Monday, September 14, 2015

The Conversation America Needs to Have (and isn't) Regarding the Kim Davis Story


The Kim Davis story is one of those situations where the longer people listen to media reports about it, the more mis-informed they are.  This is because the establishment media does not exist to inform the public. The establishment media exists to protect the establishment. Their job on this story, as in so many, is to frame the debate in such a way that the important questions connected to the story don't even get asked, much less answered.

For example, most people following the story cannot even comprehend the true nature of the controversy. They think that Kim Davis is "stopping same sex couples from getting married". If they think that is what is happening, then they think the question ought to be "should Kim Davis be able to stop same sex couples from getting married?" But that is not the issue at hand, and therefore that is not the right question to ask.

My wife and I are married. We have a piece of paper from the Pulaski County Clerk which says we are married, but that is not what makes us married. That piece of paper just shows that the government, on behalf of the people of Arkansas, recognize our marriage as a valid one. What if they didn't recognize it? What would that mean? As regards to me and my wife, absolutely nothing. It would not change our lives one bit.

At this point the average libertarian will think I am going to argue that government should get out of the marriage-recognition business. That's not what I believe and its not where I am going with this. Read the red book above if you want more detail on why. For now I ask you to just bear with me as we begin the sometimes painful but rewarding task of thinking outside the box the establishment has put us in......

My wife and I would consider ourselves just as married without public recognition as we are with it. If we did not have the legal package which came with state recognition of our marriage, we would simply add those legal agreements one at a time as is possible for any two persons. I am talking about things like putting each other in our wills, signing power of attorney to make medical decisions and hospital visits, and things of that nature. We pay for our own health insurance, but if we opted to take the insurance from my workplace then it would be up to I and my employer to determine if I should be able to add my "domestic partner" to the plan, not the government. The "standard package" of legal connections which come with public recognition of a marriage as valid are available to people one component at a time even if they are not married.

My point is that the real issue is not that "Kim Davis won't let same sex couples get married". The real issue is that Kim Davis will not grant those relationships official state recognition as marriages. Here is the difference: If Kim Davis was out arresting homosexual couples for claiming they were married, she would be guilty of "not letting same sex couples get married." That is what they did in the old days with laws against mixed-race marriages. It was actually a crime to marry someone of another race. This is not that. What Kim Davis did was simply refuse to grant public recognition of a relationship as a valid marriage. In so doing, she claimed she was acting in accordance with the laws of the state of Kentucky, not just her own opinion.

State recognition of a thing is not the thing itself.  With-holding state recognition of a thing is not the same as criminalizing that thing. That most of us have failed to grasp that difference is a testimony to the power of mass-media to truncate thought, and of the over-arching role of the state in our daily lives. So much are we used to government getting in our business and directing our paths that we can not even distinguish between state recognition of something and the thing itself!

Now one may argue that her action was still wrong, and that homosexuals ought to have public legal recognition for their relationships as marriage. You may even feel it is a civil right that such recognition be given. If you do, we can at least argue the right question. My point is, after watching and sometimes participating in this debate for quite a while now, is that people have been arguing over the wrong question.They can't even see what the real issue is. If we argue over the wrong question, how can we ever expect to find the right answer?

I personally do not think that any two people have a "right" to my approval, or the public's recognition, of their relationship as "valid". There are reasons why the state should not legitimize homosexual relationships as marriage whether one is an atheist or a fundamentalist Christian. But I don't even want to argue that point here, because in the white-noise and heat of this debate we have missed the even more fundamental conversation we should have. It is not whether government recognition of homosexual relationships as "marriage" is a civil right, but even more basic - how does something become recognized as a civil "right" in America in the first place?

That we all easily know the answer to that question is vital because of the very nature of what it is to be a "right". A "right" is some area of life where the individual is supposed to be sovereign against the state, and even against the public. Rights, once acknowledged, are not subject to majority vote. They are areas of life that, by agreement, the citizens of a Republic declare are not subject to our approval. If freedom of political speech is a right, it does not matter if my neighbors or my government objects to my political speech. I have a right to say it. Enumerated rights are legal restrictions on the power of the state, and therefore on the formal power of the public, to regulate behavior. This is the traditional view of rights, again expounded on in the red book above.

The post-modern state despises the very thought that its citizens could possess such rights, or indeed any limitations on its power or scope whatsoever. Because of this the traditional view of rights as expressed above is not taught in their schools, nor discussed in their media. The preference of the government is that "rights" are simply the means by which the elites separate the people from self-government. FEDGOV may check the behavior of individuals or lessor governments, but rarely checks its own behavior. A large part of that lack of restraint is that the courts no longer feel bound at all by the Rule of Law in the methods by which it asserts newly discovered "rights". This is how for example, the courts can busy themselves re-defining marriage even while the Surveillance State commits massive injury against the 4th amendment, Habeus Corpus, and Due Process.

Once something becomes a "right", it becomes beyond the vote of the people. It is the removal of that thing from the realm of self-government. And because of that, the power to declare something a "right" is the power of dictatorship. And this at last brings me to the real conversation that America needs to have regarding the Kim Davis story, and many like it. The question is simply this- is the Supreme Court of the United States the sole determiner of what civil rights are in this nation? Is the process they followed in declaring this newly discovered right legal? On what legal basis did they remove the question of what sort of relationships we wish to recognize as marriage outside of our judgement and subject only to theirs?

Those who wish the matter to be closed declare that same-sex marriage is "the law of the land." But that is not true. Courts don't make laws, they make rulings about how the law should be interpreted. In this case, as in many others, the courts went to their old-standby- the 14th amendment. The amendment says that there shall be "equal protection under the law" and "due process" for all persons.The courts constantly go back to the 14th amendment to throw out any state law, or federal law, that they don't care for.

But is this what Congress and the States meant to do when they sent out and ratified the 14th amendment? Did they really mean for all further decisions about what the rules were to be taken out of their hands and turned over to whatever five of nine lawyers on the Supreme Court think the rules ought to be today? Did Congress and the states mean to turn over the power to define new rights, that is to say the very power of dictatorship, over to the courts?

Of course not. The courts are illegally exercising extra-constitutional power as can be shown simply by reading the last sentence of the 14th amendment. Since the legislative branch no longer represents the People, they have done nothing to stop them. In the first one hundred and fifty years of our republic, Congress initiated impeachment proceedings against members of the judicial branch on over 50 occasions. Have you heard of them doing so in your lifetime? They no longer even attempt to reign in the other branches of government. Both the Executive and the Judiciary have made the legislature the weakest of the branches of government. They don't even try to defend their turf anymore, so long as the money keeps flowing to the special interests who fund their parties. If you want to know how to get the People's Branch to represent the people again, well, its in the blue book above, along with a lot of other things.

The last section of the 14th amendment reads:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

So we see that it is not the Courts which have the power to enforce the 14th amendment.  It is supposed to be the Congress, and that by legislation. Congress did not give all of its power over to the courts when it passed the 14th. Its intent was to give power to itself. We now have the courts using the 14th amendment to throw out laws passed by Congress, even though the 14th says that it is Congress itself which must give teeth to the enforcement of the provisions of that amendment.

In the Kim Davis case, since there was no legislation from Congress saying that a state's failure to recognize homosexual relationships as marriage was a violation of the 14th, then the courts had no business bench-legislating that finding out of the ether. In fact, the law from Congress on the subject was nearly the total opposite of the court's ruling.  Congress had passed the "Defense of Marriage Act" (D.O.M.A.) which said that for federal purposes marriage was defined as one man an one woman. The courts recently threw the D.O.M.A. out on the grounds that it violated the- you guessed it- 14th amendment.

Even if you think recognizing homosexual relationships as marriage is something which ought to be done, it is clear that the way it was done was a violation of section five of the 14th amendment. It was done illegally. The key principle of "The Rule of Law" has been violated. The Rule of Law is simply that the government has to abide by its own rules. When it does not do so, as in this case, the legitimacy of the government itself is suspect.

This is the long overdue conversation we need to have: how do we decide what are legitimate rights vs. something the elites pull out of thin air and attempt to impose on the populace in violation of the Rule of Law? And if that is a conversation the other side refuses to have, then why exactly should the people who see things differently view the imposition of these "rights" as legitimate?

This is not the first time the courts have used the 14th amendment to make a ruling without reference to a law passed by congress, as is required under a legitimate use of the 14th.  How long have the courts been misusing the 14th amendment like this? That is an interesting history lesson.

In 1954 the Supreme Court was faced with the case of "Brown vs. the Board of Education." Up until that time, schools in the South were segregated by race under the doctrine of "separate but equal" education. The times were changing though, and some justices wanted to hop out in front of the bandwagon. Some in the court wanted to ruled that "separate but equal" was a violation of the 14th amendment's "Equal Protection" clause. One problem: Congress had not passed any legislation authorizing the Courts to declare "separate but equal" was a violation of the "Equal Protection" clause, as the 14th itself required.

Chief Justice Fred Vinson was the clearest to point out that Congress had passed no law enforcing such a ruling. When he died, the interventionist Earl Warren was appointed in his place. President Dwight Eisenhower found segregation to be morally troubling and also an impediment to foreign relations. The Cold War was in full swing and the Soviet Union was using America's shameful treatment of blacks as a propaganda tool. The Executive branch lobbied the courts, almost surely in an inappropriate matter.  Despite their legal misgivings, the members of the court were swayed by political considerations to vote unanimously to rule in favor of the plaintiffs in Brown.

Morally, the courts made the right call. Politically, it let congress off the hook from having to make a tough vote. It let the Executive Branch score a point in foreign affairs. The price though, was that the precedent had been set that the courts did not have to wait for a law from Congress before they applied the 14th. Obviously by 1964 the tide had turned and the Civil Rights act passed. Perhaps Congress would have passed into law the heart of the Brown ruling sooner if the courts had handled Brown differently.

The legislative branch will tend to be a trailing indicator of social trends. It is large. It is diverse. An Executive Branch headed by one man, or a tribunal of nine, will be more nimble at jumping out in front of changing social mores. But that's not self-government, that's not how our Constitution is written, and in the long run the legitimacy of such a government is open to question. This is especially so if the changing social tides shift back, or the courts and executive either misread those tides or move so early that their actions prompt blow back of such magnitude that it actually becomes counter-productive.

We need to have a conversation, a serious conversation, on just how "rights" are awarded and what their scope is allowed to be under the 14th. If we don't, our future is division, unrest, and perhaps even violence. That is what happens when government officials don't follow the Rule of Law.