Idaho's Weekly Journal of Local & National Commentary Week 2815


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by Free Market Duck

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)

...Part II

   Back to the scene of the crime.

   The Idaho Legislature’s denial of written voluntary association as a basic human right is tantamount to denying the validity of the state’s own existence through voluntary association.  To refute the very concept of that which brought the legislature into existence is a contradiction.  And an attempt to extend that non sequitur to the public for a 51% democratic majority vote next November is sheer folly.

   How did we get so far off track?

   The Idaho legislators have arrived at their ridiculous level of non-understanding of the successive levels of legal thought discovered in the Age of Enlightenment by failure to comprehend two basic concepts:

  1. They erroneously think the Bill of Rights is a granting document, doling out individual rights, rather than a prohibitive document, which prohibits infringements on individual rights (usually by the state), and
  1. They think the U.S. is a democracy, characterized by a 51% democratic majority rule for basic rights, instead of a limited constitutional republic, which protects the inherent rights of the smallest group possible, the individual.

   As Supreme Court Justice Sandra Day O’Connor correctly reasoned and stated in her magnificent autobiography, The Majesty of The Law, the U.S. Constitution (which includes the Bill of Rights) was intended to protect the individual against mob rule, against those collectives who may disagree with the smallest minority exercising their inherent rights obtained a priori to the existence of the Constitution and Bill of Rights.  Not understanding these basic concepts is what leads legislators into their unconstitutional, and contradictory, activity of trying to establish Pretended Law.

   Therefore, Idaho legislators – and legislators from many of our nation’s other states – have grossly overstepped their constitutional bounds, using their rights of voluntary association in the legislature to stomp on those same rights of others.  I don’t know which is worse:  (1) legislators who think they have the right to abridge the very same rights by which they have come into existence, or (2) legislators who are such philosophical cowards that they claim they are merely extending their Pretended Law to their constituents, to a mob rule of a 51% Democratic Majority Rule to do the dirty deed for them.

   A third case of bad reasoning is displayed by those who claim that we don’t need a constitutional amendment to ban Gay Marriages because the state of Idaho has already enacted statutes that ban Gay Marriages and civil unions.  Whoa, these people miss the point.  An illegal statute that violates basic individual rights is not a valid reason to either implement or not implement a constitutional amendment of Pretended Law.  That’s like claiming we don’t need a constitutional amendment to ban freedom of speech because we already have a lower level statute that bans freedom of speech.  Sorry, Clyde, but parking meter statutes do not trump the Bill of Rights.

   So, no matter which way Idahoans vote for the Pretended Legal Amendment to Ban Gay Marriages next November, that vote will be unconstitutional and violate the concept of basic individual rights law which we, as thinking human beings, finally discovered over three hundred years ago in the Age of Enlightenment.  The freedom of voluntary association, written or verbal – and thus gay marriages and civil unions -- is an inviolate individual right obtained a priori to the existence of the U.S. and Idaho Constitutions.  The Idaho State Legislators cannot deny to others the same rights that brought their “legislative marriage” into existence.  Period.

   This issue is not about sex, biology, the Bible, or same-sex marriages; this issue is about inherent individual rights vs. the tyranny of the majority. – FM Duck

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