Sometimes — no, make that lots of times — it seems to me that people don’t listen very carefully to the arguments they make. This malady is not limited to one side of the political aisle, but, no doubt because of my own biases, I see it much often coming from over there than from those with whom I generally agree.
Take, for example, the argument against our involvement in Iraq that stresses the “incompetence” and “bungling” of the Bush administration. (See almost any entry on Daily Kos and virtually every other Democratic blog.) Most of these critics believe that Bush’s Iraq policy reflects an endemic arrogance or naiveté (or both) of believing that American power is omnipotent, that it can intervene across the globe and convert a society with no history or tradition of self-government into a thriving democracy.
But wait a minute. If our failure is based largely on Bush et. al.’s bungling and incompetence, doesn’t that mean that a competent, un-bungling intervention would have succeeded? If (as I suspect is the case) what they really mean is that any intervention by any administration would by definition have been bungling and incompetent, then they’re not really criticizing Bush.
Or, to take another example, look at the argument (now almost a mantra from the Democrats) that an amendment banning gay marriage would be the first time that the Constitution has been amended, as Sen. Leahy has put it time and again, “to narrow the rights of individuals.” He accuses those who disagree with attempting “to use the Constitution to deprive people … of rights.”
This argument is ubuiquitous. Here is Rep. James Moran (D,Va):
I am strongly opposed to this effort. The Constitution was meant to expand and protect rights, not restrict them…. I intend to continue leading the charge to protect and promote the rights of all Americans.
And here’s a Pennsylvania state representative objecting to an attempt to write a gay marriage ban into Pennsylvania law:
We shouldn’t write discrimination into the state constitution. You are just trying to restrict human rights.
Again, wait a minute. What is not implicit but actually explicit in these arguments is that there is now a “right” to marriage between two (or more?) men or two (or more?) women that would be taken away by a federal Constitutional amendment. And, of course, if such a right exists it is the duty of the courts, state and federal, to vindicate and protect it.
I think there are some good and powerful arguments against a federal Constitutional amendment defining marriage, but the argument that such an amendment would restrict rights that currently exist is not one of them. On the contrary, the prevalence of that argument among amendment critics provides unintended support for one of the more powerful arguments of amendment supporters — that a federal amendment is needed to preclude and prevent courts from recognizing the “right” that amendment critics insist exists now.
Perhaps I’m misreading the last couple of paragraphs, but you seem to have forgotten that the Massachusetts constitution has been interpreted to include a right to gay marriage, that gays within that state can currently marry, and that the federal marriage amendment would eliminate this right.
“If (as I suspect is the case) what they really mean is that any intervention by any administration would by definition have been bungling and incompetent, then they’re not really criticizing Bush.”
I’m not sure I follow what you mean here. If intervention by any administration would have been incompetent and Bush was the person that went ahead and pursued this course of action, then how is the critique not applicable to Bush? Bush decided to attack a country that had little or nothing to do with 9/11. If any other administration had done the same thing I would object. But any other administration DIDN’T do the same thing. Bush 41 and Clinton could have pursued the same course of action, but they were advised that it would be too costly (in life, commitment, and treasure). Given this, I don’t understand what you mean when you say, “they’re not really criticizing Bush.”
As for gay marriage . . . wow. With the state of affairs in the world as they are I can’t believe people, straight or gay, bother to give the issue more than a nanosecond of thought. The only really important issues I see in gay marriage are the right of a gay partner to make medical decisions for their loved one and hospital visitation rights (enjoyed by heterosexual spouses). Other than that who cares? You can create contracts to simulate most of the rights of marriage. And even those hospital rights pale in comparison to Iraq, Iran, Darfur, the economy, energy, the actions of this administration, education, national security, etc. Any 12 year old can see this for the election year distraction that it is.
Nels – You’re right. I should have said something on the order of “… that such an amendment would restrict rights that currently exist outside of Massachusetts is not one of them….”
Hull – I don’t necessarily disagree with you about the wisdom, necessity, etc., of passing a federal constitutional amendment defining marriage. My point here is only that those Dems who assert that such an amendment would restrict rights that currently exist are playing into the hands of amendment supporters.
Re Iraq, my point is that if you believe any intervention there would by definition be bungled and incompetent, they you’re not really criticizing Bush himself or his administration (other than for pursuing a flawed policy, but that’s different). To get hot and bothered about how incompetent and bungled this intervention has been is to imply that it could have been done better, even if you don’t think it should have been. That, in turn, undermines the argument that the US has a pervasive, endemic flaw of falsely believing in its own infallibility.
John, an interesting point and, I think, a valid one re gay marriage. Portraying the proposed amendment as something that would strip American citizens of their rigths presumes that the rights are already there. I favor gay marriage rights myself, but you’re quite right about this rhetorical line: Anyone who was uneasy about the idea of gay marriage before hearing it would be doubly uneasy afterward at the implication that we already have gay marriage throughout the 50 states, and this amendment would be taking it away.
Hull, I don’t think you’re thinking of the symbolic significance of marriage. I suppose a black/white couple in Virginia pre-Loving might have been able to contract so as to receive most of the legal benefits of marriage, but it’s just not quite the same, is it? Either the state should get out of the “marriage” business altogether, and instead substitute civil contracts that would be understood to have become operational on solemnization of a church wedding or a civil ceremony; or else it should either clearly include gay couples or clearly exclude them. I think the first makes most sense, but IMO one of these paths we’ve got to take. At least, if we don’t, we have to figure out whether states are obliged to recognize other states’ marriages. In fact, we’re there now.
Is there any question as to whether there is a fundamental right to equality? We have a right to ask from where any right derives, but when one begins on the assumption of the right of equality, it is self-evident that the right to state certification of marriage cannot be denied on the basis of sexual orientation.
On the other hand, why is the state in the marriage-certification business anyway? How much is it costing us? Why doesn’t the government stop interfering with the institution of marriage and leave it to religions to define it as as they wish. Indeed, how could a particular religion be prohibited from defining the term in such a way as to exclude heterosexual couples.
It is so much simpler to permit “marriage” to be defined solely by religious communities and to end its use as a legal concept. A “civil union” is the sole thing the state can certify.
The concept of “marriage” is so fraught with religious significance to so many that the state’s assumption of jurisdiction over marriage is a testy business and a waste of public and private legal and judicial resources at best, an issue which can only be rationalized in the manner which promotes the maximum separation of state and church. Get out of the marriage business, guys. Limit public certification ton civil unions only. Get married in church, if you wish, but don’t turn city hall into a church. Don’t constitutionalize prohibition of private behavior.
“My point here is only that those Dems who assert that such an amendment would restrict rights that currently exist are playing into the hands of amendment supporters.”
There are two things going on. They could be speaking generically, and people DO, about how this amendment is defined in the negative, about how it is restricting rights — without claiming those rights are currently granted. This is basically an arguement that constitutional amendments shouldn’t be used in the negative like this.
But there are also interpretations of these amendments that lead to current things being restricted. Currently, a state can have civil unions. Heck, a state can even choose to have gay marriage. This amendment would clamp down on that.
So its not a right being restricted in the sense that a right to gay marriage exists already. But its a right in the sense that the citizens of a state have the right to create gay marriage or civil unions in that state .
John, this title/topic (“Arguments that undermine themselves”) should be an ongoing theme.
My favorite self-undermining argument is the testimony of the two Judges in Michigan that claim to have been “duped” into signing MCRI by saying they didn’t read the petition and accepted the word of the circulator. A judge who doesn’t read what he signs should be a judge – which is self-undermining (moreso to the credibility of the judge’s statement than it is the notion that it was true). Another one in the hearings was a white lady from the confines of Ann Arbor who said she assumed because the circulator was black the petition must have been for affirmative action – – self-undermining completely here because her assumption in itself was prejudicial and racist.
Heck, a state can even choose to have gay marriage….
Well, yes. As Nels reminds us, Massachusetts has done so. But the more vociferously Dems and others object to an amendment that would curtail the right of a state to recognize gay marriage, the more people argue, as Mr. Hernandez does above, that “it is self-evident” that there is indeed a right to gay marriage that states cannot (and, hence, obviously should not) deny, the more convinced amendment supporters will become that in the absence of a federal amendment more states will follow in the wake of Massachusetts. In my view, the best way to defeat the amendment is to point to the 49 states that have not yet followed Mass. But leave it to the libs to have their best arguments silenced by the feet protruding from their mouths….
“the more people argue, as Mr. Hernandez does above, that “it is self-evident” that there is indeed a right to gay marriage that states cannot (and, hence, obviously should not) deny,”
Not really, no.
I mean, some people have deep problems with states granting gay marriage, and want the federal government to be in the business of telling the people of vermont who can marry there, and who can be treated as a married couple there. And those people should be called out for the bigotry they are trying to impose on others. If you don’t want gay marriage, or unmarried couples to be treated as married in ohio, go ahead. Don’t impose that on the rest of the nation though.
As to the states that have imposed the ban, we can point to them too. Point to how in Ohio, men who beat their girlfriends are getting lower sentences than wife-beaters because the writers of that amendment wanted to punish more than gay people, but all unmarried people.
Who came up with the notion that the constitution has not previously been amended to restrict rights?
Did they miss the 18th amendment?
It seems to me that the better argument would have been that the previous attempt to restrict rights was a failure.
As to your argument that the right doesn’t currently exist, that was also the case prior to the adoption of the 15th, 19th and 26th amendments, all of which protect voting rights that didn’t exist until the amendments were passed.
The amendment that REALLY rstricted rights, of course, was the 16th!
“Who came up with the notion that the constitution has not previously been amended to restrict rights?
Did they miss the 18th amendment?”
I think the point is that its a bad idea.
actus,
I mean, some people have deep problems with states granting gay marriage, and want the federal government to be in the business of telling the people of vermont who can marry there, and who can be treated as a married couple there. And those people should be called out for the bigotry they are trying to impose on others.
actus, I don’t like this argument, because it leads to too many doubtful places. Just think back to the days of anti-miscegenation laws, and imagine a mixed-race couple moving to Virginia:
[Do we] want the federal government to be in the business of telling the people of Virginia who can marry there, and who can be treated as a married couple there[?]
Evidently we do. And rightly so IMO.
actus, can you elaborate on the Ohio wife-beating thing? From your description, it sounds as though battery involved an extra punishment if it was against a spouse. Why should it? Just enforce laws against beating people up, please. Don’t add little enhancements if the battery is against people you find specially sympathetic.
Michelle, as I understand it the Ohio case was of a man who stood accused of beating his live-in girlfriend. While assault and domestic abuse punishments were generally equal, multiple convictions for domestic abuse brought greater penalties. As the man had a prior conviction, prosecutors tried to charge him with domestic abuse, but the judge said that the law, following the amendment to the Ohio consitution, could no longer cover non-spouses.
This happened a while ago and I’ve no idea if the ruling has been overturned.
Hey — the 13th Amendment eliminated the right to own lawful property (slaves), and took that property away without compensation. And the amendment banning poll taxes infringed upon federalism in a serious way, by cutting off a source of revenue and interfering with the ability of states to set voting regulations. Heck, the 14th Amendment did more to undermine federalism than anything in the history of US.
Now that is not a comment in favor of slavery, or poll taxes or opposing the 14th Amendment, merely an observation that the arguments regarding limitations on federalism and individual liberties are a crock.
Actually, Masachusets did not choose to implement homosexual marriage. That would imply that the people or their legislators decided the matter. Instead, a court construed a 213 year old constitutional provision to include a “right” that its authors did not and would not have ever proposed or adopted, and that over two centuries of legislative enactments and judicial decisions oppose.
What actus fails to note, however, is that in every instance when the people of a state have been permitted to express their will at the ballot box, they have overwhelminly rejected homosexual marriage by margins of at least 2-1. That is 20 states in all. And 45 states have laws state DOMAs.
Now in Roper v. Simmons (which banned the death penalty for under 18 yo teens as “cruel and unusual” based upon the trend in the number of states adopting laws banning it), the Supreme Court ruled that trends like that have the effect of setting new Constititional standards — so I suppose we could argue that homosexual marriage is therefore already unconstitutional and banned nationwide.
Now what actus fails to note about the Ohio case is that the state did have a remedy for the decision — raise the penalty for assault in all cases to the higher penalty mandated for domestic violence.
After all, is an assault more serious because you are dating or married to the perp than if it is committed by a stranger?
“Now what actus fails to note about the Ohio case is that the state did have a remedy for the decision — raise the penalty for assault in all cases to the higher penalty mandated for domestic violence.”
But the state decided that domestic assaults are more serious than other assaults. One can imagine the reasons right? Because one has to live with the attacker, their lives are entwined, etc…
“After all, is an assault more serious because you are dating or married to the perp than if it is committed by a stranger?”
Probably not just the assault itself, but the other things, such as the fact that you live with the attacker.
“I mean, some people have deep problems with states granting gay marriage, and want the federal government to be in the business of telling the people of vermont who can marry there, and who can be treated as a married couple there.”
As usual, Actus, you misrepresent what the people you disagree with want. Up until the Massachusetts Supreme Court “found” a hidden right to gay marriage in their constitution, most people in these here United States weren’t interested in a DOMA, either, because unlike those learned judges, they understood that a right that had never been seen in their state constitutions before didn’t exist.
“And those people should be called out for the bigotry they are trying to impose on others.”
To my knowledge, the only bigotry that’s been imposed is that of the judges telling the people they have to endorse gay marriage. Wanting to keep the traditional one-man-one-woman marriage isn’t bigotry. It’s a recognition of this special relationship.
“If you don’t want gay marriage, or unmarried couples to be treated as married in ohio, go ahead. Don’t impose that on the rest of the nation though.”
Tell that to the judges. BTW, since when is voting for something “imposing”? Seems like the “imposing” part is judges telling people that there’s suddenly a right to gay marriage in their state constitutions. That’s why there’s been a flurry of activity to pass DOMAs. And that pesky full faith & credit clause that you must have skipped in law school.
“To my knowledge, the only bigotry that’s been imposed is that of the judges telling the people they have to endorse gay marriage”
I said trying. But go ahead and think that these are the same.
“Wanting to keep the traditional one-man-one-woman marriage isn’t bigotry. It’s a recognition of this special relationship.”
And none of these special relationships are going to change.