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Idaho's Weekly Journal of Local & National Commentary  Week 4214

 

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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 I

   Most 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:

  1. 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.
     
  2. 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.
     
  3. 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.
     
  4. 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).
     
  5. 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.
     
  6. 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.
     
  7. 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.
     
  8. 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.

   Why not?

   Simply because 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 basic rights.

   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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