The Constitution and Gay Marriage, such as it is...

University of Missouri-Kansas School of Law ^ | December 1872 term | Justices Miler, Field & Bradley

[Rurudyne]

I would like to offer a thought: the only reason that we are in this situation with gay marriage is that we have a perverted legal class.

Please follow me: it is reasonable for the Court to examine Acts of Congress or of the President to see if these fall within the range of their enumerated powers.

It is also reasonable to assume that, legislators being mere mortals after all, that any law may have implied penumbras if said law is to function according to original intent, or even function at all.

Further, it is reasonable at assert when laws are in conflict that there is a necessary accomodation to be made, so that a lesser law gives way to a greater (say, the Constitution) or that equal but competing laws should somehow be equally accomodated.

In fact, this last may be a good description of the landmark Slaughterhouse case which had to balance Article 4:Section 2, the 10th Amendment, and the "privileges or immunities" clause of the 14th Amendment (most notably).

Folks who are familiar with me may think me a one trick pony on this matter but this one opinion is not only illustrative because of the majority opinion, but also because of the dissenting opinions.

Now I want to point out an inherent difference between a court and a legislature: a legislature ACTS but a court REACTS. And Presidents fall somewhere in between.

So, what may be reasonable to assert about the Court's relation to Congress may not be reasonable to assert about the Court's relationship to itself.

For example, look at the imbroglio that caused the adoption of at least some of the language of the 14th Amendment. In 1866 Congress enacted the very first Civil Rights Act and immediately stepped in something fresh and warm: there was no enumerated power in the Constitution to empower Congress to respect any form of Civil Rights laws that were authorative over the several States (the territories, possessions and the District of Columbia should've been another matter for reasons a bit complicated that were also done away with––thankfully––by the 14th Amendment's citizenship clause as well as the P or I clause).

So in this 1866 law, Congress was ripe to be overruled as having overstepped themselves. This is because Article 4:Section 2 clearly placed authority over politically sourced civil rights (which are different than Common Law rights as per the BoR) in the hands of the several States. Further, SCOTUS had had to step in at certain times to determine what were the necessary "Priveleges and Immunities of Citizens in the several States."

So this selfsame Congress prudently brought language to bear in the 14th Amendment which enumerated to Congress the power to define specific Civil Rights which the several States could not disparage.

Justice Miller's opinion is much more detailed on these issues, but the short, short version is that this introduced the balancing act that I described above. Since I keep citing Slaughterhouse it may be inferred that I approve of the distinctions made ... and I do.

But herein lay the rub: not only did enough folks believe that the 14th Amendment was really unnecessary––that all that bloodshed had somehow rendered amendment a done deal even without amendment––but that some of these also believed the to merely enumerate to Congress the power to define specific civil rights was really not much of an accomplishment at all.

I would at this time also like to point out an irony: that it was Justice Field who––right after he says for Congress to have a new enumerated power isn't enough––provides the clearest statement of the original intent of the clause. Lest anyone should imagine that he was neither a radical or an activist.

This is the very crux of the suit that led to the opinion. The butchers of New Orleans insisted that the 14th Amendment essentially extended the full limits on Federal power as per the BoR to also be authorative over the several States. I can say this because the "Common Law rights" they claimed to have from the 14th Amendment, notably a right to work, is even today not a right which all Americans enjoy––there being States that respect the competing civil right to organize even to the point of the exclusion of free agent labor.

So since Congress had not then, nor has it at this time, defined a civil right to work (as Texas has at this time) the for the court to find for the butchers it would have to claim that the P or I clause federalized all Common Law rights, an act that would have placed the Court in the position of arbitrating what was or was not a enumerated or unenumerated right as per the 9th Amendment.

Such an opinion would have rendered both the Congress' AND the several States' puny ability to define politically sourced civil rights a rather meaningless power. In fact, once could well say that the absolute power to ACT under the "Slaughterhouse that wasn't" would have been WITH the Court ... Legislatures only being fit to define processes in order to enfore Court rulings.

In short: had a radical like Justice Field had his way (please reference his dissent at the above link) the roles of the Congress and the Court would have been reversed with respect to any and all issues of rights.

Instead, it was the Court's necessary and implied role in determining what were the necessary "Priveleges and Immunities of Citizens in the several States." that became largely superfluous.

Please bear with me: I want to claim that the legal privilege of associating the odd "emanation" or "penumbra" lay with those who have the ability to ACT. That a Court, which can only REACT, may have these with respect to the specific operation of any given opinion BUT it is not reasonable to assert that what is necessary for one opinion to operate is in fact any form of precedent upon which to base another opinion.

That an entity that can only REACT doesn't generate either "emanations" or "penumbras" that are generally applicable because for them to do so places an "Opinion" in the same category as "Legislation."

This is the heart and soul of "Legislating from the Bench": treating the opinions of mere Justices and judges as if they were of the same kind as Acts of the Legislature.

This is in fact what the opinion in Slaughterhouse preserved for at least a time: the primacy of those whose job it is to ACT on behalf of the People whom they represent.

Now, about this current imbroglio: look at what has happened since this landmark case.

Congress has enacted NO Civil Rights laws under their enumerated authority to do so since that authority gives them no power the respect civil rights that Persons cannot disparage.

Instead, they do this under a corruption of the Commerce clause whereby they presume that all human activity has ramifications for interstate commerce and thus almost all human activity is now subject to their regulation.

So the Constitution is no longer a STOP sign to Federal power but a YIELD sign to certain limited abuses of Federal power: the BoR now being the sum total of what Congress CANNOT undertake.

While at the same time the Courts have been freed to take their old necessary power because of Article 4:Section 2 and selectively apply any real or imagined "Common Law" right––even a truly uncommon one like homosexual "marriage"––as per the BoR to be authorative over both the several States and the People.

While this is a simplification of sorts, it is TRUE that both these abuses of power are of a kind. Congress will NOT assert their primacy over Civil Rights under the 14th Amendment against claims made by mere courts because they retain vast and ill gotten powers while they tolerate the Courts. Likewise, the Courts will NOT challenge Congress' wanton excesses because they have through this perversion of laws exactly the power that Slaughterhouse so long denied them.

Despite the fact that this landmark case has never been even slightly reversed.

And by asserting that they have a RIGHT to ACT they also lay claim to the right to consider their tawdry opinions as if they were legislation.

Thus have these Clowns and Legal Perverts built a bridge of supposition to nowhere even as thay claim to be building a tower of jurisprudence.

If it were not so tragic, it might be funny.

And "gay marriage" is just another bit of imposition and lawlessness on their part.

AND THAT IS WHY GAY MARRIAGE IS LEGALLY BAD (not just morally): IT IS JUSTIFIED (like so many other abuses) AT THE EXPENSE OF CONSTITUTIONAL GOVERNANCE.

[massgopguy]

The only Right to marry is protected under the umbrella of the 1st Amendment's Freedom of Religion. The states even using the word marriage in what legislation they enact usurps the rights of religious institutions.

[jla]

The only Right to marry is protected under the umbrella of the 1st Amendment's Freedom of Religion

Yes, for a man and a woman. Read back on what the punishments were for sodomy and buggery*. Thomas Jefferson even endorsed them when he Wythe, Mason, et al were revising the Virginia Code.
So if homosexuality was outlawed at that time one cannot even remotely assume they'd be legally permitted to wed.

* castration, which Mr. J also saw fit for those found guilty of rape.

[brooklyn dave]

When Bush's plan for trying to get a Constitutional Amendmend to define marriage as on an act between a man and a woman--I was a little put off because I thought "what? are we going to have a constitutional amendment for every legal dilemma that arises? After thinking about it for a bit, I say go for it. Not that I am so perturbed by homsexuality per se, but the process of trying to attain a Constitutional Amendment forces the state legislatures to take a stand on an issue. It would be a hard core proof of where our representatives stand on the issue. It's kind of forcing the hand. So therefore, from that perspective I am all for it.

[Rurudyne]

Actually, in legal terms under our Constitution the right to marry falls mainly within the unenumerated Common Law rights common to English and Colonial common laws at the time of the writing of the amendment.

The 1st Amendment is actually more about conscience: the right to a good conscience before the divine, your fellow man (speech/press) and your government (peaceable assembly/petition).

But it isn't a right to a "bad conscience": for example the right to free speech has never included a grant to commit perjury, or to slander or any such thing.

OR, looked at from the bottom up, the 1st Amendment is also about petition ... the right to petition the government is dependent on the right to peaceable assemble, while the ability to peaceably assemble is dependent on your ability to inform (or petition) you fellow citizens through speech or publication. In this context, conscience arising from Religious Principal (determined by what is needed to have a good conscience before God) becomes possibly the only constitutionally guaranteed motive for speech, publication, assembly and petition. In short: the 1st Amendment isn't about peace, but rather conflict fostered and hopefully confined to the halls of Congress where it can be kept off of our streets and out of our pews.

There are two keys to this idea as I see it:

First is that no one bunch can "claim victory" and drive nonconformist away from the table (as secularist now try to do by delegitimizing any source of Religious Principal as a valid basis for laws).

Second, you may notice that while both the rights to speech and assembly are qualified the right to free exercise is not qualified ... I interpret this to mean two things: that the Government is to be helpless to arbitrate religious truth: that conscience arising from religious truth IS the only Constitutionally protected reason to do anything listed in the rest of the amendment.

In essence: just because someone considers some forms of religious speech to be hateful or fighting words doesn't make it so under our Constitution. Under our Constitution a Person has the right to the putative or obnoxious to other's sensibilities IF they do so as a result of their free exercise of religion––at least as far as the Federal government is concerned. That would even extend to the enactment of laws that were within the enumerated powers of Congress (and not the pretend powers thereof).

So my right to describe homosexuality as SIN (and all that implies) trumps a homosexual's right to feel good about himself.

[DBeers]

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Yet another way to skin the homosexual marriage cat...

This article is a little deep -no doubt I will have to read it several more times to fully disgest it...

[gidget7]

Great article, and spot on.

It should be sent to Gov. Romney! He recently had a article written about him in the wall street journal. I haven't yet looked it up, but the following is MassNews.com's response.


‘Gay Marriage’ Is Legal in Massachusetts Only if Gov. Romney Continues to Allow It, He Made the Wall Street Journal Look Foolish in Saturday’s Weekend Edition
By MassNews Staff
A large two-column story of Mitt Romney and picture appeared in Saturday’s “Weekend Edition” of the Wall Street Journal where the newspaper repeated without comment, the Governor’s ridiculous claim that gay marriage is legal in Massachusetts.
Most observers in the state realize it is legal only if the Governor continues to allow it. They question whether Romney has the fortitude to take charge of the state to which he moved and to which he promised that he would enforce its Constitution.
Many in the executive branch of this country have refused to enforce court decisions which were invalid.
Abraham Lincoln in his first inaugural address refused to enforce the Dred Scott decision of the U.S. Supreme Court which did not recognize a free Negro before the Civil War.
Thomas Jefferson also challenged that same court in Marbury v. Madison where it declared a law to be unconstitutional.
Many similar refusals can be found in the law books of this country.
Serious Flaws
The serious flaws in the Journal story on Saturday are:
Massachusetts Gov. Mitt Romney had just finished a speech when he was asked how religion would affect his campaign should he run for president in 2008.
"’You may have heard that I'm Mormon," Mr. Romney told the crowd, adding that it's ‘very difficult being Mormon in Massachusetts, where same-sex marriage is legalized.’”
But that is not true. Gay marriage is “legalized” here only if the Governor decides that it is legal and he will enforce it. There were six Associate judges who heard the case with three approving gay marriage and three vehemently opposing it, saying it was illegal for the court to even consider such a ruling. This required the Chief Justice, Margaret Marshall, to rule even though she was not allowed to do so because she had already decided the case in that she had indicated to a homosexual group in 1999 that she would vote for gay marriage if such a case ever came before her.
“Though he failed in a bid to unseat Sen. Edward Kennedy in 1994, Mr. Romney won election as governor in the heavily Democratic state in 2002, erased the state's $3 billion deficit without raising taxes and launched a health-care plan to cover all state residents.”
Romney failed in his bid against Kennedy only because he ran a terrible campaign. In his first big debate, he turned to Kennedy and said, “And what are you going to do about the “glass ceiling?” Everyone gasped. That one moment was the end of Romney as a serious candidate. Kennedy believed that there should be stricter laws to help women in employment. Everyone knew except for Mitt Romney.
He still doesn’t understand that he became Governor in 2002 only because all the Democratic candidates came out in favor of gay marriage in this heavily Catholic state and Romney won by default although he is thoroughly disliked by the conservative base here, which would do nothing to help him. The reason he is running for President is that even he understands he could never be re-elected to anything in this state.
Romney erased the state deficit because the economy suddenly started booming everywhere because of President Bush’s tax policies.
His health care proposal will prove within a year to be a socialist disaster like Hillary Clinton's did in 1992 when she almost destroyed her husband’s Presidency and retreated to decorating the White House for two years while she was rehabilitated.
The article mentions Mike Murphy, a political consultant who has worked in the past with Mr. Romney. But it doesn’t mention that Murphy dropped Romney because he picked McCain as a possible winner, not Romney.
“As Mr. Romney and his wife posed for photos and chatted with a crowd of about 75 people.”
The article does not mention that when running for Governor, Romney embarrassed his wife, son and daughter-in-law because they were among the 130,000 successful signers of the Protection of Marriage Amendment in 2001 which would probably have stopped Judge Marshall from enacting gay marriage. It failed in 2001 only because the Democratic legislature violated the state’s constitution (according to a unanimous opinion of the state Supreme Court) and refused to allow a vote to take place in the legislature to send it to the voters for their approval (only 25% of legislators were required to approve it in the legislature).

[Rurudyne]

This sentence in the text:

Now, about this current imbroglio: look at what has happened since this landmark case.

Should have been like this:

Now, about this current imbroglio: look at what has happened since the era of this landmark case.

There were actually a number of Civil Rights Acts passed until the last one in 1875––when a lame duck Congress overreached itself and tried to enact civil rights which Persons could not disparage.

This last law was the subject of another landmark case, The Civil Rights Act Cases which appears to have been written by Justice Bradley, the author of a lonely dissent so radical that neither Chief Justice Swayne nor Justice Field joined him in said dissent.

While I've by no means come to full grips with this latter case, I have made some observations about it and posted it at my DeviantART account (rurudyne.deviantart.com) under the title Republicans and Reconstruction. This article goes into more detail about Slaughterhouse as I have come to see it as well.

Just to be nice, my comments about that latter case from said opinion piece:

Now, about the end of Reconstruction and the Civil Rights Acts Cases case: in 1875 the lame duck Republican Congress enacted a law in many ways similar to the laws of the 1960s; however, this law presumed to enact "privileges or immunities" which Persons could not disparage. No aspect of the 14th Amendment gave Congress such a power and the court ruled against the plaintiffs who had protested discrimination at the hands of Persons. In doing so Justice Bradley's majority opinion struck down the 1875 law as unconstitutional in its entirety.

What was never tested or opined upon––and part of why I viscerally deplore the opinion––was if the law was constitutional with respect to discrimination in publicly funded accommodations (as indeed it would, since such would have been a State or local government disparaging a "privilege or immunities of citizens of the United States;") or if the law was proper for territories and possessions.

In essence: had Justice Bradley's opinion been more nuanced the very worst of Jim Crow and Segregation would never have happened; instead, the several States proceeded to ignore all Civil Rights Acts on the strength of this wholesale rejection of ONE law which really had limited (yet very important) legality ... and maybe also with the parroting of the radical's slur of Slaughterhouse, now to opposed and ignoble ends.

As for the other aspects of Justice Bradley's opinion and one aspect of the article quotes in the OP. The founding of the Republican party was a coalition between abolitionist and those who desired the supremacy of the Federal ... something the writer ignores. Once slavery had been abolished and reconstruction had exhausted the electoral fortunes of the party what remained was the core of those who sought Federal supremacy––like the ultra radical Justice Bradley. These brought about the end of the legacy of reconstruction in pursuit of this other ideal.

Booth may have shot Lincoln but Bradely put the proverbial dagger in his back.

[Rurudyne]

This thought cuts MUCH deeper than that.

I'm contemplating an idea I call "Neo Federalism" which is based largely on the idea that because of Amendments like the 14th Amendment there are actually two types of Federalism at work within our Constitution and that both of these must be accommodated as best as it is possible. To say that I was pleasantly surprised when I finally took a look at the Slaughterhouse opinion AND I realized that Justice Miller was making the exact same distinction (though not under that name) in the first major test of the 14th Amendment WHILE the authors of said amendment were alive and their debates still fresh in the Justice's mind would be an understatement.

Truth be told, I was giddy with delight.

This is the idea: That original intent exist with those who are framers of the Constitution with respect to what they contribute to it. So the original intent of the "First Framers" is absolutely necessary and correct.

But when someone amends the Constitution they become with respect to the Amendment thus authored, and only THAT Amendment, "Latter Framers" of the Constitution.

Thus they too have a place at the table of honor: even if a lesser place (their intent by NO means overrules that of the genuine Framers unless their Amendment specifically replaces some earlier portion of the Constitution).

Now the Federalism espoused by our Constitution and the first 12 Amendments (the 13th, parts of the 14th and the 15th arguably being "neutral") was a mixture of actual Federalism and Anti-Federalism. One way I've tried to express the difference is this couplet:

Jefferson's Republican Democrats held to a model of federal power like the relationship between a master and his slave: any power taken from the Master (the several States and the People) and granted to the Slave (the federal) so that it could achieve its functions was just that ... power taken away. So it was desirable that the absolute minimum of necessary power be invested in the Federal.

By contrast, the Federalist seem to have had a model of States Rights (and make NO mistake, they were for states rights) that appears close to the marriage relationship. The husband (the several States and the People) who has the final authority has a uniquely capable helper (the federal) able to do things which he is unable or unwise to perform. Thus under Hamilton's Federalism, the Federal Government is not supreme ... but she is honorable and honored.

Jumping forward a few decades and we find the rise of the Republicans who espouse a similar yet opposite vision of who is the husband and who is the wife in this relationship ... in many ways, Republicanism is the mirror image of Hamilton's Federalism.

And it is Republicanism that is embodied in parts of the 14th Amendment, as well as the 16th, 17th, 18th and 21st Amendments. I would argue that the crowning achievement of Republicanism is the 17th (direct election of Senators) ... an accomplishment before which all else pales.

Still, there is another form of "federalism" at work in our Constitution which must be respected even as the original federalism of the Constitution must be respected.

I would point to the Slaughterhouse opinion as a sure sign of how this may be achieved.

So in that I'm different from the Constitutional Party, which seems to seek to hold only to the intent of the Framers of the unamended Constitution to the exclusion of any other posers AND I'm very, very different from those who hold fast to the idea that now we have amended the Constitution and have built our little bridge of speculation to nowhere in particular that original intent––ANY original intent––no longer matters.

And this is where we find the Democratic Party. If the Republicans were and are a mirror image of Hamilton's Federalist then the constitutional abomination that calls itself the Democratic Party is the mirror image of Jefferson's own Republican Democrats.

They are the Super Republicans, simply put. The very living embodiment of every slur and slander and putative diatribe of rhetoric penned or spoken of by the Party of Jefferson and Jackson against any hapless Federalist or Whig ... or even Republican.

That they put Jefferson's likeness up in their events would likely make the old leader want to puke. Jackson would be more eloquent in action and likely pistol whip them out of Washington before setting fire to their offices.

[Rurudyne]

It should be sent to Gov. Romney! He recently had a article written about him in the wall street journal. I haven't yet looked it up, but the following is MassNews.com's response.

How would a resident of Texas go about getting the Governor of Massachusetts' attention?

I can barely get the attention of my own representatives and now that Rush has fixed that problem with his computer, that his printer in days gone by would endlessly spit out paper on receiving a fax, I have no assurance that even el'Rushbo would see anything I sent him or even recognize my name.

A bit of history: once I realized that Rush's system had this flaw and it was likely why he stopped giving out a fax number, I shamelessly exploited the situation by sending him hand written notes (using big, easy to read writing that took up lots of space).

[Rurudyne]

Shameless Bumpage

[old republic]

The 1st Amendment is actually more about conscience: the right to a good conscience before the divine, your fellow man (speech/press) and your government (peaceable assembly/petition).

---

You hit the intent of the first amendment right on the head.

[Rurudyne]

Thanks!

[Rurudyne]

I would like to add that this exact logic can be applied to Roe v Wade.

Simply, in 1973 Congress had enacted no laws respecting any right to an abortion and no such right can be found among the unenumerated privileges under English Common Law that is the subject matter of the 9th Amendment.

[MamaTexan]

insisted that the 14th Amendment essentially extended the full limits on Federal power as per the BoR to also be authorative over the several States.

Legally, I can't see how this is even feasible.

Outside its area of enumerated jurisdiction, the federal government doesn't even HAVE any 'civil authority' because it's not a civil entity, it's an administrative one.

And you're right, it doesn't have the authority to extend itself beyond that, no matter which of the 3 branches it is.

[Rurudyne]

Sad to say it, the Butchers of New Orleans found a Chief Justice and two Associate Justices who were willing to agree with them even way back then.

I don't know much (yet) about Swayne, Field and Bradley––the three radicals in question.

Unless I'm mistaken, Bradley was responsible for the majority opinion in the Civil Rights Acts Cases decision that struck down the Civil Rights Act of 1875 which makes me wonder if he wasn't really a partisan for federal supremacy rather than a 'bring about the end of slavery' flavor or Republican.

[Sam_Damon]

Reading your reply to my one article, and the whole of this thread has given me new insight into the US Constitution.

IANAL, and therefore I am probably not astute enough to follow the legal line of reasoning completely. Even so, I think I'm getting the gist of things. What will prove vital is who's on the Supreme Court, and whether those individuals have a tendency to find things in it which were never intended.

[Rurudyne]

Thanks!