The purpose of my blog is to invoke discussion about the U.S. Constitution. My PhD is in Constitutional Law so have read and studied the Constitution many time and yet I still learn something every time I read it. So I will pose a question and some comments and I would love to hear your take on in.
Issue: I recently read the following, "In 2009, 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt declared DOMA (Defense Of Marriage Act) unconstitutional in a case where the federal government refused to grant spousal benefits . . . On March 3, 2009, GLAD filed a Federal Court challenge, Gill v. OPM based on the Equal Protection Clause (14th Amendment). It questions only the DOMA provision that the federal government does not have to recognize same-sex marriages." I am concerned that the DOMA will be declared unconstitutional by the Supreme Court. What can be done to stop this? Will a state's right of defining a marriage be overridden by the federal? It is only a matter of time that the Supreme Court will hear a case involving same-sex marriage and the DOMA will (in my opinion) be ruled "unconstitutional". What can we the people do?
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This and many such cases today boil right down to the rule of law. The document is wholly inadequate for a non-virtuous and non-moral people. The way I see it is we have two choices we either become virtuous and moral or we continue to loose the document.
ReplyDeletePerhaps that's too simplistic, but I think it is where we are at. Fortunately we are dealing with a new tool set and environment. Though we have the same human nature and live and work with the same set of eternal laws, we can do things that we have never been able to do.
ReplyDeleteIn the past we have been held to a social contract which has been limited to a user interface that was 2D (on paper), although the words could conjure up images in our imaginations in our minds, it could not convey real-time footage with as much vividness or frequency as we can today.
Now we can see (media), learn (edu.), do (gov.) and become (rel. &fam) simultaneously and though multiple mediums. We don't have to leverage out our personal sovereignty over such a long period of time using a forced social contract through a republic. We can still live by the contract, but it can become more of a living agreement that is based on real-time simulated experience, a tighter fabric of relations and more local choice.
ReplyDeleteNot only that, but the basic and fundamental origins of society are shifting. With the pre and postindustrial age one needed to protect the fruit of his labors through copyright and patent law. Now the fruit of one's labors can be duplicated and collaborated on like never before and when a person sends it out, it often comes back greater than when he originated it. Robotics and bio-development are changing the way that humans relate and work with natural resources.
All of these things and more have an impact on what we are capable of achieving. We are being driven to find local self-sustaining possibilities, but we need to step up to the plate with natural and locally redundant accountability systems that move it all forward on stable footing.
ReplyDeleteThe protection of property has changed, it is now guarded by the redundancy of collaborated change itself, when one goes to use the new product or technology if he, she or they don’t understand its underpinnings, it can become obsolete or harmful really fast. The organic and interconnected development of anything can now draw on the collected foundation of everything. This drives ownership to become local and simple. One must own it himself or in his local relationships or one cannot customize innovate and build. The possible and real failures and their ramifications hold it in check.
ReplyDeleteSo back to the question; what can we do? What is needed is a viral based epidemic of experiential learning (multi-paradigm) stimulating personal and community change as well as unity through local collaboration regarding the issue itself.
ReplyDeleteIn order to build this kind of tool into the fabric of society we may need to start with a (different, more obvious, fun, less complex and/or critical) issue. But once the pattern or common experience is set in motion, issues like these can be plugged into it like a software plug-in and locally experienced so that wise choices and decisions can be made both locally and globally while maintaining sovereignty and order.
It's pretty clear that this issue is going to be decided on the federal level, either through constitutional interpretation or constitutional amendment. I would have liked to see this left to the states, but that's a dream. Faced with these two option, I choose amendment; amendments are by the people, not judges, and they are permanent.
ReplyDeleteIf we want to get to the heart of the matter, we need to change the way congress is functioning--build in some new mechanism whereby congress is more accountable to states and state legislatures instead of to the general populous (who is too busy to care). This would prevent this type of federal usurpation in the future.
Step one: get the federal marriage amendment passed (fat chance with current congress)
Step two: give state legislatures a check on congress (either through election, instruction, or ouster).
That's my opinion.
Wow. I appreciate all your comments and opinions. As I was reading The Republic and The Laws by Cicero I ran across his statement about natural law. He said "True law is right reason in agreement with nature; it is of universal applicaton, unchanging and everlasting." This throws a monkey wrench into the same-sex argument. It is not natural because two men together or two women together cannot produce offspring which goes against nature. What do you guys think?
ReplyDeleteIt is so exciting that you have begun a blog. The comments you are getting are very informative. Elizabeth purchased a book which talks about why same sex marriage is NOT beneficial to society. I understand it was actually written by lawyer who is homosexual. I think that everyone should read it because the first step to changing something is becoming informed not just prejudiced. The argument that 2 men/women can't have children is a little weak because there are heterosexual couples that can't have children.
ReplyDeleteQuestion: I can agree that there is a hierarchy in legislative preference 1.) States keep it 2.) we legislate it in 3.) We amend it in 4.) We judge it in as law. 5.) Exec order it in
ReplyDelete4 and 5 are like twin terrors. I don't want to chose which is preferential.
I don't think the question involves just what are our opinions are but:
ReplyDeleteWhat would it take to keep it to the states (to make that dream a reality)?
What would it take to legislate it and so on?
Perhaps statesmanship is not just about talking and convincing anymore. Its more than opinions, policy and votes. It has biologically grown to include doing, learning, showing and being. We have real-time tools and hence real-time obligation to those around us both distant and local.
Great words of wisdom from all of you and thanks for responding on this important issue. I am going to keep researching it. I think the DOMA will be overturned by the Supreme Court at some point in the future. The court will probably reference Amendment 14 (the equal protection clause). I think the only reason the high court refuses to hear it now is because if they overturn the DOMA then anything goes, poligamy, etc. Our defense then would be to get 2/3 of both the House and the Senate to propose an amendment defining marriage as the union between one man and one women. Then 3/4 of the 50 states would have to ratify it. It would take some time.
ReplyDeleteOk guys I a shifting gears a little. What is the difference between nationalism and federalism and when (approximately) did our country go from one to the other? Also, why is this a concern?
ReplyDeleteAt the risk of insulting any of your collective intelligence, federalism is based on the principle of dual sovereignty wherein enumerated powers are granted to the federal government and other powers not enumerated to the state government (or as the Constitution indicates) to the state govt. or people. Some powers granted to the federal head are also administered and executed by the states. Federalism as understood by the founders was challenged early and really began to decay with the attempt by SC to secede in 1861. Further attacks came with the activist court of the New Deal though the administrations of Teddy Roosevelt and Woodrow Wilson certainly had a hand in weakening federalism with their progressivist pulpit. The progressive movement, which probably can be traced to the 1880's took a more nationalist stance at the expense of republican principles. Some of the ugly aspects of nationalism were exhibited in America during Wilson's tenure with simultaneous ascendency in Europe under Bismark and later Mussolini and other fascists. In reality, several PhD dissertations could be dedicated to your question Forrest, but I think this may be enough to stir the pot and engender some discussion.
ReplyDelete-David
Thanks Dave. That's a good way to look at it, dual power sharing. In Linda Monk's book she says federalism is "the system of shared power between national and state government" and nationalism is "the supremacy of the federal government over state." The problem for us today is that since the Civil War there has be a strong movement towards nationalism and away from federalism. The federal government is referred to as the three branches of power degating the four branch or the states.
ReplyDeleteHow does this fit with globalism and the treaties that have been signed moving the split sovereignty situation away from both the traditional federal and recent national forums? It seems a sort of Global federalism has taken its place, though it may be better described as high-tech global feudalism.
ReplyDeleteThe global situation brings the possibility of a hegemony into the question; a position to which the USA has not been shy about trying to own at least in a covert economic sort of way. We, in the US don’t generally think of ourselves as tyrannical in this respect, but over that last 15 years the shoe is starting to really fit with the foundational seeds sown in the teens and forties.
It appears as though the jockeying may open a window for local communities to gain some of their sovereignty back because they have more capability than in recent years to become self reliant, if they can get their act together.
I definitely think that another option needs to be set in motion that offers nation-states another place to turn other than the World Bank and the IMF and even the WTO for that matter.
Reflecting back on my studies in this area. I really appreciate the historical background Dave presented with regard to the US constitution. I didn't start there. The progressive movement seems to be the wild card I don't fully understand and is still driving decisions.
ReplyDeleteMy studies began of-course with the basic 4yrs at GWU; but then in the graduate studies it began with, Nietzsche, Solzenitzen’s Gulag Archipelago and Henry IV (parts 1 & 2) with its telling prologue by “Rumor”. My learning of how the nation-state worked came largely from outside the US.
I also value "The Music Man" and "The Happiest Millionaire" musicals for introducing some of the cultural shift in America to the modern nation-state to which we have become accustom.
Getting back to the question. I'd say that federalism is one of the core issues today. I think it extends from the community up to the global levels. The nationalist movement was likely an important shift to develop global marketplace we currently experience.
ReplyDeleteMany of our freedoms are in jeopardy today because of our becoming dependent and shifting the power and sovereignty into the feudal realms of international economic, ecologic and militaristic policy. The markets have been the only mitigating circumstance keeping slavery at bay, but only on the home front.
The constitution is only valid if the people live by its principles from the family to the President. The rule of law needs a parallel cultural structure in order to keep its integrity in today's environment providing an ownership/stabilizing force that can sure-up the people and allow the document work federally.
Did the federal to national shift take place when we went from a state-nation to a nation-state. I've always wondered about the details of that shift. Can anyone shed some light on this terminology? I suppose its found in Bobbit's Shield of Achilles. I'll look it up later, I couldn't find it online.
ReplyDeleteAllen, I think Bobbit's book is a good place to look. His predictions have been right on about the general move to nationalism. I will look for some of his quotes on this matter.
ReplyDeleteAnother area I want comments on is prayer, not just in public schools, but also in legislatures. The Supreme Court ruled in Marsh v. Chambers in 1983 that "the practice of official invocational prayer, as it exists in Nebraska and most other state legislatures, is unconstitutional. It is contrary to the doctrine as well the underlying purposes of the Establishment Clause, and it is not saved either by its history or by any of the other considerations suggested in the Court's opinion". I really have issue with Judge Brennan's remarks in this decision. Show me where prayer in Congress is "contrary to the doctrine (of the Constitution)" and the how it goes against "the underlying purposes of the Establishment Clause"? The Establishment Clause (Amendment I) says " Congress shall make no law respecing (favoring) the establishment of religion (a particular church), or prohibiting the free exercise thereof". How is starting a state legislative session with prayer favoring a particular religion?????? Someone please help me understand this. If the clergy said everyone has to repeat the Catholic prayer with me then I could see where Thomas Jefferson was right in saying that there should be "a wall (separation) between church and state". Comments, please!
Wow! What a great discussion already! I like the blog. I will have to write something more intelligent when I am feeling better, but I just wanted to say, "great job!"
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ReplyDeleteRead the 14th amendment. It give the federal government the power to require the states to provide equal protection and due processes to all citizens, thus shifting the power from the states to the national government. Judicial interpretations on this are found in Constitutional Law: Principles and Policy Cases and Materials, by Barron et al. James Ure is using this text in his con law classes, I believe. Great Progressive sources are the 1912 progressive party platform, Phillip Dru Administrator and progressive articles of the time, see Annals of America.
ReplyDeleteThanks Shane. You are correct that the 14th Amendment (known as the Equal Protection Clause) did take power from the states and did give more of it to the national government in 1868 right after the Civil War. I do not agree that the southern states had the right to succeed, but their loss in my opinion was a major defeat for the rights of states. On another note below is the URL to a speech Supreme Court Justice Scalia gave in 2005 about constitutional original intent. It is an incredible speech. Read it and tell me what you think. Again, thanks for being part of this vital study of one of the greatest documents ever penned by the hand of man (Gladstone).
ReplyDeletehttp://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm