Posted on 03/18/2004 5:20:21 AM PST by Theodore R.
Same-Sex Marriage and the Living Document
March 4, 2004
“According to definition,” Hilaire Belloc wrote, “the ideal citizen of this Modern State must be free to act on his individual judgment of morals, must reach conclusions on all matters by private judgment, but must accept the coercion of any law whatsoever when it has been decided by a majority of such individual citizens so concluding.”
That about sums it up. The Modern State, now called Democracy, has no moral principles, but we have a duty to obey it anyway. Why? Majority rule, you know.
But sometimes the courts overrule the majority, in which case we have a duty to obey the courts. Why? The Constitution, you know. But a big enough majority can change the Constitution. But so can the courts, because it’s a Living Document. It gets confusing.
Which brings us to same-sex marriage. Nobody ever heard of it until ten years ago — the sodomites of antiquity weren’t loopy enough to think of it — but now it’s hot stuff and some say the Constitution protects it, even though the Founding Fathers never heard of it. Even Earl Warren, William O. Douglas, and Harry Blackmun never heard of it, though I’m sure their faces would have lit up if they had. Those guys knew a brilliant opportunity for the Living Document when they saw one.
But Thomas Jefferson, if he were here, might have been a wet blanket on gay marriage. He thought sodomites should be castrated. And he was a quite a liberal for his day. We can only guess at how he’d have dealt with Rosie O’Donnell.
There was at least one example of same-sex marriage in ancient times: the Roman emperor Nero married a boy, but only after having him castrated. This may have been a myth started by his enemies, according to a new biography, and in any case it might not qualify as a same-sex marriage under today’s redefinition. Hard cases make bad law, even in San Francisco. But it suggests that Nero, in his own way, had enough respect for the institution of matrimony not to attempt an ordinary same-sexer. Depends how you look at it, I suppose.
Since we no longer agree on what the meaning of is is, let alone sex, it’s no wonder we can’t agree on marriage. Alice Roosevelt Longworth once said that Thomas Dewey looked like the groom on a wedding cake, a show-stopping witticism when she made it, but today the obvious retort would be, “Which one?” Christopher Hitchens favors same-sex marriage not only because it sort of goes with hating Mother Teresa and Mel Gibson but also because he and his wife, who is a woman, live on the same floor as this really, really nice gay couple and if that isn’t a good reason for changing an ancient institution I don’t know what would be.
Meanwhile, a prosecutor in one of the coastal states (I didn’t catch which one) has said he won’t indict a local mayor for performing illegal wedding ceremonies until the state’s attorney general has ruled on the constitutional question. That’s the thing about constitutions. You never know what they mean until someone else decides for you. After all, they are living things. Unpredictable.
Opinion polls run heavily against same-sex marriage, but that’s exactly why we need the Constitution. After all, if the majority were sovereign, Al Gore would have won the 2000 election, and — wait! The people who favor court-imposed same-sex marriage are the very people who still insist that Al Gore is our rightful president but was robbed by the U.S. Supreme Court! Like I say, it gets confusing.
What would a Gore administration have been like? If you’re really curious, you can vote for John Kerry. Personally, I wouldn’t want that on my conscience, for all kinds of reasons. But as for the issue at hand, Kerry opposes same-sex marriage, but he also opposes a constitutional amendment banning it, presumably because he knows a lot of really, really nice gay couples, but also because he believes fiercely in the Tenth Amendment, which leaves the question of racial segregation to the states. As a liberal, Kerry is personally opposed to racial segregation, but he doesn’t want to impose his views on others.
Hey, this is America!
I would say that the 14th amendment has rendered the 10th amendment superfluous, which was probably an unintended consequence by the authors of the amendment and the "yea" voters for the amendment.
Under the principle of K.I.S.S. (keep is simple, stupid) and the presumption of liberty, the "right" to marry the human of your choice, regardless of gender, emanates from the 9th Amendment.
Mr. Sobran writes, "Which brings us to same-sex marriage. Nobody ever heard of it until ten years ago..."
I think it was more a matter of no one had the courage or the intestinal fortitude to withstand the ridicule and personal attacks that will and have surfaced, just to exert a right, "...retained by the people."
LOL! Perfect.
Nope, just read it and there's no mention of it. Of course, homosexuals can marry any member of the opposite sex with is above the age of consent, able to give legal consent, and is not a family member just like anyone else. Ergo, no discrimination (not that there's anything wrong with moral discrimination, mind you).
Bull s**t.
Precisely. That is why the 9th amendment exists. James Madison authored the 9th amendment to address the concerns of the anti-federalist that feared, rightly so, in the future, someone would make the case that if a right is not mentioned (enumerated) then it would not exist.
Just because a right is not mentioned in the Constitution, that a right is not listed or stated "shall not be construed to DENY OR DISPARAGE others (those rights) retained by the people."
For example, where do you think your right to consume the food of your choice and in the amount of your choice emanates from?
If the food Nazi's wish to deny your access to the food of your choice, what constitutional covenant are you going to stand on to protect that right?
By your reasoning, if it ain't mentioned, it doesn't exist, so there is no right to the food of your choice.
Where do you think your right to procreate the number of children you wish to have emanates from?
Where do you think your right to use the birth control method of your choice emanates from?
Where do you think the right to consume alcohol emanates from and why it took a constitutional amendment to deny or disparage that right during the 1920's?
Where do you think the right to home school your children emanates from?
The second. ;-)
By your reasoning, if it ain't mentioned, it doesn't exist, so there is no right to the food of your choice.
My my, didn't I just trigger a load of demagoguery!
Does my right to fly by flapping my arms emanate from the 9th Amendment? Doesn't really freakin' matter if it does or not, chumley, because the law of gravity would overrule it.
Likewise, trying to "marry" two people of the same sex is overruled by the law of nature. A family consists of a man and a woman. It's still not Adam & Steve. LOL!
Finding emanations in the Constitution reminds me of how the Supreme Court decided that it was OK to murder unwanted or inconvenient children. And it's all crap.
Sorry, no "homosexual marriage" will be suddenly discovered in this "living document."
Are you sure you have that right, I am afraid in many states you don't. Or at the very least they make it very difficult, by their endless requirements and inspections.
From the gist of your remark, listed above, I conclude that you have not read Roe v Wade.
The majority opinion was correct when a "right to privacy" was acknowledged.
The majority opinion was grossly incorrect when it did not extend those same rights of privacy, life, liberty, et al to an embryo and fetus. The majority opinion only extended "human rights" to a "viable" fetus, dooming any human life less than that arbitrary designation to death.
That arbitrary decision of viability is the only reason why unwanted and inconvenient children are murdered regularily, not because of a a "right to privacy" that emanates from Amendment IX.
You have that same "right to privacy" protection, which I hope you will exert with enthusiasm and regularity.
With all due respect to you, I could not help but notice that your freeper name is "FormerLib."
I presume this means you are a former liberal, in the modern sense versus the classical sense, of which I could be classified as, as well as Thomas Jefferson and James Madison, of which Madison was one of the primary authors of the Bill of Rights, Amendment IX most prominently.
That being said, modern liberals, as a general rule, are not proficient in exerting all Constitutional rights; are not familiar with, nor acknowledge all of the Bill of Rights and subsequently have difficulty thinking from the presumption of liberty.
It is my opinion that because of your presumed past history as a modern liberal, I can understand how you might have difficulty transitioning to the critical thinking mode of a presumption of liberty.
Good luck in your transition. If you need assistance, I will be happy to help.
It is not difficult, nor complicated. The U.S. Constitution is easy to understand and to implement, unless of course, you wish to put the needs of government above the rights of people, both enumerated and unenumerated.
Precisely the problem when decisions are based upon "emanations" which do not other wise exists in the law, invariably it will only serve the purpose that the person (or group) making the discovery wishes it to.
Fully applied, this discovered emanation should be able to strike down all laws prohibiting prostitution and illicit drug consumption (for example), both of which would be damaging to our society and Republic and would never have been the intent of the Founding Fathers.
If they want to make new law, they should have the courage of their convictions to plainly state that fact instead of attempting to bury it in nonsense about "emanations!"
That is correct, properly applied. And, again you are revealing your old, formerlib, type thinking.
Consumption of prostitution services and ingestible chemicals is no different than consumption of any other services or products.
Free people, I repeat, free people, make the decisions to consume or not to consume for themselves. It is a person's own morality, frugality, or self-control and moderation that is to deter or prevent consumption of services or products that may be destructive to their life or lifestyle.
I, for example, do not and will not consume gambling services, even though it is legal. I have never consumed prostitution services up to this point in my life, while illegal, and I would not consume prostitution services even if it was legal. Again, that is what free people do. Free people make their own decisions for themselves.
Prostitution existed and quite frankly quite a bit of chemical consumption existed, and both were legal, when the republic was founded.
Cocaine and heroine were only made unconstituionally illegal in the 20th century.
Remember, it took a constitutional amemdment to ban the consumption of alcohol. Why? Because the 9th amendment guaranteed the right for free people to consume the chemical of their choice.
Rights cannot be usurped, denied, or disparaged by laws. Rights can only be altered, diminished, or denied by constitutional amendments.
Actually, prostitution was largely made illegal at the end of the 19th century in the United States. Surprisingly, sexual morality did not play a factor in the movement to make it illegal, but the social pathologies (STD's, illegitimate children born into poverty, women becoming trapped into the life of prostitution, and the abhorrent actions of the pimps) that accompanied prostitution proved to be its undoing.
Many folks point to the legal prostitution that occurs in places such as the Netherlands while conveniently ignoring the heavy governmental regulation that dominates that industry in such locales.
I am having a difficult time believing you have read the Ninth and Tenth Amendments from the conclusion you have promulgated above.
The Ninth Amendment states, without any ambiguity, "The enumertaion in the Constitution of certain rights, shall not be construed to deny or disparage others (rights) retained by the people."
I do not understand how you can make the assertion that "The Ninth Amendment doesn't guarantee the people any rights whatsoever."
I do not know of any other meaning you can assign to the words penned in the Ninth amendment, words such as "rights," or "shall not deny or disparage," or "people" and then declare "The Ninth Amendment doesn't guarantee the people any rights whatsoever.?"
Then you subsequently state, "Its purpose is to guarantee that matters upon which the Constitution is silent are left to the states to decide."
Isn't the Tenth amendment the definitive declaration on what the "states...decide?"
"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."
Now if you are questioning the "jurisdiction" of the U.S. Constitution within the boundaries of a sovereign state, that is a legitmate question, but was answered with the ratification of the 14th amendment, which in my opinion, strenghtened the Ninth amendment but weakend the 10 amendment so severly, rendering it superflous.
One more point I would like to make, that I did not compose but was composed by Jon Roland of the Constitutional Society:
"Every right recognized by the Constitution is an immunity, that is, a right against a positive action by government, and is equivalent to a restriction on delegated powers. Conversely, every delegated power is a restriction on immunities. An immunity may be expressed either as a declaration of the right, or as a restriction on powers."
http://www.constitution.org/
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