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A healthy constitutional

Yesterday, I brought up once again the subject of gay marriage, and the Boston Glob's latest effort to promote it. It brought out the usual host of arguments, including this latest salvo from one of the Glob's pet columnists, Ellen Goodman. This worthy opens her tirade with this potent paragraph:

If we had just ``let the people vote," black children would have been confined to segregated classrooms, wives would have remained the property of their husbands, and slaves the chattel of their masters.

The irony of Ms. Goodman's opening salvo is, apparently, lost on her. Let's look at those three examples:

1) The doctrine of segregation was, indeed, struck down by the Supreme Court. But this was pretty much a reversal of an earlier ruling that declared it acceptable, saying it was fine as long as the facilities were "separate but equal." It was the utter failure of that earlire decision that led to the dismantling of segregation.

2) "Wives would have remained the property of their husbands." I might be stretching a little here, but I believe she's referring to women's emancipation, and one of the key elements of that was the right to vote. Here, it was no court that struck down the Constitutional provisions that restricted the franchise to men, but a Constitutional amendment that established justice.

3) "Slaves (would have remained) the chattel of their masters." Again, my knowledge of the Civil War era is a bit spotty, but I seem to recall it was the Executive and Legislative branches that carried most of the water in the ending of slavery, with the Court's most notable contribution being the Dred Scott case, a case whose extreme injustice served as a rallying cry for those opposing slavery. And after the war, it was once again Constitutional amendments that wrote the results of the war into the supreme law of the land.

This is one of the problems I have with Ms. Goodman and others of her ilk. They are dead-set convinced on what ought to be, and read affirmation of their beliefs into the Constitution and other places it just does not exist.

For example, the word "marriage" does not appear anywhere in it. They have to stretch and "interpret" other passages to find its relevance, finding the most fertile ground in the areas that deal with "equal protection" and "full faith and credit" and the like.

I don't have too much of a problem with this, but it bothers me that their rather expansive (if not downright creative) interpretation wasn't so limited to just the issues that they hold so dear to their heart. If they were a bit more honest, they'd have to say that while they disagree with certain elements of the Constitution, they do exist and must be recognized -- and, if they want them changed, they need to amend the Constitution.

For, example, that pesky little 2nd Amendment.

The American Civil Liberties Union, that self-appointed guardian of all our rights, has extensive materials on each of our Constitutional rights, as well as those that have been "discovered" or "revealed" or "enhanced" or "recognized" in the 200+ years since the Constitution and Bill of Rights were passed. But out of all that, a single element of the Bill of Rights is accorded special treatment. Of all the rights spelled out, only the Second Amendment is considered to not be an individual right.

Here's the actual text of the Second Amendment:

"A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

And here is the ACLU's official interpretation of that statement:

We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias to assure their own freedom and security against the central government. In today's world, that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles. The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration.

This tends to be the general philosophical underpinnings of the "gun-grabbers" -- this is not a right of the individual, but of the several states. I challenge anyone to find any other Constitutional right that is a "collective" right and not an individual -- especially in light of the 9th and 10th Amendments.

But back to my main point: yes, the issues Ms. Goodman raises are fine, outstanding examples of injustices that cried out for correction. But of those issues, only the segregation issue even comes close to the principles behind the gay marriage argument. Like it or not, sanction for slavery and the disenfranchisement of women were incorporated into the body of the Constitution, and no rational court with the slightest bit of integrity would have struck either down before the Constitution was duly amended. And in the case of segregation, it was a dependence on the Courts that, arguably, led to the problem in the first place.

The right of people to marry another of the same sex is, quite frankly, not a Constitutional issue (with a single caveat -- see the extended section). It is a social issue, and as such should be determined by the society as a whole. The appropriate way of addressing that is through a direct vote by the people, or by a vote by their elected representatives. And as marriage is currently a creature of the several states and not a national issue, that means that it should be up to the 50 state legislatures to address this matter. And if those legislators prove to be craven cowards and do all they can to avoid taking a stand, the people can toss the bums out on their asses and elect worthy representatives, or end up like Massachusetts.

When given a chance, the American people tend to vote to do the right thing -- eventually. I have enough faith in our system and our people to believe that, some day, gay marriage will be seen as no more controversial than an integrated military. But I just don't see the urgency, the crisis behind it that would demand the scrapping of our entire system of laws, of checks and balances, just to address this one issue.

The one sticking point of leaving certain matters up to the states is the "Full Faith and Credit" clause of the Constitution, in Article IV, Section 1: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." By my reading, and that of many others, this means that a marriage legally recognized by one state is valid in all states. This is the principle that made Las Vegas the nation's divorce capital. I have not the slightest idea how the Courts will deal with this matter when the first gay couple moves from their state to one that refuses to recognize gay marriage, but I believe the courts will find a just resolution.


Comments (28)

"Amendment does not confer ... (Below threshold)
USMC Pilot:

"Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration."

Which is it?

People don't have a right to own guns, or the government has the right to regulate it? Make up your minds, if you have one.

This is why I could never g... (Below threshold)

This is why I could never get on board with the ACLU.

They will bend over backwards to find the widest and most expansive interpretation of the First Amendment, and then invent the narrowest, most restrictive interpretation possible when it comes to the Second Amendment.

I cannot deal with the rank hypocrisy of that.

Anyone, does tha ACLU suppo... (Below threshold)
ted:

Anyone, does tha ACLU support same-sex marriage?

Does the ACLU support poligamous marriage? If there is a difference between how the ACLU treats one and not the other, can anyone explain.

Thank you.

ted, if you weren't such a ... (Below threshold)

ted, if you weren't such a johnny one-note, you might actually find time to find ONE person to go out on a date with you. Work on that first, THEN you can entertain your polygamous fantasies.

J.

"If we had just ``let the p... (Below threshold)
Les Nessman:

"If we had just ``let the people vote," black children would have been confined to segregated classrooms, "

Heh, and now people are choosing to self-segregate. Now we see separate 'blacks only' dorms on college campus, 'black' proms in high school, 'black' graduation ceremonies, etc..
But not a word from Ellen Goodman et al, about how these people are racists.

I wonder why that is?

A healthy <a href="http://w... (Below threshold)
George:

A healthy Constitutional.mp3.

Jay Tea, the reason I'm a "... (Below threshold)
ted:

Jay Tea, the reason I'm a "johnny one-note" on this (that is, "ssm to poligamy" comparison), is that it is the one best point which succinctly and effectively knocks out the ssm legal/constitutional proponents. Focus on that like a laser beam!

(I don't follow your "go on a date with" reference. Please explain.)

The militas originally were... (Below threshold)
serfer62:

The militas originally were any man capable of carrying a gun roughly called 7 to 70. At terrorists seiges of territorial fort women too were armed.

Their arguement is vacant...

People tend to forget that ... (Below threshold)

People tend to forget that all gay people in this country can get married. There is no discrimination there. The question is of gender choice.

Is gender choice in the category of number choice (polygamy), ancestry choice(incest); or is it like racial choice(interracial marraiges)?

I put it to the ACLU: If gender choice is morally equivalent to racial choice, and therefore cannot be restricted, does that mean seperate bathrooms for men and women are unconstitutional, as it is for racially segregated bathrooms? Can whatever it is that allows us to segregate gender for bathrooms, sports teams, classrooms ect...be appled to marraige as well?

"The ACLU therefore believe... (Below threshold)
GarandFan:

"The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns"

The ACLU seems to have, like Clinton, problems with basic components of the English language.

What part of "TO KEEP" is hard to understand?

ted, not only will polygami... (Below threshold)
Totally Matt:

ted, not only will polygamists be able to have their way, but tree huggers will be able to marry entire forests and we will run out of timber.

Your argument against SSM is a vapid red herring, and has been thoroughly trounced as such. Move along.

"The ACLU ... (Below threshold)
Lee:

"The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns"

The ACLU seems to have, like Clinton, problems with basic components of the English language.

What part of "TO KEEP" is hard to understand?

What part of "UNLIMITED" is hard to understand?

TM:"Your argument ag... (Below threshold)
Les Nessman:

TM:
"Your argument against SSM is a vapid red herring, and has been thoroughly trounced as such. Move along."

Actually, tm, YOUR argument that poligamy won't happen has been thouroughly trounced in the last two recent posts about ssm here at wizbang. Check 'em out if you don't beleive me, everyone.
Perhaps YOU should move along.

My polygamist argument is E... (Below threshold)
ted:

My polygamist argument is EXACTLY NOT A RED HERRING.

It is precisely on point, which is, if the constitution protects SSM, it must protect polygamy.

Will the ACLU defend one and not the other?

Anyone, please explain a co... (Below threshold)
ted:

Anyone, please explain a constitutional/legal (re Massachusetts e.g.) rationale to defend one and not the other -- that is, legal/constitutional basis for the difference!

Totally Matt, you can't -- ... (Below threshold)
ted:

Totally Matt, you can't -- nor can anyone -- and that's my point.

Re: Lee "What part of "UNL... (Below threshold)
GarandFan:

Re: Lee "What part of "UNLIMITED" is hard to understand?"

Read the sentence prior: "In today's world, that idea (individual gun ownership) is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles."

So why is it then, that every petty ass tyrant that comes down the road first disarms their own citizens of their 'insignificant weapons'?

Once the ACLU gets you to concede your weapons are 'insignifcant' they can then argue for SAFETY, for CRIME PREVENTION, for THE CHILDREN, you should turn them all in. Then we will all be SAFE.

Tell that to the citizens of New Orleans.

If we had just ``let the pe... (Below threshold)
yetanotherjohn:

If we had just ``let the people vote," black children would have been confined to segregated classrooms, wives would have remained the property of their husbands, and slaves the chattel of their masters.

Just to be clear here. Brown vs board of education ruling was based on an amendment (14th and 15th amendment), This meant that 2/3 of both chambers of congress and 75% of the states had to vote and approve it. The fact that the supreme court in Plessy vs Fergusson felt that "seperate but equal" met the requirements of the amendments and that the supreme court took several decades to decide that "seperate" makes it very hard to be equal.
The bottom line is that letting the people vote (note it was Republican majorities in Congress and in the state legislatures that produced the amendments) is precisely how the supreme court got to the point of the Brown decision.

Likewise on slaves remaining the chattel of their masters. The 13th amendment (along with several hundred thousand dead soldiers) is why we don't have slaves as the property of their master.

As far as women and chatel, look at the 19th amendment.

So the answer is very simple. Convince your fellow voters you are right. Put an amendment forward. If you don't want to do it through the congress, you can get a constitutional convention through 2/3 of the state legislatures calling for it. The amendment process is precisely how we are supposed to resolve contentious issues. Not judicial fiat. If you are two lazy to go through the process or don't have good enough arguments on your side to convince your fellow voters, then perhaps you should re-think the whole idea.

Now here is another scenario to consider. Lets imagine that we go through the amendment process. Everyone gets their say. The states approve the amendment. How do you think conservatives are likely to react? My suspicion is those that oppossed the amendment will say, "I still think its a bad idea, but its the law of the land now." They might even start trying to repeal it. But they would accept the law. Why does the left have such a hard time accepting the law when they aren't willing to go to the hard work to change the law legally?

Well, for what it's worth, ... (Below threshold)
MikeSC:

Well, for what it's worth, with their ruling in the McConnell case, SCOTUS got over their love affair with the 1st Amendment as well, allowing CFR to remain legal.

If the voters were listened to more than the courts were, the country would be dramatically better off.

Nothing guarantees intractable extremism quite like a court saying "Well, you can do that". Without that, negotiation is just a wee bit important.
-=Mike

"In today's world, that ide... (Below threshold)

"In today's world, that idea (individual gun ownership) is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles."

Ivory-tower logic at its finest, if I do say so myself. And you nailed it, GarandFan -- if all that "petty weaponry" in private hands wasn't such a danger to tyranny, all the would-be dictators and tyrants would more or less disregard them. Something tells me if these people were actually put into a situation were disfavored, unarmed elements of society were, say, being herded into cattle cars and taken to their deaths, then maybe they'd see how "anachronistic" a decent 1911 or M1 Garand in private hands would be.

Sorry I didn't reply earlie... (Below threshold)
Totally Matt:

Sorry I didn't reply earlier, ted. I was enjoying a gorgeous Sunday afternoon/evening watching football and getting loaded. Good thing I have to go to work tomorrow.

SSM has nothing to do with polygamy. I'm starting to think you're a polygamist, because I think you know that SSM will be legalized in the not-so-distant future and you want to make sure that polygamy follows shortly thereafter. (Kidding, of course.) Chief Justice John Edwards (haha, sorry) will say, "Ted, demonstrate your love to both of these people simultaneously. Look them both in the eyes and tell them that you are wholly and undividedly committed to both of them. At the same time. No, look her in the eyes too... hang on, you're not looking at her now... look, let's stop before you go cross-eyed. Hey, who the hell let John Cornyn and his goddamn box turtle in here?!"

You are correct in everythi... (Below threshold)
Anthony Pollock:

You are correct in everything you say but you have missed one vital point in relation to the second amendment and whether or not it applies to the individual. Of course it applies to the individual for two reasoons: 1. At the time of drawing up there was no standing army, the army of the United States was entirely based on a militia, that is minute men, ordinary citizens required to cast aside their daily tasks grab their weapons to defend the nation that means that each must have a weapon.2: There was also the principle that an armed population was not easy for a government to manipulate. Then too, the US was still a wild country and many supplimented their diet by hunting game of some kind.

The idea of the second amendment of the US constitution was lifted from the British Bill of rights of 1689 which allowed protestants to bear arms suitable to their condition. The US was then a more protestant nation than it perhaps is now.

Restrictions on gun ownership are a recent development of the late twentieth century.Prior to this one could have any gun you liked and the world did not come to an end.

Tony Pollock

I hold that a basic premise... (Below threshold)
Cousin Dave:

I hold that a basic premise of the Second Amendment is that it guarantees the right of self-defense, by whatever means. It's what saves us from the "duty to retreat" statutes that so many other countries (e.g. Great Britian) have.

"by whatever means"--'fraid... (Below threshold)
Totally Matt:

"by whatever means"--'fraid not, as it opens a can of worms.

The "Fortress" legislation the NRA is fighting for in some (all?) states will allow people to get off the hook for shooting and killing someone who is trying to enter your home without your permission. And in some states police officers are allowed to barge in with low thresholds of evidence (probable cause, or whatever). The police are obligated to identify themselves, but there's no way to ensure that they have successfully done so, and no way to stop criminals from saying "Open up, it's the police!" to disarm their prey before kicking their door in and shooting them. Anyway, I hope you can see the conundrum this poses for the "anything goes in self-defense" position that I hope you don't take literally, Cousin Dave.

When SSM is legalized, who ... (Below threshold)
scotty:

When SSM is legalized, who will play their fiddle while Rome burns?

The Castle Doctrine, or For... (Below threshold)
scsiwuzzy:

The Castle Doctrine, or Fortress legislation, does not stive for anything oges, junior. You must still prove that the tresspasser was a threat to you, your family or the property. And you cannot do things like shoot the person in the back, etc etc.
It does not give you cart blanc, instead it restores the presumption of innocence and right of property to the home owner.
You would prefer that we become like England, where you can be arrested for resisting and subduing a home invader?

I read up on it again, scsi... (Below threshold)
Totally Matt:

I read up on it again, scsi, and you're right. It's not anything goes.

It's unclear to me, though, if someone you don't know is pounding on your door and yelling for you to open it, what the law can say if you were to shoot them before they were able to get into your house. If it is reasonable to assume that someone poses a threat to you in your home (and perhaps your car), are you always within your rights to shoot that person? I guess I just find it sort of troubling when gun laws are relaxed, as the empirical data have been used both ways by both anti-gun and pro-gun lobbies. But it's not something I have studied and I'm happy to learn.

The "Fortress" legislati... (Below threshold)
MikeSC:

The "Fortress" legislation the NRA is fighting for in some (all?) states will allow people to get off the hook for shooting and killing someone who is trying to enter your home without your permission.

And that isn't a good idea...how?

And in some states police officers are allowed to barge in with low thresholds of evidence (probable cause, or whatever).

Blame the JUDGES for giving them warrants. Police are hesitant to enter a house for "probable cause" as the evidence, far too often, is tossed out.

The police are obligated to identify themselves, but there's no way to ensure that they have successfully done so, and no way to stop criminals from saying "Open up, it's the police!" to disarm their prey before kicking their door in and shooting them. Anyway, I hope you can see the conundrum this poses for the "anything goes in self-defense" position that I hope you don't take literally, Cousin Dave.

If the SCOTUS read the 1st Amendment the way they read the 2nd one, there wouldn't be porn anywhere.

Just saying.
-=Mike




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