Topic: Constitutional Issues
Dehumanizing Marriage California's Supreme Court claimed to expand marriage to be more inclusive. Instead, the court contracted the definition of marriage, degrading and dehumanizing it for millions. Dehumanization is the inevitable consequence on trampling on the civil rights of free people.by Paul Benedict
(libertarian)
Friday, July 11, 2008
Anytime a basic civil right, an inalienable right, whether enumerated in the U.S. Constitutional documents or not, is violated by a government, that government is dehumanized, the citizens participating in that government are dehumanized, and, of course, those having their constitutional liberties abridged are dehumanized. Consider the cases in Nazi Germany in which Jews were made to wear a yellow Star of David. The Nazi’s ignored the basic and self-evident equality among ethnicities in order to single Jews out as less human, deprived of the dignity of equality. The most devious of the Nazi aims, however, had to do with dehumanizing the populace of Germany itself. By refusing to stand up for their fellow humans, the people of German civil society became callus towards the Jews. Ultimately, the Nazi’s themselves became more and more unfeeling towards human life and the plight of their fellow man. Of course the dehumanization of the German Jew was exponentially quickened because essential religious freedom to worship was likewise stigmatized. Two sets of essential civil liberties were abridged by the Nazis at once. Yet, could the Jews have claimed to have been harmed by wearing the yellow star of David? Shouldn’t they have been proud of their religious background? The wearing of the star was the first of a continuing series of Nazi violations of civil liberties, but the dehumanization of the Jew was already complete before the clear harm began. This prima facia violation of human rights was the harm.
Likewise, no matter how one wants to interpret the odd wording of the 2nd amendment of the United States Constitution, humans in a state of nature, without government, have the right to take up arms and defend themselves. Although the choice is intimidating to some, it must be; for that is the essence of self defense. The right to defend oneself is a severe right that elevates all human life by its severity. The choice to bear arms or not to bear arms defines human character, but it is still a fundamental free choice, a liberty that is part of being human. Although, as the U. S. Supreme Court found, to protect the general welfare and to secure the blessings of all our liberties, the state, as authorized by the people, has the right to limit the liberty to bear arms, court or no court, court or no court the right to self defense must not be compromised. The District of Columbia completely abridged the right to bear arms and the right of self defense thereby. Law abiding citizens, then, are completely reduced to dependency on government for their defense. They become no more than serfs of the Dark Ages dependent on their feudal lords for defense. They become the chattel of the state, the property of the state. Their humanity is compromised. The state too is dehumanized, for it becomes like a feudal lord, above those whom it exists solely to serve. Yet, how are those that were refused the right to bear arms for many years in DC harmed? There is only slight evidence of that harm. The NRA often points to the rise in violent crime in areas in which the right to bear arms is constrained severely. This may be simply the obvious result of the criminals being emboldened by an unarmed populace. However, it may be that the dehumanizing effects of the abridgement of the right to bear arms emboldens those who contemplate violence.
How do these tests of the abridgement of constitutional liberties relate to the recent ban on marriage in California? In both of these instances, laws abridging human rights have plainly existed without any clear harm initially being found. Both instances are also examples of the truth that any abridgement of a civil liberty dehumanizes the state and its citizens. In California there are no more marriages. Men and women cannot receive a marriage license that says "husband" and "wife"; instead, they become "Party A" and "Party B." This language is plainly dehumanizing, and it is not the happenstance of nomenclature. The ruling of the Supreme Court of California and its accompanying opinion wreaks with violations of civil liberties and a callus, inhuman refusal to acknowledge the very essence of what it means for a man and woman to join in matrimony.
California’s Court has reduced marriage to only that over which the state has authority. It has looked at all the clothing of marriage and called these changing incidentals ‘marriage’; but the Court has ruled to ignore that unchanging reality of marriage that forms the basis of marriage as a constitutional liberty. In every case, a constitutional liberty is such because its reality is greater than man; its power is independent of governments. It is because of such fundamental liberties’ superiority and priority to government that good governments reside in harmony with these native, inborn rights natural to humanity. Good government perceives that these greater, natural, freedoms are the very blessings of liberty that governments exist, solely, to secure. Marriage is such a liberty because it is more than contracts and commitments conferred by the state. The duties of marriage proceed from the joining in marriage, not from government. This joining for which men and woman were designed (whether by natural selection of by the hand of the God of Nature Himself), this is the very essence of marriage the State refuses to acknowledge. Refusing the title of "husband" and "wife" is not the happenstance of nomenclature; it is evidence that the State of California refuses to acknowledge the essence of marriage, the joining in marriage, that is central to marriage as a constitutional liberty. Because the state of California, through the voice of its Supreme Pontiffs, manifestly recognizes only those social rights involved in marriage, and because the essence of my marriage, my ‘right to marry,’ to join with my partner as husband and wife, is no longer recognized by California law, my constitutional right to marry is completely abridged. It is in the essence of humanity, male and female, to be able to freely join in marriage. California has a right to regulate marriage, even as the District of Columbia has a right to regulate the right to bear arms, but California does not have the right to legislate marriage out of existence, to deny its reality, and to ignore its core humanity. To designate marriage as a simple set of rights society chooses by tradition to assign dehumanizes us all.
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I'm sure you've read my opinion on the matter, but I'll ask again - to what purpose would California need to recognize your mariage? What gain is there in having California do this? If there is a gain, what advantage is there in tying this gain to the act of marriage?
And additionally, you should not assume you're surrounded by friends to the "District of Columbia has a right to regulate the right to bear arms" argument. It doesn't carry much water with this reader, at least.
The unmentioned similarity is striking, though. Gun laws inherently assume that the populace is not to be trusted, and that the state is a better arbiter of whether individuals can behave responsibly. Marriage laws have the exact same effect. How that shouldn't be considered dehumanizing is beyond me.
Posted By: Paul Benedict
Date: 2008-07-11 13:22:50
Hi Beatnik,I admire your American spirit of independence. You are correct that if there were and original set of parents for all humanity, they would not have needed to bear arms and their marriage surely needed no government. And, Oh, for the days of the frontier.
Even when we were a bunch of warlike tribes without more than chiefs, clansmen, and kings we needed to defend ourselves. The world is not nice. Some day, not because of our good works, there will be a better place. Even in those days marriages were known and blessed in the villages.Governments, I believe, exist because we seek mutual defense and because we can cooperate to one another's betterment. It seems to be part of the Master plan of life that we hang together as a great big family. I will not quibble with that wisdom. Still, all governments, that are in line with the Master plan, exist solely to secure the blessings of liberty.
Marriage can exist, has existed, and will exist without government. Hence, marriage, as an inalienable right, should be protected by God-fearing governments as a constitutional liberty. The term marriage has a constitutional protection. If some one wants to seek legal equity for other unions, they need to find another term.Hey, you might like my second article better. I urge California's counties to stop issuing marriage licenses altogether.
Posted By: Paul Benedict
Date: 2008-07-11 13:53:49
Hi Again Beatnik,
I didn't finish the thought... Once we start hanging together for our mutual defense and betterment we trade away some ... not freedoms... stuff... We have to pay taxes (boo-hoo). Sometimes we need to volunteer for the common defense, or worse, are drafted by our nation. In the context of figuring out matters of ownership and estate there is a larger dimension than just our individual families. Hence, marriages need to be recognized, and property deeded. From this the evil (in my view) of lawyers emerges. Perhaps, like marriages, the commitments others want to make as a union should be established in law as well. That's never before happened in the history of the world, but neither had cloning and invitro fertilization... Still, a marriage is a marriage. Other unions need to come up with a cool name of their own.
Posted By: floyd w. Whitley
Date: 2008-07-11 16:25:38
Why I would bother with this baited question, I don't know. I have read enough from professed Libertarians here to get the gist of group. And from what I gathered, contrary advice or sentiment is non gratis.
Nevertheless, I will assume your question to be sincere, and will attempt to answer it.
"To what purpose would California need to recognize your mariage?"
The reason is that marriage is a contract, a unique contract (specifically: contract jure gentium), which both involves individuals but also the State, with the following proviso: Maris et faeminae conjunctio est de jure naturae.
Contractual law falls under the civil jurisdiction of the State. The law of nature, of course, is beyond the State.
The common law does not require, by the way, a particular ceremony as to the validity of marriage. Consent of the parties is all that is necessary...whether by natural or by public law. In this, your question obtains. Legibus sumptis disinentibus, lege naturae utendum est.
If the marriage contract is made per verba de presenti, or per verba de futuroand it is consummated, it is a valid marriage. [I emphasized "and" here because technically celibacy in such matters is against the law of nature.]
Marriage is a contract which the parties cannot dissolve "if otherwise competent". So in that regard, marriage has some unique contractual constraints because the original marriage contract is intended to endure until the death of one of the contracting parties. It is dissolved by only two methods, death or divorce.
Because In propria cuusa nemo judex, in matters of divorce, the contract is brought before the State. Because this is true, certain jurispudential reach by the State over the actual marriage contract is implied however the contract was or is obtained.
A clergyman is not necessary either, by the way, for a valid marriage. The consent of the parties may be declared before a magistrate, orsimply before witnesses. Or, it can be subsequently confessed or acknowledged (basically ex facto) by the parties.
The marriage may even be inferred...from continual cohabitation, or from a "reputation" as husband and wife. Here, however, a couple legal caveats exist pertaining to adultery or bigamy.
Because marriage involves a host of many other legal stipulations, divorce being but one of them, it is licensed by the State, and in some cases conditionally in the public good. For example, pending certain "health" checkups.
In another example, a married couple is considered under some circumstances (similar to corporate entities) as a single "person", or erunt duo in carne una, through the maxim Longum tempus, et longus usus qui excedit memoria hominum, sufficit pro jure. Under some litigation, pertaining to testimony or assets under contest, documentation (i.e. the marriage) is often necessary.
A better example of the unique civil conditions involved in the marriage contract is the fact that it gives the issue legitimacy. And thus, cetain legal rights like inheritance, for example, is obtained through marriage and given to the children who are the fruits of the marriage; or kinship, in another example, and these rights of kindredship are not only limited to the father and mother, but with all their kin.
The short answer to your question is that "the State" is not specifically necessary for a valid marriage, as I just demonstrated, under consideration of the common law, and certainly not under the natural law. There are, nevertheless, certain civil matters which pertain in this contractural agreement to the State's interests.
That said, note that claimant "rights" to marriage by homosexual deviants, do not exist.
Under neither statutory nor under common law, nor especially under natural law, do they have standing...Lex non cogit ad impossibilia [the law forces not to impossibilities].
The foundation of marriage is the natural law. This has more than once been stated in the law...e,g, Maris et faeminae conjunctio est de jure naturae.
Basically, natural law can be reduced to 6 primitive laws: (1) comparative sagacity, (2) self-love, (3) attraction of the sexes to each other, (4) parental tenderness towards their children, (5) religious belief, and (6) sociability.
By natural law, the attraction of the sexes has been provided for the preservation of the human race. Because this is the case, and given that marriage is recognized as being founded upon natural law, it is therefore not possible that homosexual marriages exist, nor could they ever exist, because Lex spectat naturae ordinem... the law regards the order of nature.
Posted By: Scott from Oregon
Date: 2008-07-11 21:37:01
"That said, note that claimant "rights" to marriage by homosexual deviants, do not exist. "
Ummm, five percent of humanity is naturally attracted to the same sex and you make the claim it is not natural? If it is found naturally, then it is "natural" and has every right to make claim to that which is offered to others via the original rights as stated in our founding documents.
Claiming something deviant because it is not considered by you to be "normal" is just plain silly. Latin or no latin.
Posted By: Paul Benedict
Date: 2008-07-12 08:54:03
Hi Floyd,Great post. Would you translate this Latin for me, "Maris et faeminae conjunctio est de jure naturae." Also, would you explain the source and relevance of this phrase to the law?
The Nolan chart is an odd bird, and it is from the questions that accompany the Nolan chart that most of us on this board become ‘professed Libertarians.’ I see myself as a conservative. I’ve been meaning to go back and fail the Nolan Chart test to get the label correct.
Lastly, the battle over the nature of homosexuality is not, I believe, a necessary part of the discussion of the unconstitutional ban of marriage in California. However, the place of marriage in natural law, as a constitutional liberty is a very essential understanding. The effort at social engineering in California may not redefine the constitutionally protected institution of marriage.
Posted By: Floyd W. Whitley
Date: 2008-07-12 20:34:35
An out of sequence reply.
RE: Paul Benedict.
My apologies. I should not have used Maris et faeminae conjunctio est de jure naturae without the translation; which is, simply, "The union of husband and wife is founded on the law of nature."
Pertinent to your other two questions,
(1) The source of this legal maxim is the common law—a fact which I thought was evident from the argument. If it was not, then again, my apology for failing to make that more clear.
(2) The relevance of this phrase (Maris et faeminae conjunctio est de jure naturae) to the law regarding marriage contracts should be implicit. It is implicit and appropriate regardless of new efforts to "redefine" the language of statutory code which itself rests upon common law.
Posted By: Floyd W. Whitley
Date: 2008-07-12 22:19:55
RE: Paul Benedict
On your opinion that “the battle over the nature of homosexuality is not, I believe, a necessary part of the discussion” I find that you are in error.
Because Lex spectat naturae ordinem. [The law regards the order of nature]—as it always has, at least until this modern age of judicial mutation under fictional understandings—the fact is that marriage is based upon the common law definition. And it has always been so defined throughout the entire jurisdictional history of our legal system. Thus, the common law definition reaches in your argument because it has precedence.
But the variant (or deviant) contractual albeit novel constructions today—e.g. homosexual “marriage”—that have been attempted to be introduced as “identical” contracts, also reach. They indeed are salient to the argument.
Why? Because logically, when the common law has long defined “what is” marriage, it also necessarily therefore proscribes “what is not” marriage. Because of this, the definition of marriage is exclusionary. It is exclusionary, if for no other reason than precedence alone, because it has already been defined from time immemorial under the common law.
But, because of the litigant “disturbance” (I will define this concept later), a “public evil” occurred—to wit the new California statutory “dehumanizing” (as you style it) decisions regarding the issuance of marriage licenses. Had the litigant “disturbance” not occurred, the new public evil would not have resulted from the “disturbance”.
The common law is wise beyond our ken. Point in case is the common law understanding that novelty, when attempts are made to legally introduce it, can literally destroy the entire system of justice if not government itself if taken to the extremes—extremes like those currently being forced upon the courts by narrow special interests groups like the homosexual lobby, and as evidenced in the California statutory invention under discussion.
In but one example of its wisdom, the common law has long understood Novitas non tam utilitate prodest quam novitate perturbat. [Novelty benefits not so much by its utility, as it disturbs by its novelty.] It understands this because it understands Legis figendi et refigendi consuetudo periculosissima est. [The custom of fixing and re-fixing (making and annulling) laws is most dangerous.]
In litigation after litigation these days however, plaintiffs, and the court itself, have extended our system of justice further and further into the realm of novelty and speculative theoretical adjudications. These more properly belong in the realm of philosophy than in the court.
But because the court most unwisely entered itself into this philosophical realm of the novel long ago (notoriously so in the Burger Supreme Court), they cannot now see a way out of that circuitous maze. Hence more and more case law, based on novelty, is being forwarded, bringing the entire system to a near standstill.
The way out of this maze is clear to me. It would be the way of the common law.
The common law already understood this likely confused state, and proclaimed Rerum ordo confunditur, si unicuique jurisdictio non servetur. [The order of things is confounded if everyone preserves not his jurisdiction]. The philosophical realm is not within the jurisdiction of the court.
We have all paid dearly for this failure to preserve jurisdictions (and this not only in judicial matters but in legislative and executive affairs as well.) And that is why the common law long ago proclaimed Quicquid judicis auctoritati subjictur, novitati nonsubjiclur. [Whatever is subject to the authority of a judge is not subject to novelty].
The courts today have it backwards. The common law understoodLex de futuro, judex de praeterito [The law provides for the future, the judge for the past.]
But today, ever pushing further into novelty, it is almost as if judges attempt to adjudicate for the purposes of their own legacy, for their desire to be cited as case law in the future, rather than actually ruling based upon the established common law which is what they are bound by oath to do. Today they provide nothing for the past.
And as such, the entire judicial system in America has very nearly collapsed. Some would argue that it already has collapsed. Stare decisis is absolutely meaningless, and that should be evident in the homosexual marriage litigation efforts and the statutory rewrites of long defined marriage contractual relationships.
Hence, if for no other reason alone than the common law maxim Novitas non tam utilitate prodest quam novitate perturbat, the entire novel litigatious slate which is attempting statutory recreations of the definition of marriage in the sundry States should be dismissed because it disturbs the law. That this logic was beyond the California Court demonstrates either lack of capacity or willful ignorance.
Had it abided by this common law maxim forbidding such novelty [Quicquid judicis auctoritati subjictur, novitati nonsubjiclur], it would have refused hearing this ridiculous mess. Sadly, Multitudo imperitorum perdit curiam. [A multitude of ignorant practitioners destroys a court.]
Yet another reason why the court should reject hearing any such novel litigation is that under the common law it is understood Lex rejicit superflua, pugnantia, incongrua. [The law rejects superfluous, contradictory and incongruous things.] It occurs to me, even if to no one else, that if the courts would but apply these, and similar such wise common law maxims, and refuse hearing these sorts of novel litigations, there would be a significantly more efficient case load. And the society would not be tied up into the Gordian knot that it is, nearly impotent before the courts to do or say or move or act or declare or contract anything whatsoever.
That is what happens with philosophers. It should never have been allowed to have happened with our judges. But so it has.
And with each day that passes, given the inability of the courts to deliver justice based on the traditional law, individual citizens fracture off from this society and “take the law into their own hands”.
And here, the common law again demonstrates its wisdom in the following understanding Judici officium suum excedenti non paretur. [To a judge who exceeds his office or jurisdiction no obedience is due].
Regardless of its understanding, this condition is a most dangerous syndrome of judicial failure—dangerous both to our unity and to our liberty. For surely anarchy follows at its heels.
Posted By: Floyd W. Whitley
Date: 2008-07-13 00:16:27
RE: Scott from Oregon
You are wrong, sir, on a host of matters, for a number of reasons.
But from your response, no legal argument from my quarter will evidently dissuade you from your perfidious course; sadly, Ei nihil turpe, cui nihil satis. [To whom nothing is base, nothing is sufficient.]
Nonetheless, your posting still requires correction for the sake of others, if for no other reason.
First, I do not claim "something deviant because it is not considered by me to be "normal"”, but the common law does.
Further, your claim found in the following quote from your post, "five percent of humanity is naturally attracted to the same sex and you make the claim it is not natural? If it is found naturally, then it is "natural" is a false construction; false both logically and legally.
To turn your dismissive phrase, 5% or no 5%, legally, "Multitudo errantium non parit errori patrocinium." [The multitude of those who err is no excuse for error.]
Further, Quod ab initio non valet, in tractu temporis non convalescere. [What is not good in the beginning cannot be rendered good by time.] And lastly, Jus ex injuria non oritur. [A right cannot arise from a wrong.]
You confuse "wants" with rights, or perhaps better said it is "wantoness" to which you demand a "right". Regardless, a desire is not a right.
Further, Quae contra rationem juris introducta sunt, non debent trahi in consequentiam. [Things introduced contrary to the reason of the law, ought not to be drawn into precedents.] But that is what you nevertheless attempt to do.
Logically, you argument fails very nearly completely. Extending your logic, you must also be willing therefore to assume the most vile and perfidious, violent and malevolent behaviors of mankind as beyond the prohibitions of the common law.
For example bigamy, which is also most definitely found in nature (and in significantly higher percentages than your claimed hyperbolic percentage, albeit irrelevant percentage), would also under you “logic” over such matters have to be considered a justifiable “marriage” contract.
Likewise by your “reasoning” because pedophilia occurs in nature, at whatever irrelevant percentage, it therefore is “natural”. And because it is so (i.e. “natural” under your description of the deed), regardless of whether I, or even the law itself, find that behavior deviant, “who are we to judge?”
Incest, certainly known to “occur in nature”, and again, in nature in higher percentages than what you claimed was the “baseline” homosexual datum. Ergo, incestuous “marriages” too would have to be accepted under the statutes.
These extensions of your logic, Scott, are absurd, admittedly so. However, when “logic” in a legal matter cannot be extended (and in this case it was only minimally extended), without having the results succumb to the ridiculous, your claim lacks a foundation of reason. And if you cannot find precedence in the common law, regardless of your revisions of the statutory law, likewise you also do not have legal foundation.
The case for homosexual deviancy, especially when it is attempted to be extended toward overturning the traditionally defined contract of marriage, therefore has neither logical nor legal foundation. Period.
What you do have is a deliberate attempt to enforce statutory change by deceiving the court into accepting a novel litigant petition for certiorari of a “right” which does not exist anywhere in the law. Here, Praetextu liciti non debet admitti illicitum. [Under pretext of legality, what is illegal ought not to be admitted] reaches.
You have an advocacy group, shopping courts, basically (and California and the 9th District is your fishing ground, or Massachusetts and the 2nd District) in order to legislate judicially that which could never be legislated through the people.
Rights are not created by “claims” of them, nor are they created by adjudication…and that is the single most egregious mistake that many people who should know better make, and the make it all the time. No judge has such authority.
I repeat, Scott, “wants” are not “rights”.
Quae praeter consuetudinem et morem majorum fiunt, neque placent, necque recta videntur. [What is done contrary to the custom of our ancestors, neither pleases nor appears right.]
Simply put, marriage has already been defined. Quae ad unum finem loquuta sunt; non debent ad alium detorqueri. [Words spoken to one end, ought not to be perverted to another].
Posted By: Paul Benedict
Date: 2008-07-13 10:53:20
This what I’m saying exactly,
“… Because logically, when the common law has long defined “what is” marriage, it also necessarily therefore proscribes “what is not” marriage. Because of this, the definition of marriage is exclusionary. It is exclusionary, if for no other reason than precedence alone, because it has already been defined from time immemorial under the common law.”
The definition of marriage precludes another definition. Since it is defined by “natural law,” it exists as a constitutional liberty under our system of government. If we allow courts to redefine even our essential liberties, our inalienable rights, our system of government becomes broken.
I also love this statement: “The common law is wise beyond our ken. Point in case is the common law understanding that novelty, when attempts are made to legally introduce it, can literally destroy the entire system of justice if not government …”
I’m thinking about an article on just this one point. This arbitrary, unconstitutional, premise is introduced into our system of laws is like a computer virus…
I also whole-heartedly agree with this statement: “And as such, the entire judicial system in America has very nearly collapsed. Some would argue that it already has collapsed. Stare decisis is absolutely meaningless …” But I would add this proviso: The judicial system has not collapsed, it has become a cancerous evil, a tyrant exalting itself against the body of humanity.
Thank you for translating the Latin in you comments! Now, you’ve been bouncing around between discussions of common law and natural law with a great deal of ease. Do you mean English common law? Is there a specific system of natural law that you are referring to? I apologize for my lack of background in this area
Posted By: Floyd W. Whitley
Date: 2008-07-13 12:48:25
Tongue in cheek perhaps, but I am not certain that everone would agree that marriage is a contitutional "liberty", but I will concede the point with prejudice.
Your reply asked two questions. (1) Do you mean English common law? and (2) Is there a specific system of natural law that you are referring to?
For background reference, please see "The Tree of Liberty Needs Watering" here on Nolan Chart and the discussion pertaining to heritage of common law and group rights. Short answer though is yes, I mean the Anglo-Saxon common law, which is also referred to as "the common law of England".
This common law, despite the majority being mostly unaware of this truth, is the official foundational law of these United States (again excepting the State of Louisiana). Further, the common law is the supreme law of the land; for it is the "default" code, in other words, upon which everything else is based.
More to the point here among Libertarians I suppose is that it is to the retained common law which the Constitution speaks through the 10th Amendment.
In answer to your second question, there, I am not certain whether the question is framed correctly. Because is is not, I can only surmise what you intend to have answered by me.
For reference, allow me to put forward the following very cursory summary:
Law is at its most basc level generally divided into the following four principle classes,
natural law
the law of nations
public law
private law (or, civil law)
True, while there may be a few disjunct subcategories, these four are the crude classifications.
When considered in relation to its origin, law is either: (a) statute law, or (b), common law.
The Common Law, or lex non scripta, is, beyond consideration of its point of origin, "all the laws which do not come under the definition of written law" (with written law being statute law).
This should not imply, however, that the common law is unwritten. The common law is merely "that which derives its force and authority from the universal consent and immemorial practice of the people." It is called the common law because it has never received the sanction of the legislature by an express act. That express sanction is the sole criterion by which it is distinguished from the statute law.
Common law recognizes the need which man feels to live in society as one of the primitive laws of nature.
From this recognition flows all our duties and rights, with the key understanding that in society there are both rights but also duties--[it was to this, "group rights", that I addressed my discussion of the heritage of common law on "The Tree of Liberty Needs Watering" discussion elsewhere on Nolan Chart.]
The existence of society depends upon the condition that the rights of all shall (ed. in common law, "shall" and "will" are generally synomonous, both implying a command) be respected. From Blackstone (if I remember the source correctly), "On this law are based the assistance, succors and good offices which men owe to each other." Key here, again, is "owe each other"--which implies a collective right of society.
The law of nature is that which has been prescribed to all men, and this, by extension, not only to men under the common law (as we are) but also under other codes...e.g. Franco, Dutch, Indian, etc. Most often, under common law descriptions, this prescription of natural law is attended through God. I omit that attendence here for stylistic reasons.
Regardless, neither is the natural law given by any formal promulgation, but by the internal dictate of reason alone. It is discovered by a just consideration of the "agreeableness or disagreeableness" of human actions to the nature of man. Natural law, because it is the basis of common law, also comprehends all the duties which we owe either to ourselves, or to our neighbors, or to our God.
In one sense, natural law and common law are synonymous...e.g. Quod ad jus naturale attinet, omnes homenes aequales sunt. [All men are equal before the natural law.] But this synonymity is not necessarily always true, strictly speaking.
For as I pointed out, among the United States, Louisiana's default code is derived from the French. But yet, the dictates of reason alone of the natural law still attain in that State.
If I bounced "around between discussions of common law and natural law" as you said by way of complaint in this specific case under discussion (i.e. homosexual "marriage"), I apologize. I attempted to define the classification of natural law as it would pertain to the common law definition of the marriage contract.
By way of personal revelation, one of the credos I live by is found in the common law: Loquendum ut vulgus, sentiendum ut docti. [We speak as the common people, we must think as the learned.]
Posted By: Paul Benedict
Date: 2008-07-16 09:18:12
My comment about the "bouncing around comfortably" between common law and natural law was really only meant to bemoan my lack of background on this entire area.
Posted By: Paul Benedict
Date: 2008-07-16 10:14:00
Hi Floyd,
I found the article "The Tree of Liberty Needs Watering," and your comments on English common law were very helpful. Do you have a column on Nolanchart. If so, I couldn't find it. Toss me link sometime.
Posted By: Wolfgang E. B.
Date: 2008-07-22 19:49:57
Natural Law: Using this argument is truely dangerous to the institution of marriage. Why? Let's look at nature and the evolution of man.
All species, including human beings, evolved through natural selection. This process requires that those who are fit to do so must produce as many offspring as possible to continue their genetic heritage. Thus human males, like those of other species, are evolutionarily wired to impregnate as many females as they are able. From a genetic standpoint, this is the optimal arrangement, as it ensures that the majority of offspring will carry high quality genes (those which are most conducive to the survival of the species). This is natural law, and its closest approximation in present-day society is polygamy.
From a social standpoint, this system has problems, of course. Men greedily guarding their vast harems invites all manner of social unrest. Women are treated as property whose sole purpose is to serve and satisfy their male owners, and produce children. Thus, from this standpoint, monogamy is the ideal.
Monogamy is not "natural," however. Men must quell their baser (i.e. natural) instincts in order to accept this arrangement. Thus monogamy is a cultural or social, (as opposed to natural), construct, one which is better suited to our Constitutional ideal of "equality and justice for all."
There is no more equal a couple than a gay or lesbian couple. They certainly do no damage to the institution of monogamous marriage, and in fact strengthen it. In the past, marriage was an unequal relationship wherein the wife was to submit to and obey her husband. The husband was the head of the household, the patriarch. The notion of marriage as strictly between a man and a woman is based on this outdated hierarchy.
Marriage today is seen as a partnership, more in line with the Constitution than at any time in history. The basis for maintaining the old definition of marriage has eroded. As the equal partnership it has become, there is simply no reason why gay and lesbian couples should be excluded from it.
Posted By: Paul Benedict
Date: 2008-07-22 23:16:20
Howdy Wolfgang,There are many things that occur in nature that are "not beneficial" (bad or evil would be too judgmental I suppose). Mankind has the opportunity, privilege, and responsibility (if you believe in responsibility) to garden.The idea of what man is able to do without government, the natural abilities native to humanity, the "idealized" state of nature posited by Locke, is constitutionally the source of "inalienable rights." We all have the ability to speak. What we speak determines character (if you believe in such things). We all have the right to worship. Who we worship determines who we are and will be. Humanity was designed, by evolution if that's the only theory of nature one will subscribe to, with the ability, male and female, to marry. The choice to marry, and the choices folks make after they marry, determine the character of the husband or wife and the quality of the marriage.
The founding fathers had a more profound, pre-Darwinian, view of nature. Of course Darwinist's don't have to be atheists. Darwin himself seemed to believe in God (at least at times). However, the idea of nature the founding fathers had was based on a belief in the One God, the Creator. Design was evidence of His will for humans in life. Hamlet's speech about "the paragon of animals -- in apprehension how like a god (? -- something like that) was not novel in conception, just especially moving in its poetic power.
The idea that monogamy is not “natural” … When we get really heartless… People are better than that.
Posted By: Wolfgang E. B.
Date: 2008-07-23 12:34:55
Paul, I agree that darwinism and faith are not mutually exclusive. I have always believed in God. The bible, however, is a human creation and a product of the times and places in which it was written. It contains the prejudices and beliefs of its authors, and is no more a reflection of God than any other great work that man has produced.
The pursuit of God’s Truth is a worthy one. We all strive to grasp that ever elusive Perfect Understanding of God. I will admit that even I have fallen into the trap of believing I had obtained it. It is a common error, recurring again and again throughout human history in every culture on the planet. The trap can be avoided by remembering that the pursuit of God’s Truth is a personal one. It is, at its heart, a solitary quest. Though it necessarily informs us in every facet of our lives, we must be ever vigilant about separating the personal from the political.
In the “idealized” state of nature, every human being is either 100% male or 100% female. In reality, one in every 2,000 babies is born with an immediately obvious intersex condition. Untold numbers are born with less observable forms of intersex. Scientific research increasingly points to neurological intersex conditions, like transsexualism, and even homosexuality may be the result of neurological intersex. Relying on a philosphical “idealized” state of nature negates the existence of all who don’t fit within its parameters. Negation always leads to oppression.
Its impossible to say exactly how our founding fathers would have processed and integrated today’s scientific (and its accompanying philosophical) knowledge. But they understood human nature, which has not changed, and in creating our Constitution, sought to elevate the good in us and restrain our darker side. They were fallible and imperfect, and they knew this about themselves. In that knowledge, they managed to create a document much greater than themselves. When they wrote “all men are created equal” they assuredly weren’t thinking about *all* men, or *all* human beings, and yet they certaintly *meant* all people in the hope and anticipation that future generations would evolve to a higher ethical standard than themselves. That is what, above all else, makes the Constitution a *living* document.
In the time of the founding fathers, women did not have the right to vote, blacks were considered subhuman, and gay men were hanged in the public square. Did the founders know these things were unconstitutional? Some of them did perhaps, but many of them owned slaves. Yet amazingly, a living document sprouted from their brilliant minds that would later be found to destroy traditions they embraced. One could even call it divinely inspired.
One of the “natural abilities native to humanity” is the ability to process information and transform it into knowledge--to think. We have a responsibilty to forever strive toward our greatest potential. In order to do that, we must learn to let go of old understandings when new ones prove them inadequate or erroneous and use all of the knowledge available to us in making decisions that affect the lives of others.
Without resorting to the opinions of biblical authors, how do you justify excluding gays and lesbians from the institution of marriage?
Posted By: Paul Benedict
Date: 2008-07-23 17:02:01
Truth is the business of the courts. It is simply a lie to tell people who can't get married that they are married. Polite, white lies that make people feel are not the business of government. There is evidence that the California Supreme Court has actually ruled that the people of California must deceive at best (or downright lie) for the sake of marriage equality. That is, indeed, tyranny. It is a totalitarian tyranny worthy of the most evil theocracies. Marriage, nonetheless, as a freedom that can be found in an idealized state of nature, an inalienable right, one of the blessings of liberty, cannot be legislated out of existence simply to satisfy an irrational cry for equality as out of step with natural rights as that of any Marxist. Well, it could be done, and has been done. However, it is incumbent upon all of us to rectify the situation by voting against the marriage of Party A and Party B. We should vote yes on Proposition 8 in California and then start recalling some judges.The American idea works whenever it is tried. It is the American idea that is now on trial. It is a rather odd, somewhat troubling, and shallow ploy to create ad hominem attacks on opponents of outright lies in government by accusing them of believing the Bible. The truths we hold self-evident as Americans are sufficient for explaining the evils of governments that lie unabashedly about rights and freedoms they are sworn to uphold.
For the record, the Libertarian Party of California executive committee voted unanimously to endorse a vote of NO on Proposition 8. There frankly wasn't any debate on it. This is a no-brainer for real Libertarians.
How someone who claims to be Libertarian could come to any other conclusion is simply beyond reason. I really do have to wonder if Mr. Benedict answered the quiz correctly (not alleging dishonesty, but rather confusion perhaps) in order to land in the Libertarian quadrant on the Nolan Chart. He clearly seems to be more of a Conservative based on his various writings on NolanChart.com.
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