posted
It seems to me that these messy homosexuality debates all boil down to the same thing.
How much of a democracy do we claim to defend?
When do civil rights - the rights of a person - turn into the will of the "people?" How many oppressed individuals does it take to make a minority worth protecting?
Homosexuality keeps being compared to slavery and civil rights, but here is my argument:
We solved the problems of slavery and civil rights through proper legislative procedures, not through use of the judicial branch alone.
Checks and balances exist so that all branches of government will work together in assuring that the public good is protected.
As opposed as I am to gay marriage for my own personal reasons, I'm willing to accept a legislative decision in Massachussetts as a proper exercise of their sovereignty. I am not willing to accept civil disobedience on the part of the mayor of San Francisco as a proper method of changing the laws. When the American people get to vote on these issues, then we can live with the consequences of that decision. Until then, any legislation enacted in the courts is imposing the will of a few on the entire population, and we have no right to claim to be promoters of "democracy" in any sense of the word.
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No, I mean constitutional amendments, which require a 2/3 vote and are most protective of what democracy can be found in the republican system.
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I guess it's just the disdain for the "common man," the voter and citizen that makes me so angry. Protection of minorities has become the job of a tiny sliver of society with common professional and educational backgrounds. And the judicial branch is the farthest removed from the electorate. Yet, it seems they, being more moral and conscientious than the rest of us, get to make the really important decisions. They'll let us vote for things like bond levies for the high school.
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Yeah, which Constitutional Amendments solved problems with racism? Sure as hell wasn't the 14th or 15th.
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Um, Annie? Can I point out that while I don't necessarily disagree with the sentiment expressed, the big sweeping social changes in America were all begun with civil disobedience, illegal acts, and plain stubborn people.
Abolitionists smuggled slaves through the underground railroad in direct violation of the perfectly legal slavery laws. Susan B. Anthony was arrested for trying to vote for Ulysses S. Grant in the 1872 presidential election. The Supreme Court's decision repealing all still-existing antimiscegenation laws happened because Richard Loving, a white man, and his black wife, Mildred Jeter, were arrested in Virginia on the grounds that their marriage license from the District of Columbia was invalid and that they had violated the Racial Integrity Act.
For the law to be examined by the courts, someone has to be tried first.
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Legislation created laws that the courts then interpreted and enforced. Brown v. the Board of Public Education was an enforcement of the 15th amendment.
If the mayor of San Francisco wants to change the law, he needs to start with a petition and an initiative on the local ballot like the rest of us do. He doesn't get to take his particular whims straight to the supreme court. That's an abuse of power and position.
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quote:Legislation created laws that the courts then interpreted and enforced. Brown v. the Board of Public Education was an enforcement of the 15th amendment.
You have crappy history teachers.
Clarification: calling it constitutional or not is not what won the case. There have been several cases of questionable constitutionality that passed through the courts who chose to look the other way. In other words—laws and courts don't mean jack unless the people are willing to abide by it. Thousands of blacks didn't flee to Liberia just because they were freed by the Emancipation Proclamation, they were totally unprotected by a Constitution that promised otherwise.
[ February 24, 2004, 11:55 PM: Message edited by: John L ]
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Good point Chris, but my argument would be that civil disobedience is not a political process appropriate for elected officials to be employing. There's a big difference between an activist chaining himself to the courthouse and a mayor swearing to uphold the laws of the state and federal governments and then flaunting them. I would describe that as mutiny.
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quote:laws and courts don't mean jack unless the people are willing to abide by it.
Exactly. So why should California voters who passed Proposition 22 be obliged to accept civil unions that flaunt it?
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Annie, the MA SJC is ruling on an amendment in the MA constitution. They are doing EXACTLY what you claim Brown did for the 15th Federal amendment.
So I'm wondering what your point is? Are you agreeing that the MA SJC did the historically consistent thing, or is there some part of the process with which the decision was made that you claim was illegitimate?
EDIT: Ah, your issue is with the whole San Fran thing. My point is withdrawn.
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I challenge anyone on this forum to show me an instance where they have criticized the Court's judicial activism even though the Court has ruled in favor of their side of the issue.
I guess OSC would respond by saying that only liberals practice judicial activism because they have captured the law schools. Well dang it, why don't social conservatives go to law school? Posts: 4116 | Registered: Apr 2002
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quote:Annie wrote: We solved the problems of slavery and civil rights through proper legislative procedures, not through use of the judicial branch alone.
and
quote:No, I mean constitutional amendments, which require a 2/3 vote and are most protective of what democracy can be found in the republican system.
Ah. Two points on this. First, this gay marriage debacle will not be solved by the judicial branch alone. I don't think any of the judges and justices presiding over these cases think so either. This is merely the point at which national attention is drawn to what may be a civil rights issue. It's certainly drawn the president's attention. And his attention means that it will draw the opposition's attention as well. This is how problems get solved. Not by ignoring them for decades, like was done with civil rights and slavery. The judicial courts help bring these problems into the light, and civil disobedience illuminates them even more so. San Francisco has gotten much more attention than any of the rulings on this issue.
Second point. The constitutional amendment (a legislative procedure) being proposed by President Bush is only the second time (I think - I could be wrong) that we would be using an Amendment to restrict someone's (who is not in public office) freedoms explicitly instead of removing restrictions. The first was the 18th - Prohibition. Interestingly, this Amendment was also championed by religious groups as part of the Temperance movement. The 18th Amendment was later repealed by the 21st Amendment. Articles XIII, XV and XIX of the Constitution remove restrictions. Funny how only the ones that remove restrictions seem to stand the test of time.
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The other thing is that it's doubtful the 13th, 14th, and 15th amendments were passed as part of the legislative process. The Southern states passed it under extreme duress by effectively packed legislatures.
In this case, duress was warranted and beneficial. But it wasn't democratic.
The Civil Rights Act wasn't even passed until 1964. And it isn't a Constitutional Amendment! And even if you still believe that the Court was ruling on previous constitutionality, there nearly a hundred year gap between enacting the Amendments and enforcing them. Also, you might want to read the Loving v. Virginia which stated that "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."
quote: my argument would be that civil disobedience is not a political process appropriate for elected officials to be employing.
Wait a minute. The US was founded on civil disobedience. Are you serious?
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Annie, I don't agree with this. Brown versus Board of Education woke up the legislature to the possibility of the Civil Rights act.
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quote:It wasn't the 15th Amendment, it was the 14th
If that was directed at me, Jack. I did mean the 15th. And I looked at that very link you provided before posting. I was referring to the right for people to vote regardless of race, color, etc. So you were probably talking to Annie about the second sentence of Section 1 of that Article. But it gets wishy washy if you don't consider marriage a privilege, which goes right back to definitions again! It's a very broad Article which is why I didn't include it...
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Ok, I made that comparison off the cuff. The constitutional amendment idea wasn't central to my argument.
My main argument is that civil disobedience is not an acceptable method for elected officials. What I'm arguing against is going over the heads of the electorate, and the sentiment expressed by the judge who refused to stop San Francisco's civil unions, saying that the rights of the couples were more important than the rights of the voters.
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The judge said no such thing. The judge said that the case would likely prevail with time, but that the people suing had failed to prove immediate danger, and as giving an injunction could potentially trample on the rights of homosexual people, it should not be granted. The judge didn't make a decision because it wasn't the time to make a decision yet -- the court date hasn't occurred, and in the lack of a decision the preferred choice is no injunction. Injunctions are to prevent unreasonable harm, and in a case where it may be that people's rights are trampled by an injunction, that means immediate harm, particularly as it is not at all clear that, given a number of marriages have happened, more marriages will be any more harmful or harder to deal with.
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And I think civil disobedience is exactly in line for elected officials, as with anyone else -- provided it is civil disobedience they believe to be within the law, as the mayor has clearly stated he does. His contention is that the law passed by the california electorate contravenes the California constitution. In other words, that the law in question is not legal. He is sworn to uphold the Constitution of California, not its laws, and is thus bound to uphold those laws only as they are constitutional
edit to make clear: I feel that civil disobedience in an attempt to change the law is not open to public officials. However, in many situations civil disobedience rests not with an attempt to change the law, but with interpretation of existing law, which I feel is something public officials may acceptably do. It is both within most oaths of office, and within the intentions behind public officials our country was founded on -- to be elected leaders, not elected automatons. However, those public officials who choose to partake in such civil disobedience must of course live with their actions and the penalties involved, and cease them whenever given a lawful order (typically by the courts, as the system is set up) to do so.
Does that mean you think the actions of the former Alabama Chief Judge with regard to the 10 commandments monument were valid as civil disobedience up until the point where he disobeyed the actual order to remove it?
Dagonee Edit: To be clear, I'm not asking if you agreed with his interpretation of the First Amendment.
posted
Annie, if nobody in history ever broke the law, most people in this forum would be either working under some feudal aristocrat or worshipping some absolute monarch. That's how it was before a lot of people broke the law in a very short period, in 1776, 1789, and 1848. Yes, at one point feudalism and absolutism were fine systems of government. Feudalism was an improvement over the Barbarians, and absolutism was in turn an improvement over perpetual feudal warfare. At this point, in the 18th century, a lot of people decided that, in addittion to safety, they wanted more individual liberties. The law, at the time, did not call for individual liberties. Therefore, these people were breaking the law.
Why am I telling you this? A number of reasons.
First, the U.S. law is not perfect. The U.S. system of changeing laws is also not perfect. Therefore, sometimes people will have to break the law, be somewhat extraconstitutional and extralegal, to form a better society. This is what I feel is happening in LA right now. Whether or not Newsome is correct is a seperate issue open to much debate, and an issue much debated. But I don't think it's fair to say that Newsome is wrong with his violating the law as your only justification unless you think that U.S. law, as it exists this instant, is irrevocably perfect until the end of time. And I doubt that this is your opinion.
The second reason I discussed all those revolutions is because they all ended up with a LOOOT of casualties. It must be said that despite a level of extralegality being sometimes necessary, there are limits. If you cross those limits, as, for example, Robespierre did, a lot of people end up dead for really idiotic reasons. So there does have to be moderation. And despite what Card says, I sincerely doubt that most gay rights activists are in favor of Red Terror. Most are in favor of a relatively minor (as in, relative to changeing the nature of the presidency or Congress) legal change as an extension of what they feel to be the spirit of the constitution.
In conclusion: I don't really think the legality (or, if you prefer, the lack thereof) of Massachussets or Newsome is the issue here. At least, it shouldn't be. The main issue should be what the people want. And the people should get whatever they want, whether or not it is written into the current U.S. laws, because the people are the law. There needs to be a vote.
Aside: I don't think Bush likes the balance of power, folks.
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Dagonee -- Yep. I disagreed with the particular action, but I think the type of action was acceptable up until he started disobeying the law.
Its not something to encourage in public officials, I think, but the fact that they tend to get tossed out of office when they do it should serve as an adequate discouragement for anything but principled stands.
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John, I wasn't talking to you. I was referring to Annie saying that Brown v. The Board of Education was an enforcement of the 15th Amendment. The USSC ruling specifically stated it's ruling was based on the 14th Amendment. "This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment." That was my only point. Not aimed at you.
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quote:Yep. I disagreed with the particular action, but I think the type of action was acceptable up until he started disobeying the law.
The problem is defining "disobeying the law." Technically, Moore was disobeying the law the entire time the monument was there, as the Court decision held. Similarly, if the SF mayor's actions are found to be unlawful, he will have been violating the law from the time he issued the first license.
In this case, both have some plausible constitutional interpretation to support their actions. Do you mean that the point when a higher authority issues a contrary interpretation is the point where civil disobedience becomes unacceptable in a public official?
I pretty much agree with everything you've said -I'm interested in defining the outer boundaries of the idea. It's very interesting.
Dagonee PS, Just for the record, I didn't even support placing the monument there. But it's the best parallel case I've been able to come up with.
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Annie, I'll back you up on the idea that "civil disobedience" by members of the government is better known as "thinking oneself above the law". And yet your oppenents seem to be accusing Bush of that same attitude. Go figure.
But I have a problem with your thread title. Part of the purpose of the democratic republic is to protect those who are not in the majority. A straight democracy would not accomplish this.
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Hmmm, 'tis hard to qualify the situation. How about must stop when lawfully ordered to, or when lawfully adjudged to have been disobeying the law?
By nature, almost any public official has a certain interpretive power -- its just with most it is highly restrained. I think that as such, civil disobedience enabled by an official's interpretive power is acceptable, but only insofar as the official accepts the corresponding restraints of lawful orders and judgements.
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Annie, I didn't insult your intelligence. I commented on your teachers of History. If you had none, then it's your own ignorance to history that led you to your false assumptions. If you were taught that way, you were taught things that were incorrect, and I would even say border on apologetic for racism.
quote:My main argument is that civil disobedience is not an acceptable method for elected officials.
Do you really want a list of previous elected officials who have done things like this? Not all of them are for the advancement of civil rights—many were exactly the opposite—but the point is that if no one challenges unequal laws, no laws would ever be reviewed. Saying that elected officials should not fight for what the people who elect them into office believe in is rather naive and a little too aquiescent to the "authority" of documents that are supposed to serve us, the people, not the other way around.
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I don't even think elected officials should necessarily only fight for what the people who elected them into office believe in. While an elected officials decisions should always be tempered with the knowledge of the values of their electorate, ultimately it is the elected official's decision to make. This is one reason we have elected officials, so that they may lead, and has been one major reason throughout our history.
It is hard to condemn one person for paying attention to polls then condemn another for making their own decisions and not be hypocritical.
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quote:By nature, almost any public official has a certain interpretive power...
I agree. I used this argument back in college when I tried to get the Student Council to interpret Student Activity Fund distribution rules in such a way as to not violate the First Amendment. Instead they just accepted the school's general counsel's (wrong) opinion on the constitutionality of the measure.
I hate elected officials who pass the buck - take a stand, dammit!
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