Sunday, January 24, 2016

Reaction to SCOTUS Gay Marriage Ruling Vindicates Hamilton’s Bill of Rights Warning

In the COMMENT section of the New Jersey Star-Ledger’s editorial on the Supreme Court’s ruling (Historic gay marriage ruling means 'love is equal' now), a correspondent calling himself speaktruthtopower wrote, with my emphasis added:

If the author [of the aforementioned editorial] had any integrity or intellectual honesty, he would be lamenting this decision as an attack on constitutional democracy in this country.

The Supreme Court only has the authority to interpret constitutional rights that the American voters give them the authority to interpret, when the American voters write them into the Constitution.

Whatever your feelings are about gay marriage, what is clear is that in 1868, when the 14th Amendment was added to the Constitution, the American voters never put anything in the Constitution about gay marriage (or marriage at all, for that matter). That means the Supreme Court had no authority to decide this issue.

Five judges on the Supreme Court took for themselves the power – found nowhere in the Constitution - to impose on the rest of us their personal opinion about gay marriage. It’s a move worthy of history’s great dictatorships.

Read the decision. There is nothing in the decision with even the pretense of legal reasoning. It’s full of the judges’ personal opinions and philosophies on life. It’s nothing short of an outrage.

But, to the author, none of this matters. Only the results (he wants) do. The Supreme Court can trample on the Constitution, so long as they come out with a result that the author likes. That’s a position consistent with a dictatorship, not a democracy. It’s also a fitting tribute to the decayed state of the media in this country.

Here are the chickens of Hamilton’s opponents coming home to roost.

Speaktruthtopower and all those who hold his view are wrong on multiple counts. American voters don’t “write [rights] into the Constitution.” That “American voters never put anything in the Constitution about gay marriage” is all the court needed to uphold gay marriage as a right. The Supreme Court most definitely had the authority to decide as they did. Speaktruthtopower has it exactly backwards. The Constitution doesn’t grant government the power to infringe our liberties, because no proper government can infringe or deny our rights, so long as in exercising our rights we don’t infringe on the same rights of others—in which case the rights-violator would have forfeited certain of his rights. The government would have done its job of protecting rights by denying the rights-violator his rights—by incarceration, fines, or other penalties.

The specific rights enumerated in the constitution are only a sampling and an unnecessary redundancy. We have a government of enumerated powers, not enumerated rights. Since the government was not granted any power to deny any marriage to any consenting adults, it clearly has no power to deny the rights of same-sex couples to marry. When it comes to rights, the burden of proof rests not with supporters of rights, but with opponents, who—to justify the denial of rights—must show how the exercise of the right in question violated the rights of others by initiating force or fraud against them.

The constitution grants no power to regulate or forbid marriage, as speaktruthtopower observes. Yet he is claiming that, because the constitution does not expressly allow gay marriage, that no such right exists. Furthermore, since the constitution does not expressly authorize the power to interpret rights, the Supreme Court has no power to rule on gay marriage, a ruling which he asserts is the mere “personal opinion of five justices,” not grounded in sound constitutional principles. This, despite the Ninth Amendment, which clearly states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and which speaktruthtopower conveniently ignores.

Furthermore, because the amendments require voter approval, the implication can be drawn that rights are granted only by your neighbors’ approval at the ballot box—and speaktruthtopower draws on that implication. But, contrary to speaktruthtopower’s assertion, a democracy is a dictatorship, albeit one based on a succession of elected dictators. Rather than a King with unlimited powers, a democracy features an electoral majority with unlimited powers. Just as Hamilton warned could happen, speaktruthtopower portrays America’s constitutional rights—paraphrasing Hamilton—as “stipulations between the majority and its subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the majority.” To paraphrase speaktruthtopower, “If a majority could take for themselves the power – found nowhere in the Constitution - to impose on the rest of us their personal opinion about gay marriage, it’s a move worthy of history’s great dictatorships.” If a nation whose people’s “rights” are mere privileges granted by a majority is not a dictatorship, then what is?

If rights depend on votes, then they are nothing more than tribal privileges, which the collective can trample at any time, for any reason, through its rulers, be they a King, cleric, dictator, or elected representative.

America is not a constitutional democracy based on enumerated rights granted by the people, as speaktruthtopower and many others believe. America is a constitutional republic based on inalienable individual rights with a government charged with the task of protecting those rights through enumerated powers granted to the government by the people for that purpose only. Since the government’s only purpose is to protect rights, and rights are unalienable, it stands to reason and principle—and the Declaration of Independence—that America is not a democracy; the majority has no power to either grant rights nor grant the state the power to violate rights.

Nonetheless, the Bill of Rights is a danger to rights not expressly listed, as Hamilton observed. It has created a lot of legal confusion, even with the Ninth Amendment. In the absence of a Bill of a limited number of Enumerated Rights, liberty advocates must ask, in cases like the gay marriage issue: Where in the constitution is government granted the power to usurp that right? As Hamilton screams to us from across the centuries, the door would not be open to the plausible counter-argument, Where in the constitution is there a right to gay marriage?, to confuse us and undermine that and numerous other rights.

But the Bill of Rights is here to stay. Fortunately, we have a powerful weapon with which to protect all of our liberties all of the time—the Ninth Amendment. The Ninth Amendment was an attempt by James Madison to mitigate the fears of people like Alexander Hamilton. Even Madison, a Bill of Rights supporter, called Hamilton’s argument “one of the most plausible arguments I have ever heard against the admission of a bill of rights into” the constitution. We should point out that, contrary to speaktruthtopower’s assertion, rights not listed in the constitution such as gay marriage are not rights created by the Supreme Court, but rights upheld by the Supreme Court—by virtue of the Ninth Amendment.

On gay marriage, the question is not: Where in the constitution does one find gay marriage rights? The question is: How does the marriage of consenting adults of the same sex violate the rights of others? Opponents of gay marriage have not passed that test. Therefor, gay marriage, though not enumerated in the constitution, can not be denied or disparaged—as per the Ninth Amendment—because, the fact is, we the people don’t need any explicit constitutional authority to exercise any of our individual rights.

Related Reading:

On This Constitution Day, Remember the Declaration of Independence

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