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Abandoning Rights

Posted by Rick · February 29th, 2004 · No Comments

In a discussion on another blog (“Whatever,” maintained by John Scalzi, formerly a film critic for the Fresno Bee), “Todd” argues that Scalzi’s argument for preserving rights he has no plans ever to exercise is “a bit of a humor piece which won’t be taken seriously.”

Among other things, Todd argues that in order to preserve our rights, we should “prove that [exercising these rights] hasn’t destroyed the world.”

This is exactly backwards. The Constitution of the United States places limits upon the government — not upon the citizens. If the government wishes to take away our rights, they must show that 1) they have a genuine governmental interest to do so and 2) that their attempt to take away the right is not unconstitutional.

This article explains that, and also discusses how the Bush Administration’s approach to the controversy over homosexual marriages, its methods for getting conservative judges on the bench, the willingness to use extralegal means to enforce Christian ideals where the law will not allow it and the President’s frequent misguided comments about “activist” judges, are all harmful to the vitality of the Constitution of the United States and, thus, to the continued health of the United States of America as a democratically-driven republic.

Scalzi’s argument was that the way things are currently set up, he (and not just gay men) will have the right to marry a man in Massachusetts and any Federal Marriage Amendment (“FMA”) will take away that right.

Why Not California?

Whatever is maintained by John Scalzi, formerly a film critic for the Fresno Bee. John tells me he no longer lives in California, which is probably why he wouldn’t just marry a man in California if he wanted to do so. I haven’t actually been closely tracking the same-sex marriage debate well, so there may be something different in Massachusetts anyway. In fact, reading between the lines of the discussion at Whatever, it appears to me that perhaps the Supreme Court in Massachusetts is closer to ruling — perhaps already has ruled — on the legality of same-sex marriage than California.

Scalzi says that although he will never marry another man, he is unwilling to give up any rights, even those he will never use.

Todd (who supports gays’ “right to marry”) thinks this comes off as a bit of a humor piece which won’t be taken seriously. It thus, he says, is a loser.

And perhaps the way Scalzi put his argument, it’s not as strong as it could be. For example, he is emphatic that he will never wish to exercise this right, but that he doesn’t want to lose it anyway. Scalzi asserts that he is committed to his current heterosexual marriage. He asserts with certainty that even if he were ever to leave this relationship, he would not want to exercise his right to marry another man…

…but what if he does? He may very well one day wish to exercise the right. And unless he and others fight to defend it now, he won’t be able to ever do that, even if he changes his mind and decides he wants to do so.

Now, first of all, this still isn’t an incredibly convincing argument. It’s stronger than Scalzi’s original argument that one should fight not to give up a right even if one never intends to exercise that right rather than if one merely doesn’t think one wants to exercise it now. But if convincing others that this is a fight worth fighting is Scalzi’s goal, this dog won’t hunt. While the argument that Scalzi must fight for rights he isn’t currently using or lose the ability to ever exercise those rights is logically sound, the average American is not going to be able to see past the content of the current argument to understand that the real danger is in the underlying precedential logic. For them, the argument’s focus on homosexual marriage is going to be a red herring that distracts from the weakening of the Constitution, which is the real danger. This is going to be even more problematic for the rednecks, bigots and right-wing Christians for whom any discussion of homosexual marriage is going to be a red flag.

Todd tries to ameliorate this by shifting to an argument about gambling. What if, he asks, right-wingers go after gamblers, who use the same defense that Todd feels fails to work for Scalzi’s position on losing his right to marry a man? Todd thinks that it will be easier to get people to see the point if we use this argument. Along the way, he argues that we need to “take the emotion out and fight the fight with logic.” I agree that we need to do some of that. I’m a little concerned, though, that Todd thinks this means “prov[ing] that gambling hasn’t destroyed the world.” I would assume that because he is advocating for the use of a logical argument that we could substitute any other right and say that it means “proving that the right you wish to exercise hasn’t destroyed the world.”

Frankly, Todd has this backwards. As I wrote a couple days ago, the Constitution of the United States was originally written as a document that set up and specified limitations upon the government. It’s not up to citizens of the United States to prove that rights they hold are not harmful, in order that they may keep them. It’s up to the United States government to show that it has a constitutional power (and a legitimate governmental interest) to suppress the exercising of a purported right. In the event that the government’s desire to suppress is adjudged illegal under the existing Constitution, it is the government which must convince enough States to ratify a constitutional amendment. Constitutional amendments change the meaning of the existing Constitution, so as (among other things) to allow the abrogation of a pre-existing right, or to grant the government a power it previously did not have. The burden for all this is on the government, not the citizens. We do not have to prove a particular right exists and is not harmful, we only have to assert it; if the government wishes to stop us from asserting the right, it is the government which bears the burden of showing either that the right does not exist under current law, or of finding a way to change the law so as to eliminate the right. That is how the law based upon the Constitution as originally written was intended to function.

And this is where the “second of all” comes in. Right now I do not think non-homosexuals should be supporting the homosexual marriage issue solely on the grounds that gays should be allowed to marry. As I said above, for most Americans, this — while correct — is probably a losing argument. It’s also only symptomatic of a serious threat to the Constitution. Again, I discussed this at some length a couple days ago when I wrote about Attorney General John Ashcroft’s attempts to obtain the medical records for hundreds of Planned Parenthood patients. It was my contention that this was another piece in the puzzle that shows an administration which has no respect for the rule of law.

So now the pieces of that puzzle include the Bush Administration’s approach to the controversy over homosexual marriages, the President’s approach to the problem of getting conservative judges appointed to the bench, the willingness to use extralegal means to effect the freshly-ensconced Christian ideals of the United States government that cannot be implemented through the use of law and, lastly, the President’s increasingly frequent and misguided comments about “activist judges.” And most of these are actually interconnected; nearly all center around the government’s insistence that this is a Christian nation built upon Christian ideals — the rest of us can either accept that or get the hell out.

For the moment, forget homosexuals and homosexual marriage. The Bush Administration’s approach to the problem of homosexual marriage marks the first time in the history of the United States that a constitutional amendment has been proposed to restrict a fundamental liberty of U.S. citizens. Sure, numerous other laws have been passed by both federal and state governments to restrict freedoms through the years, most recently the USA PATRIOT Act. There was even one prior Amendment to the Constitution that restricted the right to manufacture, sell, or transport liquor. (Interestingly, the 18th Amendment does not appear to have prohibited the drinking of alcohol. However, if the restrictions it did provide were followed, it would be awfully tough to find any!) The 18th Amendment — the only Amendment ever to restrict the rights of regular citizens — was repealed by the 21st Amendment fourteen years later. Other than this, no constitutional amendment has ever limited the rights of U.S. citizens; Amendments have either buttressed the rights of citizens or, more often, limited the Federal government’s powers regarding rights which the government was trampling. And no prior Amendment has been seriously considered which would eliminate fundamental rights, such as those governing relations between individuals who wish to marry. Supporting constitutional amendments to restrict the liberties of U.S. citizens, rather than to clarify and enlarge those liberties against the over-reaching of governmental powers, is a dangerous road for us to start down now. Down that road lies the way to serfdom.

President Bush has also twice recently used a special administrative maneuver to make recess appointments of judges. Recess appointments are authorized by the Constitution as a method for keeping the government going if vacancies occur while Congress is recessed. Such appointments are not limited to the judiciary.

Over the years since 1789 — even George Washington used it — the issue of recess appointments has periodically flared into political controversy. Alexander Hamilton wrote, in Federalist No. 67, that the Recess Clause was “nothing more than a supplement…in cases to which the general method was inadequate.” The expectation was that these cases would be limited to times when the Senate was not in session. Since the goal of these appointments is merely to keep the government functioning, these appointments automatically expire at the end of the next Senate session. By that time, the President should be able to vet a candidate that the Senate will support. As Hamilton noted, the “power of appointment is confided to the President and the Senate jointly.” (The emphasis on “jointly” in that quote is in the original. What many people do not realize is that the founders of the United States felt it was inherently wrong and inappropriate in a Republic based on democratic principles to allow the President to appoint ambassadors, public ministers, consuls, Justices of the Supreme Court, federal judges and other officers of the United States without the approval of the Senate. Complaints by Presidents about this set-up are tantamount to complaints that they may not run dictatorships; they are complaints about having to consult with senators who theoretically represent the will of the people, the citizens of the United States upon whom the President would impose his appointments.)

After controversies over President Eisenhower’s recess appointments, a political agreement was reached between the Senate and the White House that recess appointments would be limited as to the Supreme Court, at least. Over the years since Eisenhower, the debate has heated up as both Republican and Democratic Presidents have made recess appointments. Interestingly, Republican Presidents typically make dozens of these types of appointments, while Democrats have made a few.

In 1999, however, President Clinton made a recess appointment of James Hormel to be ambassador to Luxembourg. When the Senate returned, Republican Senator Inhofe announced that he was going to do the same thing Senator Byrd had done in 1985, when recess appointments were running rampant: “I’m going to put holds on every single Presidential nomination.” He complained that Clinton treated the confirmation process “as little more than a nuisance which he can circumvent whenever he wants to impose his will on the country.” Senator Inhofe and other Republicans are strangely silent, or even supportive, now that President Bush is “impos[ing] his will on the country.”

Both men to whom Bush has given recent recess appointments to judgeships are known not just for their conservatism, but for their antagonism to abortion and to the separation of Church and State. Former Alabama Attorney General Bill Pryor, for example, is noteworthy for his support of former Chief Justice Roy Moore, who stirred controversy by installing the Ten Commandments in the Alabama state judicial buildings. In spite of numerous legal rulings against him, and eventually losing the support even of his colleagues, Moore refused to obey court orders to remove the monument, saying that there was a higher law which he must obey. This sort of thing is no problem for the supporters of the Bush Administration ideals, however. For the time being, the laws of the United States may be against them, but they will either change or, failing that, ignore and circumvent them.

Circumvention and intimidation are the tactics currently being used by Attorney General John Ashcroft regarding abortion. Anti-abortionists such as Ashcroft have been unsuccessful at reversing the effect of Roe v. Wade and stopping abortions. It’s not my intent here to argue the goodness or badness of abortion. Personally, I don’t support abortion. I’m not even sure that I am against laws that might regulate abortion in some way. The reality of the law, though, is that abortions are legal in the United States. Attorney General John Ashcroft is bound by those laws and he knows this. Since he cannot legally stop abortion he proposes to frighten women who would have them by making very public attempts to obtain their medical records. And is it an accident that the Planned Parenthood sites from which he seeks records are the sites where Planned Parenthood’s expert witnesses work? It looks as if the Attorney General wishes to achieve through frightening women and intimidating witnesses what he and other anti-abortionists have been unable to achieve by law.

Maybe you don’t have a problem with this. Maybe, like me, you also think abortion is something which should be avoided whenever possible. Maybe, like me, you abhor the use of abortion as just another form of birth control. Yet that isn’t the problem here. The problem is the methods of the current administration in dealing with these issues. Right now, millions of you are either complacent or supportive of these tactics because you are not the targets of these methods. But if we let our government get away with such things now, what’s to stop them when some other administration, less politically-aligned with your views, employs the same strategies? It’s high time to understand — and make our leaders understand — that the ends do not justify the means. Regardless of the particular viewpoint you or I have on abortion, there is a right way and a wrong way for our government to try to modify the behavior of citizens. Intimidation, fear and coercion are not tools that our government should be using to modify otherwise legal behaviors.

The last piece of the Republican puzzle involves actually selling those of you whose freedoms have not yet been directly impacted. The Bush Administration, like many before it, has its differences with the courts. After all, the tension between the Administrative, Legislative and Judicial branches of the government was deliberately built into the Constitution by those who set up this country. The idea was that by scattering the power of the government across these three groups, no one branch of government would have enough power to become truly despotic.

Even before Marbury v. Madison, the courts have had an uneasy relationship to the other branches of government. The Constitution envisioned a tripartite government with the powers of governance divided more or less equally between them. This creates an inefficient form of government, because the checks and balances built into it make it difficult for one person — say, the President — to push through a program without having it poked, prodded and perhaps re-shaped into something he had not intended.

Yet, as noted, this inefficiency is not an unintended accident; the Founders planned it that way. The Constitution — and, again, it wouldn’t take you long to read this short document — deliberately set up three separate and even competing branches of government in order to create checks and balances that would make the kind of power the British government had exercised over them impossible to recreate. It is often erroneously stated that they created a Legislative branch to make law, a Executive branch to execute law and a Judicial branch to interpret the law. While they did create three branches frequently so-named, guess what? All three branches of government make law! All the time!

When the Legislature “creates law,” the Bills it passes are forwarded to the President for signature. The full explanation of what happens next is beyond the scope of this blog entry, but without some action or inaction on the part of the President, the legislation passed by Congress does not become the law. And when the Legislature passes legislation and the President vetoes that legislation, how is this different from the court holding some law unconstitutional (and thus effectively vetoing it)?

When the President puts out an Executive Order, such as he did January 30, 2004, regarding the implementation of a Space Exploration Policy or when he creates military tribunals as he did on November 13, 2001, he is making law. (For those who doubt this, try to challenge the authority of a military tribunal Bush has created. Those covered by his executive order cannot ignore the order and the courts have so far enforced it’s legality.)

President Bush — and he’s not the first — likes to complain about “activist judges.” They are “activist” in his opinion because they “make law” and, in the mythology frequently pressed by the Executive and Legislative branches of government when they aren’t getting their way, this isn’t what the Judicial branch of government is supposed to do. Yet no one ever complains about an “activist” President just because, following their thinking, the Legislative — and not the Executive — branch is the only branch of government which should “make law.”

So what about the place of our courts in the making of laws? Marbury v. Madison (5 U.S. 137 (decided February 24, 1803), at pp. 177-178) states,

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. (Emphasis mine.)

And this concept, often referred to since as the Court’s power of judicial review, has “remained the linchpin of our constitutional law ever since.” (Rehnquist, The Supreme Court: A new edition of the Chief Justice’s classic history (2001), at p. 35.)

As noted in a previous article, those of you who are parents or supervisors or managers know well that nearly all laws are subject to interpretation and, depending upon how they are interpreted, there will be a different result. Someone has to state how the laws will be applied to real cases. And the President of the United States, with his frequent and increasingly strident complaints of “activist” judges, would have you believe that it is not the courts.

Yet the Constitution states,

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between Citizens of different States, — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. — Constitution of the United States, Article III, clauses 1 & 2.

Not much is left out. It would appear that the President is — gasp! — wrong.

While his insistence upon the wrongness of judicial “activism” is not altogether new, I think in conjunction with the other activities of his administration that it is more dangerous than similar complaints from years past. (Lest anyone think that only “liberal” judges such as those Bush claims to be attacking are impugned, read this and, also, consider a quote from Mary Ann Glendon’s book, A Nation Under Lawyers (1994), at p. 117. In a discussion of the Supreme Court becoming involved in “bitter social and political controversies over issues like slavery, economic regulation, segregation and abortion,” she asks, “How did it come about that ‘conservative,’ ‘moderate’ justices on today’s Supreme Court are often more assertive and arrogant in their exercise of judicial power than the members of the ‘liberal,’ ‘activist’ Warren Court?”)

First, as discussed above, there is the problem of Bush’s denial of the proper role of the courts in our system of government. Second, by coupling accusations of “activism” with so-called “liberal” judges, he reinforces a distrust of the judiciary that is not only unwarranted, but ultimately undermines the concept of the rule of law in the United States. When we, as Americans, come to believe that the courts are our enemies, we put less faith in their rulings. Ultimately, this leads to a general societal disregard for law which is harmful to both so-called “liberals” and “conservatives.”

And the third problem with the President’s complaint about judicial “activism” is that he never ceases to hammer away at it; it has become a frequent refrain. This makes the first and second problems I’ve identified all the worse, for America has become a nation of people who no longer read — and thus no longer read the works upon which this blog is based; not the Constitution, the Bill of Rights, or the cases, treatises or discussions regarding the foundational issues of freedom and governance since. Instead, we watch television; we go in for sound bites. We neither take the time to consider the virtues of those sound bites, nor do we have the intellectual resources to deal with them.

Lacking either the resources or the understanding of why it is important not to become complacent about any of our freedoms, we become prime targets for those who would abuse us, for those who would dismantle the great country that has nurtured us all these years in service to “a higher law.” We become prime targets for a return to serfdom as we abandon our rights without even so much as an argument, just because we think only homosexuals, terrorists, or others whose cause we would not wish to support are the only ones affected.

But a disregard for the Constitution, the Bill of Rights and the rule of law affects us all, for once we’ve set a precedent by abandoning those rights we never intend to exercise, we’ve laid the groundwork for the taking of those we would not wish to lose.

Categories: Constitutional Issues


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