Random thoughts, 19 June 2009

2009/06/19

There are a few Constitutional issues in the news lately, so I’ll start with those.

First, the President has drawn sharp criticism from gay rights advocates after he effectively upheld H.R. 3396, more commonly known as the Defense of Marriage Act (or DOMA). [1][2] In this particular case, however, I find myself in agreement with the President (a rare situation, I know); the Section 2 of DOMA clearly indicates that the right to determine the legitimacy of marriages is reserved to the several states, that they are not required to accept as valid marriages between same-sex individuals from other states. Meanwhile, Section 3 explicitly defines marriage as being between a man and a woman for the purposes of recognition by Federal acts, regulations, Federal agency policies, etc. [3] While I am not opposed to gay rights or same-sex marriages (secular ones, anyways [4]), neither of these provisions strikes me as particularly unfair. As the regulation of marriage is not explicitly granted to Fedgov by the Constitution (read it; marriage is mentioned nowhere in the Constitution) based on the provisions of Article I, Section 8 (wherein the full powers of the legislature are defined) and the Tenth Amendment (wherein powers not specifically delegated to Fedgov are explicitly reserved to the several states or to the People at large), it strikes me as appropriate that the several states should have the right to determine for themselves how they wish to regulate the practice. While I realize that Article IV, Section 2 guarantees citizens from one state access to the “privileges and immunities of citizens in the several states,” based on a full reading of this section, it appears to apply primarily to criminal proceedings, rather than requiring the several states to maintain the same laws as all others. [5] Regarding Federal laws, regulations, etc., as stated in Section 3 of DOMA, so long as such a view represents the view of a majority of the several states and their citizens, this provision does not bother me, either. [6] Indeed, it appears that the President may face opposition to his extension of some benefits to same-sex partners of Fedgov employees; based on Section 3 of DOMA, I am not entirely sure how he intends to circumvent the prohibition. On the other hand, if Fedgov, as a whole, decides not to enforce this section of DOMA, I suppose it would be difficult to stop this, either.

The other Constitutional issue revolves around access DNA testing in state criminal proceedings, or, more specifically, access to said testing after the case has been decided. [7] This, of course, is a situation that was clearly unforeseen by the Founding Fathers, as the technology for such tests did not exist in the 18C. As noted in the article, however, Fedgov has already extended this right to convicted criminals in Federal prosecutions, and 47 states also provide this right by law in their own criminal proceedings. While it may appear contradictory for Fedgov to limit this right to its own prosecutions, and not require it of the several states, as well, the legal proceedings of the latter are generally seen as independent of the influence of the former. Additionally, based on the provisions of Article III, Section 2, Federal judiciary responsibility is explicitly described as applying to the several states only when legal conflicts arise between the latter, between citizens of different states, between citizens of one state and the laws of another state, etc. Legal conflicts between the citizens of a single state and that state itself are clearly not stated as an issue of Federal concern. As such, while it may appear unfair for a state to deny to its citizens a right enjoyed by nearly all of the other states of the Republic, it is up to the legislature of that state to address the situation; Fedgov has no authority to step in to address this situation (nor should it).

In other domestic, news, the President remains relatively popular, but his policies are clearly less so. [8] Of course, I am not surprised by this; while I disagree with the man on a whole host of issues, he is clearly charismatic and personable. It is interesting to note that his personal popularity is not translating into policy support; one wonders what effect this will have as time goes on. It is also important to note how fickle popularity polls tend to be, so while they may indicate lower support one week, they may be entirely different a few weeks later. Much will depend on the success of the President’s policies and the effects thereof; I suspect that, despite his pervasive optimism regarding his multitudinous initiatives, he may end up being disappointed on a number of these. It is also worth noting that this unpopularity is not translating into renewed support for the GOP; again, I am not surprised by this, given that the criticisms are focused on specific policy initiatives, and the GOP has not provided much in the way of alternatives in this regard. We shall see how all of this works out, one way or another.

Meanwhile, in international news, Iran’s supreme leader, Ayatollah Ali Khameni, has officially stated his support of the disputed presidential election results from last Friday. [9] I suppose this would have been more significant if the presidency held more weight in Iran than it actually does. Again, as previously stated, supreme authority in Iran rests not with the popularly-elected president, but with the non-elected Guardian Council, from which the Ayatollah is selected (by their own ranks, not by popular elections). Amusingly, Khameni also seems to think that various Western nations are responsible for the protests and violence following the election. Or maybe it was Zionists. Oh wait, it wasn’t the Western nations, it was their media outlets. Well, in any event, his speech hit the high points for his minions, so I suppose it will be relatively well-received. And the people of Iran continue to reap the benefits of rule by their enlightened theocratic overlords.

Additionally, there are some concerns that the recently established naval blockade of the DPRK may prompt the latter to launch a ballistic missile towards Hawaii. [10] Given that missile technology in the DPRK appears to be generally hit-or-miss, this may not be much of a concern. On the other hand, given our history with Hawaiian attacks, it is probably wise for us to be prepared, just in case. [11] It should also be noted that we have several weapons systems that should be capable of shooting down incoming ballistic missiles (THAAD, as mentioned in the article, but also the SM-3/Aegis Ballistic Missile Defense System), so we are probably not in too much danger.

Finally, in today’s WTF?!? moment, a Minnesota woman has been fined 1.9 million USD for illegally downloading 24 songs. [12] Seriously, all I can say to this is WTF?!? While I do not object to copyright laws or the enforcement thereof, does this not seem just a little extreme? Even the original fine of 220,000 USD seems an excessive penalty for stealing 23.76 USD worth of songs (not including taxes). Yes, to be fair, this woman is guilty of theft; nonetheless, 1.9 million USD? I am at a loss to understand how this is just recompense to the offended party; I am also appalled that the latter considered this to be an acceptable outcome. Something is clearly wrong with this situation. And lest you think that this is an isolated and odd incident, keep in mind that anecdotal evidence suggests that such illegal practices are quite common, particularly on large file-sharing networks, such as those on college campuses. But of course, college students have so much money available to them, right? No need to worry about them.

Notes:

[1]: CNN article, 18 June 2009.

[2]: New York Times editorial, 15 June 2009.

[3]: Full text of the act available here, from the Library of Congress website.

[4]: Marriage is a bit peculiar in the modern form that exists today, in that it is both a secular and a religious institution, and the one is not necessarily the same as the other. From a secular perspective, same-sex marriage does not concern me; forcing religious institutions to respect the same, however, is clearly a violation of the First Amendment. I realize that a very strict reading of the latter would suggest that Fedgov is prohibited from establishing an official state religion, it is implicit in the wording that government regulations affecting the free exercise of religion are also prohibited.

[5]: For example, officials from a state that does not permit same-sex marriage cannot invalidate a legal marriage performed by another state that does, even if a married same-sex couple decides to relocate from the latter to the former. The former, however, is also not required to recognize the marriage as valid for the purposes of determining benefits, tax status, etc.

[6]: Thus far, evidence suggests that this continues to be the majority decision of the nation. See here for a Gallup poll from 27 May 2009 indicating that this is so. Granted, it is not an overwhelming majority, but it is a majority, nonetheless.

[7]: Christian Science Monitor article, 18 June 2009.

[8]: CNN Political Ticker article, 18 June 2009.

[9]: Voice of America article, 19 June 2009.

[10]: Agence France-Presse (AFP) article, 18 June 2009.

[11]: 7 December, 1941, in case you forgot.

[12]: CNN article, 18 June 2009.

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One Response to “Random thoughts, 19 June 2009”


  1. […] on the Constitutionality of DOMA With J’s Blog noting the “constitutional issue” raised by the Defense of Marriage Act & Obama’s […]


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