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Tuesday, July 21. 2015

Gay marriage and liberty


From Cato, Finding Rights in the Constitution


The US Constitution, as written, was not so much designed to enumerate citizen rights as it is designed to restrict federal governmental powers. Local choice and individual freedom were the main thing, and were therefore minimally listed. Libertarians are confronted with the question of the extent of individual freedom, given that the document was written in the context of (assumed) cultural and religious traditions and beliefs.

Posted by The Barrister at 14:04 | Comments (18) | Trackbacks (0)

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the constitution was written to restrict federal government powers.

the assumptions of the Founders were wrong, and both rights and restrictions had to expand. what's so hard to believe about that?
#1 Donny "The Bear Jew" Donowitz (Link) on 2015-07-21 14:40 (Reply)
Which assumptions were wrong? Which rights had to be expanded?

Accepting your point for discussion, the Constitution had a method for correcting it called "amending". We don't bother with that any more. We just read what we want into it and say that's what it means.
#2 mudbug on 2015-07-21 16:09 (Reply)
this isn't a trick question, and I'm not laying a trap, but at what year do you believe the Constitution was at its absolute bestest evah?
#2.1 Donny "The Bear Jew" Donowitz on 2015-07-21 17:13 (Reply)
Forget a year, likely the day it was signed. The next morning lawyers were at work.
#2.1.1 XRay on 2015-07-21 22:04 (Reply)
there's always a pro-slavery, anti-woman troll on the forum. you are acting, right?
#2.1.1.1 Donny "The Bear Jew" Donowitz on 2015-07-22 18:34 (Reply)
My questions were not trick questions either. I'd like to know what assumptions you thought the Founders got wrong and which rights needed to be expanded.

I think the interpretation of Fourteenth Amendment causes some problems because it has been decided that it allows anyone born in the US to be automatically granted citizenship. It is designed to grant citizenship to ex-slaves but does not for those who are not under the jurisdiction of the US - for example Indians (I believe that Indians were allowed to claim US citizenship later). To my mind, this does not grant citizenship to people who are illegally in the country (I can't legally defend that opinion, but I think I can reasonably. Also, I understand there are conflicts in edge conditions with the equal protection clause - again, I can't defend my suggestion on any legal grounds but I watched a debate between two Constitutional lawyers about conflicts that resulted and was pretty intrigued and surprised. I would repeal the part that seems to grant citizenship to babies born in this country. I don't think I would change the rest, conflicts not wiithstanding.

I am also against the Sixteenth. I have heard some controversy about how it was ratified. I don't discount them, but I don't make them. I believe I have described before how I believe the enforcement of the income tax is unconstitutional as it violates the Fourth and Fifth Amendments - though I do remember that you gave me some information regarding how the Fifth may not be as violated as I understood.

The Eighteenth was a bad idea but it was done properly and it was repealed properly. That is a model I respect because it respects the Constitution. Enough people wanted to change the Constitution so it was changed. Nobody read new powers of the government to enforce a morality, or promote the general health of the people , or whatever other reason for prohibiting the sale and production of new alcoholic beverages there were. They realized the Constitution did not allow the Federal Govt. to do that so they amended the Constitution to allow it to. Same with the Sixteenth as far as that goes.

I disagree with Seventeenth, but in a way it makes some sense and the sovereignty of the states have been eroded over the years that a representative of the state (rather than the people of the state) might not be as important.

I'm pretty good with the rest. While I might disagree with an amendment, it is an amendment with an actual statement and not an interpretation that is built on somebody's idea of what the Constitution should say rather than what it does say so I respect them.
#3 mudbug on 2015-07-21 18:02 (Reply)
rights guaranteed under the constitution against federal infringement were guaranteed against state infringement by the 14th amendment, a huge expansion of rights of due process and equal protection.

in 1796, the "cultural and religious traditions and beliefs" disenfranchised women, blacks (also held in slavery), countenanced the continued slave trade and none of the enumerated rights in the bill o' rights was protected against state action. I think we can safely say that the founders' assumptions were wrong here. Personally I think its great that the rule against unreasonable searches and seizures, or the right against self incrimination, or the right to an attorney or the first amendment, second amendment, etc. are now guaranteed against state encroachment. that is a huge expansion of rights.

I don't want to address immigration issues because that's a distracting position, and sure as shi'ite, someone with an anti-illegal jones will hijack this thread.

but... being here illegally is not a roadmap to citizenship. and even the so-called "anchor babies" trope is largely a myth. while the infant is a US citizen, he can't petition in his illegal parents, and I've seen many, many baby citizens who leave with their removed (deported) illegal parents if they don't have legal relatives residing in the US.
#3.1 Donny "The Bear Jew" Donowitz on 2015-07-21 18:53 (Reply)
All good points. I admit here to being somewhat myopic in my view and reply to your question. Of course, the Constitution did not guarantee rights to people who were slaves, rights for women came much later, etc. I tend to think of "the Founders" as the abolitionist wing of the Founders which obviously does not include those who were pro-slavery. I also tend to think of the Constitution in light of, and "to implement" the Declaration of Independence and as a whole rather than a progression so I thank you for reminding me.

I won't address the immigration issue except to say that from what I hear, the rights of a baby born in the US - now a citizen - to have his parents and some relatives live with him in his home country seem to be, in general, expanding.
#3.1.1 mudbug on 2015-07-21 19:31 (Reply)
I think if the constitution were a synthesis of our views, this country would be even more exceptional.
#3.1.1.1 Donny "The Bear Jew" Donowitz on 2015-07-21 21:40 (Reply)
I agree! :-)
#4 mudbug on 2015-07-21 21:52 (Reply)
Simply put: anything not explicitly banned is implicitly allowed.
THAT's the intent of the US constitution.

And that means homosexuals have the same rights as everyone else, as nowhere in the constitution are their rights explicitly restricted to a level lower than those of heterosexuals.
#5 J.T. Wenting on 2015-07-21 23:41 (Reply)
The Constitution gives specific powers to the Federal Government that are outlined in Article 1 Section 8. The Tenth Amendment basically says everything not prohibited by it to the states are reserved for the states and the people. Since marriage is not mentioned in the Constitution, I read that to mean that marriage should be regulated by the states. Equal protection, voting rights, and other rights for gays are to be protected by the Federal Government and the States.
#5.1 mudbug on 2015-07-22 10:31 (Reply)
I'm not sure why Libertarians are "confronted with the question of the extent of individual freedom," since it isn't explicitly laid out. If it's not there, the question isn't one of tradition or culture. It was wisely left out because the framers recognized tradition and culture change over time - meaning expectations of what individual freedoms are will likely change with improved knowledge and understanding.

That said, I see little today that indicates individual freedoms are any different (or should be different) than they were at the time of the framers. Sure we may think freedom is a scary thing (some people really are nuts - but they were back then, too), and some people confuse responsibility with freedom (the fact that I shouldn't pollute because it's nasty is very different from the fact that I can pollute if I don't really care about other people's property - in which case, law can solve for these issues).

I think our freedoms are all pretty much the same as they were. I agree that the Constitution is simply a limiting document, though. The one thing the framers clearly recognized is that government, as it expands, becomes a burden, not a blessing on individual liberties.
#6 Bulldog on 2015-07-22 11:28 (Reply)
I disagree. I think the Framers saw expanding government as the killer of freedom, not just a burden.
#6.1 mudbug on 2015-07-22 11:49 (Reply)
I agree with you. I won't quibble over whether 'burden' or 'killer' is much of a differentiation. I see both as negatives.
#6.1.1 Bulldog on 2015-07-22 14:22 (Reply)
how can federal rights expand to the states (14th A) without corresponding federal power to enforce them when the states won't?

you give the vote to Blacks (15th A) but unless there's an expansion of federal power to enforce it, the right is meaningless.
#6.1.1.1 Donny "The Bear Jew" Donowitz on 2015-07-22 18:29 (Reply)
The Constitution was written by men (yes) who assumed that the population who lived under it would exercise self-restraint. That means not engaging in aberrant sexual behavior that spreads disease and causes physical injury to the practitioners. Once the exercise of self-restraint was de-valued (along with self-reliance, industry, thrift, and sobriety) the social chaos we have today had to ensue.

The aim of ssm advocates is not a legal monogamous, exclusive and permanent relationship - the definition of historical marriage. It is to destroy the institution along with their allies on the left who will be the biggest beneficiaries. As society collapses, more people turn tot he state for support. We know how that ends up.
#7 lhf on 2015-07-22 16:43 (Reply)
so why didn't they manumit their slaves? isn't that the ultimate in self control? I mean, who give a rat's ass about sexual deviancy when there's worse shit like slavery kept around indefinitely.

oh.. they still had value?

exactly.
#7.1 Donny "The Bear Jew" Donowitz on 2015-07-22 16:47 (Reply)

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