Update from the
Heartland
No.710
20.7.15 – 26.7.15
Blog version: http://heartlandupdate.blogspot.com/
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.’
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.”
“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.
Cheers,
Cap :-)
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