In Kerrigan v. Commissioner of Public Health, over the protests of three members of the court (as expressed in three dissenting opinions), a four-member majority of the Connecticut Supreme Court has overturned as "unconstitutional" a statutory system whose long-standing components were passed by Connecticut's lawmakers and signed into law by its governors over many years, and has instead decreed that henceforth in Connecticut, "same sex couples cannot be denied the freedom to marry." Here's the majority's own summary of its reasoning:
We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage.Because the court relied upon its interpretation of the equal protection provision in the Connecticut state constitution rather than upon the comparable provision in the Fourteenth Amendment to the United States Constitution, there is effectively no chance that the U.S. Supreme Court will review today's decision. That decision is now the law of Connecticut, subject only to being overturned by the Connecticut Supreme Court itself or by an amendment to the state constitution.
The judges who made up the majority in this ruling are precisely the kinds of judges whom Barack Obama and Joe Biden want to appoint the the federal bench. That's why Obama and Biden voted against confirmation of both Chief Justice John Roberts and Justice Sam Alito. Instead, they want judges who will make law from the bench - and especially laws on the most controversial subjects (like gay marriage) that couldn't possibly gather a majority vote in Congress and a presidential signature. It's worse than meaningless, but rather a complete fraud, for Obama and Biden to tell voters that they oppose gay marriage when they will appoint judges who will bring about gay marriage by judicial decree.
This decision will alarm and dismay two partially overlapping groups of people: (a) those who believe that recognition of single-sex marriage will ultimately destroy the traditional institution of marriage and foster other bad effects in society, and (b) those who decry unrestrained judicial activism as a tyrannical seizure of political power by rogue judges in a manner that undercuts the legislative and executive branches of government, thereby rendering impotent the political decisions made by democratic majorities.
Personally, although I understand and respect the views of those in the first group, I count myself only among the membership of the second. I think that government is much to blame for the often-tragic status of the traditional family in today's America, and there is much I would do to change those policies to promote stronger families. Were I a state legislator or governor, I would not cast my voe to deny gay couples the right to marry. But no combination of a state legislature and governor in America has yet agreed with that position.
Rather, the consistent decisions of those branches of state governments - which are regularly and directly elected by majorities of the voting public in their respective states - has been to adhere to the traditional definition of marriage as being between one man and one woman. And although I ultimately find them less persuasive, there are legitimate arguments to be made for that position that are not based on revulsion toward homosexuality or a desire to penalize homosexuals. I therefore would not demonize or seek to de-legitimize those who disagree with me on this issue. And I would continue to try to work toward obtaining majority support for what I believe to be pro-family changes in the law, and to persuade the majority to the view that pro-family isn't necessarily anti-gay.
But I'm very definitely a member of the second group: As a matter of constitutional law and basic principles of civil government, this is another well-intentioned but awful decision - one that may, ironically, end up frustrating rather than advancing the ultimate goal of its proponents. Using courts to cram this sort of policy down people's throats - without majority support, and in fact in defiance of majority opinion - is a very bad plan.
Those who follow, or much care about, the constitutional law here will quickly note that the Connecticut Supreme Court has played fast and loose with its equal protection clause. In equal protection analysis, the outcome is almost always determined by the framework in which the courts choose to analyze a government classification. If the government is classifying people on the basis of race, for example, long-standing precedent from both federal and state courts typically use a "strict scrutiny" approach, under which the government must offer up a "compelling purpose" to support its decision to treat people differently from one another because of their respective races.
Classifications based on other distinctions, however, traditionally were treated as valid so long as they have a "rational basis" - a vastly easier standard to satisfy. The state discriminates, for example, against the sightless when it requires people who get drivers licenses to pass a vision test. But because sightedness - unlike, for example, race - is not a classification that has traditionally been subjected to "strict scrutiny" analysis under the constitutional precedents interpreting state or federal equal protection guarantees, the state merely need show a rational reason for treating the sightless differently. They meet that requirement by showing that people who can't meet the vision requirements are more dangerous drivers. And as for whether someone with an uncorrected vision of 20/100 is or is not permitted to drive without corrective lenses, that sort of fine calibration of the state's classification system the courts generally leave to a combination of state legislatures and state agencies, upholding their decisions unless they are so genuinely arbitrary as to have no correlation to reality.
In same-sex marriage cases, therefore, the constitutional equal-protection decision often is compelled by the initial question: What kind of scrutiny will the courts apply to the state decision to deny marriage to same-sex couples? If that decision is subject to an ordinary level of scrutiny, then the state may meet the "rational relationship" test merely by asserting its belief, whether correct or not, that traditional marriages promote societal interests like child-rearing - and the courts won't further second-guess that assertion.
The Connecticut Supreme Court today, however, decided that the decision to deny the right to marry to same-sex couples ought to be judged by a an intermediate standard, a "heightened-scrutiny" analysis like that sometimes (but not consistently) used by the U.S. Supreme Court in cases involving gender discrimination. Many law review articles - containing hundreds of case citations and millions of words of argument - have been, and will continue to be, written on whether this is a legitimate approach as a matter of constitutional law.
Ultimately, however, the decision to apply this standard, and the results reached once a court decides to use it, has no greater constitutional legitimacy than the individual judges' own personal views on any given policy question. It boils down to saying, "On really controversial subjects that provoke the greatest passion among the voters, we judges are going to declare ourselves smarter and wiser than the legislature and the executive whom the voters have elected, and our decisions trump all of theirs." And thus is your democratic vote - and those of your representatives in the state and federal legislative and executive branches - cheapened, even eviscerated, by judicial tyrants.
British legislators demand non-party vote on spanking ban
A new attempt to ban smacking will be launched tomorrow by a cross-party group of MPs, as more than 100 Labour backbenchers demand a free vote on the issue. MPs, led by Kevin Barron, the Labour chairman of the all-party Commons Health Committee, are attempting to stop parents from smacking their children as a "reasonable punishment". They will table amendments to the Children and Young Persons Bill, due to be debated by the Commons tomorrow, to give children the same protection against assault as adults.
Campaigners said that 111 Labour MPs had signed a private letter demanding a free vote on smacking, with some backbenchers warning they are prepared to defy Government whips if ministers do not back down.
The last attempt to impose a full ban on smacking was defeated in 2004 when a compromise was agreed, tightening the law by outlawing punishment which left physical marks or caused mental harm. But campaigners say they want action to give children protection against all physical punishment.
Mr Barron said: "We must act now to end the legal approval of hitting children. It is the responsibility of Parliament to ensure that the physical integrity and human dignity of every person is respected. The current law allowing so-called 'reasonable punishment' of children is unjust, unsafe and unclear, and must be abolished once and for all."
Supreme Court Justice Louis Brandeis warned, "The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding." The freedom of individuals from compulsion or coercion never was, and is not now, the normal state of human affairs. The normal state for the ordinary person is tyranny, arbitrary control and abuse mainly by their own government. While imperfect in its execution, the founders of our nation sought to make an exception to this ugly part of mankind's history. Unfortunately, at the urging of the American people, we are unwittingly in the process of returning to mankind's normal state of affairs.
Americans demand that Congress spend trillions of dollars on farm subsidies, business bailouts, education subsidies, Social Security, Medicare and prescription drugs and other elements of a welfare state. The problem is that Congress produces nothing. Whatever Congress wishes to give, it has to first take other people's money. Thus, at the root of the welfare state is the immorality of intimidation, threats and coercion backed up with the threat of violence by the agents of the U.S. Congress. In order for Congress to do what some Americans deem as good, it must first do evil. It must do that which if done privately would mean a jail sentence; namely, take the property of one American to give to another.
According to a Washington Post article (6/22/05), there were nearly 35,000 highly paid registered lobbyists in Washington in 2004 who spent $2.1 billion lobbying the White House, Congress and various agencies on behalf of various interest groups. Political action committees, private donors and companies give billions of dollars to political campaigns. My question to you: Do you think that these people are spending billions of dollars to assist presidents and congressmen to better perform their sworn oath of office to preserve, protect and defend the U.S. Constitution? If you do, you're a fine candidate for a straitjacket. For the most part, the money is being spent to get politicians and government officials to use their coercive power to create a favor or special privilege for one American at the expense of some other American.
If we Americans didn't give Washington such enormous control over our lives, I doubt whether there would be 10 percent of the money currently spent on lobbying and campaign contributions. This enormous control that Congress has over our lives also goes a long way toward explaining much of the government corruption that we see in Washington.
If the average American were asked whether he wishes to return to mankind's normal state of affairs featured by arbitrary abuse, control and government dictates, I am sure he would find such a suggestion repulsive. But if you were to ask, say, the average senior citizen whether Social Security, Medicare and prescription drug subsidies should be continued, he would probably answer yes. The same would be true if you asked a college professor whether higher education should continue to be subsidized, or a farmer or a dairyman whether their products should be subsidized, or a manufacturer whether there should be tariffs and quotas on foreign products that compete with his product. The problem with congressmen producing favors and privileges to all interest groups is that it creates what none of us wants: massive control, numerous dictates and micromanagement of our lives.
There is no question that if one were to ask whether we Americans are moving towards more liberty or more government control over our lives, the answer would unambiguously be the latter -- more government control over our lives. We might have reached a point where the trend is irreversible and that is a true tragedy for if liberty is lost in America, it will be lost for all times and all places.
Political Blame and the Myth of Government-Sponsored Salvation
It frightens me to hear politicians play the "blame game." Those who blame others for national problems are attempting to focus the hatred of their listeners against a particular person. Most often the person targeted is already unpopular. It is therefore safe to lay everything at this person's door, saying that he is at fault, that he should be punished, that a particular odium should attach to his name. The salvation of the country, therefore, is promoted by vilification. Such is an absurd course which prepares the way for disastrous policies. At the moment we see that President Bush or Vice President Cheney are the scapegoats of the hour. When the Great Depression was underway, several decades ago, President Herbert Hoover was singled out for blame. In Germany the Nazis liked to blame the Jews, who are still blamed for the world's ills by Islamic leaders. Russian Prime Minister Vladimir Putin likes to blame the United States for the world's economic problems, though the Kremlin has always embraced economic stupidity as a matter of state principle.
In the current financial crisis involving Wall Street, people tend to blame "greed." Those who take this position may have a point, but they are also in danger of committing an error; for it is the individual desire to accumulate wealth that has created so much wealth to begin with. It is the "greed" of Wall Street that has made Main Street so prosperous. If not for speculators and the system of "financial greed" currently excoriated, most Americans would be dirt farmers.
According to Adam Smith's notion of the "invisible hand," financial selfishness (a.k.a. greed) is a positive force in a free economy. In one of the most celebrated passages in Smith's book, An Inquiry Into the Nature and Cause of the Wealth of Nations, we read: "[the businessman] intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. Nor is it always the worse for the society that it was no part of it. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good."
Smith further explains that politicians cannot promote a country's welfare as we might imagine. Attempts to intervene in the market are hazardous at best. "The statesman," wrote Smith, "who should attempt to direct private people in what manner they ought to employ their capital, would not only load himself with a most unnecessary attention, but assume an authority which could safely be trusted, not only to no single person, but to no council or senate whatever, and which would nowhere be so dangerous as in the hands of a man who had folly and presumption enough to fancy himself fit to exercise it."
Treasury Secretary Henry Paulson suddenly comes to mind. He is the man who would be Wall Street's savior, sitting atop a huge pile of government money with which to buy up the "toxic debt" of the financial system. We ought to think it unlikely that anyone should deceive himself so thoroughly as to imagine that he is the market's "savior." It is a fundamental axiom that the government cannot save the market because the government does not possess adequate knowledge. The market works precisely because economic knowledge is decentralized and the market allows this decentralized knowledge to become effective. When market actors commit errors, only the market can correct the errors. Only by allowing the market to function can the real solution appear. Central decision-makers who imagine a solution, who think they know what is happening in the economy, are fooling themselves. The economy is too large for their resources. They cannot achieve what they propose. The error we entertain today is along the lines of wishful thinking. We simplify the problem of the economy in such a way that we envision a particular bailout scheme. But notice the lack of specifics in the scheme. Where is the economic science? There is only, first and last, a functionary with a several hundred billion dollar mandate - and typically ignorant organs of "oversight."
Our financial leaders committed egregious error upon error with the haughty self assurance that they could disregard economic teachings and escape the greatest cycle of boom and bust yet seen. And now, this same generation imagines that government can stop the boom from turning bust. They point to the case of Sweden, where the government intervened to save the Swedish economy from ruin. While it is true that the Swedish government stemmed the tide of panic, the country's economy was ultimately floated by the decentralized decision-making of the market. A government may be lucky enough to stem panic in an otherwise healthy economy. It cannot, however, stop a financial contraction when bubbles begin to burst at the outset of a global recession.
One has to remember that America is the great market, the great nexus of the global economy. The U.S. dollar is the world's reserve currency. There is no global prosperity that can refloat America's sinking economic fortunes. If America's economy suffers blow upon blow, then the global economy is forced to adjust. It is not a question of stopping panic. The psychology of Americans has long been fortified against panic. The consumer is going to adjust his budget despite Secretary Paulson's best efforts. The consumer is going to cut back his purchases. We can see this already happening, and no bailout package is going to persuade the consumer that he can continue his consumption on credit. He simply cannot do it, and the realization has dawned. There is no turning back. The decentralized knowledge of the economy, which is the key to future prosperity, has begun to make its own correction. That which is unsustainable will not be sustained. The government can only cloud the issue by moving money from the taxpayer into the market, by transferring wealth from one set of actors to another.
The error of blaming specific actors for problems carries with it a great danger. It is the danger of crediting specific actors with a solution. Those who blame President Bush are the flip side of those who credit Treasury Secretary Paulson with a solution. In reality, the problem occurred because of false market valuations that occurred during a period of credit inflation. No single individual person or agency can solve the problem. No individual possesses the knowledge required. Only the market possesses the knowledge, if only the market is allowed to function without the obfuscation introduced by inappropriate government regulation and the myth of government-sponsored salvation.
Political correctness is most pervasive in universities and colleges but I rarely report the incidents concerned here as I have a separate blog for educational matters.
American "liberals" often deny being Leftists and say that they are very different from the Communist rulers of other countries. The only real difference, however, is how much power they have. In America, their power is limited by democracy. To see what they WOULD be like with more power, look at where they ARE already very powerful: in America's educational system -- particularly in the universities and colleges. They show there the same respect for free-speech and political diversity that Stalin did: None. So look to the colleges to see what the whole country would be like if "liberals" had their way. It would be a dictatorship.
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