Phew!

[maradydd]

Wow, that was a really tiring three hours -- but so rewarding! Thanks to the California Channel and SFGTV for broadcasting the proceedings of the arguments. joedecker, the ACLU, quite a few other Twitterers and I had a rousing discussion going the entire time, and a big thanks to the folks at Twitter for providing us with such a great platform for discussion!

I'm going to go catch the last showing of Watchmen tonight, but after that, I've got a big post brewing on my take on the proceedings. A lot of the endgame arguments dealt with what constitutes an inalienable right and what doesn't; one of the Justices in fact framed it as a dispute between the right of the California people to amend their Constitution and the right of individuals to enjoy equal protection under the law.

Protip: One of these rights is inalienable and the other one isn't. Pop quiz for my readers: which is which, and why does it matter?

Discuss in the comments. I'll be back in a few hours.

Comments

[fabricdragon.livejournal.com]

lets see. "we hold these truths to be self evident.. all men are created equal"
"endowed with rights, among which are life, libert, pursuit of happiness"

so. equality under the law is a fundamental part of our constitution....

[(Anonymous)]

"We hold..." is not part of the Constitution, although equality *is* a fundamental principle. That's just not a valid representation - that's from the Declaration of Independence, which (while an important document) holds little if any legal bearing.

[joedecker.livejournal.com]

Indeed. Explicit equality wasn't put in the Constitution until the 14th, but the more I read about the history of the Bill of Rights, the more it's clear that equal protection (within what limits people were recognized as fully human then) was a foundational principle. It's clear that rights themselves were preexisting, the foundational philosophy was the natural rights arguments of John Locke, one of the few bare axioms of Locke's philosophy was the essential natural state of all humans as free and equal.

What Madison and other framers did to attempt to protect the rights they worried would be challenged if unenumerated was to insert the Ninth Amendment. Modern jurisprudence treats the 9th amendment as if it doesn't exist, but that reading belies both that amendment's history and common sense, why put an an amendment that has no function?

Yeah, Founding Father Fail. *shrug* Such is life.

Thanks

[skippy-fluff.livejournal.com]

I appreciated the commentary you and Joe did; thanks.

I wasn't very surprised by Kennard's line of questioning, but I was fairly disappointed in some of the responses. Privacy didn't get anything like the play I thought it would. I also thought the AG's rep didn't hammer the rights issues.

I remain convinced the Starr is willing to do anything or say anything to accomplish a political goal. I'd spit on him in the street, if that didn't provide him with a dna sample.

[kavavita.livejournal.com]

where's your commentary at?

Since she's offline

[skippy-fluff.livejournal.com]

http://twitter.com/prop8liveblog?page=1

is where she and Joe Decker liveblogged the event.

[ab3nd.livejournal.com]

I wouldn't claim that either of those rights are inalienable. An inalienable right is one that is not based on the laws, customs, or structure of a given society or political body. The constitution of California and "the law" are both location-specific and society-specific legal constructs, not "natural" things in the same sense that "natural" rights are said to be. In the absence of the political structure known as the government California, neither of them exist.

However, of the two, I would place a higher value on equal treatement for all people, even if it comes at the expense of restricting the freedoms of some people. This is kind of the basis of the dominant conception of rights in America. My enjoyment of, for example, continued biological functioning comes at the expense of restricting the freedom of others to kill me. Without some form of restriction, other people would have that freedom. The law, or it's less codified antecedents, social taboos or behavioral norms, provide that restriction.

Of course, I'm not much of a believer in natural rights, but I know that there is a set of rights that I would prefer that the dominant society treat as if they were in some way innate or inalienable. It doesn't make it the case, but it does make the society more appealing.

[joedecker.livejournal.com]

Of course, I'm not much of a believer in natural rights, but I know that there is a set of rights that I would prefer that the dominant society treat as if they were in some way innate or inalienable. It doesn't make it the case, but it does make the society more appealing.

I'm not sure I disagree with your philosophical point, and I certainly don't believe any natural rights are "endowed by my Creator", but legally, I think I have to accept that the authors who wrote and the voters who enacted the California Constitution did disagree with it, that those statements have meaning and intent and it's appropriate for legal jurisprudence to work within that framework.

From that perspective, I'd answer your question with the words themselves.

"All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

You don't have to agree with their definition of "inalienable" to accept it as a clear and consistent definition in this legal context.

(Moreover, the idea that a word has a single meaning is silly and belied by opening a dictionary to pretty much any page.)

[ab3nd.livejournal.com]

I'd agree that it becomes a question of semantics as to whether or not they rights actually are inalienable once you are operating in a frame of reference that is based on the assumption that they are. Since the court is part of that frame, and can't nullify the framework without taking itself out in the blast, it makes sense to argue from their position in matters related to the courts.

Assuming, then, that one accepts the premise, I'd still say that the right of the people to modify their constitution ends when they modify it into a cudgel and start eyeing their neighbors. The actions of the majority of Californian voters are actions against the liberty, property, privacy, and happiness of other Californians. A big part of the reason we have laws is to protect the weak (minorities, individuals) from the strong (majorities, mobs, corporations, the state).

[barbarienne.livejournal.com]

Well the question then becomes "Is marriage a part of 'enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy'?"

On the one hand, legal/civil marriage is nothing more than formally filing papers with a court stating that persons X and Y have decided to cohabit and life life as a team. While one can certainly argue that there's noting in the concept that specifies gender, one can also argue that filing such papers is not necessarily a pursuit of happiness. (Given the divorce rate, that argument looks somewhat reasonable.)

I would prefer to demonstrate that the various legal advantages bestowed upon married people by the government are fundamentally and systematically interfering in the ability of single people to enjoy and defend life, etc. Get the whole notion of marriage chucked out.

(Er, sorry to ramble off like that. I'm a single person and I intend to stay single, and the fact that married people enjoy enormous financial advantages over me for no good reason at all really ticks me off.)

(I support gay marriage because I think gay people feel love in exactly the same way straight people do, so why shouldn't they get to declare it the same way? But I also would like to see the concept of equality taken further and the nasty biases against single people ripped out of our legal system.)

[joedecker.livejournal.com]

Actually, that would be my preference, too. I support the "Alternatives to Marriage Project", which, if you dont' know it, is a pretty cool organization.

My real preference is "government out of marriage", which is why I wrote an amicus letter to the California Supreme Court arguing for that result. Of course, you do need laws to deal with parenting, etc., but we need that anyway.

(Also, for several years it was costing me as much as $3K year in extra tax costs to be married. It isn't always a financial advantage.)

[arvedui.livejournal.com]

Actually, the right to amend the constitution is the inalienable one. Governance by We, the People- no matter what batshit insanity We might come up with- is enshrined as an actual article of the constitution. The details, not so much.

[flmortgagepro.livejournal.com]

Speaking of rights - let's take a look at Amendment 1. Have you heard about the fact that the House of Representatives wants to introduce language into an Amd. 1 Protection bill that says that bloggers, freelance journalists, and even non-profit news agencies should not be protected against having to give up their sources.

Yup - According to the US House of Representatives (http://www.floridamortgageblogger.com/2009/02/28/us-house-of-representatives-says-bloggers-dont-count-as-journalists/), bloggers are not journalists!