James Williamson guest blog: Marriage: Right or Privilege?

Editor’s note:  James Williamson, one of my younger brothers, an Ohio native, currently resides in Nevada.  I’m thankful that he wants to contribute material to the blog when I’ve been too busy with grad school to keep the site updated. –DJW
Marriage: Right or Privilege?
Recently the President of the United States of America “evolved” in his views on same sex marriage (some would say “flopped”…) While the announcement was not entirely unexpected the timing of it (shortly after the North Carolina vote on the marriage amendment) seems rather odd.  For a campaign that supposedly is transitioning into general election mode the President seems to be spending a lot of time trying to rally his base still.  While this subject would be sufficient for a lengthy blog in and of itself I’d like to focus on something very specific that the President said in his “evolved” (flopped) position:  the President referred to marriage as a “civil right” and implied that same sex couples should be extended that right.
This is of particular interest to the states because, as the President noted, it is an issue that the states have been deciding.  The President (for now) has said he will leave that to the states.  There are two things that president has done that lead me to believe that this is only a temporary situation.  The first is the refusal to enforce the Defense of Marriage Act (DOMA) the second is the declaration that it is a “civil right” to marry.
First let’s define a right.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. (Declaration of Independence)
Thomas Jefferson would probably curdle modern liberals blood if he were alive today.  The audacity of declaring that rights are given by our “Creator” and not by government!  The only thing that could make that statement more offensive in the eyes of the secular would be the use of the word “God”…  But there it is in plain English.  A right is given by God, not by government.  (I said it… are you offended now?)  It is something that governments cannot take away, because when they do they set themselves up for failure as Thomas Jefferson points out in the next phrases of the Declaration of Independence:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
 
So a right is something that is given by God, meant to be protected (not abrogated) by government, and extended to everyone.  Notice that Thomas Jefferson does not attempt to make a complete list.  He even implies that there are more by using the phrase “among these…”
Typically civil (or even individual) rights are guaranteed by the Constitution of the United States of America.  The first ten amendments almost entirely dealt with such rights (hence the name “bill of rights”). James Madison is often called the father of the Constitution, being the principal author of it.  James Madison was a federalist and believed that the bill of rights was not necessary because the Constitution itself (un-amended) implied such rights.  Furthermore, he believed that if you enumerated those rights that the government would limit recognition to only those rights.  In other words, if you create a list then you are limited to that list.  John Jay, an anti-federalist and a promoter of the bill of rights, argued that if you didn’t enumerate rights the government would not recognize any of them and the public would eventually be forced to cede those rights.  In other words, if there isn’t a list then they don’t exist.  As a compromise between the two parties the anti-federalists agreed to support the ratification of the Constitution and the federalists agreed to support the passage of the bill of rights.  Both parties kept their end of the bargain and the marriage (pardon the pun…) was complete.  (Hardly comparable to “compromise” in today’s government…)
So does marriage fall into this category?  Do people have a right to marry?  Thomas Jefferson (and I will agree) said that “life, liberty, and the pursuit of happiness” are rights.  Some may argue that marriage essential to all three of these.  I am going to take the opposite approach.  Life, liberty, and the pursuit of happiness are essential to the institution of marriage.
Before we go further I would like to differentiate between a religious wedding and a civil wedding.  The terms are not interchangeable.  Here in the United States the government allows religious authorities to perform marriages.  This is not so in many other countries.  In many other countries of the world you must be married by a justice of the peace or some sort of civil officer for the government to recognize your marriage and give you legal standing.  By the same token many churches do not recognize a civil marriage as binding before God.  Today I am discussing civil marriages and will limit my arguments to it.
No other creature in the animal kingdom formalizes the union of mates the way man does.  (OK so not being able to speak or write poses something of a barrier…)  Why did society decide that this was necessary when all other animals simply initiate their courtship and consummate it in their own way?  Some animals mate for life (most notably birds) and others mate at will with multiple partners (dogs, cats, etc.).  Some fathers stay with the family to protect their young (amazon river otters), some leave the young to the mothers (cats), and some don’t have much involvement at all from either parent (sea turtles).  Regardless of the method of caring for their young all members of the animal kingdom perpetuate the species and have done so successfully for thousands (millions, billions, whatever your belief is) of years.
Why is this observation important?  It is important because marriage is about perpetuating the species.  It always has been and always will be.  Society has always been concerned about the welfare of children because they are the future of the species.  If you do not care for and properly prepare children to be productive members of society then society suffers maladies that are difficult to cure.  Civil law concerning marriage and family relationships if examined closely is much more concerned with the children than the spouses.  Even in cases where alimony is paid, the presumption is that the wife has dedicated her time to rearing children and therefore not able to provide her own sustenance because those skills require time and effort to develop and are often precluded by child rearing.
I have heard the argument that marriage has been historically about economic union rather than love and affection.  I can partially agree with that.  What was the goal of the economic union though?  It was not self-fulfillment, it was to provide for the children with a hope for a better life for them than the parents enjoyed.
Now we live in a time when people are confused as to what marriage is all about.  Since child rearing has become much easier with modern inventions like washing machines, gas/electric cook stoves, electric light, indoor plumbing, etc. it is possible for one parent to provide for the physical needs of a child.  This was infinitely more difficult to do for a person who was not wealthy 150 years ago.  This has led some to advocate that a father and a mother are no longer necessary to raise a child.  (This is another topic that could spawn many more blogs…)  Consequently, some erroneously conclude that marriage is about couples that love and care for each other and that two people of the same gender should be able to enjoy the same legal privileges granted to opposite gender couples.  The problem with that is that marriage is not about the couples: it’s about the children.  Society has not been concerned with same sex relationships because they cannot produce children.
Well, what about all the couples in the world that never had children?  There are always going to be exceptions.  Some couples don’t want or cannot have children, but most heterosexual couples can and do have children.  Same-sex couples cannot.  Same sex parents are a modern phenomenon and an artificial creation of society.  At least one parent must relinquish custody of a child for such families to exist. Short of cloning (I won’t get into this topic here) it requires a man and a woman to produce a child.  It requires heterosexual relationships of some form or another to perpetuate the species.  We now have technology today that confuses that fact because we can fertilize a human egg cell in a test tube or in vitro.  That does not change the fact that a female (egg) and a male (sperm) donor are required to produce offspring.  Heterosexual intercourse is the natural method of reproducing.  It is the method that has been used for the entire history of civilization until the late 20th century.  Even in societies where same-sex intercourse was popular prior to the 20th century (Greece, Rome) those who wanted children married someone of the opposite sex to form a family.
So to recap, marriage is about life (perpetuating the species), liberty (the choice to reproduce or not), and the pursuit of happiness (the joy of raising children).  The proper relationship, though, is that these rights underpin the institution of marriage, not the other way around.  No, Mr. President marriage is not a right.  It is a legal institution that affords privileges for those that perpetuate (or have the potential to perpetuate) the species.  I personally would rather see civil marriages abolished altogether than to watch its intended purpose twisted beyond recognition.

James Williamson guest blog: Imminent Rebellion: Restoring the Balance of Power (without the fighting…)

Editor’s note:  I have been swamped with grad school for lo these many months.  I would love to be posting more content right now, but I have other commitments.  My brother, James Williamson, an Ohio native but current Nevada resident, has submitted this addition to his “Imminent Rebellion” series of guest blog articles at Buckeye RINO.  The other guest blog articles he’s written in the Imminent Rebellion series are linked here, here, here, here, here, and here. –DJW

Throughout this series I have addressed the subject of the growing imbalance of power between the states and the federal government.  Until this installment I have mostly focused on causes and not spent much time on solutions.  Not wanting to be an all-problems-and-no-solutions guy I am now going to set forth my plan for restoring the balance.  (Readers beware!  Some of these ideas may be considered radical!)

Before I get started I want to clarify that “states’ rights” is a misnomer.  States don’t have rights.  Individuals have rights. States have sovereignty.  Their sovereignty is limited but they do have sovereignty that is delegated to them by the people.  The federal government also has sovereignty but it is delegated to it by the states.  (I have elaborated on this subject in greater detail in a previous blog.)

The curious part about all of this is that even though I have argued that the states, collectively, are superior to the federal government, federal laws supersede state laws and even state constitutions. This is clearly stated in the US Constitution itself:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (Article VI)

So if federal laws are superior to state laws then how is it that the states are collectively superior to the federal government?  There are essentially two parts to the answer.

1.  The federal governments power was instituted by the states and is limited by the US Constitution, which reserves all non-enumerated powers to the states (see Amendment X).  This is of particular interest now since the US Supreme Court has recently heard oral arguments on the Patient Protection and Affordable Care Act, or “Obamacare,” and the Arizona SB 1070.  The Supreme Court’s decisions on these two cases may help stem the tide on the expansion of federal power and reassert the sovereignty of the states and the people.  However, this is highly dependent on a very small group of people appointed by the President.  For a more robust solution less dependent on the capriciousness of a group of nine people appointed to their positions for life by the President we must look further abroad.

2. The US Constitution can be amended by the states independent of any federal action.

What!!??  The states can change the Constitution without Congress!!??  Say it isn’t so!

It is so.  Not only can they amend the Constitution, they could also repeal it if they wished.  There are some that may call this claim ridiculous and that the Civil War has proven that the Union cannot be dissolved and that the federal power is superior to the states.  Not so.  The Constitution itself says otherwise:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. (Article V)

Note that there are two methods of proposing amendments:  one that involves Congress and one that does not.  The several states can call a “Convention for proposing Amendments…” which become binding “when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof…”  So there is a path by which the states can alter (or even abolish, should they so choose) the US Constitution without any Congressional involvement.  Since we are talking about limiting federal power, this method must be used because Congress is not really interested in relinquishing their own power and would never propose an amendment that would further restrict the federal government’s power.  After all this is their livelihood we are talking about here…

So what would we propose in these state conventions that would curtail the ever expanding federal power?  Besides repealing the 16th and 17th Amendments I would propose the following four amendments:

The repeal amendment.  This has already been proposed in the state of Virginia. The proposed text reads:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

This would be a very effective tool for states to eliminate statutes or executive orders that are not in the best interest of the states.  If this amendment were effective now the several states could have already repealed “Obamacare”.  In theory they could have done so the next day.  Opponents say that this would create chaos by allowing the states to effectively nullify federal legislation.  On the surface it would appear to be so but garnering a 2/3 vote from the state, while less stringent than the ¾ needed for amendment, would not be an easy task and any law would have to be deeply unpopular with the state legislatures to be put in danger.

The recall amendment.  Almost all states in the union have a method for recalling their representatives.  That includes state legislators, executives, and judiciary.  Many states even have provisions for recalling their US legislators.  There is, however, no provision for recalling any US official in either the executive or judicial branches.  I would propose something like this:

“Any officer of the United States including the President of the United States may be removed from office by the several states for failure to uphold their oath to support this constitution, and such removal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose.  All vacancies shall be filled in accordance with this constitution and federal laws”

Note that I would apply a less stringent standard than that of impeachment.  An officer (including the President) of the United States can only be impeached for “Conviction of, Treason, Bribery, or other high crimes and misdemeanors”.  (Article II, Section 4).  The reason is that failing to support the Constitution is not necessarily a criminal matter but in large part a political one.  An officer may not be guilty of any high crimes or misdemeanors and yet not support the Constitution, which they have taken an oath to do.  By removing those who are derelict in their duty, the states would have more direct control over the destiny of the Union as a whole.

This particular amendment is one that I would say may be the most urgent.  We now have a President of the United States who has ramrodded a law through that will bankrupt the states (Obamacare), sued a state to get it to change its laws (Arizona), and refused to enforce a law duly enacted by Congress and signed by a previous president because he disagrees with it (Defense of Marriage Act).  Today he is saying that the states should decide the issue and the federal government should stay out.  Who knows what he will be saying tomorrow?  One thing is for certain; our current president does not play nice when he disagrees with someone or some organization.  A lot of damage can be done in four years.  More can be done in eight.  If someone has no fear of retribution a lot can be done in say… three months?

The Congressional compensation amendment.  While Congress determining the compensation of the executive and judiciary may not be a conflict of interest, dictating their own pay certainly is.  Why a congressman or senator can retire after only five years of service and receive a pension for life is painfully obvious….  And shameful.  I would propose something like this:

“Compensation for legislators representing the several states shall be determined by the legislatures of the respective states.  All compensation shall be paid out of the treasuries of the respective states according to the laws of that state.”

Now we are getting radical.  Since we no longer have direct election of senators the states have lost control of their legislators.  By taking control of the purse strings of the legislators each state can decide how lucrative the compensation for their representation should be.  This would restore some (but not all) of a state’s voice regarding its representatives.

The land ownership preemption amendment.  The last amendment that I would propose would prohibit the federal government from owning any land within state boundaries.

“The United States may not own any land located within any state boundary.  A state may allow the United States to own real property exclusive of land for the use of the executive or judiciary provided that the state grants the United States ownership thereof.  Any state that prohibits ownership of real property by the United States shall provide the United States facilities adequate to perform the functions required by the legislature, executive, or judiciary.   All real improvements required by the United States shall be funded by the United States and may be contracted by the same.”

OK, so this one may need some more work on the wording but the idea is fairly simple.  Don’t let the federal government own any land within state boundaries.  Why?  Remember the Civil War?  The federal government had military bases on land they owned in some of the southern states.  Not only that, I really don’t like the BLM.

I realize that amending the constitution is not something to take lightly but it is the only way to restore the balance of power between the states and the federal government without revolution or total economic collapse.  At least, it is the only way that I know of.  If there are any better solutions out there I am open to them but if we do not restore it soon the states could lose what little sovereignty they have left.  Once that happens, it is a small matter to take the remaining vestiges of sovereignty left to the people.