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Defend vs Alter the Constitution

twoskinsonemanns

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I saw in a state forum a comment that got me thinking. I did not want to butt in to their state thread and derail it so I thought I would make a post and see if there is any interest in discussing it.

Simplified, the comment was that a politician had no choice but to vote anti-gay because the state constitution had anti-gay content and the politician had sworn to defend the constitution.

Is there any validity to that? Would an oath the defend the document preclude changing it?
 

sudden valley gunner

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Nullifying bad parts of a constitution wouldn't go against an oath to defend it in my opinion.

Most constitutions have amendment processes too, would voting to amend a bad part of it be against the oath?
 

Fallschirjmäger

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Might one make the point that in 1996 there were NO State Constitutions which banned same-sex marriage and that therefore "defending the Constitution" would mean fighting to keep such amendments out?
It was the altering of those Constitutions that prohibited same-sex marriages, so 'restoring the Constitution' would mean fighting to get rid of the amendments, right?
 

utbagpiper

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When it comes to statutory votes, or votes to defend such statutes in court, the constitution (of the State or federal government) as it stands at that moment is what has been sworn to be defended....not what anyone thinks it should be.

If someone thinks the constitution should not include RKBA, he should honestly introduce an amendment to repeal the RKBA protections. Voting for statutes to attack the RKBA protections is a violation of his oath of office, IMO.

Similarly, if someone thinks a constitution should not define marriage as complementary gendered union between two persons, he should be introducing or advocating for an amendment to remove that provision. He should not be voting for legislation to ignore it, nor failing to do his duty to defend such provision in court.

As for when such provisions were added, I'll note that so far as I know, no State constitution contains any provisions banning incestuous unions among consenting adults. So far as I know, only a handful of constitutions--all from States that were once part of the old Mormon territory of Deseret--have bans on polygamous marriages.

Constitutions deal with what people have thought have. And until quite recently, the notion that a same sex couple might be "married" was as far outside the thought process of most of this nation as the notion of "marriages" including incestuous relationships, polygamous unions, or even overtly platonic "marriages" for purely legal benefits (an adult child and an aged parent being legally "married" to avoid inheritance tax, for example).

The first legally recognized homosexual "marriages" in this nation occurred only slightly more than a decade ago and the order of a State judge. Many States simply reacted to that to prevent their constitutions being warped into something the people had never intended. Now the federal courts seem intent on twisting the 14th amendment into something it was never intended to cover. The last time the SCOTUS looked at homosexual marriage directly, (prior to DOMA), it declined to hear the appeal noting the issue did not raise any substantive federal issues. No relevant amendments have passed since then.

This topic is mostly off-topic for an RKBA board, and needlessly divisive except to note that if a few judges can interpret the 14th amendment without any regard to original intent, then the 2nd amendment provides scant protection for RKBA.

Charles
 

solus

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I saw in a state forum a comment that got me thinking. I did not want to butt in to their state thread and derail it so I thought I would make a post and see if there is any interest in discussing it.

Simplified, the comment was that a politician had no choice but to vote anti-gay because the state constitution had anti-gay content and the politician had sworn to defend the constitution.

Is there any validity to that? Would an oath the defend the document preclude changing it?

two questions come to mind...
1) was the politician olde school and on board or had an active hand in the change in the state's Constitution?
2) was the politician a newbie?

if 1, then their statement is hyperbole as they apparently had a hand in the current quagmire situation; but if 2, kudo's as their statement is viable, yet despicable, but their rationale is sound ~ they are defending their oath.

however, the follow on questions to the politician would be what their specific feelings are on same sex unions and how are they rectifying the past transgressions to the state's constitution?

ipse
 

Citizen

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I saw in a state forum a comment that got me thinking. I did not want to butt in to their state thread and derail it so I thought I would make a post and see if there is any interest in discussing it.

Simplified, the comment was that a politician had no choice but to vote anti-gay because the state constitution had anti-gay content and the politician had sworn to defend the constitution.

Is there any validity to that? Would an oath the defend the document preclude changing it?

I wouldn't say so. Provisions in a constitution that purport to delegate power not possessed by the voters need to be changed.

Constitutions evolve. For example, the British constitution is not a single document, but a long series of documents spanning centuries. The Constitutions of Clarendon was an early document (1100's/Henry II). Magna Carta was one. Lets use Magna Carta as an example. Originally it only protected the nobility against the monarch. Who would argue that doesn't stop a little short of protecting the serfs? Another document was the Declaration of Rights of 1689. It contains a guarantee of the RKBA--but only for Protestants. I am guessing most pro-gunners today would say Catholics deserve their RKBA be protected, too.

Rights are rights are rights are rights. Any constitutional provision that infringes needs to go.
 
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twoskinsonemanns

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Some good thoughts. My initial reaction was to scoff as clearly constitutions are changed as bad concepts are removed.
It sounded like a cheap cop out to rationalize oppressing gays while trying to appear against it.
Thanks for the thoughts.

ETA. I wonder if anyone tried the ol' "I'd love to allow women to vote but I gave my oath" back in the day...
 
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Citizen

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Some good thoughts. My initial reaction was to scoff as clearly constitutions are changed as bad concepts are removed.
It sounded like a cheap cop out to rationalize oppressing gays while trying to appear against it.
Thanks for the thoughts.

ETA. I wonder if anyone tried the ol' "I'd love to allow women to vote but I gave my oath" back in the day...

Not if he didn't want to sleep on the couch, and burnt toast for breakfast, he didn't. Much more likely he lied something like, "Honey, I would very much like women to vote, but so many chauvinist legislators are opposed to it, it will never pass no matter how much I support it."

:)
 

deepdiver

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You support and defend it while, if necessary, working to change it. But until it is changed, it is the law of the land state or federal. The specific issue is irrelevant.
 

Citizen

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You support and defend it while, if necessary, working to change it. But until it is changed, it is the law of the land state or federal. The specific issue is irrelevant.

Thanks for mentioning this. You reminded me of something.

Nullification is a valid alternative when a specific issue comes up. Check out the Kentucky Resolves. No less than Thomas Jefferson and James Madison were behind them. The basic idea being that laws that violate the constitution are of no force and can be legitimately ignored.

For example, a number of states made state laws against RealID, the federal act purporting to dictate to the states the features of their drivers licenses.

Secession is also a valid action. Some try to howl and paint secessionists as being pro-slavery because of the Confederacy, meanwhile unaware there were other non-slavery secession threats.

One of the earliest concerns about dissolution came up during the highly contentious presidential election between Aaron Burr and Thos. Jefferson. The electoral vote was split right down the middle. This threw the election into the House of Representatives. Numerous votes were taken, also split down the middle. Enough people had had it with Federalist Party policies, cronyism, and monied interests that things were pretty heated. One representative expressly threatened armed rebellion if the sneaky dealings didn't stop during the House voting. Finally, Alexander Hamilton himself--total enemy of Jefferson--started working to get a few votes switched to Jefferson. The concern was that either the Federalists would yield or the union might dissolve.

Another point about secession was northern states threatening secession over slavery. Huh? Yep. The fugitive slave laws that forced all states to return escaped slaves. In the years before the Civil War, there were movements in northern states to secede because they didn't want to have to enforce fugitive slave laws: the law of the land, and totally constitutional.

Dr. Thomas Woods has an excellent book out where you can find more details about these concepts and their history. I think the title is Nullification. There are also a few youtube videos where he discusses nullification.
 
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solus

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You support and defend it while, if necessary, working to change it. But until it is changed, it is the law of the land state or federal. The specific issue is irrelevant.

deep, if the state's highest law of the land is changed w/o due consideration by those charged representatives of the ppl, would that change your perspective of the ppl not wishing to support the document's tenets?

ipse
 

deepdiver

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deep, if the state's highest law of the land is changed w/o due consideration by those charged representatives of the ppl, would that change your perspective of the ppl not wishing to support the document's tenets?

ipse
I was contemplating change through the legitimate process of constitutional amendment as opposed to extra-constitutional interpretation and twisting by black robes or executive order. I think that answers your question as I understand it.
 

utbagpiper

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Some good thoughts. My initial reaction was to scoff as clearly constitutions are changed as bad concepts are removed.
It sounded like a cheap cop out to rationalize oppressing gays while trying to appear against it.
Thanks for the thoughts.

The proper amendment process is part of the constitution of both the federal government and of each State that I've ever seen. Nothing in the oath to defend the constitution honorably precludes working to amend the constitution through proper channels.

However, I believe that voting for statutes that violate constitutional provisions, or against statutes that bring law into (better) harmony with constitutional provisions, or to refuse to do one's constitutional duty of defending or upholding laws that are currently constitutional, are a violation of one's oath of office, IMO.

Constitutional provisions and statutes that define marriage as one man and one woman do not "oppress" homosexuals. We each have the right to live our intimate, private lives in peace. I do not believe any of us have any right to force society or government to grant our intimate relationships any special legal or social recognition. I do believe society is within its proper authority to choose to grant benefits to or recognition of some relationships while not granting similar benefits/recognition to other relationships based on which relationships society believes should be encouraged and fostered, as opposed to merely tolerated. Society could choose to remove all special benefits and recognition. But I don't see how choosing to encourage or reward one type of relationship obliges society to likewise encourage every other relationship.

Odds are good the SCOTUS is going to disagree with me. If they do so, they will do so ignoring all original intent of the 14th amendment. And regardless of where one stands of marriage benefits for homosexual relationships, that doesn't bode well for RKBA.

Charles
 

Citizen

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Gay Marriage vs Writs of Assistance

Interesting conversation. It jogged a thought for me.

In the run-up to the American Revolution, one of the big issues was Writs of Assistance. A Writ of Assistance is general search warrant that let customs officers search anywhere they wanted for goods upon which the import tax had not been paid. No probable cause needed. Not even one warrant for each search--the writ was a general authority to search, good until the death of the king, in this case George II (George III was the king against who the colonies revolutioned.

Now, a fella named Otis argued for hours non-stop in court to prevent the issuance of the next writ in (Boston?) a few years prior to the Revolution (he lost). He argued the unconstitutionality of Writs of Assistance. Bear in mind the British do have a constitution. Its not one document like ours but numerous documents going back the 1100's. Upon his arguments I base the unconstitutionality (British) of Writs of Assistance.

So, how to nullify them? In one or two southern states, the courts refused to issue new writs when the old one's expired (upon the death of George II). The would-be searchers asked the Attorney General of England for help. He couldn't find a way to legally force colonial courts to issue the writs, and said so. Hole in the law or something, I don't recall.

However, in (Boston?) Otis lost his case and the new writs were issued. Enter citizen nullification. In one case, a crowd gathered at the search of a business. The searchers decided to skip the search because they wanted to avoid bloodshed--their own. In a few other cases, the citizens went and "rescued" the seized goods.

To me (this is an assertion), the writs were unconstitutional under the English constitution as developed across hundreds of years. So, the state courts that refused to issue new writs, and the citizens who threatened searchers and rescued goods were acting to nullify unconstitutional laws.

So, in a state where gay marriage was "constitutionally" banned, why couldn't a locality refuse to enforce the unconstitutional ban on gay-marriage? (Premise: no amount of voters have the legitimate right or power to deny two consenting adults entering into a marriage.*) Seems to me it would be entirely valid for a locality to nullify the state law or constitutional provision by ignoring it. And, if the state police show up, the citizens would have every right to "rescue" their local government employees. Imagine. A county court where despite state laws, your marriage contract is honored.

-------

*I'm not a fan of gay marriage. I consider that the issue isn't really whether gays have a right to marry, but whether they're then entitled to all the government advantages provided to married heteros. But, government has no business giving tax breaks or any other advantages to married heteros either. And, gays have no right to force private employers or private insurance companies to give them any benefits. In fact, government has no business butting into marriage at all. Marriage pre-dates government. The only power I can see government having is deciding how to fairly split property when a marriage ends, or decide what happens with the kids. And, that is only if one supports compulsory government, which I don't.

However, with all that said, rights are rights are rights are rights. If two consenting adults want to make certain promises to one another and live in a state of marriage, I consider it their right to do so.


ETA: The facts about Writs of Assistance are pulled from memory of a book. Origins of the Bill of Rights by Leonard Levy. He was a professor. He won the Pulitzer Prize for another book he wrote about the origins of the right against self-incrimination.
 
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solus

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I was contemplating change through the legitimate process of constitutional amendment as opposed to extra-constitutional interpretation and twisting by black robes or executive order. I think that answers your question as I understand it.

deep that was the concept of change but the other part was should citizen's unconditionally support the document then?

ipse
 

OC for ME

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I saw in a state forum a comment that got me thinking. I did not want to butt in to their state thread and derail it so I thought I would make a post and see if there is any interest in discussing it.

Simplified, the comment was that a politician had no choice but to vote anti-gay because the state constitution had anti-gay content and the politician had sworn to defend the constitution.

Is there any validity to that? Would an oath the defend the document preclude changing it?
Political critters need do one darned thing to defend (or change) the constitution. The highest court in the land, and its state level analogs, do the changing thus relieving those political critters the burden of defending their acts/non-acts re the constitution.

Kelo...

The below is nothing but a formality and not binding to any individual regardless of their standing in the bureaucracy.

https://www.law.cornell.edu/uscode/text/5/3331

Kelo is the SCOTUS decision that eviscerated the federal constitution...why do you think that SCOTUS held that Obamacare is constitutional...Kelo.
 

utbagpiper

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So, in a state where gay marriage was "constitutionally" banned, why couldn't a locality refuse to enforce the unconstitutional ban on gay-marriage?

First of all long before there was any ban on marriage benefits for homosexuals, there were simply no benefits offered to such relationships. Legal benefits were available only to heterosexual couples. So this isn't nearly so much a question of a "ban" as it is what is the definition of marriage.

Is marriage any two consenting adults? What about 3 to 10 consenting adults?

Does marriage presume an intimate, sexual relationship? Or can it be entirely platonic? Ie can two roommates who share expenses honorable and honestly get "married" to enjoy tax benefits and employer provided health benefits? Can an aged parent "marry" a child so as to leave property (and perhaps extend payments on a pension or on social security survivor benefits) while avoiding inheritance tax?

Next, "nullification" is an interesting topic. It is well and good to want local officials to refuse to enforce laws we don't agree with, or that we think violate basic rights. Most folks get less happy about local officials refusing to enforce laws they do agree with. I recall a governor calling out the national guard and himself standing personally in the doorway of a school so as to prevent racial integration. He believed firmly--wrongly, but firmly--in a "right" to maintain racially segregated schools.

Jury nullification extends no further than preventing government from imposing criminal penalties on someone.

State nullification of over-reaching federal laws can protect citizens from federal over-reach the same way federal action can protect from State violations. Generally, proper State nullification would require the actions of the legislature as opposed just one man deciding to act.

In brief, nullification is easy so long as it goes the way we think appropriate. When it goes contrary, we tend to use words other than "nullification" to describe it.

But, government has no business giving tax breaks or any other advantages to married heteros either.

This is a very minority position. It is generally recognized that society/government does have some proper power to encourage/reward desirable conduct. Whether that is tax breaks for buying a home, but not for buying a car or vacation, tax breaks for installing solar, or for investing in retirement accounts, or even making charitable contributions, government routinely provides encouragement for certain conduct deemed beneficial to society.

To remove or contest this ability leaves government with only two options: to ignore conduct, or to punish it criminally. That is a blunt force approach to maintaining an orderly society. The power to encourage conduct, without mandating it or outright punishing non-conduct is an important tool that can be far more nuanced that just the criminal code.

It is well recognized now that children raised by the married parents in an in-tact family are much less likely to engage in criminal conduct or wind up in poverty. Even I, the interventionist statist don't care to see fornication criminalized. Rather, some benefits to encourage men and women to get and stay married seems a far more appropriate course for society to take. Social stigma for those who don't is one part. Official recognition and various legal and tax benefits are another.

However, with all that said, rights are rights are rights are rights. If two consenting adults want to make certain promises to one another and live in a state of marriage, I consider it their right to do so.

What about 3 consenting adults? Or those closely related?

I believe adults have the right to live in peace. I do not believe they have any right to force society/government to grant them the same benefits reserved for marriage between one man and one woman, if their chosen relationship is different than that.

Charles
 

Citizen

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Citizen

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SNIP It is generally recognized that society/government does have some proper power to encourage/reward desirable conduct. Whether that is tax breaks for buying a home, but not for buying a car or vacation, tax breaks for installing solar, or for investing in retirement accounts, or even making charitable contributions, government routinely provides encouragement for certain conduct deemed beneficial to society.

To remove or contest this ability leaves government with only two options: to ignore conduct, or to punish it criminally. That is a blunt force approach to maintaining an orderly society. The power to encourage conduct, without mandating it or outright punishing non-conduct is an important tool that can be far more nuanced that just the criminal code.

QFT

Believes government's role is to mold society by rewarding conduct deemed beneficial rather than just protecting rights.*

Separately, does not explain who gets to determine whether a conduct is beneficial, nor whether the so-called benefits were weighed against the damages when making that determination, nor explains the process by which a conduct is determined sufficiently beneficial to merit coercing people to comply.



*See Utbagpiper's post #1085 in the thread on Rights vs Government Intervention where he says:

"And I have no intention to "rule over you" or anyone else. I intend only to defend my rights and the rights of innocent third parties."

http://forum.opencarry.org/forums/s...idual-rights-v-governent-intervention/page44&
 
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deepdiver

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deep that was the concept of change but the other part was should citizen's unconditionally support the document then?

ipse
Yes. But the question is not should we support the document but whether we should support black robe interpretations of the document. This was a hotly debated issue for decades - whether SCOTUS was the final arbiter and absolute opinion or if SCOTUS even had jurisdiction to overturn state law. The matter, as I understand it, remained, at least at times, a pretty contentious issue until the Warren Court when the SCOTUS absolutists won politically.

So now we wait with bated breath for 9 black robes to tell us what the Founders meant, how the constitution is a "living document" or to just make up new rights out of whole cloth because of their political opinions.

Add to that a feckless congress that is more interested in political expediency than their constitutional duties and a POTUS that thinks an Executive Order has the full weight, force or legitimacy of a duly passed law even if contradicting existing law and further is lawless and reckless in administration of his constitutional duty to faithfully administer the law, and we constitution and freedom loving citizens really do have a quandary. Without any balance of power as originally intended, there is no balance of thought, action or law. Currently we have a congress that has abdicated its duty to protect the citizens and states from an overreaching executive and judiciary, a power hungry executive run by an unelected bureaucracy (further abdication on the part of congress) and a leftist federal judiciary except at SCOTUS where we have at least some semblance of balance at the moment, although not a constructionist balance.

Obviously, there does need to be an agreed upon arbiter of contentious matters of disagreement as to the intent, force and meaning of the constitution. Not all of us here, despite being a self-selecting at least somewhat homogeneous group on some matters, agree on numerous matters. We can't have a functional society if we are all running around living by our individual interpretations of every darn thing. On the other hand, without a balance of power, with regulation made by unelected bureaucrats becoming more numerous and intrusive than congressional passed law and with the continued abdication of any responsibility in such matters by congress regardless of the party in power the citizen is moving ever more towards living at the whim of public employee union leadership.

So now, again, what do we support. I wholeheartedly support the US Constitution and would fight to the death to defend its ideals and system of governance. But that isn't entirely the system we live under at the moment. Where is the line? I don't know. I continue to hope that we move peacefully back to Constitutional governance. The alternative is horrendous and devastating and, in the modern world, what survives will not look like any of us expect. I don't know what it would look like, but it won't look like 1789 America and I doubt that the borders would even look the same.

I suggest that we support the US Constitution in a constructionist paradigm. That we continue to fight politically to remove restriction on those rights infringed and demand that congress fulfill its obligations to the balance of power and stop bloating the executive with power via regulatory agencies. Beyond that I don't know.

It certainly is an interesting question made more interesting by the framing of your question, Solus. I guess the question of where the limit lies is always a difficult one. "This far and no further" is a rather more difficult question in national politics and their failure than in playground bullying.

Darnit, I have work to do, Solus, and now I am totally distracted by this subject! :cuss:
 
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