27 July 2015

Update no.710

Update from the Heartland
20.7.15 – 26.7.15
To all,

            I finished my review of the U.S. Supreme Court’s recent Obergefell v. Hodges [576 U.S. ___ (2015); no. 14-556; 26.June.2015] decision – the so-called same-sex marriage case.  At its most rudimentary level, this was not a high point of judicial reasoning.  James Obergefell of Ohio brought the constitutional action based on his claim that he was denied equal protection under the law when he was rejected by the state as the survivor of his partner of more than two decades, John Arthur, who passed away after his losing struggle with Amyotrophic Lateral Sclerosis (ALS).  Other non-heterosexual couples in three other states (Kentucky, Michigan and Tennessee) made other similar claims.  The Court heard the oral arguments of the various appeals in April.
              Associate Justice Anthony Kennedy wrote for the narrow 5-4 majority.  “From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage.”  “Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.”  He observed, “[M]arriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman.”  Further, “The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.”  In noting the progress with their legal status made by non-heterosexual citizens in recent years, Justice Kennedy said, “Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”  The majority concluded, “These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person” . . . “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights” . . . “[non-heterosexual citizens] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”  Each of the dissenters wrote separate opinions to express their disapproval and in a couple of instances outrage.  Chief Justice John Roberts wrote for the dissent (without Alito).  He said, “[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.”  Roberts went on to observe, “The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs.”  Associate Justices Scalia and Thomas were not quite so gentle.  “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court . . . the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention.  This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”  Scalia concluded, “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”  Thomas stated, “[T]he Constitution contains no ‘dignity’ Clause, and even if it did, the government would be incapable of bestowing dignity.”  He noted, “State decisions interpreting these provisions between the founding [1787] and the ratification of the Fourteenth Amendment [1868] almost uniformly construed the word ‘liberty’ to refer only to freedom from physical restraint.” (emphasis added)  Thomas concluded, “In its haste to reach a desired result, the majority misapplies a clause focused on ‘due process’ to afford substantive rights, disregards the most plausible understanding of the ‘liberty’ protected by that clause, and distorts the principles on which this Nation was founded.  Its decision will have inestimable consequences for our Constitution and our society.”
            By the Scalia / Thomas interpretation of the Constitution, the strict constructionists seek to preserve the status quo ante.  By implication, the Constitution is a very rigid, un-adaptive document.  Any social changes would require an amendment to the Constitution, which essentially meant no change, i.e., the Constitution was frozen in time by the assumed or implied meaning (as they interpret it) present at the time of the ratification, and not in the spirit of the broader language chosen by the Framers.  The dream and vision of the Founders and Framers was pure enough for their time.  Strict, literal translation to contemporary times does not look like what we expect today – times have changed.  Yet, their dream remains just as valid 239 years hence.
            The specific consequence of this ruling is quite apparent, but it is the nibblings at the boundaries that represent far more significance to the future of this Grand Republic and freedom itself.  The dissent offers us numerous glimpses of how thin and fragile our freedom truly is – questions that strike at the very core of our most basic freedoms.  What is ‘liberty’?  What are fundamental rights?  What are the limits of religious freedom?  Where and how is the demarcation between public and private defined, established and protected?
            As noted above, Thomas argued that liberty as referred to in the Declaration of Independence and the Constitution was understood by the Framers to be only the freedom from physical restraint by the government.  As such, extension of the word beyond that assumed original meaning is inappropriate and wrong.  The word ‘liberty’ is only mentioned once in the Preamble – “Blessings of Liberty” – and twice in the amendments – “life, liberty, or property” – in the 5th and 14th Amendments.  On reading Thomas’s words, I am gobsmacked that ‘liberty’ could be interpreted in such narrow terms, like ‘citizen’ meant ONLY free, white, male, educated, property owners.  Really?  If that was the interpretation of the Founders / Framers intended, then why didn’t they just say it explicitly?  Using Thomas’s argument, we would still be living in the 18th Century and at least he would be happy.
            The fundamentalists and strict constructionists are absolutely correct – marriage is never mentioned or even implied or inferred in the Constitution.  What they conveniently ignore is the overriding issue of a citizen’s fundamental rights, or at least the basis or implications of those rights.  In essence, what are the boundaries of the State’s authority to impose upon an individual citizen’s fundamental rights (I will add parenthetically . . . that exist above the Constitution, i.e., beyond the reach of the State without a compelling public interest and due process of law).  If the Court had examined the compelling State interest for injecting itself into a predominately, if not solely, private contractual matter and imposing its will without the consequences of that imposition, we might have a proper debate regarding why the State must demand adherence to its definitions.  Such is not the case here.  The dissent’s arguments ring hollow – do as I say . . . just because . . . that is has it has always been . . . (stomp my foot) . . . because I said so.  I actually understand the Court’s reluctance to embrace the notion of a citizen’s fundamental rights or the reality of the 9th and 10th Amendments to the Constitution – they are ambiguous and unbounded by words of definition.  Judges / Justices interpreting laws seek and prefer precision in the words . . . thus, the insistent demands of the strict constructionists.  If it is not written, it does not exist.  Without clarity and definition to those fundamental rights endowed by the Creator, we will constantly endure the clash with those who seek to use the instruments of State to impose upon the fundamental rights of ALL citizens.
            Thomas used §IIIB of his dissenting opinion to articulate his perspective about potential offense to religious liberty, which is quite an interesting twist as he declared marriage is a religious entity rather than a secular, state, licensing process.  He is implying the Court’s ruling may directly result in infringement on religious liberty.  The argument represents just another facet of the conflict between competing rights – individual versus individual, State versus individual.  This issue is not a unilateral problem.  We must breakdown this urge to project our beliefs, our moral values, into the private lives of others, and again this admonition is valid both ways.
            I remain absolutely gobsmacked at the similarities between the freedom debates of the 1850’s and those of our contemporary times.  In essence, Scalia is saying the majority has the freedom and the right to deny liberties (I use the word in the broader sense, beyond Thomas’s highly restrictive interpretation) to a minority of our citizens simply because they disapprove of their choices and the reality of their individual “Life, Liberty and pursuit of Happiness.”  I suppose part of the issue here is where do we draw the line between public and private, between secular and religious?  There is valid argument in Scalia’s reasoning.  The 13th Amendment (1865) abolished slavery and essentially deleted Article IV, Section 2, Clause 3 of the original Constitution as ratified (1788).  The 14th Amendment (1868) guaranteed equal protection under the Constitution for all citizens . . . not just freed slaves.  In fact, the 14th Amendment mentions nothing about freed slaves in the former Confederate states.  Through a long series of decisions over the next 100+ years, the Court whittled away at state laws that de facto enforced segregation and the denial of those very same rights guaranteed to them by the Constitution and its amendments.  Is this the generational change process advocated by the strict constructionists?
            I see this ruling in far broader terms – the State versus the individual citizen.  I certainly agree with the strict constructionists – the Constitution was constructed in a caldron of separation, the abject failure of the Articles of Confederation, and the tumultuous public debate surrounding federalism.  The Framers achieved a compromise that established the Constitution as a definition of federal authority among the several states – the boundaries of that authority. What seems to be often passed by is, three and a half years after ratification of the Constitution (in force), the very same Framers decided they needed to add ten amendments to the Constitution that we call the Bill of Rights – protections of individual rights of each and every citizen.  The Constitution as ratified in 1788 was not perfect, e.g., Article IV, Section 2, Clause 3.  The noted flaw was rectified 77 years later [13 Stat. 774].  Non-heterosexual citizens are no longer willing to suffer discrimination and persecution in silence.  If Roberts has even passingly acknowledged the persecution and denigration non-heterosexual citizens throughout history and the unrealized Liberty promised to ALL citizens (independent of the social factors), his argument might have more force.  The audacity . . . justices are comfortable declaring inanimate corporations imbued with the rights and privileges of citizenship and at the same time arguing that the Court is over-reaching to recognize equal rights for living, breathing, human citizens.  If marriage was as Roberts articulates, the State sanction of sexual relations that leads to procreation, then why does not that logic extend to paternal polygamy, since a male an impregnate females at will, while the female gestation cycle is limited to nine months.  Why isn’t the Duggar’s 19-and-counting familial model the societal and legal ideal, i.e., the State encouraging, if not enforcing, procreation?  Or, the [Kody] Brown family of four wives and 23 children becoming the ideal of the State’s endorsement of procreation?  The State’s and the Obergefell dissenters’ rationale does not hold water.

            An interesting opinion and perspective given this week’s primary topic:
“How religious liberty laws threaten religion”
by Davis Merritt
Wichita Eagle
Published: JULY 20, 2015
Merritt’s concluding sentence: “[The evaluation of ‘sincerely held beliefs’] is no court’s proper province and is the ultimate church-and-state nightmare, hazardous for all sides of the dispute, our democracy and every religious person.  Merritt may well be correct.
            In researching this segment, I ran across another Merritt opinion of relevance today.
“Fundamental rights supersede majority rule”
by Davis Merritt
Wichita Eagle
Published: OCTOBER 13, 2014
It is encouraging to find at least one other opinion similar to mine.  Now, the Supremes must find the moment and the will to firmly and decisively define a citizen’s fundamental rights.  Until they do, we shall remain embroiled in a constant struggle between the State and the individual, and between individuals with different beliefs.  Resolution of this conflict is essential for the evolution of democracy and specifically this Grand Republic.

            Comments and contributions from Update no.709:
“Is no deal better than a bad deal that is a good question.”
[NOTE: The offered link to an advertisement produced by a new group called Citizens for a Nuclear Free Iran.]
My reply:
            Thank you for the link.  I’ve seen the advert’ on TV once so far, and I suspect we’ll see it more times before this is over.
            On one side of this issue, Neville Chamberlain believed and convinced many others that words were better than bloodshed.  In that instance, history does not reflect well upon his professed and demonstrated position.  Bad men are going to do bad things regardless of the words.
            In our contemporary instance, in contrast with the 1938 episode, we have the military capacity to affect the necessary change.   Case in point, the 7.June.1981, IDF pre-emptive air attack on an Iraqi nuclear reactor at Osirak, near Baghdad, eliminated most of the Iraqi nuclear program.  Such a pre-emptive strike on IRI nuclear facilities would be not quite as successful or efficient.  The IRI is not Iraq.
            Our choices are few.  The IRI is a sovereign nation with a significant size and defense capacity.  Sanctions have certainly punished the IRI, however, the sanctions have not stopped the IRI nuclear development program.  The remaining choices are: deal or war.  I would prefer all diplomatic efforts be exhausted before bloodshed.  A pre-emptive strike on the IRI will not be an Osirak raid.  Do we really want another major military engagement in the Middle East?  Further, under this deal, inspections will provide substantial additional intelligence should military action be warranted and will also provide justification for war should it be required.
            My answer to your question . . . yes.  I think a bad deal is better than no deal.  ‘No deal’ will not alter IRI conduct.  The intelligence and public information generated by inspections under the deal offer better potential than ‘no deal.’
  “That’s just my opinion, but I could be wrong.”
  I trust all’s well in Prescott.  My very best wishes to you, Luida and family.  Take care and enjoy.

Another contribution:
“This embodies my objection to the blog.”
“Why Americans Know So Much About Sports But So Little About World Affairs – The way the system is set up, there is virtually nothing people can do anyway to influence the real world.”
by Noam Chomsky
Noam Chomsky's Official Site
Published: September 15, 2014
My response:
            Interesting perspective.  The point of democracy is the free expression of opinions, doubts, perspective, ideas, proposals and such, until some form of resonance takes hold and convinces more to adopt any particular concept.  Chomsky talks about credentials to speak on topics.  I have only one credential – I am a citizen, period.  Lastly, this seems like a particular fatalistic view of life in general.
  . . follow-up comment:
“Read carefully. Chomsky's point is that the credential centers on supporting received ideas. What Chomsky supports is actual, documentable facts obtained by diligent study. I share that. Much that credentialed experts put out is not supported by empirical research or documented experience, and both Chomsky and I have an issue with that.”
 . . . my follow-up response:
            I understood Chomsky’s words quite well as I have understood your words.  History is replete with examples of opinion and rhetoric with just enough, carefully selected facts to make the argued position appear credible – it is often called propaganda.  We have yet another example in this week’s Update.  Our task is to find contrasting opinions and other facts to judge the worthiness of opinions offered.

My very best wishes to all.  Take care of yourselves and each other.
Cap                        :-)