Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“The man who asks of freedom anything other than itself is born to be a slave.”     Alexis de Tocqueville

June 28, 2006

The Source Of Our Rights

by Doug Mataconis

Massachusettes Governor Mitt Romney is campaigning in favor of that state’s ballot initiative to ban gay marriage, which is on the ballot in July. In the course of his campaigning, he has managed to say something substantive that so blatantly reveals a political philosophy completely at odds with the Founding Fathers.

BOSTON –Gov. Mitt Romney, renewing his support for a ballot question banning gay marriage, said Wednesday it’s the job of voters — not the courts or lawmakers — to define what constitutes a civil right.

“Who’s going to tell us what a civil right is and what’s not? Well, the people will,” Romney said at a news conference calling on lawmakers to allow a vote on a proposed amendment to the state constitution that would ban same-sex marriage here. That vote is scheduled for July 12.

Supporters have long cast same-sex marriage as a civil right that should not be subject to a popular vote, likening it to the desegregation battles of the 1950s and 1960s, where the courts played a central role in expanding rights for blacks.

Yet Romney, during a Statehouse news conference attended by Cardinal Sean O’Malley and other religious and civil leaders, said that in a democracy, nothing is off-limits to voters, even the definition of civil rights.

“We have a Constitution. We can look in there and say, ‘Does it say here you can vote on matters unless someone can define them as civil rights?’ No,” said the Republican governor, a graduate of Harvard Law School who is mulling a presidential run. “It says you vote on all matters in this country and we’ll decide what is a civil right and what’s not. So, fundamentally, we come back to the principle that the people speak.”

He added: “Is there anything more fundamental to the commonwealth and this country than the principle that the power is reserved for the people, that government is the servant, not the master?”

Hmm, well I don’t know Governor Romney, how about this little bit from a guy you may have heard of named Thomas Jefferson:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

If there is one idea fundamental to the American Republic, it is the idea that individual liberty derives not from the will of the majority — whether that be the majority of the people of the Commonwealth of Massachusettes or a majority of the members of the Supreme Court — but is an inherent part of who we are. Individual rights do not need to be recognized by the state to exist, they exist because we are free human beings and if the state fails to recognize them it is the oppressor.

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8 Comments

  1. I have such low expectations of government, particularly in Massachussetts. And yet they still fail to live up to them.

    Comment by Brad Warbiany — June 28, 2006 @ 5:11 pm
  2. All of which begs teh question of whether or not homosexual marriage is a right.

    Comment by RhymesWithRight — June 28, 2006 @ 8:10 pm
  3. No, the question is whether rights derive from the consent of the majority (one might call it the dictatorship of democracy) or from some other source. Given the Governor Romney has made his views on this issue clear, I would hope that anyone thinking about voting for him for President in 2008 would act accordingly.

    And this applies to the gay marriage issue as well. If homosexuals have a right to live together however they choose, and to enter into any kind of private relationship they desire, then that right exists regardless of what the people of Massachusettes say.

    Comment by Doug — June 29, 2006 @ 3:39 am
  4. Pretty rediculous if you ask me. I think the founding fathers would have challenged him to a duel. I would’ve.

    Comment by TB — June 29, 2006 @ 6:06 am
  5. Yes, but in areas where the constitution is silent as to a positive liberty, and has not specifically restricted government action with regard to a negative liberty; legislation or a ballot initiative are appropriate.

    In this case, the Massachusetts supreme court has decided that the state constitution does not allow a legislated ban on gay marriage, based on equal protection arguments. The appropriate course for those who still wish to prevent legal gay marriage after this ruling, is a ballot initiative for a constitutional ammendment. That is exactly what is happening right now.

    As to whether civil marriage is a right at all, I say it is not; except in that you have the same rights to lawful civil contract as any other person, and marriage is such a contract (in the context of the state).

    In this context, the state cannot prevent you from marrying someone; but they don’t have to convey a civil marriage upon you either, if said marriage is against the laws of that state. That said, neither should they deny you civil benefits that are provided to others based on that status. Of course the solution to that, is to have no special state sanctioned benefit to civil marriage; even better to remove state sanction from marriage entirely.

    Of course that isn’t going to happen, so the practical issue here is whether it is inherently discriminatory to say that a state will sanction the marriage straight couples, and will not sanction the marriage of gay couples.

    The same argument by the way would also justify plural marriage, presuming all parties were free and competent to form such contracts. This is one of the arguments used against gay marriage by “family values” advocates and the like.

    This is also why these ammendments are definitional in nature rather than restrictional. If one presumes the state has the right, and compelling interest, in sanctioning marriage; only by defining marriage as between a man and a woman can they restrict the right of contract without being lawfully discriminatory. By simply saying “Only a permanent bond between a man and a woman can be called a marriage, and be treated as a marriage” the state is not technically discriminating against gay marriage; they are adducing that gay marriage can not and does not exist. They arent banning it, because it simply cannot happen by definition.

    This covers the rule of law issue (if only through sophistry); but leaves aside the moral issue: is it appropriate to grant status and sanction to one union but not the other (or others).

    I believe it is not; but that the state is not a moral actor; it is in all things supposed to be a civil actor, through the rule of law. Morals are properly the purview of society, and the individual, not the state.

    Personally, I think the state should be out of the marriage business entirely. Marriage is a personal institution; and should have no special legal status over any other contract. The state should in it’s compelling interest, and the compelling interest of socity in producing stable familes, and predictable property, custody, and inheritance right develop standared contracts, which all shoud be free to pursue specifying these things; and that should serve the function of civil marriage.

    Call it whateve ryou want, it isn’t marriage; because marrigage is a personal institution; but it provides the same service of the compelling interests in the context of the state; presuming all are freely allowed to form contract.

    The state should allow anyone who wishes to, and can make informed consent, form contracts for any legal action. If that means six women contract to live as wife and wife and wife and wife and wife and wife, so be it; the state is not an arbiter of the morality of a contract; only the enforcer of that contracts provisions.

    Comment by Chris — June 29, 2006 @ 1:41 pm
  6. Chris,

    The problem with most anti-gay marriage initiatives that I’ve seen is that they not only ban gay marriage, they bar consenting individuals from entering into any contractual relationship similar to marriage. I don’t know if this provision is in the Mass. initiative, but it is in the one that will be on the ballot here in Virginia and that is one of the reasons that I will vote against it in November. Effectively, this provision could mean that individuals would be barred from creating Powers of Attorney, Trusts, or other already legal contractual relationships.

    And I agree with you. The state should be out of the marriage business completely. As long as it is in that business, though, I think its hard to justify excluding entire classes of people from the legal benefits that civil marriage provides.

    Comment by Doug — June 29, 2006 @ 2:24 pm
  7. Doug,

    You write:

    “If there is one idea fundamental to the American Republic, it is the idea that individual liberty derives not from the will of the majority — whether that be the majority of the people of the Commonwealth of Massachusettes or a majority of the members of the Supreme Court — but is an inherent part of who we are.”

    Actually the existence of the republic directly contradicts the right to individual liberty.

    Brad,

    How is this consistent with your idea that legitimacy of government is produced by consensus? If you’re right about that then a consensus which violates individual liberty is perfectly legitimate.

    Comment by John T. Kennedy — July 3, 2006 @ 12:18 pm
  8. [...] Doug, writing at The Liberty Papers, asks whether Thomas Jefferson was wrong, and that it is Mitt Romney who really knows The Source of Our Rights? You see, Romney said that rights are determined by majority rule. I guess that makes slavery alright, as long as enough people vote for it, right? Funny, though, both Doug and Jefferson might disagree: If there is one idea fundamental to the American Republic, it is the idea that individual liberty derives not from the will of the majority — whether that be the majority of the people of the Commonwealth of Massachusettes or a majority of the members of the Supreme Court — but is an inherent part of who we are. Individual rights do not need to be recognized by the state to exist, they exist because we are free human beings and if the state fails to recognize them it is the oppressor. [...]

    Pingback by The Unrepentant Individual » Carnival of Liberty LII — The Anniversary Edition — July 4, 2006 @ 11:38 am

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