutionality of the action of this Court aside, gay marriage will become legal in Massachusetts on May 17th.
Now the second sentence refers to what discretion the federal Congress has to regulate the effect of the public acts of one state on other states. The Defense of Marriage Act seeks to do this by making an exception to the "full faith and credit" rule for gay marriages.
I suspect this will not be good enough. For it can be argued that it is unconstitutional for Congress to make such an exception on civil rights grounds. And eventually, some litigant will come along and make that argument.
This is why I think a constitutional amendment is required. As an act of the Whole People (assuming it were ratified by three-fourths of the states), it would leave zero discretion to judges to determine the application of "full faith and credit" in the issue of interstate recognition of gay marriage.
You might disagree with me here, but I really do think that, in a democracy, the people and not the courts are meant to lay out the moral and social boundaries of society. To leave it to the judges is to invite tyranny.
So.....what is their hold over him, these political schnooks who keep him dancing with the abortionists and Log Cabins, instead of the ones what brung him?
Agree with your analysis except on one point: the People has never been amalgamated by the Constitution as Alexander Hamilton and the Federalists wanted. The Preamble contains the term "We the People", but the enabling language making that phrase the truth was removed from the Constitution before ratification, and the Ninth and Tenth Amendments were made part of it instead.
As a result, the amalgamation scheme of the Federalists whereby the People of every State would be combined in a lumpen People of the United States, and the States would become mere administrative divisions of the country, which would then have a centralized Government of Inherent Authority like Great Britain (and the Federalists were as close to Tories as you could get without moving to Canada), was not agreed to. Instead, we got the federal compromise, in which the Peoples remained in their States, and in their States retained sovereignty.
The compromise was promptly attacked in dicta handed down by John Jay and then John Marshall, both of whom were enthusiastic Federalist amalgamators. But they hadn't a leg to stand on, and the fictions spun by Abraham Lincoln to justify preserving a Union nearly half of whose members wanted to leave (if you include Maryland and the other border states that were held by force of arms only), although they relied on Marshall and Jay, were of another order of invention and were legal only by the major force of revolution by the Government against the People.
I'm a little unsure how to parse this sentence, but I think the upshot is that it will prove impossible, by mere legislation -- the clear language of the clause notwithstanding -- to "prove" to this neo-Warrenite court that anything is constitutional except what they want to be constitutional: homosexual marriage, to sanctify the homosexual sodomy that they so recently decriminalized by an unwarranted and tyrannical decree to spite the State of Texas.
Excellent analysis, lentulusgracchus. You give here the classic states' rights position, which is the very position that the Ninth and Tenth Amendments make the law of the land. IMHO FWIW
We also know that the Fourteenth Amendment does seem to have in view a consolidated people for federal purposes. The current SCOTUS selectively indicates a preference for states' rights lines of reasoning when it suits them. But it will also find a way to assert the federal principle when it suits them. (E.g., federal statute beats the Second Amendment; see Emerson.)
With few exceptions, the current Court is peopled by unprincipled, amoral individuals who actually think that Supreme Court justices must consult precedent in international law in ruling on United States' cases.
Which is to say the highest Court in the land thinks that international law trumps the very Constitution they swore an Oath to uphold and defend.
Go figure! The disorder in our society starts at the top, if you ask me.
Thanks for a great post, lg!
A Constitutional Amendment is absolutely necessary to stop this because judicial activists have too much authority to stretch meaning to accommodate their own agenda.
Hello Alamo-Girl! It's wonderful to have you back!
To embrace the will of God is to live in love and faith -- and in fear of His judgment. It seems to me to resist it is an exercise in futility, in the end.
But no man knows when the End Times are to come; no one knows save the Father alone. And so it is best to strive to live in love and faith and the fear of God, doing the works He has given us to do.
From the standpoint of pragmatic, empirical reality better times may lie ahead, or worse. We do not know. But to live in love and faith and the fear of God is what humans are called to. And we ought to respond. For the children of God are always safely at home with Him.
Well, these be my thoughts.... FWTW Thanks so much for writing, A-G! It's great to see you again. Hugs!
Yes, in other words, we have clear charges to keep. Holes in the ship doesn't excuse its crew, nor do I believe such an excuse is being postulated here.
I realized there is a sense in which the “We the People” of the Preamble refers to a substantial reality that historically preceded the institution of American government itself. For there was an American nation before there was a United States. And it was consolidated enough to fight and win the Revolutionary War and effect its separation from Great Britain. Indeed, the United States is the creature of this "We the People."
I have long considered the Declaration of Independence the “Preamble to the Preamble.” For it tells you who “We the People” are, and what they want:
“When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security….
“And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.”
What these lines say to me is this: The people described are not “creatures of the state,” to be ordered about by judges. This people is the creator of the state, its legitimizing authority, and its final arbiter or judge.
As such, these lines are absolute anathema to socially progressive, utopian schemes in which “people” are creatures, not of God, but of the state. In such schemes, the Will of the People -- in the dual senses of sovereign authority and consent to the continued existence of the government -- disappears, replaced by a complete abstraction called the General Will -- which is basically whatever intellectuals and the politicians and judges they have in their pockets say it is.
I think we Americans have an acute need to revive our understanding of who “We the People” are. But frankly I wonder whether contemporary America can summon a sufficient “people” in this sense with the will and the spirit to reassert their ancient rights which they, acting in concert, supposedly guaranteed and secured by the Constitution they created.
FWIW
Hello tpaine! It's so good to see you again. Long time no see....
I don't see how this understanding squares with the plain language of the text of Article IV, which is that part of the Constitution pertaining to relations between the several States. At Section 1 we read:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.
And Congress may by general laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
The first sentence does not seem to leave the several states with much discretion WRT recognizing gay marriages contracted in another state.
< I think you're interpreting it wrong. -- In 'good faith' a State can refuse to recognize such a civil contract as a traditional 'marriage'. They must recognize it as a valid contract, of course, -- but they wouldn't be obliged to give it state tax/insurance benefits etc, -- that I can see.
When gay marriage licenses start to be issued in Massachusetts this coming May, each license grant will be a public act supposedly legitimated by the judicial proceeding of the Massachusetts Supreme Judicial Court of last November, ordering the state legislature to accommodate gay marriage in Massachusetts.
Questions of the constitutionality of the action of this Court aside, gay marriage will become legal in Massachusetts on May 17th.
I don't see how a civil union contract [call it marriage if you like], could be 'ruled illegal' in any State in the USA. Simply put no level of government has the power to so 'rule'..
Now the second sentence refers to what discretion the federal Congress has to regulate the effect of the public acts of one state on other states. The Defense of Marriage Act seeks to do this by making an exception to the "full faith and credit" rule for gay marriages.
It's not needed. States can approve or disapprove of tax/insurance breaks for any style of contractual marriage they see fit, under present law..
I suspect this will not be good enough. For it can be argued that it is unconstitutional for Congress to make such an exception on civil rights grounds. And eventually, some litigant will come along and make that argument.
Let them do so. It would be good if States called Congress's bluff on many of the civil rights issues.
This is why I think a constitutional amendment is required. As an act of the Whole People (assuming it were ratified by three-fourths of the states), it would leave zero discretion to judges to determine the application of "full faith and credit" in the issue of interstate recognition of gay marriage. You might disagree with me here, but I really do think that, in a democracy, the people and not the courts are meant to lay out the moral and social boundaries of society.
We are a Republic, and the 'peoples will' is trumped by constitutional principles.
To leave it to the judges is to invite tyranny.
Leave it to politicians to blame anyone but themselves for this mess..
Well they might try, tpaine. But it seems to me that is the very line of reasoning that the people who insist that marriage is a civil right being denied to gays will use as the pretext for litigation, citing the "full faith and credit" clause.
And of course you are right: Politicians just love to blame everybody else for the things which they are themselves responsible for creating. These days, it hardly looks like many of them even bother to live up to their constitutional duty of responsibility and accountability to the people. Basically, they all seem to act as if they thought the people were totally stupid.
Who knows? Maybe the political class is right, and the people are stupid, by and large. In the end, the politicians would be right: For under our constitutional system, it is the people who are ultimately responsible. If only for letting the politicians "get away with it."
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