Thursday, October 05, 2006

I keep going back to James Madison

I've blogged this before, but I recently looked up The Federalist #10, written by James Madison in 1787 for a speech I was giving and it struck me once more how strongly it argues against initiatives like Prop 107 and similar marriage amendments in other states. For me, it all boils down to what Madison wrote 219 years ago (emphasis mine):

Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.


Despite what we may believe, America was never meant to be a pure democracy. We are a democratic republic (hence our representation in Congress) and we have a Judicial Branch that was created exactly for the purpose of combating the above. Our founding fathers recognized that a strict majority rules could (and has) become mob rules.

In light of this, can someone please explain to me how things like Prop 107 can be even remotely constitutional? How is this not exactly the kind of thing James Madison argued against when he worried about "the superior force of an interested and overbearing majority" overruling "justice and the rights of the minor party."

Do I think James Madison had same-sex couples in mind when he wrote this? Of course not. He also didn't have people of color or women in mind, but we have since decided that if his arguments were true for white men, they were no less true for women and people of color. I don't think we can seriously argue that the fact that James Madison didn't have Prop 107 specifically in mind means that his argument doesn't apply.

So let's look at Prop 107 and similar amendments that not only redundantly define marriage as between a man and a women in states where there are already statutes in place that do just that, but preclude states, counties, cities, and towns from setting up or recognizing anything that would grant similar rights and responsibilities to unmarried couples, often taking away (as would be the case in Arizona) existing rights, benefits, and domestic partner registries.

One of the main arguments against same-sex marriages, civil unions, or domestic partnerships of any kind is that these relationships are inherently sinful. The problem is, for the purpose of making civil law, this is irrelevant. Even if the majority believes this to be true, that is not a basis, according to James Madison, to make civil law that adversely affects a minority population. There are lots of things Christian doctrine regards as sinful that are perfectly legal. Two of the Ten Commandments instruct us to honor our father and mother and to not covet our neighbor's "house... or anything that belongs to [our] neighbor." Parents are often dishonored and no one is arrested or fined for it, and coveting my neighbor's belongings is not only legal, it's encouraged in our capitalist system. How else is Toyota going to convince me to shell out a lot of money for an SUV unless they get me to covet one?

But when does dishonoring my parents or coveting my neighbor's 4Runner become a matter for civil laws? When my dishonoring takes the form of abuse or my lust over my neighbor's 4Runner means I hotwire it and take it for a joy ride. Basically, my American right as stated in the Declaration of Independence for the "pursuit of happiness" ends where other people's rights begin. My legal right to (sinfully) dishonor my parents ends when it harms them. My legal right to (sinfully) covet my neighbor's SUV ends where their ownership of said SUV begins.

In terms of laws that grant protections and rights (or conversely, bar protections and rights) to couples to name each other as next-of-kin, to visit each other in the hospital and make medical decisions for each other, to buy property together with rights of survivorship, my right to decide which relationships are worthy of these protections ends with my relationship. I don't get to decide for my brother or my next-door neighbor or the guy at my church or the stranger in a different city who their significant other is, and I don't get to limit the protections I receive to only people in relationships I approve of.

This is what Madison was arguing. That even if most of my friends and I all think same-sex relationships or other arrangements that don't involve civil marriage are sinful, the test for whether it makes good civil law isn't my interests, it's "justice and the rights of the minor party." The only justification for barring the minor party from their right to the pursuit of happiness (defining their own relationships and having those relationships protected in cases of illness or death of one partner) would be if their relationship inflicts some sort of tangible harm on someone else. Again, my (sinful) coveting of my neighbor's SUV is legal because it doesn't inflict on my neighbor's rights. My stealing my neighbor's SUV is illegal because it does inflict on his rights.

So exactly how does the infamous and oft-cited Adam and Steve entering into a covenant relationship and wanting to visit each other in the hospital, make medical decisions for each other, get health benefits for each other inflict on anyone else's rights? What business is it of anyone other than Adam and Steve? And how does Bob and Mary's decision to forgo a civil marriage (because they are living off Social Security, including Mary's deceased first husband's, and they would lose that if they married each other) inflict on anyone else's rights? Does Mary's first marriage become any less valid because she found love a second time?

I would like to hear one argument based on solid evidence that these relationships inflict on the rights of others. I would like to hear one example of a tangible harm these relationships create for anyone else. Because absent that, according to founding father James Madison, we're basing our decision on the wrong thing, even if it is favored by the majority.

For me, it all goes back to James Madison. Majority rules was never intended to be the blanket system for our country and we have no business voting on laws that inflict harm on others just because we don't like what they're doing or think their behavior is sinful. Absent any real harm to others, everyone should have a legal right to the pursuit of happiness, sinful or not. And considering the real, tangible harm that will come to families that will be affected if Prop 107 passes, "justice and the rights of the minor party" is exactly what's at stake.

13 Comments:

At 11:44 AM, Anonymous Brett said...

I was introduced to the Federalist Papers in college. We were very fortunate to have thinkers like Madison, Hamilton, and Jay. After college, I read through the Federalist Papers about once a year for a few years, but have not read through them in several years. You've inspired me to pick them up again.
In regards to the Federalist 10, the arugment is that our form of government will reduce the effects of a faction. A faction is "a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community."
Factions are inevitable, unless liberties are taken away, or unless everyone is given the same impulses and desires. When factions form, and they are in the minority, we have courts with unelected judges to help sort things out. It's a hard, slow, sometimes painful process, but it is the checks and balances between our 3 branches of government that keep the "tyrrany of the majority" from opressing the rights of the minority.
You won't agree, but the problem I have today is that the courts are legislating from the bench, not interpreting the constitution.

 
At 12:46 PM, Blogger Bad Methodist said...

How are the courts "legislating from the bench" rather than applying these principles? I keep hearing that argument, but all I see is the courts deciding that laws have unfairly infringed on the rights of a faction (usually a minority). And in Arizona that isn't the case anyway; the Arizona DOMA was challenged in court and prevailed.

 
At 1:04 PM, Blogger Bad Methodist said...

Okay, I hate it when I'm in a hurry and I send before I say half of what I wanted to say. ::sheepish grin::

While I understand that Federalist #10 was about factions and how the Judicial Branch would be a balance against that, I don't see that it should preclude us from taking these principles into account before we pass laws. I think it should be incumbant upon us to do so. Why does it have to be a slow and painful process? If we really believe in the principles of personal liberty and not wanting mob rules, then isn't it reasonable to apply these principles now so we don't have to go through the long, painful process just to get back to where we are today?

What I'm asking is that people who support measures like Prop 107 take a serious look at this and decide... is there really a harm that would come from allowing families some basic protections, and if the answer is no, then shouldn't the vote be no as well? I still haven't heard an argument that points out an actual, tangible harm. I keep asking for one, but everyone who supports these sorts of measures skirts the issue.

So I ask again: What compelling reason do we have to take away domestic partnership benefits and protections from unmarried couples that outweighs the harm to these couples and their families if such a measure passes?

 
At 1:46 PM, Blogger Doug said...

I wish a well-known political figure would refer to these arguments. For example, in the New York governer's race, there's a lot of back-and-forth about who supports gay marriage, but no one seems to be producing the kind of argument that would sway anyone. These arguments, from one of our Founding Fathers, seem so persuasive, and as you say, no one is coming forth and giving a compelling reason or proof of tangible harm.

 
At 3:59 AM, Blogger John said...

A thing is not unconstitutional because a slice of Madison from the Federalist Papers disagrees with some governing principle exegeted from them. A thing is unconstitutional because it disagrees with the text of the US Constitution. So if you wish to make a Constitutional argument, then argue from the text of the Constitution.

 
At 6:52 AM, Blogger Bad Methodist said...

I'm still not hearing an answer to the question I posed. Interesting.

But... fair enough. From the Constitution:

1. The preamble: the Constitution was established to "establish justice... promote the general welfare, and secure the blessings of liberty." Prop 107 unjustly targets people who aren't married. It takes health care benefits from domestic partners and children of domestic partners of government employees, which harms the general welfare. It intrudes in the private lives and relationships of individuals thereby taking away their liberty to make their lives with whomever they choose without government interference.

From the 1st Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Granted, this isn't Congress, but I would argue that states are also held under the same standard. Prop 107 respects the establishment of some sects that do not allow same-sex relationships while disallowing free expression to sects that do allow such relationships. Yes, those churches can still perform holy unions, but couples who cannot get married if they so choose and if their faith allows are not being allowed free expression of their religion. If the ONLY reason for denying a right is "because it's a sin," that is respecting one relgion's view of sin over others'. And I still have not seen anyone propose an argument other than "because it's a sin."

Amendment XIV: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Under Prop 107, Arizona wold be making and enforcing a law that would curtail the previleges of some (unmarried persons, especially persons legally barred from getting married to the person of their choice) and would deprive those people of liberty, property, and equal protection.

Now, I'm not a lawyer. I don't know how constitutional law applies so I'm sure lawyers and law students could shoot all sorts of holes into any of my arguments while completely avoiding the question I asked: why is Prop 107 a good thing? What harms does it prevent that outweigh the harms it causes?

 
At 4:22 PM, Blogger TransatlanticGirl said...

"I'm still not hearing an answer to the question I posed. Interesting."

The silence is deafening, isn't it?

Thanks, Bad Methodist. Keep doing what you're doing. Your words and actions on this issue touch more people than you know.

 
At 11:09 PM, Anonymous Larry B said...

Let me attempt an answer to your question - I would like to hear one argument based on solid evidence that these relationships inflict on the rights of others.

It is my right granted to me under the constitution that I be allowed to freely practice my religion. My religious views lead me to believe that supporting a gay relationship is sinful. (read on there is more to the argument)

Now I am told that I am required to pay taxes to a government entity who will distribute a portion of my taxes to support a gay relationship when they provide domestic partner benefits. I have no choice in this matter, in fact I can be punished with fines and even jail time for not paying the taxes. Clearly my religious rights and technically my property rights are being infringed upon in this instance.

As strongly as you may argue that ones rights end where anothers begins you would have to accept my argument above that my rights have been infringed upon here.

However in addition to that, there has to be some guiding principles that define what establishes a right in the first place. Don't forget that Madison also postulated to the convention that voting rights would be most secure in the hands of landowners to prevent the future possibility where he envisioned that a majority didn't own anything and that majority would rise up and expel the public property rights of the land owners using their majority.

He is able to draw a distinction here of what does and doesn't comprise a right separate from any majority/minority opinion. Simply stating that marriage is confined to men and women only and that a government benefit should only be conferred upon that relationship isn't a prima fascia violation of his principles. In fact it could be argued that this parallels his ideas about only having landowners vote.

I would expect that you would recoil quite a bit at his voting rights restrictions, but if you are going to "go back to James Madison" then you ought to take in a broad view of his full approach when arguing that. Otherwise you should say I'm taking what james madison said in Federalist #10, but ignoring other things he said. Federalist #10 doesn't argue specifically against prop 107 if you consider his entire line of thought.

 
At 9:30 AM, Blogger Bad Methodist said...

It is my right granted to me under the constitution that I be allowed to freely practice my religion. My religious views lead me to believe that supporting a gay relationship is sinful.

I'll start here, even though there is more to your argument.

What about the United Church of Christ, which supports same-sex unions? They are being barred from freely practicing their religion by not being able to equally marry same-sex and opposite-sex couples in their churches. For one group the clergy may act as a representative of the state, but for another they may not. If we're going to argue freedom of religion, that means everyone's religions, and right now some religions are not able to fully express their faith in equality.

Should same-sex marriage some day become legal (which won't happen anytime soon, not in my state anyway), your church would still have the right to only marry couples which fulfill the church's requirements, while the UCC would be free to marry couples that fulfill its requirements. It seems to me freedom of religion is extended by allowing a broader definition of civil marriage, not lessened.

Now I am told that I am required to pay taxes to a government entity who will distribute a portion of my taxes to support a gay relationship when they provide domestic partner benefits. I have no choice in this matter, in fact I can be punished with fines and even jail time for not paying the taxes. Clearly my religious rights and technically my property rights are being infringed upon in this instance.

Fair enough, but would you really argue your right to not have to pay taxes to support benefits for relationships you don't agree with is more important than another person's right to make a life with whomever they choose without having to worry about others taking away their property (in the case of death) or ability to provide for each other (in case of health insurance) or to receive leave under the Family Medical Leave Act to take care of one another in the event of illness? Your right to not have a very tiny portion of your taxes supporting this is more important than their right to make their own decisions? By that argument, if I'm against interracial marriages, my right to not have to pay taxes so my black neighbor's white wife can get health care benefits is more important than his right to marry the person he chooses.

It's NOT my right to define family for others. Their right to life, liberty and the pursuit of happiness should trump my right to deny them that.

I would expect that you would recoil quite a bit at his voting rights restrictions, but if you are going to "go back to James Madison" then you ought to take in a broad view of his full approach when arguing that.

His argument was also that only white males could vote. I don't think I have to accept that to see that the main point, that justice and the rights of the minor party should take precedence over the interests of a majority, particularly when the majority enacts a law that affects the minority but not themselves, is a really good underpinning to our entire three-branch system of government. Madison, like every other human being, is a product of his time and culture. Applying his principles of fairness to a broader category of people than he ever intended is not misusing his words. On the contrary, the very brilliance of the way our government was set up was so that it could be flexible and change with the times.

 
At 8:06 PM, Anonymous Larry B said...

Fair enough. I think there is at least agreement that there are problems inherent with trying to decide who's rights matter although we probably don't agree on how to decide the issue.

But at least you hit on the idea that there is a lot of grey area when it comes to determining who's rights hold precedent over anothers. Even within the church, as you pointed out, there is disagreement.

Somebody has to decide. I think the 1996 defense of marriage act made the strongest statement about where the country is on this issue - and the Supreme Court so far has refused to consider any challenges to it.

My last point about Madison - he was also known to be a strict originalist and fought very hard to keep the original intent of the constitution as opposed to allowing it to flex with the times.

By the way, you are one of the few I've encountered who make some good arguments about prop 107 without resorting to the usual attacks. Thanks for keeping the debate civil and for the great posts.

 
At 8:37 PM, Blogger Bad Methodist said...

By the way, you are one of the few I've encountered who make some good arguments about prop 107 without resorting to the usual attacks. Thanks for keeping the debate civil and for the great posts.

Thank you, I really appreciate that. It's hard not to get defensive and angry when I'm passionate about something, but I don't think name-calling and attacks are very productive, so I try not to. Don't always succeed, though. ::sheepish grin::

 
At 7:34 PM, Anonymous Anonymous said...

Opposition to gay marriage is based entirely on the belief it is a "sin", which some Christian denominations teach.

One poster gave the interesting argument that allowing gay marriage forces a situation where his tax dollars are used to support such relationships, and that such was a possible violation of his rights. This is the most interesting of arguements. I have but one further thing to offer the argument:

“Give to Caesar what is Caesar’s, and to God what is God’s.”

--Jesus

 
At 4:20 AM, Anonymous Auto Accident Attorney Houston, Texas said...

Great article! Nice religious cum legal cum political stuff.

 

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