Not-so-random thoughts, 28 May 2009


Good lord, it seems like every time I turn around, someone is saying or doing something absurdly ludicrous. The first offender is this commentary, [1] regarding the President’s Supreme Court nominee, Judge Sonia Sotomayor. And boy, it does not take long for the author to dip into the Well of Absurdity. The author appears to focus solely on the “empathy” Sotomayor might (or should?) feel for the Hispanic community – and that this is a good thing! When did that become the defining quality for our public servants? Whatever happened to the notion of doing what is good for the nation as a whole, and not just placating each and every faction that makes its demands as loud and shrill as possible? This does not move us closer to the so-called “post-racial” society; it subverts the notion of our society as the proverbial “melting pot.” Let me be clear: so long as we insist on seeing national issues through the lens of White-American, African-American, Latin-American, etc., etc., ad nauseum, affairs, and not as American affairs, we perpetuate the belief that racial factions are meaningful divisions within our society. Approaching our affairs as American-first does not mean that we should entirely ignore the unique characteristics of the various people that make up our great Republic; it does mean, however, that these factional characteristics should be less important in national affairs than the interests of our people as a whole. Sadly, I suspect that such attitudes are few and far between; more often, it seems, people identify with politicians specifically because they believe said politicians are “theirs,” that these politicians’ sole purpose is to represent their own personal ideals – which also has the effect of inciting the ire of such supporters when the politicians do things that deviate even slightly from the former’s positions. To some degree, of course, this is true, as ours is a representative government – but that does not mean that our representatives are nothing more than an empty vessel for transporting our demands, verbatim, to the national stage. Consider, for example, the following:

The republican principle demands, that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance[sic] to every sudden breese [sic] of passion, or to every transient impulse which the people may receive…it is a just observation, that the people commonly intend the PUBLIC GOOD. This often applies to their very errors…when occasions present themselves in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. [2][3]

Granted, this was a perspective from over two centuries prior, but is it no less true today? And if it is, why is it so? What about our modern condition demands that we focus more on what divides us than on that which unites us? Why should our nation as a whole acquiesce to the individual demands of each and every faction, who, by definition, often do not look at the whole when calculating what will be most beneficial to themselves? I suppose that even if we, as a nation, generally begin to see national affairs in the manner that Hamilton describes, there will always be narrow-minded individuals who cannot see past their own individual affairs. Alas.

Unrelated to the aforementioned lunacy, there is an entirely different form of lunacy described in this article. [4] As I mentioned yesterday, I am not opposed to secular same-sex marriage; seriously, folks, good luck. The lunacy to which I refer is not same-sex marriage itself, but the way in which its supporters are trying to overturn California’s Proposition 8. Leaving aside, for the moment, the fact the claims of bias and bigotry embodied by the proposition (and they’re probably not too far off the mark in this claim, either), unless I fundamentally misunderstand the workings of the California government, their supreme court cannot simply invalidate a portion of the state constitution – it lacks authority to do so. The only means of amending the constitution is similar to the requirements for amending the Federal Constitution; [5] indeed, it appears that California state constitution is based, in no small part, on the Federal Constitution. Indeed, it appears that critics of Proposition 8 are already positioning themselves for 2010 ballot measure to invalidate the former; they, at least, are doing things the right way. Like it or not, folks, the ban is not going away until 2010, at the earliest, so all these current and proposed lawsuits do little more than clog up the judicial system unnecessarily.

More annoying, however, is the following, from Ted Olson (one of the lawyers who will be bringing a new legal challenge to Prop. 8):

We’re going to court because people shouldn’t have to surrender their fundamental rights to a popular plebiscite…

There are two problems I see with such a statement: 1) marriage is not a “fundamental” right in the same way as, say, freedom of expression; and 2) surrendering individual rights to popular plebiscite is part of the fundamental underpinning of our entire system of government, without which, no legislation would ever succeed. As to the first part, I mentioned yesterday that certain forms of marriage are prohibited, establishing, at the very least, that secular marriage does qualify for legislative regulation. It is, perhaps, relevant to question whether or not secular marriage should be regulated as such, but regardless, there is ample historical precedent for state regulation on marriage and its acceptable forms, so unless these lawyers (!) want to abandon centuries of legal precedent, I suspect that their attempts to characterize marriage as a “fundamental” right will be unsuccessful. As to the second point, the abdication of certain individual rights in a society is a fundamental concept; similarly, the concept of majority rule is inseparable from our form of government, and, for that matter, any form of representative government. Jean-Jacques Rousseau explores the former point in great detail in his treatise, The Social Contract, wherein he argues that while individuals must sacrifice certain “natural” freedoms in society, the guaranteed civil liberties provided by the latter more than offset the loss of said “natural” freedoms. It is true that civil societies such as ours require that we lose the ability to do anything we want whenever we want without fear of consequence, but in so doing, we gain protection to do whatever we want, so long as in so doing, we do not deprive others of their ability to do what they want. [6] And yes, I realize that marriage should certainly fall within this category, but this is more of a guideline than a hard-and-fast rule. And the argument against majority rule? This is foolish and unrealistic. Yes, it is true that majority rule will eventually lead to disappointment on the part of the minority, but this is simply the way it is; our government would not function if we were to abandon this principle. We cannot satisfy all of our citizens all of the time; the best we can hope for is to satisfy the most citizens possible, most of the time. Think that’s bad? Well, the alternative is much, much worse. [7] Or, as the saying goes, ours is the worst form of government imaginable…except for all the others. Finally, critics of Prop. 8 would do well to remember that social attitudes are always evolving, and that such shifts take time to accomplish; Rome wasn’t built in a day, and neither was our great Republic.


[1]: CNN political commentary, 28 May 2009.

[2]: Alexander Hamilton, The Federalist, Number 71, Paragraph 2.

[3]: I have referenced this passage before, and again, I must point out that the “republican” principle to which Hamilton refers is “republican” in that it pertains to matters of the Republic, i.e., our nation as a whole. It has nothing to do with the modern GOP, or, for that matter, any specific Republican party throughout our nation’s history.

[4]: CNN news article, 28 May 2009.

[5]: See here for full text of the California State Constitution, from the California Secretary of State website.

[6]: Paraphrase of Thomas Jefferson: “rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others.” From his Letter to Isaac H. Tiffany.

[7]: I speak, of course, of anarchy, or man’s “natural” condition, as described by Thomas Hobbes in Chapter XIII of his treatise, The Leviathan. I have previously posted a set of relevent quotations from this chapter, so please check there if you are unsure as to what I mean.


One Response to “Not-so-random thoughts, 28 May 2009”

  1. MI Says:

    people shouldn’t have to surrender their fundamental rights to a popular plebiscite

    This is basically an argument against tyranny of the majority. The real question is two-fold: 1) the definition of “fundamental right”; and 2) the extent to which the Constitution authorizes federal intervention in state-level marriage law.

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