One more time

I’ve been on this earth since the 1940s, and for most of the years since then gay marriage was never something people talked about. Generally if people don’t talk about something, they don’t think about something — unless it directly affects them, that is.

So it wasn’t until recently that people started talking about gay marriage, and that happened because people who are gay started wondering out loud, “Why can’t I get married?”

And that’s when I started thinking about it. All of a sudden it was all over the news, and before other people could start wondering why gay people couldn’t get married, a panicked Congress passed the Defense of Marriage Act. I guess the idea was to settle the question before too many people asked it.

But it didn’t work with me. When I asked myself about it, my mind went immediately to the Constitution, specifically the 14th Amendment’s Equal Protection Clause, which essentially prohibits states from denying to any person within its jurisdiction “the equal protection of the laws.” And interpreting this is oh, so easy . . . so easy in fact that a child can understand it. What it means basically is that a state can’t deny a right to someone that it has granted to someone else.

The plain fact is, states everywhere should be throwing out their unconstitutional marriage laws without waiting for court challenges — or (especially) without calling for referendums. How foolish it is to think something like interpreting the Constitution should be left up to the people. That, folks, is what courts do.

Like it or not, states have only one legitimate interest in deciding who can and cannot get married — whether or not those applying for marriage licenses are consenting adults. It may be possible to define narrower interests regarding polygamy and incest, but those aren’t at issue here.

Figuring out that gay marriage had all the constitutional protection it needed was easy for me — and when courts have the opportunity afforded by challenges to review the laws, for the most part they agree. It’s politicians who can’t all be persuaded, apparently in some cases despite legal backgrounds themselves. Take the Arkansas attorney general, for example — Dustin McDaniel — who decided to appeal a court decision to throw out laws prohibiting same-sex marriages. Yikes — did McDaniel sleep through his Constitutional Law classes? Surely if a layman like me can understand the 14th Amendment, so can an attorney.

Advice for the Supreme Court

To be sure I am a layman, but I’ve been doing this kind of stuff for a long time, and I’ve connected a lot of dots. And so, it’s time to impart some wisdom to those robed men and women of the United States Supreme Court. (And yes, I do have the audacity to do so.)

On your typical court, you have your conservatives, you have your liberals, and you have the occasional centrist. To many of us, one of the most crucial aspects of a presidential election is, the winner gets to pick new justices. And while presidents come and go (often not soon enough), justices serve for life.

So, your honors, here goes: When deciding cases, think compassionately. I’m sure the Founding Fathers would want you to, and if you happen to be a Christian, you might also want to consider what would make Jesus happy.

The Consitution, we are told, was designed to be a flexible document, one that could be amended through a very complex process. However, that very document provided for your existence, in the hope that nine very wise people could resolve disputes of law when constitutional questions arose.

Now, we know the Founders were a pretty compassionate bunch of guys — look at the Bill of Rights. They just didn’t want people to be screwed over. And if you need more evidence of that, check the Declaration of Independence, which is the mother of the Constitution. “Life, liberty, and the pursuit of happiness,” things we are all entitled to, thanks to our Creator. Let this be your guide when making tough decisions. Never mind the “stict interpretation” of the Constitution, as some of you use as an excuse to not give a damn about people. I don’t think “strict interpretation” is what the Founders had in mind. I think they were counting on you to use not only your heads when deciding cases, but your hearts as well.

More than some of you seem willing to admit, the Founding Fathers knew times would change. They just didn’t know quite how. They left it up to all of us to adapt. I don’t think it was their intention for any of us to remain stuck in the Eighteenth Century. The Constitution is a living document, but only if you let it live.

Oh, no… not again

Just in time for the upcoming presidential election, the non-issue of gay marriage is resurfacing. Thanks to a recent California Supreme Court decision, a law banning gay marriage in that state was struck down — once again, something for conservatives to rally around.

This is an issue for candidates who have nothing else to talk about. It’s an issue for candidates with no new ideas. It’s an issue for candidates who are embarrassed to talk about their own records, or the record of their party. It’s an issue meant to distract from real issues. And, it’s an issue that has nothing to do with “morality” or “preserving family values” but rather an issue with a single purpose — to gain or keep political power. Opponents of gay marriage KNOW it won’t undermine the moral fabric of the United States. Hell, there are too many other ways to do that, and we’ve done just about all of them

For instance, we’ve perpetuated a health-care system that leaves tens of millions of people without health care. We’ve allowed our infrastructure to decay. We’ve left education as an afterthought. We invaded a country that did nothing to us and ruined our credibility as a the leader of the free world. We are a country that would elect an idiot as president simply because he was opposed to gay marriage. What jerks we are.

We need to put first things first. We ought to also acknowledge that, like it or not, the Constitution already guarantees equal rights for all, under the law, via the Fourteenth Amendment. For that reason alone we should realize that any law that prohibits marriage based on gender is already unconstitutional… like it or not.

Personally, I don’t care who gets married. If two people love each other, who am I to tell them they can’t marry? If two men or two women marry, my world won’t come to an end. I won’t feel a thing, except happiness for them, wherever they are. I won’t feel the kind of pain that I feel when I go to the grocery store or gas station. I won’t feel the kind of shame I feel when I hear the news about more deaths in Iraq. My heart won’t ache like it does for the young mother who can’t get health care for herself and her children because she’s poor. I won’t be embarrassed as I am when I hear how poorly our students fare compared to students from other industrialized countries. I won’t worry as I do when I drive across a highway overpass, wondering if it will collapse.

Can you imagine someone putting all these considerations aside when making their choice come election day, selecting instead someone who will make them safe from gay marriage? I sure can’t.

A Constitutional flaw

For the most part I’m happy with the Constitution, although it could use some cleaning up here and there. But there’s one provision that drives me nuts — the Electoral College. Whatever possessed the Forefathers to come up with this cockamamie way of electing presidents?

My sense is that someone who’s philosophically a blue-stater who happens to live in a red state might say “what’s the point” come time to vote for a president. And vice-versa of course. When they encourage us to vote, they say every vote counts. But that’s hogwash. My vote for President doesn’t count in North Carolina.

But if we abolished the Electoral College, every vote WOULD count. I may live in a state, but I’m part of a country — and I’d rather be governed by someone I knew had most of the votes. The 2000 election should have been a wake-up call for an amendment to abolish the Electoral College, but it wasn’t.

I’m a big believer in the popular vote — and I believe it should be given more weight in the primaries as well. I like to think, with occasional exception, that most of the people will make the right choice most of the time. And even if they don’t, at least the results will be the people’s will, for better or worse.

I still shake my head in disbelief

George Bush was first elected almost eight years ago — a long time to hold a grudge. But it never hurts to remember mistakes, and it’s usually worthwhile to remember who made them.

Bush’s résumé was no deep dark secret. For most of his adult life he was pretty much a failure at whatever he tried to do. He wasn’t even a blank slate. As a human being, he had a history of performing poorly, and I can’t recall any serious public examination of his qualifications to be president. Sure, there were small voices here and there who wondered WTF was going on, that such a man could be taken seriously as a candidate for president. But strangely, the press — the “Mainstream Media” — was pretty silent. From the so-called liberal press, George Bush got a free pass.

The press is the only private institution that has by name its freedom protected by the Constitution — for good reason. The authors of the Bill of Rights recognized the importance of an unfettered press as the watchdog over government, a sacred role on behalf of the people. Bush’s career record was not only news worth reporting, but worthy of analysis and frequent comment.

So we can blame George Bush all we want for the mess of the last eight years, but we owe it all to the news organizations that paid more attention to the “guy you wouldn’t mind having a beer with” than to the frat brat that got a gift appointment to the National Guard in time of war, then couldn’t even show up for duty — a violation of the Uniform Code of Military Justice, by the way.

I will never forgive the press. And if people were to quit buying papers, to quit turning on the six-o’clock news, I would say, “Serves you right. Take a look at yourself, and see what you’ve become.”

Ongoing Disbelief

My mind is always boggled when I hear gun-rights advocates defend the public’s right to own guns by misrepresenting the Second Amendment. The language of the amendment might be a little dated, but the meaning is clear — as is the intentions of its authors.

Here, once again, is the amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Here, once again, is the bottom line about the amendment: The states, wary of a strong central government, wanted constitutional assurance that they would be allowed to maintain armed militias to counter any potential excesses of federal power. That the amendment referred to the right of the people to keep and bear arms was in keeping with the times, for in those days the militiamen were ordinary citizens who kept their flintlocks at home.

Today’s militias are, of course, the various states’ National Guards. Well-regulated, in keeping with the amendment, comprised of ordinary people, also in keeping with the amendment. To extrapolate the amendment into a guarantee for every living American the right to carry a gun — whether nine-millimeter automatic pistol or M-16 rifle (or worse) — is ludicrous.

Many American cities are rife with crime, and guns are still the instrument of far too many deaths in the US. Many gun advocates believe that if more citizens were armed there would be less crime. Perhaps, but I have a feeling there would be more innocents being shot, not fewer. And, I sure don’t want to live in a country where security on the streets is dependent on an armed population. We are supposed to be civilized, for heaven’s sake.

I have no problem with hunting rifles, and a good hunting rifle just needs to be accurate. It doesn’t have to be semi-automatic. There are still many places in America where it makes sense to own a gun, too — rifles, shotguns, even pistols. If I lived in a rural area, I’d most likely own one myself.

I don’t know if those who distort the Second Amendment do so deliberately or out of ignorance. But there’s no justification for either. Many who do are running for office, or in office, or otherwise in a position of authority in the US — and I, quite frankly, expect better of them.

The Constitution is No Joke, George

A Federal judge in Detroit has decided that the NSA warrantless eavesdropping program is unconstitutional (see story). What’s new.

But his hasn’t been the administration’s only egregious violation of the Constitution. To date, the president has issued more signing statements on passed legislation than all other presidents combined, a policy that clearly smacks of an imperial presidency. Most legal scholars find this, and the eavesdropping programs, unconstitutional.

Apparently the president doesn’t hire legal scholars though. Apparently he hires lawyers who share his agenda, who interpret the Constitution in the same bizarre way the president and his advisors do, legal ideologues who apparently believe the president is above the very Constitution he has sworn to defend and protect. The Constitution is pretty clear about the process of creating laws. Nowhere does it state that the president can ignore portions of a bill once it is signed into law. No competent attorney would advise the president to the contrary.
This falls under the heading of “high crimes,” which the Constitution speaks to quite clearly. It is an impeachable offense. But the president’s attorneys don’t need to advise the president that he is immune from impeachment, because they know Dick Cheney would be waiting in the wings, and that’s pretty good impeachment insurance.

How Do We Repair Our Democracy?

The current version of the United States has existed since 1789, when the Constitution was ratified — not a bad run for what was rather novel at the time. We were an experiment in democracy that, by all accounts, has been fairly successful.

Along the way, thanks to the amendment process, we’ve fine-tuned the Constitution here and there to make improvements — to make clarifications, to fix mistakes. We granted every American equal status as citizens, we gave women the right to vote, and we strengthened civil rights. But somehow our democracy got broken anyway — and in my opinion there are two flaws that need fixing.

The first centers on campaign financing and lobbying — the influence of narrow interests before and after elections. While no elected official will admit to being influenced by the money and favors he or she receives from corporations and organizations, voting records leave a pretty telling trail. Republicans, by far the chief recipients of campaign contributions from energy companies, routinely vote against environmental measures and for bills that grant tax breaks to oil and coal companies or otherwise favor them. Democrats, on the other hand, typically receive the lion’s share of contributions from labor organizations, and are more apt to favor pro-labor legislation.

If you’re like me, of course, you don’t mind the Democratic tilt — it is, after all, more pro-people than business. But I’d rather see legislation passed on its merits, and not because of who donates what to whom.

The second flaw has to do with checks and balances. The framers of our Constitution were careful to devise a system wherein no branch of government would be more powerful than either of the other two. Yet in recent years, thanks to the ideological match between the executive and legislative branches of government, Congress no longer presents a check on the administration. To make it worse, that ideological match has allowed the Supreme Court to be stacked with equally matching justices, the result being an almost imperial executive.

One partial remedy that would address this is a constitutional amendment that would clarify the approval process for federal court nominations — including, of course, the Supreme Court. As I’ve written in the past, it makes absolutely no sense to require a simple majority to approve judges because jurists serve life-long terms, far outliving any administration and congresses. It is therefore essential that judges be ideologically independent of either party, and the best way I can think of to ensure this is to require a two-thirds’ vote in the Senate to approve a nomination. While it can be argued, I think, that the Constitution already says this, an amendment would clarify it and set it in stone.

Our democracy was created to support and safeguard the interests of the people of the United States, and it is currently under threat. Its remaining flaws have become glaringly obvious in recent years, and only now are people realizing that something must be done. But it’s up to the very people who are supposed to be protected by the Constitution to do what’s necessary to fix what’s broken — and that process begins this November on election day.

Let’s Not Sully the Constitution

The Thirteenth Amendment, which amended a part of the original Constitution by banning slavery and indentured servitude, was ratified by the newly reunited states in 1865. I’m just guessing, but I doubt if there was widespread celebrating in the streets. In all probability, many Americans were at best indifferent to the amendment, and many — particularly in the South — certainly opposed it. But it was the right thing to do.

In 1920, the states ratified the Nineteenth Amendment, which said that the right to vote could not be denied because of sex. Once again, this amendment was probably not universally popular. But once again, it was the right thing to do.

Despite what would almost surely be widespread approval, an amendment banning gay marriage would be the wrong thing to do. It would go against the very essence of the Constitutional amendment process. In the first place, amendments are intended to make changes to what the Constitution already defines — and marriage is not something the Constitution gets into. Such an amendment would be blatantly out of place.

In the second place, it would reverse the trend that expands and clarifies rights established by the amendment process. In addition, it would contradict the Fourteenth Amendment, which guarantees equal protection under the law. Since it’s been left up to the states to write laws governing marriage, the Fourteenth Amendment already prohibits those laws from establishing biases of any kind, except where legal age is involved.

Some candidates for Congress still cling to the gay marriage ban as a campaign issue, because it appeals to widespread homophobia. But in this case, as in cases in the past, the majority isn’t right.