Cal Thomas Doesn't Own the Constitution
A Response to Cal Thomas’s Editorial Curiosity About Why the Constitution is Also to Be Enjoyed by Homosexuals
Cal, normally I find you irrelevant and I don't pay much attention to you. I'm a dyed-in-the-wool libertarian – no, not the anarchist/pacifist/isolationist that passes for "libertarian" in so many places. A real by-god libertarian. Your commentary and analysis of so much that you write on indicates that you only like – just like every idiot liberal under the sun – certain parts of our Constitution. Hence I have never paid much attention to you. Plus, you're just a little too self-righteously religious for my tastes.
But you asked a question, it seems you asked it in earnest, and so I will answer you. I trust you can figure out the difference between your statements from the editorial and my responses to them. So please enjoy this email with my compliments.
What advocates for same-sex marriage should be asked is whether they consider any other human relationship worthy of similar constitutional protection and based on what standard?
Without having a clear notion of what range of "relationship" you're willing to go to for this exercise, I'll have to say "probably", and based on the only standard allowed in our nation: the Constitutional limitation on the power of the government to interfere with free people doing what they want under most circumstances.
The Constitution doesn't guarantee the right to marry
The 9thAM says that not all our rights were written down, but we still have them. Please read it if you don't believe me.
The 10thAM says that what was not given to the US government to interfere with [most notably in A I § 8] is retained by the people. The states may also address it if they wish.
Since there is no authority for the feds to define family, or regulate marriage, they don't have the power to do it AT ALL and DOMA must fall based on that fact alone. Because the 14thAM transfers all federal rights to citizens of all states based on them being dual citizens of the state and nation, the right to marry exists in all 50 states, territories, protectorates, etc. And because there is Equal Protection, there cannot be artificial constraints placed upon some people in order to exercise the same right the schmuck down the street just exercised.
I will concede right now that the thought of two men all oiled up and grunting is nauseatingly repulsive to some ... possibly even many. I would guess you are among them. And, well, I can legitimately sympathize. But what is nauseatingly repulsive to ME is Cardinals fans who don't know the first rule of good sportsmanship: be a congenial winner. What legitimate expectation do I have to silence or censure Cardinals fans who can't shut their goddamned mouths when they win yet another division title? And can I get the government to help me?
The answers are "none" and "no".
The same is true for you. Freedom is, by definition, very very messy, and it requires that people put up with others doing one hell of a lot of "stuff" that gripes us or makes our skin crawl. Even if a majority of Americans view Cardinals fans the way I do – I'm pretty well convinced that the majority of baseball fans do – the government is limited by the Constitution to a very slim set of powers, and "enacting the peevish public whim" isn't among them.
The Cardinals fans are my cross to bear; gays humping away in marital bliss [and impeccable stylishness, I'm sure] is yours. Bear it with the grace your god expects you to display.
States, not the federal government, issue marriage licenses
Please reference the 10thAM.
I am fully aware that most people are perfectly willing to ditch the 10thAM altogether – particularly liberals – because it simply gets in the way of their quest for an all-powerful central government. The 10thAM was even called, by some USSC justice-past, a "non-amendment" or something of equal dismissive self-superiority. They have, however, not ditched it.
Many, similarly, refuse to acknowledge the 9thAM, particularly when they – as you did above – attempt to deny the existence of a civil right by virtue of the fact that it was not written down. Both liberals and conservatives do this, relative to their own dirty-laundry list of things they don't want free people doing in their free country. "I need to be free from being exposed to things I don't like!!!" Nice try. Doesn't work for me with Cardinals' fans, doesn't work for you. The 9thAM is still there.
How many times do we have to hear "Driving isn't a right, it's a privilege"? The TSA, and its brainless adherents, has modified that to "flying isn't a right".
Uh ... yes they both are. Because there's no power to deny or regulate it.
"You don't have the right to use your 1stAM to be rude to me or my ideas!" Yes I do.
"You don't have the right to use your 2ndAM to amass an arsenal of weapons I think are excessive!" Yes ... I do.
"You don't have the right to use your 4thAM to get onto the airplane without proving to everyone in line that you aren't a terrorist." Yes. I. Do.
what's to stop polygamists from demanding legal protection and cultural acceptance?
Nothing; nor should there be. Laws against polygamy are primarily justified on the premise that polygamy is conducted in secret – not simply from the state, but also from the other spouse[s]. Thus polygamy is presumptively a type of fraud. But if it's entered with the full knowledge and consent of all persons, the fraud angle is empty, and the only thing you have to fall back on is the secondary rationalization for denying polygamy: "fairness". It's "unfair" for one man to hog so many women to himself. And it may be, from a biological imperative perspective, or some socialist "from each/to each" nonsense.
But our Constitution wasn't written to impose biological constraints through law, nor to render our disparate population into one-size-fits-all cogs, each of which gets – thanks to Mommy Government – the exact same one-size-fits-all set of life assets with which to enjoy pre-digested "freedom" as defined by the lowest common denominator. The "fairness" of one spouse [at a time] does not exist in the Constitution. Ergo, there is no Constitutional basis for requiring one spouse, or denying multiple spouses.
Besides, I have a feeling that if polygamy laws were overturned, there'd be as many women taking multiple husbands as there are the other way around. But that's just my guess.
Other than that, your complex question is noted and denied. The Constitution can only speak to legal protection; cultural acceptance is a completely different animal and it is well outside the scope of this discussion. Not to mention the Constitution.
Laws, however, ... if someone is so "culturally unaccepted" that he is robbed, beaten or murdered [e.g.] ... we have laws to deal with that. And, for the record, "hate" is presumptive and not appropriate in a legal discussion.
... if "fairness" and "equality" are the standard ...
That's a somewhat disingenuous reduction. Who am I kidding? It is a WHOLLY disingenuous reduction. "Fairness"? whose? "Equality"? whose?
The only source for definition of these terms comes from the US Constitution, which STILL hasn't been amended to allow the US government to define marriage or family structure, STILL requires that all states convey US-guaranteed rights to state citizens, and STILL requires those rights be equally applied.
"Fairness" is fair only when it abides by the constraints imposed by the Constitution; ALL of them, not just the ones you prefer at the time you prefer it. Same with "equality".
Since we are rapidly discarding the rules for living and social order set down in a book found in most motel room drawers ...
...this is where you skip the tracks, completely. Our "rules for living", as can be imposed by the government, does not come from "a book found in most motel room drawers" ... unless the Gideons have started dispensing pocket Constitutions recently.
They come ONLY from the Constitution, period, end of story. Stick with the program.
Your private mileage may vary, but that's up to you. You have no legitimate expectation of imposing your rules for living and social order on anyone, regardless of how many like-minded people you can find to support you, and thereupon getting the government to do your dirty work for you.
We are FREE, remember? All of us are, not just you.
Besides, if you get the government to do your dirty work regarding DOMA, then how in the hell can you complain about idiot liberals getting the government to do their dirty work on Obamacare? Hypocrisy is all the rage among the standard left/right political wankers, but I still think it's tasteless.
...what is to replace it?
NOTHING is replacing it. The only thing that matters is the Constitution and its fairly strict limitation on the power of government to boss people around.
Many things may seem "unfair," but not all can, or should, be addressed by courts
This, of course, is unvarnished truth. ...mostly. The courts' role in these matters of "unfairness" is limited to asserting and reasserting and re-reasserting [etc, as needed] the limitation of the power of government to remediate what people want to whine about. “Unfair” doesn’t often mean a Constitutional damn.
It's "unfair" that some people can afford health insurance and others can't.
Probably, but it's not the government's place to do anything about it.
It's unfair that I'm a Cubs fan who lives 25 miles from St Lose and I have to listen to asshole Cardinals fans being assholes.
I'm sure it is ... so move.
It's unfair that other people get to do things I think are disgusting and violate my religious beliefs.
"'When I use a word,' Humpty Dumpty said, in a rather scornful tone, 'it means just what I choose it to mean -- neither more nor less.'..."
That's very ironic for you to mention. "Ironic" is my euphemism for "hypocritical". As mentioned above, I'm a strict libertarian. And I've noted BOTH liberals and conservatives play this little rhetorical parlor trick whenever it suits their fancy.
You did it here: "The Constitution doesn't guarantee the right to marry".
That's because you willfully refuse to see it in the 9thAM. I see it there, as does everyone else who is not desperately trivializing, as Mr Dumpty would do, the relevance of the 9thAM. I also see in the 9thAM the right to be stupid ... and not wear seat belts; the right to be stupid and irresponsible ... and not buckle up my children; the right to be tasteless and crude ... and repeat the ethnic jokes I heard constantly when I was a kid in the 60s. Additionally, the right to drive, the right to fly, the right to drink a beer in public, the right to not have health insurance ... and if you give me some time I can make quite a long list of things I have the right to do simply because the Constitution does not give the government any authority to stop me.
Including reading bible verses on street corners, and a few dozen other things that I have essayed upon in the last few years that are among the items that the idiot left refuses to see in the 9thAM themselves which – I would guess – you could see quite clearly.
Justice Anthony Kennedy lamented that the Supreme Court is asked to settle too many politically charged issues.
Frankly, I believe they wouldn't "lament" the task if they handled it the right way in the first damned place. They attempt to decide politically-charged issues by regurgitating politically-based screed. Most such "political" issues are Constitutionally fairly simple, and do not, in fact, require words to mean "so many different things" as Alice inquired after; it is politics which makes one word mean 15 different things – based upon who uses it. It is politics which has given us the "reasonable search" that is separated from the writ which describes the "reason" for it: the warrant. It is cowardly political expedience which has given us the "terrorism exemption" to the 4thAM, the "drunk driving exemption" to both the 4th and 5thAM [and 14th], the "public buildings exemption", the "drug test exemption", etc...
How difficult is it, really, to tell whiny, pissing and moaning litigants, and their [usually] equally whiny loyyers that freedom is messy, and they simply have to put up with others doing things they may find repulsive? or dangerous? or tasteless? or stupid? ...because the government has no Constitutional authority to stop them?
I've done it countless times already, here, in several different ways, and I have a feeling I'll do it a few more before I send this email off. Trust me: it's a piece o' cake to say this; you simply have to possess the ability to stop being a [traditional] political toady.
...we have to show ourselves first -- that democracy works because we can reach agreement on a principle basis
While I would agree with Kennedy in theory, the "principle basis" that our nation was created under was the principle that the power of the government was to be strictly LIMITED, and among the necessary components of a limited government is that it is NOT allowed to be hefted as a cudgel by some people to compel the rest to conform to a private idea of right and wrong, moral and immoral, fair and unfair, good and bad, et cetera.
I'll match up your opposition's Obamacare to your own DOMA for private-agenda cudgel-wielding. You are BOTH my opposition, and both of these are onerous extensions of government power into areas it was never defined to belong.
The fact that no one seems to be able to "reach agreement on a principle basis" is due to the very fact that no one, for the last [roughly] century, who has the authority and obligation to enforce this basis has done so. It IS the USSC's duty to make distinctions between political issues and Constitutional ones. If the government is allowed to do something ... okay, now it's political; use the political process to figure out how best to accomplish it. If the government is NOT allowed to do it [as forcing health insurance or preventing certain types of marriage] ... sorry, it's Constitutional. And the Constitution says you gotta put up with gay marriage, and not having someone else pay for your health insurance. It doesn't say you gotta like it; doesn't say you have to remain silent in your dislike; doesn't even say you can't be offensive in your non-silence, either. But you gotta put up with it.
Freedom consists mostly of other people rubbing you the wrong way and you being unable to do much about it. Ain’t it grand?
And I'd wager that the lion's share of these Constitutionally simple "politically-charged issues" Kennedy laments in the first place were improperly defined as a Constitutional power by a USSC granting the other branches of government the power to do something they were not, in fact, given the power to do. Prime examples would be [apart from the several 4thAM "exemptions" which do not exist]:
1] Social Security – Congress has no authority to create an old age pension ... but if they create a TAX – which they're allowed to do ... they can create an old-age pension with the money it collects ... Right? Wrong, because they aren’t allowed to create an old-age pension. How dumb are you?
2] "welfare" – "general welfare" does not mean "poverty amelioration"; it means "the benefit of everybody". Welfare is not "everybody".
3] EPA – no mention of environmental watchdogging; it may be a good idea – if you can get the super-majority needed to add it in … do it.
4] DEA – TSA – DHS – USDA [etc] and the rest of the alphabet soup of regulatory agencies whose authority to regulate appears nowhere in the Constitution, and Congress's authority to grant this regulatory power does not exist either.
The High Nine have refused this portion of their obligation for damnear a century, and to now whine about the ramifications of them serially refusing to do their job over decades ... I'm unmoved. It's their own bed they shit in. No one did that for them.
The states, or Congress, should be allowed to sort out how they wish to define and license marriage, not the Supreme Court
Congress doesn't have the authority; states cannot prevent it even as they draw up the rules by which it must be properly attained. The USSC sometimes [as now] needs to remind everyone of that, and if the High Nine doesn't wish to be accused of playing politics with it when they issue their ruling on DOMA, then they need to abandon politics in their decision, and quote the Constitution instead.
They may use me as a source for how this can be done if they wish. It seems to be a difficult task, though I'm not sure why. Perhaps it's because of the massive unfamiliarity with the Constitution suffered by so many in our government, not least by those who claim to have the credentials to teach it at the college level.
You made a few quotes in your op-ed; here's mine:
"I hate to hear people say this Judge will vote so and so, because he is a Democrat – and this one so and so because he is a Republican. It is shameful. The Judges have the Constitution for their guidance; they have no right to any politics save the politics of rigid right and justice when they are sitting in judgment upon the great matters that come before them."
Anyway, there you are: the answer[s] you asked for. Hope it helps.