I’m finding interesting material again over at Scalzi’s Whatever in the Comments to a post about gay marriage. Derrilin, for example,wants to know whence come rights; specifically, whence comes the right to marry?

This seems at once a difficult and an easy question to answer. It’s easy because we might be tempted to argue that you — that is, you, the individual — don’t have any rights unless they “come from” somewhere. And I could be completely off-base here, perhaps hearing Derrilin’s question through biased ears that add something to his question he didn’t intend, but I heard this as “What gives you the right, Individual, to do something? What makes you think you have a right to marry?”; I heard it as a challenge.

My apologies to Derrilin if this is a twisting of his thought. It nevertheless affords me an opportunity to talk about what gives anyone a right and, further, to talk again about the meaning of the Constitution of the United States. (Derrilin, I believe, is from New Zealand, so he might not care about this. His question, nevertheless, has been asked by Americans, as well, and it provides, as I said, a good opening for this discussion.)

At any rate, one might as easily ask, “What gives anyone else ‘the right’ to stop the individual from doing whatever he or she wishes to do?” This blog entry attempts to answer all these questions and to do so in the context of the Constitution of the United States and the country that purports to value and defend its principles.

A “right” to do something exists merely because someone wants to assert it. This wouldn’t change just because a society developed. One might never think to call it a “right,” though, because, after all, in the absence of a society, who’s going to stop you? You’d just do it. (And, of course, in the absence of a society, you’d probably have little use for naming things, anyway.)

Why would a right to do something need “to come from somewhere”? It’s just naturally your “right” to do something unless something else mitigates against that (and has the power to stop you from ignoring any attempts to stop you from doing it). So you might say that you have a “natural right” to do what you want.

Once a society is created, there are some things that the collective just decides they don’t want to allow other people to do. But in considering this, you could as easily turn the question above around: Where does the collective get the right to stop the individual from doing what the individual wants to do? (For this discussion, I’m going to avoid the obvious fact that even before the collective arrives at a decision to stop an individual, another individual may decide to do it and may even have the strength to follow through. I don’t think the general argument should fail anyway; I’m not going to buy a “might makes right” argument.)

It might “make sense” for the collective to prevent you exercising your natural rights “for the benefit of society.” If you disagree, the collective may just force its will upon you; they may imprison you or otherwise deprive you of the ability to exercise your will (this natural right). In keeping with what I said (parenthetically) in the last paragraph, I don’t say this would make it right (good, correct, of value, whatever) for society to do this — it’s just what it might do.

The United States was founded upon specific ideas about the ways in which the collective will of the people obtained the force of the government to deny an individual his or her ability to do a thing he or she might want to do (e.g., to exercise a natural right).

Some natural rights were considered to be “unalienable.” Some were not. An “unalienable” right is one which — so it was and has been considered — the collective could not justifiably take away. As to the others, it was felt that the collective could make the decision, even forcing the individual to forgo a right.

The Founders of the United States both expressly and impliedly indicated these views. In the opening words of the Declaration of Independence from the government that existed before the colonies became “the United States of America,” our Founders expressly stated a portion of this by these words:

WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness — That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

So the purpose of government stated here is to provide for the rights of the people whom the government will govern. In order to protect the rights of the people even from that government, the Constitution established the form of government that the Declaration had said was justified and then also described its limits.

That’s right. The Constitution of the United States was not written to grant any rights to people. It was assumed that such rights existed already. Among the rights the people held were perhaps others, some of great and some of not-as-great importance.

Now, some people were concerned. Having had experience with despotic governments (not limited to Great Britain), they were afraid that the Constitution’s focus upon the limits of government might not be sufficient enough to protect the rights of the people. So concerned were they that some insisted upon a Bill of Rights before they would be willing to ratify the Constitution.

Yet delineating all the rights a human being might have would be a herculean task. Not only might a group of people be unable to sit down and determine all the rights humans had at the point when a Bill of Rights was being written, but anyone with a little foresight might realize that new situations might arise in the future which would cause someone to want to do something that had never been thought about before. Therefore, the most critical rights were specifically delineated in the first nine amendments to the Constitution. The experience of the people had shown that certain rights were more likely to be abridged and that their abridgement was more likely to detract from their ability to enjoy Life, Liberty and Happiness.

Nine amendments? Nine? But I thought the Bill of Rights consisted of the first ten amendments to the Constitution?

Of course, that’s correct. The tenth amendment says,

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.

And so the Constitution, with its Bill of Rights, was written to limit the government, in order to make sure it did not step on the rights — whatever they might be — of the people living in the country upon which it was founded. It was most definitely not written from the point of view that people’s rights needed to come “from somewhere.” It was most definitely not the case that people only had rights which might be given to them by the Constitution or “allowed” by the government. On the contrary, any rights not specifically spelled out — either by prescription or proscription — were assumed to belong to the states or the people.

When I say, “any rights not spelled out by prescription,” I mean any rights that were not specifically given to the government. What do I mean by “proscription”? You’ll note that the 10th Amendment indicates that there are (at least probably) rights that belong to either the states or the people. But the Constitution goes farther than this. It specifically indicates that even as to the states, there are some things that they cannot do. So the Constitution of the United States serves not only to limit the rights of the federal government, but also any governments the states establish.

And guess what? Nowhere does this language limit the rights of the people. The Constitution expressly limits the federal government. It even expressly limits the state governments. No limitations are expressed as to the people.

The question here isn’t about “what gives you the right” to do anything. The question is “what gives the government the right to stop you?”

And focusing attention now on the question of homosexuals wanting to marry, the question is unchanged: What gives the government the right to stop them? At the moment, the answer to that question is more than “nothing.” For not only is it the case that nothing gives the government the right to stop homosexuals from marrying; the Constitution of the United States forbids the government the right to stop them.

The Fourteenth Amendment to the Constitution of the United States says,

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.

It’s noteworthy that the United States, by law, once only allowed white people to marry white people, brown people to marry brown people, red people to marry red people, yellow people to marry yellow people and black people to marry black people. In reality, the miscegenation laws were most often used to keep black people from marrying white people (or vice versa). In 1967, however, in the case of Loving v. Virginia, the United States Supreme Court said,

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival… To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.

Richard Loving was a white man and according to the State of Virginia, he had made the mistake of loving Mildred Jeter, “a Negro woman.” Not liking this, the state sentenced the Lovings each to serve a year in jail, although the court agreed to suspend the sentence so long as the Lovings liked living elsewhere for not less than 25 years. In other words, Virginia, “There is no Equal Protection Clause.”

And the Supreme Court (apparently nearly unanimously; Stewart posted a concurrence, but there are no dissents so far as I find on Lexis) ruled that the states did not have an unlimited power to regulate marriage. (Virginia recognized this, as well, and had tried to argue that since they equally punished both Loving and Jeter, they did not violate the equal protection clause of the 14th Amendment.)

No doubt some of you are itching to tell me that the Supreme Court ruling that the 14th Amendment prohibited the states from discriminating against miscegenation laws does not mean the Supreme Court would apply the same rationale to same-sex marriages. Perhaps you’re right, but I doubt it. It would, though, be awfully difficult for the court to argue that they only applied the Equal Protection Clause of the 14th Amendment to strike down interracial prohibitions against marriage when on February 23, 2000 they also held that one white woman was correct in asserting that the protections of the 14th Amendment’s Equal Protection Clause extended to her right to connect her house to the municipal water supply without first granting the city a 33-foot easement. (Willowbrook v. Olech (2000) 528 U.S. 562.) The Court has also held that laws which limit benefits to families based upon the marital status of the parents violated the Equal Protection Clause because they granted benefits to legitimate children while denying them to illegitimate children. (New Jersey Welfare Rights Organization v. Cahill (1973) 411 U.S. 619.)

Closer to the point, in 1992, the voters of the State of Colorado approved an amendment to their state constitution which would have “prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians.” (Romer v. Evans (1996) 517 U.S. 620, at p. 624.) Along the way towards striking down this state constitutional amendment as forbidden to the state by the 14th Amendment (remember the “proscriptive” limitations above?), the Supreme Court said such things as:

• One century ago, the first Justice Harlan admonished this Court that the Constitution “neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U.S. 537, 559, 41 L. Ed. 256, 16 S. Ct. 1138 (1896) (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado’s Constitution. — Romer, supra, at p. 623.
• The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. — Romer, supra, at p. 633.
• It is not within our constitutional tradition to enact laws of this sort. — Romer, supra, at p. 633.
• If the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. — Romer, supra, at p. 633.

“Justices” Scalia and Thomas, of course, dissented. They stated,

The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “‘bare . . . desire to harm'” homosexuals, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion’s heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court.

This is an interesting argument. And since both Scalia and Thomas (sometimes mistakenly called “strict constructionists” because of this) like to embark on historical excursions to justify so many of their opinions, let’s do that here. Pretend the year is 1868. It’s a few years past the civil war. The slaves are free. Well, sorta….

So it’s 1868, you’re a slave (or maybe it’s 1967, and you’re a white man married to a black woman) and some state — we don’t even have to pick a Southern state — refuses to accept that the Civil War is over. They refuse to accept that the slaves are free (or that white men can marry black women). Well, sorta….

And they pass a state constitutional amendment that asserts:

No Protected Status Based on Race, Skin Color or Physical Characteristics. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby race, skin color or physical characteristics, conduct of such persons, practices or relationships of such persons shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing. — Compare with “Amendment 2” proposed for the Colorado State Constitution in Romer v. Evans, supra, at p. 624.

What would be the most appropriate response to this? Let’s try the Scalia-Thomas approach:

The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “‘bare . . . desire to harm'” people of color, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional social mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion’s heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court.

Hmmm….

For the first time in American history, we’re being asked to amend the Constitution — a document originally written to limit the power of the government to impose its will upon the citizens of this formerly-great country — to restrict a fundamental human right — the right to marry. (Cf. Loving, supra, at p. 12.) There’s really only one question to ask the government at a time like this: