Hamilton agrees with you, and so does Acton:
“The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam in the whole volume of human nature, by the hand of the divinity itself; and never can be erased or obscured by mortal power.” - Alexander Hamilton, 1775
The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities. - Lord Acton
But, John has a valid point about those we despise (the bigots):
If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all. - Noam Chomsky
The community which does not protect its humblest and most hated member in the free utterance of his opinions, no matter how false or hateful, is only a gang of slaves. If there is anything in the universe that can’t stand discussion, let it crack. - Wendell Phillips
I doubt that **Diogenes **agrees with that quote, but I’ll let him speak for himself. Surely, though, you don’t want to go down the path of saying that rights are given to us by God, do you? Good luck pulling SSM out of that assumption!
But let’s say, for the sake of argument, that rights do exist in some metaphysical sense-- either given by God, or otherwise. How do we mere mortals decern what those rights are? Do we allow a philosopher kind to teach us what those rights are? Or do we, ourselves, decide? If the latter, how do we do that other than by concensus (ie, voting)?
As you can see from my reply to the earlier part of your post, I’m not just talking about freedom of expression. I’m asking how can we as a society, other than by voting, determine what is a right and what isn’t a right?
I wasn’t talking specifically about SSM, I was making the statement in a general way, that certain rights are inherent and are not (or at least should not be) subject to fads or whims. At the very least, the quote says certain rights come from a Creator and are thus irrevocable - that’s a far sight better than saying they depend on the mercies or whims of a politician.
Would a concensus to deport all left handed people be acceptable? How about redheads? Some things should not be subject to a vote, concensus, or anything else.
As for a philosopher king, hell no. They are the worst.
Um, John, I for one don’t propose to allow some bigot to tell me what kind of God to believe in. The one I happen to have encountered and find Jesus talking about, considers love and equable treatment of others as the most important duties of mankind. Guess where that leaves Him on the issue of SSM?
Hmm… how about if we spell out, say in eight short paragraphs, the ones we’re certain of, and place them beyond the reach of a chance majority, where it takes serious effort to change them. And then include a disclaimer that there are in fact others that we haven’t identified at present, and let a scholarly court identify them when a case asserting them shows up. As, for example, when an interracial couple claims the right to marry despite a state’s anti-miscegenation statute, because they are engaged in Loving each other?
I missed one very important point in my earlier posts, and this is where I dosagree with both John and Diogenes. It’s pretty revolutionary.
The Constitution and the Bill of Rights do NOT give us any rights at all.
They really don’t. What they do, is to recognize that every human being already has certain innate and inalienable rights, and nobody has the authority, power, or the right to take them away. These basic rights are not subject to concensus, or vote, or discussion, or abridgement. According to The Founders (solemn music), any government that tries to “diddle” with these basic rights deserves to be dissolved.
Everyone has a right to live. No government or individual can arbitrarily take a life for no reason. Everyone has a right to liberty. Again, no government or individual can arbitrarily take it away. That is why we have that “thing” about due process, warrants, sworn affadavits, trial by jury of peers etc.
I’m just scratching the surface.
There is a quote I almost remember, and here’s the basic sentiment of it…
Any rights that were “given” by a piece of paper can be taken away by a piece of paper. Do not say we have a right because the Bill Of Rights gave them to us. We already had them. We always had them, the catch is sometimes you have to fight to keep them.
That would work wonderfully if we all agreed which God we’re tallking about and what He wants us to do.
Great idea! Man, you are a genius! Now, how do we determine which ones we’re certain of? Let’s create this thing called a vote. Each person gets one vote, and we agree on whether changes can be my majority or supermajority (in which case we spell out exactly how much of a supermajority). I like the idea about the scholarly court, but let’s make sure we, the people, can override their decisions by supermajority vote. Are you good with that?
Let’s call it a Supreme Court. That sounds way cooler. On the other hand, isn’t one of the selling points for such a court that it should be immune to political pressures and any influence from the “tyranny of the majority/supermajority” ? Even though I bitch about them too sometimes, they can sometimes be the only way to settle issues.
Are you describing your ideal version of the SC, or the way ours actually works. Ours actually works the way I described it. I wouldn’t sign on to a program that allowed the Supreme Court to make rulings on Constitutional Law that could not be overturned by the people. Would you? I don’t want to be ruled by a philospher king (or 9 philosopher kings).
Sure, we don’t want the SCOTUS justices to be influenced by politics, but that doesn’t mean we have to grant them dictorial powers.
OK, let’s say a state put this referendum on the ballot: “We hereby declare that this state is a Christian state and no other religion may be practiced under penalty of death.” Let’s say it passes with 95% of the vote. Wouldn’t you want a Supreme Court to protect the minority against the tyranny of such a majority? I think your right to practice religion should be immune from the will of the people.
I know that the Daily Show has one version of The Decider, but I think it’d be more fun to play it like the Hulk.
“The press is questioning my support of a cabinet member. That makes me so angry. I’m warning you, Helen, don’t make me angry, you won’t like me when I’m angry.”
Since the establishment clause has been incorporated (ie, applied to the states), the SCOTUS would rule that the bill is unconstitutional. That’s how our system works now. No change needed.
The problem (for folks like us) would be if a supermajority in the entire counry wanted such an amendment, and was able to get it passed. But let’s be serious here-- that ain’t gonna happen. At some point you have to trust the majority to rule itself, otherwise you don’t live in a democracy.
Yahbut, John, this is exactly the point. The idjits nagging that “laws should be made by elected legislators, not by unelected judges” would maintain that that ruling would be going against “the will of the people” – at least, that’s how they’re behaving now on less egregious Establishment Clause offenses, like the Speaker of the State House of Reps. in Indiana deciding that a mandatory sectarian prayer to Jesus was a fine way to open sessions of the House.
For the record, SSM in a nutshell: our Constitution provides (14th amendment) that all citizens shall be entitled to equal protection of the laws. There is, at present, precedent that there is a right to marry, though it is regulable but evidently under intermediate if not strict scrutiny with regard to such regulations. I think it might be a legitimate assumption to say that (1) there would be a great deal of opposition to reversing Loving on there being a constitutional right to marry, and (2) the right comprises a right to marry someone of one’s choice, that choice being mutual, not an abstract right to engage in a marriage ceremony under some arbitrary conditions. The Federal government and every state have established specific privileges and immunities associated with marriage, ranging from the right of a couple to enter into possession of real property by tenancy of the entireties to surviving spouse exemptions and entitlements on a wide range of heritable entities.
If some people are entitled to engage in marrying the person of their choice and hence to jointly share with that person in those privileges and immunities, while others are not, that constitutes unequal protection of the laws.
There are clearly huge loopholes in that argument, but each one is IMO legitimately crossed. C.J. Warren jumped the biggest one 50 years ago: being able to marry is a “fundamental right” even though not enumerated in the constitutional text. (Granted that he was dealing with a marriage across racial lines in violation of an invidious statute, his statement was not some weasel-worded assertion that there is a privilege to marry which states may grant or deny at their pleasure but not restrict on the basis of race, but rather a blunt assertion that the liberties of U.S. citizens include a fundamental right to marry.) I believe it is safe to say that popular understanding holds that right to be one to marry the person one loves, not a right to enter into a marriage arranged by one’s patriarch with one’s prospective spouse’s patriarch without reference to the parties contracting the marriage, or other scenarios not matching contemporary society. Further, while marriage is a private contract, it is one in which the state has seen fit to involve itself by regulating it and granting it privileges. Ergo, there exist a class of people, those of gay orientation, who are restricted by law from engaging in a legally privileged action in which the rest of us are free to engage: the right to marry the willing person of one’s choice. That violates equal protection.
The bottom line, though, is not about SSM or anything else, but the issue that judges interpret and apply the law. The neocons seem to hold that any law, no matter how questionable from a constitutional law standpoint, which a legislature has seen fit to pass, should supersede the judgment of the courts. The Establishment Clause-violating mandatory-Baptist law held up as reductio ad absurdam which you properly said that SCOTUS should throw out is an obvious case. But there are far less obvious examples: the old maxim, “Bad cases made good law,” is quite valid. To their credit, the ACLU is defending the right of Fred Phelps to picket funerals in violation of, I think, Tennessee law. Not that anyone, far less the ACLU, thinks Fred is anything short of a loon. But as an American citizen, he has freedom of speech, the right to preach his hatemongering, much as it may disgust us. Terrible case: nearly the only thing worse is arguing that the confession forced from a man who raped, sodomized, and murdered a seven-year-old girl is inadmissible as being a forced confession. But nonetheless an issue to be decided by the courts on constitutional grounds, not by legislatures blithely superseding constitutional protection or on whether one’s gut instinct is to vomit at the idea.
Rule by law, not by arbitrary fiat. With rights protected against anything short of a constitutional amendment. Something we stand in some danger of losing, these days, and that we need to band together, liberal, conservative, libertarian, and statist, to protect.
