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Why Idaho's Anti-Gay Marriage Amendment is Pretended Law
(and cannot be enacted by
either the state legislature or a 51% majority vote of the people)
people don’t understand the successive levels of law in the United States.
They don’t understand the legal hierarchy of inherent individual rights
philosophy in the U.S. and Idaho Constitutions and how the Bill of Rights
trumps a 51% democratic majority vote.
To fully understand
the concept of which level of law supersedes other levels of law, one must
review the history of law regarding the concept of inherent individual
rights. For example, which law(s) or legal concepts gave American colonists
the right to declare independence from Great Britain in the 1700s and form
the United States of America? Is the Bill of Rights a granting document,
doling out individual rights, or a prohibiting document, prohibiting
infringements upon inherent individual rights? Are basic “self-evident”
individual rights inviolate or can the Idaho or U.S. Congress pass a
constitutional amendment to ban, for example, freedom of speech or freedom
of religion or freedom of voluntary association?
Put simply, are all
of our basic freedoms subject to constitutional amendment or are there some
rights that cannot be infringed upon? Is the basic right of voluntary
association (including written contracts) one of those inviolate basic
rights or not? If so, why?
Before jumping on
the Idaho state legislature with all four feet, let’s first review the
history of individual rights development in Western Civilization and
establish an orderly framework of concepts in which to work:
- Might Makes Right.
The law of the jungle has existed for millions of years and contains no
legal framework or concepts regarding individual rights. We can dump this
concept as non-human.
- The Divine Right of
Kings. This concept is a refined version of Might Makes Right, which has
existed for the last several thousand years and in which it is assumed
that all individuals obtain their “rights” – better described as
subservient existence -- from another individual called The Ruler, or The
King or Queen or Pope or Mullah, who has been magically anointed by an
invisible Omniscient Being granting The Ruler the right to beat the crap
out of everybody else any time it suits his or her fancy. This period of
history, lasting until the Age of Enlightenment in the 18th
century, contains no legal framework or concepts regarding individual
rights. We can dump the ideas embodied in the Divine Right of Kings, too,
although most of the world still lives by it.
- Age of
Enlightenment in which European and American intellectuals first conceived
that all individuals inherently obtain basic rights at birth by reason of
existence, not from an established collective such as a government or
church. Kings and Queens and Popes and Mullahs were, of course, ticked
off at this idea and the American Revolutionists fought and won a war to
create a limited government, a legal framework, that recognized the
concept of INHERENT basic rights of the individual. It was not a smooth
transition and the road to creating a limited constitutional republic, not
a democracy, which prohibited infringements upon this new concept of
INHERENT INDIVIDUAL RIGHTs was a bumpy road. But we made it.
Unfortunately, we are now about to lose it.
- Part of the bumpy
road to establishing the ideas discovered in the Age of Enlightenment
(inherent individual rights) included the Articles of Confederation of the
13 American Colonies, legal frameworks that patterned themselve after the
states of Europe, including the establishment of church and state tests
for government service and other actions. Each state didn’t quite get the
message about individuals obtaining rights a priori to a government and
tried to enumerate everybody’s rights in their Bill of Rights (a real
contradiction of concepts that was about to drive the 13 American Colonies
into essentially another Little Europe of continual wars, poverty, and
re-establishment of the Divine Right of Kings).
- Then, hesto presto,
along comes three men, Alexander Hamilton, James Madison, and John Jay who
wrote The Federalist Papers under a pseudonym, a pen name, called “Publius.”
The Federalist Papers were a series of essays refuting the American
Articles of Confederation and extolling the virtues of a new, limited U.S.
Constitution, a Constitution to form not a democracy, but rather a limited
constitutional republic, which provided a legal framework to prohibit
infringements upon the basic inherent rights of the individual as
discovered by Intellectuals in the Age of Enlightenment. The Federalist
Papers are pre-constitutional law that explains the U.S. Constitution by
its authors. Hey, it doesn’t get any better than this. Sort of like a
constitutional Cheat Sheet regarding, What in hell did the
Constitutional Congress mean by this clause or that clause and why did
they include that paragraph by Benjamin Franklin instead of Thomas
Jefferson? The concept of establishing a prohibition against
infringements upon inviolate individual rights had started.
- Bill of Rights were
then added as part of the U.S. Constitution, stating the idea that
non-infringing individual rights were inherently obtained by all
individuals a priori to (before) the U.S. Constitution and cannot
be abridged either by amendments or any other means. Specific rights, not
limited to, but including freedom of speech, freedom of religion, freedom
of voluntary association, etc. shall not be abridged. Period. Note that
the Founding Fathers established the important legal concept that the U.S.
Constitution was a prohibiting document, not a granting (of rights)
document. This is an extremely important concept, which unfortunately is
not well understood by most state and federal legislators today – nor even
many Supreme Court Justices. (In fact, James Madison was against adding a
Bill of Rights to the U.S. Constitution since, he said, it was obvious
through its very act of creation, the U.S. Constitution, that all
individual rights were already obtained before the existence of this
document and it would be redundant and impossible to enumerate all of
those rights.) The concept of a priori, inviolate individual
rights was now established and the U.S. has operated for 250 years mostly
within that concept. (Well, mostly, except for some states such as Idaho,
which has amended its wordy Constitution 135 times since its inception in
1889 in frivolous ways that show they don’t understand the concepts of
a priori or inherent rights and is about to make a big 136th
mistake (not that all 135 amendments were mistakes) in November 2006
regarding the banning of written voluntary associations, euphemistically
called The Gay Marriage Ban.
- For 250 years new
statutes refining laws emanating from the U.S. Constitution have been
implemented and these statutes cannot (should not) violate the U.S.
Constitution, the Supreme Law of the Land, which we just learned was
established as a prohibiting, not a granting, document
regarding individual rights.
- Then, along comes
the Idaho Constitution in 1889, which recognizes the U.S. Constitution as
the Supreme Law of the Land. Idaho’s Constitution says it cannot violate
the U.S. Constitution, including a priori, inherent individual
rights. So far, so good.
So, now that Idaho
has a basic legal framework of the successive levels of law regarding
individual rights, let’s analyze what the Idaho state legislature just
passed last week regarding their “supposed” right to vote on a Gay Marriage
Ban amendment to the Idaho Constitution. And further, do the ldaho legies
have the right to extend their Gay Marriage Ban amendment to the citizens of
Idaho to ratify that vote? Or, is the Idaho Legislature in violation of
infringing upon the basic freedom of voluntary association (including
written contracts of marriage and civil unions) protected by the U.S. and
Idaho Constitutions and the Bill of Rights?
As many of the
readers of this Web Site have already guessed, and correctly so, the Idaho
Legislators do not have the legal right to establish a constitutional
amendment to ban voluntary associations, nor can they extend their Pretended
Law to the citizenry for a 51% majority ratification.
Idaho legislators cannot vote away the very same inherent individual rights
of voluntary association which they themselves obtained a priori to the U.S.
and Idaho Constitutions and use those rights to ban the same rights of
others. The state legislature cannot use that which brought them into
existence (voluntary association) to deny those same rights to others
(whether written or verbal).
Therefore, in the
same way that the Idaho state legislature cannot use their freedom of speech
to abridge that same right of freedom of speech for others, they are
forbidden by the Bill of Rights (a prohibiting document) to pass
constitutional amendments to abridge or to ban those same basic rights of
others. The Idaho Legislature cannot introduce an amendment to ban freedom
of religion, freedom of speech, or freedom of voluntary association. To
claim that gays can associate – but not in written agreements, such as a
marriage contract or civil union – is a fundamental violation of their
Think about it.
What a contradiction by the Idaho Legislature. The state is attempting to
deny to others the very same rights that brought the state into existence in
the first place, i.e. voluntary association. Think about what the House and
Senate really are: in effect, a “marriage of politicians” coming together
to legislate. Should this “marriage of legislator association” also be
banned because it is a same-sex marriage and also constitutes polygamy at
the same time? Never mind whether the legislators consummate their
“marriage of legislators” through sex or anything except ideas. Remember,
marriages or civil unions (gay or heterosexual) are essentially not about
sex but rather about property contracts involving wealth, private property
distribution, children, wills, health and other consensual agreements,
written or verbal. Don’t believe me? Look at all divorce decrees and you
will find out that marriage is more about property contracts of wealth
distribution than sex. Ironically, those pushing the Gay Marriage Ban may
be revealing more about the level of their own sexual self-esteem than
anything else. Using children, family, and their version of The Bible is a
poor excuse to violate the inherent rights of others and, in fact, is a
giant step backwards into the bankrupt philosophy of theocracy and the
Divine Rights of Kings (which means Popes and Mullahs). -- FM Duck
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