A constitutional conundrum…or just sloppy legal thinking?
Most days I’m thankful I’m not a lawyer. I’m not addressing those legal duties that involve helping people with their wills, estates, tax issues, births, deaths, etc. A lawyer can make a good living doing this, it’s a feel-good way to occupy your time (especially if you throw a few pro bono jobs in toward helping out people who can’t afford lawyers), and a service that most people need to survive in modern U.S. society at different times in their lives. I’m not addressing the legal duties of corporate lawyers either, those who protect corporations from people who would sue them, or personal damage lawyers, those who raise grievances of a person or groups of persons. I’m also ignoring the fact that we’re a litigious society and support many more lawyers than most other nations because of that—a practice that is not only insane but generates a humongous drag on the national economy.
No, most days I’m just glad I’m not a constitutional lawyer…or a higher court justice, which, many times, amounts to the same thing. My problem (that’s what many people call it, but not me) is that I can’t see all the nuances and hidden meanings these people come up with. I generally hack away at problems just using good old common sense—arguments in constitutional law seem to lack that key ingredient and the lawyers either ignore it or don’t have any of it themselves. Again, the latter includes high court judges…especially the ones on the Supreme Court. They have exalted positions in our society, as if they were sitting on the right-hand (or left-hand, as the case might be) of God, but they are mere mortals that often lack the specific knowledge and common sense for making intelligent decisions. Moreover, as lawyers they were trained to argue any side of an issue—no real identification with it at all.
What am I leading to here? That possibly our Bill of Rights has a fundamental flaw! Number 9 can be contradictory to Number 10 and, as such, they are practically useless for arguing constitutional cases. Let’s see. Number 9 states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Number 10 states: “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.” [Italics are mine.] I say “can be contradictory” because they need not be so if we apply some common sense. Number 10, for example, doesn’t say that powers NOT given to the federal government are automatically powers vested in the states—thank goodness! It says those powers either belong to the States or to the people, or to both or no one! In other words, it’s not an exclusive OR, by any means. We’re talking only about powers, and no preference—between States or people—is specified.
According to my reading of Amendments 9 and 10, the people can have rights and powers not specifically mentioned in the Constitution. Moreover, neither States nor the federal government can have rights—just powers. I don’t see any other possible interpretation. My conclusion with respect to same-sex marriage is that the debate rests in whether being able to choose your partner in life freely, without governmental or cultural pressures (I prefer that more general statement to “same-sex marriage” because it’s more inclusive), is a right or not. If it’s a right, case closed! No election (including the ballot initiative known as Prop 8 in California) can overturn that right, by Amendment 9. There’s nothing left to debate.
As a consequence, let’s play the Devil’s Advocate, and argue that granting marriage licenses is a power vested in the States. The Supreme Court could certainly weasel a bit by stating this as an edict from nine old and very tired people (age limits, anyone?). Defining what that means (i.e. answering the question, “How is marriage defined?”), then, is part of that power, otherwise no one knows what you’re talking about. I’m not saying it can’t be a different definition in each state. I’m just saying that it has to be defined. DOMA does this at the federal level (that law is misnamed, of course), but that law is unconstitutional because of my starting hypothesis: granting marriage licenses is a state’s power. Kill DOMA on those grounds. X it out.
On the other hand, if granting marriage licenses is NOT a state’s power, then DOMA has to be extended in order to set up mechanisms for the federal government to grant these licenses, not just define marriage. This is a possibility—but an unlikely one, simply because of inefficiency. Handing out marriage licenses is something states should be able to handle, just like drivers’ licenses—why should the federal bureaucracy have to do everything?
If you’re still with me, we’ve come a long way. We should now be in agreement that the federal government should keep the power of granting marriage licenses at state level and, if needs be, specify that it is the power of the States. Now we must distinguish right from power, though. The States have the power to regulate marriage, but they cannot take away rights in wielding that power. I’m distinguishing between rights and powers here. Common sense dictates that regulating marriage be rights-blind. “Marriage is restricted to be a union between one man and one woman” is not rights-blind! Any state that includes this definition in its description in defining its regulatory process for marriages has violated the Constitution’s equal protection clause. Such legislation, whether from a legislature or a ballot initiative, must be struck down. It’s common sense! Rights cannot be taken away.
I find it curious that both our neighbors, Canada and Mexico, have successfully applied common sense to this issue. Same-sex marriage was legalized in 2005 in Canada. In 2012, the state of Oaxaca in Mexico, passed legislation narrowly defining marriage as a union between a man and a woman (the use of “a” instead of “one” is no less offensive, by the way). Mexico’s Supreme Court ruled on this case that the definition was a violation of the principle of equality. They referred to the U.S. Supreme Court’s Loving v. Virginia ruling: “‘…[r]estricting marriage rights as belonging to one race or another is incompatible with the equal protection clause.’ In connection with this analogy, we can say that the nominative power to get married is of little use if the opportunity to marry the person one chooses is not granted.” Although I would have used the word “right” instead of “power,” (“power” in Spanish is “poder,” which can also be translated as “to be able to,” which can easily be confused with “derecho” or “right”), this is consistent with what I said above.
I stated in this blog several years ago that no legislation, and especially legislation via ballot initiatives subject to mob mentality, should ever be used to deny rights. I didn’t even talk about whether the rights were previously established or not, if I remember correctly. For same-sex marriage, though, those rights are already defined, by our own Supreme Court, according to the Mexican interpretation. All the justices have to do is to re-affirm their decision in the Loving v. Virginia ruling. Case closed! Common sense would prevail.
And so it goes….
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