Gay Marriage.. A libertarian lesson on Constitutionality and Freedom.

Let me preface this by saying I have no problem with gays or gay marriage. The recent threads and discussions about Gay marriage have brought me to an important realization: Most American citizens do not understand constitutionality or even how the federal government today operates unconstitutionally. Being a "Constitutionalist" or "Libertarian" has given me a sense of obligation in this matter. The recent discourse has provided an excellent example of how the federal government is operating outside of its bounds.

So... Let me proceed.

The issue of gay marriage (and pretty much all major issues left in the hands of federal government) shouldn't even be on the federal government's radar. Nor should we expect them to handle it. The constitution was designed in a fashion that explicitly stated our inalienable and natural rights. It doesn't GIVE us rights to do anything, it STATES them and says that NO ONE can infringe on them, not even government. Anything the federal government legislates must be agreed upon by the people or states within the union.

The Constitution was created by the states and any question as to the meaning of the Constitution is rightly settled by the states. When you make rules for your children, do you permit your children to interpret your rules in any manner they like? Of course not. Yet, the states are permitting the federal government, the "child" of the states, to do exactly that.

The Supreme Court SEIZED the power of "Judicial Review" through Marbury v Madison. It is not a power granted to the Supreme Court by the Constitution. When the Supreme Court exercises Judicial Review, it is acting unconstitutionally. It is a huge conflict of interest. The Federal Government is judging the constitutionality of its own laws. It is a classic case of "the fox guarding the hen house."

The Constitution's "checks and balances" were designed to prevent any one branch of government (legislative, executive or judicial) from becoming too powerful and running roughshod over the other branches. Who is watching the Supreme Court and will prevent the Judicial branch from acting unconstitutionally? No one.. so as it stands, the government can deem what is and isn't lawful or constitutional without the will of the people/states.

You cannot legislate freedom.. "Legislating Freedom" is a complete oxymoron. Freedom is without bounds and legislation creates boundaries. We are effectively legislating the freedom of choice and personal preference even if it DOES grant gays federal recognition of their marriage. This directly contradicts the idea and philosophy of freedom. The fact that we recognize heterosexual marriage and grant benefits based on marriage, contradicts with the 14th amendment because it doesn't treat all citizens of the United States as equals:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As shown by our current situation.. Legislation of freedom will create inequality, just as it has already done and will continue to do.

Cut the federal government out of the equation (As it was intended to be) and let the people of the states decide the outcome for themselves. The representation at the federal level doesn't do "We The People" any justice. Let the states decide the outcome on a heterosexual marriage too. This is much bigger than "Gay Rights".. This has to do with every facet of our lives and every law on the books. This is about freedom in general.

If this is the land of the free, we must be the keepers of our freedom. We must all learn to live our own lives and tolerate the decisions of others so long as they do not infringe upon our rights or decisions. That is what this country was founded on. The freedom to do as you will within reason and tolerance of your fellow man. We are here for liberty, life and the pursuit of happiness. This country was created in order to escape the exact things people are shouting in support of today.

The founding fathers are not given enough credit for what they could see for the future of this country. The constitution has been trampled by big government and misunderstood by the very people it protects for far too long. While marriage isn't a constitutional right (Nor should it be), FREEDOM and LIBERTY are born rights of the people and those two words encompass things such as marriage.

I hope this will not only help people understand the power we have as citizens here but also what all the "fuss" of constitutionality is.

reply to post by ZiggyMojo


Very well said. I couldn't agree more.

The idea of putting this anywhere the federal government is intrinsically against the Constitution itself. It will be another terrible day for freedom if the government has any final say in this whatsoever.

We can only hope that someday people realize what freedom is and take it for themselves.

reply to post by TheNewRevolution


It's a pretty huge obstacle.. Many people really can't wrap their head around "Freedom" in the truest sense of the word. We've been conditioned to believe that what we are experiencing today is "freedom". It is all relative to where we have been and how the world is operating around us.

Since your a constitutionalist (textualist) you should know that nothing is unconstitutional unless the Supreme Court says it is.

If the States didn't want them to have judicial review they could have their representatives change the law or the Constitution itself to take that power away.

The fact that they haven't means the States agree with the Supreme Court having judicial review. This is all per our Constitution.

Yes, yes, yes, and YES!

I think it's very sad that an entire percentage of our population (homosexuals) believe that they need the government's permission to marry.

What they should be seeking, as should all of us straight married people, is to get the government out of the marriage business all together and just let people live their own lives.

As for the "benefits" of being married, all of that can be taken care of with wills, joint ownership, and living trusts. Also, some of us are actually punished by our higher tax rate.

reply to post by Hopechest


Did you even read the whole post? The Supreme Court was granted the power of judicial review through a landmark case called Marbury v Madison.

THEY GRANTED THEMSELVES THE POWER TO DEEM WHAT IS AND ISN'T CONSTITUTIONAL WITHOUT THE SAY OF THE STATES.

Marbury v. Madison was the case that established judicial review of the decisions of the executive and legislative branches. Marbury sued Madison (the then Secretary of State) to deliver his commission for a position that now is little more than a common pleas judge, possibly even less so. The case made its way to the Supreme Court and the Chief Justice (Marshall, who was the Secretary of State prior to Madison and belonged to the ousted party - the same as Marbury and therefore had to be very careful about what he said) ruled that the Constitution gives the Supreme Court and other judicial courts the authority to determine if actions by the other branches are constitutional.

There were no "checks or balances" in place here.

reply to post by ZiggyMojo

The fact that we recognize heterosexual marriage and grant benefits based on marriage, contradicts with the 14th amendment because it doesn't treat all citizens of the United States as equals
...
Cut the federal government out of the equation (As it was intended to be) and let the people of the states decide the outcome for themselves.

The libertarian solution is always an idiotic one.

Let me see if I get this straight...your solution is to strip all marriage benefits and then let each individual state decide it on their own....right?

So you aren't for equality...you are for 50 different inequal states...again...an idiotic solution.


The Libertarian pipe dream will never become a reality...I don't want my legal actions in my home state get me arressted in a state I am traveling through in my OWN DAMN COUNTRY.

We are never going back to "States Rights" and 50 individual mini-nations with their own set of laws...so just give it up already.

reply to post by TheNewRevolution

The idea of putting this anywhere the federal government is intrinsically against the Constitution itself. It will be another terrible day for freedom if the government has any final say in this whatsoever

It's too late due to the privileges and protections the government grants heterosexual marriage. So the real questions are do we continue as is, limiting access to those legal privileges and protections, which would be violating the 14th and allowing an inequality to exist or do we extend those legal privileges and protections to homosexual marriage/unions OR do we take away those legal privileges and protections out of marriage of any kind?

reply to post by Jabronie

As for the "benefits" of being married, all of that can be taken care of with wills, joint ownership, and living trusts.

And spousal SS benefits? And putting your spouse on your insurance?

We have created a system where your spouse is granted certain legal benefits...the solution isn't to tear the entire system down to prevent homosexuals from enjoying the same benefits.

The solution is very very simple...treat them as equals.

Originally posted by ZiggyMojo
reply to post by Hopechest

 

Did you even read the whole post? The Supreme Court was granted the power of judicial review through a landmark case called Marbury v Madison.

THEY GRANTED THEMSELVES THE POWER TO DEEM WHAT IS AND ISN'T CONSTITUTIONAL WITHOUT THE SAY OF THE STATES.

Marbury v. Madison was the case that established judicial review of the decisions of the executive and legislative branches. Marbury sued Madison (the then Secretary of State) to deliver his commission for a position that now is little more than a common pleas judge, possibly even less so. The case made its way to the Supreme Court and the Chief Justice (Marshall, who was the Secretary of State prior to Madison and belonged to the ousted party - the same as Marbury and therefore had to be very careful about what he said) ruled that the Constitution gives the Supreme Court and other judicial courts the authority to determine if actions by the other branches are constitutional.

There were no "checks or balances" in place here.

I know this case very well and have studied it in depth.

The Supreme Court was basically forced to make this decision because Jefferson tried to invalidate any of their authority. He absolutely hated the Supreme Court and thought he had them in a corner....study the case.

As for what I stated there is nothing that isn't factually correct. If the States don't want the Court to have judicial review they could take it away through the amendment process.

They haven't. Not sure what your not understanding here. Another factor to consider is how do you resolve an issue where half the States are arguing about a constitutional issue and the other half are arguing the other side?

Without someone to make a definitive call the issue will never be resolved and you may end up with another Civil War. Somebody needs to have a final authority.

That is what I have been telling people.

I am not pro gay marriage. I am not against gay marriage. I am not pro straight marriage. I am not against straight marriage.

I am pro people living their lives in peace and harmony and love with as little interference from the government as possible.

reply to post by Jabronie


That's a myth. Proxy's, Wills etc can be contested by other family guess who gets the least say in court in those situations? A direct blood tie almost always gets more weight than a same sex partner, even if in a civil union.

The federal infrastructure is what has created things such as social security and tax benefits. The massive government is conducive of more legislation to keep itself from crumbling under the pressure it created on itself. That legislation slowly erodes the actual FREEDOM we have.

reply to post by Kali74


Constitutionally speaking, the benefits should be taken out of marriage altogether and it should be removed from the federal que.

That, however, is a pipe dream and as it stands is probably not going to happen.




There doesn't need to be a system of spousal benefits, there can simply be a system where people give permissions of people to have benefits, no government or marriage intrusion necessary.

It's funny. Most of the people against Gay Marriage are for Small Government and Less Government intrusion into every Americans life.
Yet there they go to the SCotUS to get the Government to intrude into Americans lives.

Bunch of hypocrites.

reply to post by Hopechest



Given that it was the people and the states which established the Constitution, it is the states who should settle issues of constitutionality. The Constitution is a set of rules made by the states as to how the government should act. The "judicial review" paradigm allows the government to make its own rules with no say by the original rule-makers — the states.

The Constitution is very clear; any power to review laws to see if they are constitutional belongs to the states and to the people.

Marbury V. Madison happened prior to the first civil war and it played no role in stopping it. Additionally there is no CHECK or BALANCE for the Supreme court as there are for both the Executive and Legislative branches. Justices essentially serve for a lifetime and the people of the United States have VERY LITTLE say in who is appointed.
We're essentially weighing the most controversial issues between 9 people and hoping they'll make a decision that is representative of close to 315,000,000 people.

The president of Turkey said one beautiful sentence . King of Jordan said that he said "Democracy is like a bus , you will get off the bus at the right stop".

IMO , Freedom and other rights are the candy on the bus to distract the masses.

Your govt neglects your rights anytime necessary , and yet you discuss the bus you are not on.

Given that it was the people and the states which established the Constitution, it is the states who should settle issues of constitutionality.

As I've stated, what do you do when two or more states have differing opinions on what's constitutional? Just leave the issue resolved? That's not possible.

The Constitution is a set of rules made by the states as to how the government should act.

There are rules in there but the Constitution is mainly describing powers the States are relinquishing to the Federal Government. The whole document is about increasing the power of the federal government and weakening the power of the States. The states were not operating well under the Articles of Confederation and the Union was falling apart. The States had far too much individual power to make their own rules.

The Constitution is very clear; any power to review laws to see if they are constitutional belongs to the states and to the people.

I would love for you to show me where it states this in the Constitution.

Marbury V. Madison happened prior to the first civil war and it played no role in stopping it.

Nope it didn't because the southern states would not have followed any Supreme Court decision in the first place. Its rather important to note that if they had, the Court was extremely sympathetic to the Southern cause at that time. However, the South did not want to deal with Lincoln.

Additionally there is no CHECK or BALANCE for the Supreme court as there are for both the Executive and Legislative branches.

Yes there are checks on the Court. The Congress could pass a new law or amend the Constitution and they also have the ability to impeach any of the Court members. Not sure how you do not consider that a check.

Justices essentially serve for a lifetime and the people of the United States have VERY LITTLE say in who is appointed.

The Senate confirms them and is made up of representatives chosen by the people. The Constitution, as you said earlier, was written by the people and the States and they laid out the ground rules for how the Supreme Court Justices are elected. Not sure how you think the people have no say in this, they made up the rules.

We're essentially weighing the most controversial issues between 9 people and hoping they'll make a decision that is representative of close to 315,000,000 people.

The Supreme Court actually has a long history of siding with the majority. This is why they reverse their own decisions at times, because it is reflective of the population. They have done this on a number of issues, specifically in regards to commerce and civil rights.

Originally posted by Hopechest
As I've stated, what do you do when two or more states have differing opinions on what's constitutional? Just leave the issue resolved? That's not possible.

Issues of constitutionality would be resolved to the legislative branch or democratically through the people. The process may be slower, but it is indeed a better option as it creates "Ownership" of laws and of the Constitution. Justices are just people, there is nothing special or all knowing in comparison to anyone else, they're studied or tenured in law and that's the biggest difference. Their decisions are based on how they've been persuaded and what has persuaded them could just as easily persuade the you and me's of the United States.

The system is technically already in place. Different states have different laws and many of those laws already contradict federal legislation.

Originally posted by Hopechest

The Constitution is very clear; any power to review laws to see if they are constitutional belongs to the states and to the people.

I would love for you to show me where it states this in the Constitution.

The 10th Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

There is nowhere that any branch of the federal government is given the power to review the constitutionality of law and therefore it is reserved to the states and or people. The tenth amendment is perhaps one of the most important in regards to understanding that the document is meant to protect the power of the people.. not give it to the federal government. The Judiciary branch is notorious for completely disregarding the 10th amendment.

Originally posted by Hopechest

Marbury V. Madison happened prior to the first civil war and it played no role in stopping it.

Nope it didn't because the southern states would not have followed any Supreme Court decision in the first place. Its rather important to note that if they had, the Court was extremely sympathetic to the Southern cause at that time. However, the South did not want to deal with Lincoln.

So essentially what you're saying is the states weren't going to listen anyhow.. Which means that we had a civil war regardless of whether or not we had a deciding power to resolve constitutional conflicts. So the threat of civil war is present regardless of whether or not the Supreme Court can interpret constitutionality of legislation.

Originally posted by Hopechest

Additionally there is no CHECK or BALANCE for the Supreme court as there are for both the Executive and Legislative branches.

Yes there are checks on the Court. The Congress could pass a new law or amend the Constitution and they also have the ability to impeach any of the Court members. Not sure how you do not consider that a check.

Go ahead and pass a new law, the Supreme Court can't necessarily overturn it, but they can interpret the amendment or the constitution in such a way that the part they don't like isn't functional. In some cases it CAN be deemed unconstitutional.

A Justice may be impeached by the HR and removed from office if convicted in a Senate trial, but only for the same types of offenses that would trigger impeachment proceedings for any other government official under Articles I and II of the Constitution. So unless a Justice had done something impeachable then good luck getting them out.

Originally posted by Hopechest

Justices essentially serve for a lifetime and the people of the United States have VERY LITTLE say in who is appointed.

The Senate confirms them and is made up of representatives chosen by the people. The Constitution, as you said earlier, was written by the people and the States and they laid out the ground rules for how the Supreme Court Justices are elected. Not sure how you think the people have no say in this, they made up the rules.

While I agree that we elect the officials who confirm Justices, the President appoints them. The people only have the decision to the point of who the President has chosen. Also, with unlimited terms, there is nothing stopping a Justice from flip flopping at any time. Unless they had done something impeachable, they will remain a Justice.

Originally posted by Hopechest
The Supreme Court actually has a long history of siding with the majority. This is why they reverse their own decisions at times, because it is reflective of the population. They have done this on a number of issues, specifically in regards to commerce and civil rights.

I'll agree with you on this.. BUT, it can also be said that this isn't 100%. This is just the precedent that has been set thus far. There is nothing stopping them from holding to their original decisions

reply to post by xedocodex


We actually already have 50 individual states with their own laws.. Where are you living? All states have their own laws, and you're expected to follow them when in that state. It's legal to smoke or be prescribed Marijuana in some states, but when you go to others you are expected to abide by their laws.. There are no civil wars popping up. The states deal with it within their boundaries.

There are some states that recognize Gay Marriage too..

The federal government is the problem here.. We were founded as a republic not as a single entity by which all would be governed.