Writing on the Double Yellow Line

Militant moderate, unwilling to concede any longer the terms of debate to the strident ideologues on the fringe. If you are a Democrat or a Republican, you're an ideologue. If you're a "moderate" who votes a nearly straight party-ticket, you're still an ideologue, but you at least have the decency to be ashamed of your ideology. ...and you're lying in the meantime.

Location: Illinois, United States

Sunday, June 28, 2015

Simplify, Simplify

Simplify, Simplify
©2015  Ross Williams


There was a television game show back in the 60s called Truth or Consequences.  It was hosted, when I watched it, by Bob Barker.  It featured audience members being pulled up from their seats, asked a goofy question in order to win a prize, and if they didn't get the answer correct they would have to face the consequences — an even goofier game.  I believe the same prize awaited them at the end.  Of course the object was to get these people to play the game, because that's where the laughs were.

I watched this show frequently as a child, because the questions were goofy and the games even goofier, and it appealed to my childish notions of high comedy.  One day, Bob Barker asked a young woman from the audience the question: "Why are Russians red?"

The correct answer is trivially simple, "rus" [pronounced "rooss"] is the Russian word for red.  The pertinence of this is slightly more complex — but only slightly — and it involves centuries of the land now known as Russia being invaded, plundered, conquered and colonized by Swedes — Scandinavians known for having red hair, an oddity among the Eurasian inhabitants living among the plains and swamps east of the Ural mountains.  The Swedes emerged from Scandinavia in the Middle Ages and went east at the same time as the Norwegians emerged from Scandinavia and went west; they were both known as Vikings [pronounced "veekeengs"], as 'viking' was their word for, loosely, 'pirate'.  The new ruling class were called 'Rus' by those they conquered, the territory became known as 'Russia', and red has ever after been associated with Russia, being prominently displayed in their flags and other symbology.

This answer, though, would have been wrong in the game show theatrics of Truth or Consequences.  The correct answer, as nearly as I recalled it, went roughly as follows:

Why are Russians red?

Because blood is red, too, and two times two is four, and four times three is twelve.  And there are twelve inches in a foot, and a foot is a ruler.  A ruler is Queen Elizabeth, and Queen Elizabeth is a ship.  Ships sail the seas, and in the seas there are fish.  Fish have fins, and the Finns are next to the Russians.  Fire trucks are always rushin', and fire trucks are red.  So that's why Russians are red.

I was immediately enthralled by the hilarious homonymic and linguistic equivocation meandering through this gag, and repeated the joke like this for years[*].  Apparently, the American legal establishment also heard this joke, but didn't recognize it as one; they employ this manner of convolution to everything they do.  They collectively seem to believe that endless streams of rationalizing equivocation are necessary to explain the trivially simple answers to trivially simple Constitutional conundrums.

For example, the Constitutional question: "Why are homosexuals allowed to get married in the United States?"

I couldn't begin to give the long-winded rationalizations used by the US Supreme Court in their "correct answer but incorrect thinking" 'opinion' they shoveled out recently.  Instead, I will give the correct answer with the correct thinking.

We, The People, are guaranteed Equal Protection of the Laws in this country.  If the legislature passes a law allowing this or prohibiting that, the law must apply evenly to everyone.  The moment it doesn't apply evenly to everyone is the moment some people become "more equal" than others and tyranny ensues.  If the government is dead-set on not treating people equally under the law then it must have a damned good reason for it.  No "damned good reason" exists for excluding homosexuals from the privilege of being screwed by divorce courts and the petite napoleon which preside over them.

Did you miss the correct answer?  Here it is again, in one sentence instead of in one paragraph: The Constitution limits the power of the government to tell people what they can and cannot do; on those occasions when the government is allowed to get bossy, the Constitution requires that the government treat everyone the same within that bossiness.  There is no reason for Supreme Court decisions to be prattling on for pages and pages and pages.

Additionally, the legislature must be legitimately permitted to write that law in the first place.  For example, Congress passed a law a number of years ago [with full bipartisan support, by the way] called the Defense Of Marriage Act, known as DOMA, and which defined marriage as a legal institution to be entered only by one man and one woman, and that any 'marriage' consisting of any other pairing would be ineligible for federal considerations normally granted to married people.

So … find the power of Congress to define who can and who cannot get married.  Don't bother; it doesn't exist.  Thus, according to the 10thAM, the power to define marriage is a State power.  DOMA was declared partially unconstitutional eight years after passage, which was the wrong answer.  The correct answer to this conundrum would have been to declare it wholly unconstitutional.  There is no power of Congress to write laws on this subject matter, period, so no matter what the law said, the law was not allowed to exist.  Defining marriage is [and will be until the Constitution is amended] a State matter. 

Any State can create a legal institution called 'marriage'.  And they can define it how they wish.  …with one major caveat: they are required to treat all people equally under that law, for We, The People, have Equal Protection.  If the State does not treat people equally, it must have a damned good reason.

Many States saw the writing on the wall and decided on their own that yes, indeed, homosexuals can get married, because there is no "damned good reason" to disallow it.  There are only personal reasons, full of subjective notions of 'taste' and 'tradition' and 'belief' and, while these reasons may be very, very tangible to the people who espouse those reasons, personal likes and dislikes are supposed to hold no sway in a nation built on the political freedom from being bossed around by the government.

Many other States, however, populated by a more conservative people, determined that the personal was political, in a curious reversal of soft-skulled liberal sentimentality, and refused to allow homosexuals to marry.

The "damned good reasons" commonly cited for denying Equal Protection were:

1] Marriage is for procreation; homosexuals cannot procreate within the marriage.

Marriage is irrelevant for procreation as any cursory glance at society will inform, and to prohibit "non-breeders" from marrying would extend the ban to post-menopausal women, the infertile of either sex, and those who have better things to do than go prematurely gray waiting for their offspring to get the hell out of the house.  And this would only compound the violation of Equal Protection, besides.

1-a] It's science, dammit!  Gays can't reproduce!

Our nation was not founded to further "science" [global warmers, take note]; it was founded to create a government which protects its citizens' rights to do whatever the hell they want under almost all circumstances of human interaction … because the government was defined to have almost no power to stop them from doing most of those things.

2] Marriage is a religious institution, and requiring marriage to include conditions which are doctrinally contrary to a given religion is a violation of religious liberty, and effectively "criminalizes" that religion.

A nation in which religious liberty is identical to political liberty is called a theocracy; we do not have a theocracy.  Marriage, in our nation, is a secular institution which the government permits religions to administer … if a religion chooses, and to the degree it wishes, to administer it.  For example, the government allows divorced people to get married, but the Catholic Church doesn't, and the government cannot force it to.  The government allows people who don't have any religion to speak of to get married, but most churches I know of only allow members to marry.  I know a couple, members in good standing of their church, who were disallowed to marry in their own church … because they had been living together, "in sin", prior to being married.

No church is forced to marry divorcees; no church is forced to marry non-members; no church is forced to marry anyone.  No church would be compelled to conduct a gay marriage against its wishes.  Nor to accept married gays as members.  This ruling has no bearing on religion.

For all the unchristian Christians wetting their panties about how this ruling "criminalizes" christianity, just think how the muslims in our nation feel.  That should make some "christians" feel better if nothing else does.

2-a] But… but… but … it's traditional!!

The United States was founded in the first place for the express purpose of violating all previous political traditions.  Protecting the rights of the citizens to be free from almost all government intrusion and bossiness? Unheard of!  Government power is traditionally unlimited.  Requiring laws to apply to rich and poor equally? to friend and enemy both? to in-favor and out-of-bounds alike?  Unthinkable!  What good is political power if favors can't be doled out to political friends and official harassment thrown at political enemies?  Yes, it still goes on, but at least we have the integrity to see it for what it is: corruption, at least when "the other guy" does it.

Tradition is untrustworthy, and face it: to be American requires us to discount tradition in almost all circumstances; discounting tradition is the reason we are not British subjects today.  A citizen can still be traditional if he wishes to be, but our government is not permitted to impose that tradition on everyone unless it has a specific power to do so as defined by our Constitution — and it probably doesn't.  People wishing the government to impose "tradition" on this matter are, in very real terms, anti-American.

3] It's immoral, it's disgusting, and it's stomach-turning.

So what, and lay in a supply of antacids.  Freedom works that way — or it's supposed to.  Anyone who wishes the government to step in and compel some people to abide by their notions of "morality" are setting the stage for others to do the same thing in return … and the case can already be made that this very thing, using the government as the blunt [and dim-witted] instrument compelling "moral" uniformity among its citizens, as defined by loud-mouthed, self-righteous crusading minority interests, has long gotten out of hand.  Why, if we imposed moral uniformity just to shut up the loud-mouthed minorities, we might see Prohibition and, after it fails miserably, incremental neo-prohibition; we might see mandatory seat belt and baby seat laws; we might endure shrieking fits about the need to prohibit tobacco smoke concurrent with tear-stained mewling over the stupidity of criminalizing marijuana smoke; and we might suffer endless justifications as to why every person wanting to fly to Orlando must be considered a terrorist until he proves himself to not be.  …to name just a few of the millions of examples.

We were designed to be free in this country; freedom means being immoral when we wish to be, to disgust everyone around us, and upset their poor little tummies.  Deal with it.

4] Marriage is a State matter, and it's up to the states to construct as they see fit.

As long as the State abides by the mandatory restrictions on how it administers its laws … yes.  The US Constitution requires Equal Protection, and federal courts have the duty and obligation to slap the hands of States which do not apply Equal Protection.  This is not a case of the State denying two six year-olds a marriage license.  You can make a damned good argument that six year-olds don't have the wisdom necessary to choose whom, or when, to marry.  You cannot make a damned good argument that adult homosexuals don't have the wisdom … more or less than any other adult has, that is.

4-a] But the majority doesn't like it.

Even if that were true [and it is, in certain parts of the country], we are not a democracy and imposing what the majority wants requires the legitimate power of the government to give it to them … which, on this subject, it doesn't have.  Democracy is, in any event, nothing more than an exceedingly polite term for mob rule, and fickle mob rule at that.  Our government was specifically defined as a constitutional democratic republic to prevent the majority from voting gays back into the closet, from voting blacks to the back of the bus, from lording over every marginal interest it encounters.  While the argument can be made that we have been extremely inconsistent in applying this principle and have become a tyranny of loud-mouthed minorities, our government is, in fact, limited in what it is legitimately permitted to do, regardless of why it may wish to do it.  The majority can go pound sand.  As can loud-mouthed minorities.

4-b] Okay, so maybe a gay couple has a Federal Right to get married, but the States are a separate jurisdiction and can create their own legal rights.

This is a version of the argument made by the sniffle-nose Scalia.  Read the Constitution, Tony.  Specifically, in this case, read section 1 of the 14thAM.  In so many words: a citizen of any State is therefore a citizen of the United States and may not have his US-protected rights denied him by State law.

If you accept the notion of gay marriage as a federal right, then it is, by definition, required to be a State right as well.  This amendment, ratified after the Civil War for the purpose of ensuring that previous slave states would not reinstitute slavery by state law after it had been abolished by the Constitution, had the net effect of "incorporating" states into the Bill of Rights.  In practical effect, it limits the power of the states to legislate to those things Congress is permitted to legislate upon.  A State may create an institution of marriage or not, but if it does, it cannot make many distinctions among those who can be married.  If a State doesn't want gays to be married, their only option is abolish marriage altogether.

You may think what you like of "incorporation", but until the 14thAM is properly and legitimately struck from the Constitution, the Supreme Court is required to make the States obey it, regardless of the subject, regardless of the consequences.

Interestingly, both liberals and conservatives love "incorporation" when it suits their partisan hackery.  And they both loathe "incorporation" when it doesn't.  … owing, of course, to the simplistic notion that American politics can be devolved into such a crisp dichotomy as "liberal" and "conservative" in the first place.

Liberals love "incorporation" today because it makes States accept gay marriage as a matter of Equal Protection when those States don't necessarily want to, and conservatives are wetting their panties over it.  Yet, when the courts rule that States cannot impose gun control in violation of the 2ndAM, conservatives love "incorporation" while liberals loathe it.

It is hypocrisy among both liberals and conservatives, to support "our" idea of freedom when that freedom is for "us", and deny "their" idea of freedom when that freedom is for "them"; to support a limit on government power to boss people around when the bossy government gets in "our" way, but deny a limit on government power to boss people around when it gets in "their" way.  It is the unwillingness or inability for our "legal" "scholars" to do their jobs without reeling off delusional, self-important screed to explain it all, usually getting it wrong, and which mainly serves to obfuscate the subject, that will ultimately prove fatal to our definition of liberty.

Our government — at all levels — has virtually no power to legislate, to boss people around.  It is the job of the courts to recognize when governmental bossiness exceeds the defined power to be bossy, and then to explain, "You don't have that power".  Any court ruling which exceeds a few sentences in length [and they all do] is rationalization, constructing — for example — terrorism exemptions in the 4thAM when one does not exist, or why legislative power partially exists by distinguishing between trimesters while prattling on about "umbras and penumbras" when the power to legislate on the subject of abortion is nonexistent.  Courts abuse their power by permitting legislatures to abuse their own in writing laws they are not permitted to write … which are most of them.

Unctuous, self-serving blather is how the courts told us that even though Congress has no power to create, for example, an old-age pension system, it does have the power to lay and collect taxes, and also the power to spend those taxes; therefore it can create a tax for an old-age pension system, collect that tax, and then spend the money it collects to fund the Social Security pension system it otherwise does not have the power to create.  For another example, Obamacare.  As long as Obamacare is a tax instead of the regulation of a form of commerce Congress is not permitted to regulate, Congress can do what it is not permitted to do, the idiot court told us.  And only grasping, tyrannical police-statists see nothing wrong with this line of anti-constitutional thought.

Our Constitution is simple: the government has a only few legitimate powers to get bossy with its people, and when it uses the power given to it, it must apply that power equally; when it doesn't have the power then it must sit down, shut up, and leave us alone.  And yes, this "leaving us alone" thing can get loud and messy; freedom works that way.

Instead, our Constitution has been rendered into a farcical Truth or Consequences game show, where only the most convoluted, ridiculous and moronic explanations in defense or, more likely, contradiction of freedom ever get heard.  Our Constitution deserves simple explanation:  The power to define marriage belongs to the States, but it must include everyone equally  — period.  Why is this so difficult?


* — After having repeated the hilarious homonymic and linguistic equivocation on "Why are Russians red" for 25 years as described above, I learned over a decade ago that it is, instead, a hilarious homonymic and linguistic equivocation on "why are fire trucks red" with "Russians are always red, and fire trucks are always rushin'" being the endpoint.  I had failed to properly follow the inane reasoning in the correct answer to the question, and reconstructed my own question to fit what I recalled, possibly because I was only 8 or 9 years old when I saw the show, and DVRs, let alone VCRs, did not exist at the time for me to go back and review.

And, as if it needs to be said, the US Supreme Court continually fails to properly follow its Constitutional duties, and perpetually retrofits the Constitution's words to match what it chooses to do in any given circumstance — legalistic equivocation.  This allows, for example, the greasy hypocrite John Roberts to apply a non-argued argument to his Obamacare decision and then to wet his panties about the "bench legislation" of the recent gay marriage ruling.  But the unctuarian Roberts doesn't have the excuse of only being 8 or 9 years old; he was supposed to have studied law to include reading the Constitution.  I am perplexed as to why he's done neither.

Thus it seemed most fitting that I use my misremembered rendition of the joke.