Blog Spectrum

By strict count you seem to have made it. But!!!! I just can't count the two sentence post as significant enough. While I am definitely a fan of pithiness that is taking it to an extreme.

Caohaoim

In short, I am against the legal sanctioning of gay marriage.

I'll get right to the point. I am against gay marriage for two basic reasons. First, allowing gay marriage destroys marriage's special place in our society. In my opinion, the ideal family includes a loving mother and father raising children. By opening up the definition of marriage to include anything other than one man and one woman flies in the face of (an estimated) 99.999% of the tradition of marriage in our Western, Jeudo/Christian culture.

Second, allowing gay marriage opens the floodgates to all sorts of other 'marital arrangements' including polygamy and incest. After all, if we cannot 'discriminate' based on the gender of two people wishing to enter into 'matrimony' then why can we exclude a man and three women, four women and two men or even brother and sister? For those of you who think this argument is ridiculous I implore you to read Matthew Franck's piece at NRO.

Many people will counter by asserting that is not 'fair' to homosexuals that they are not allowed to enter into a legal contract to express their love, gain the tax benefits, etc. To those people I say, sorry. I am honestly sorry that you find the situation unfair. If there were some way to compromise, I would be happy to consider it. I do not think, however, that there is an acceptable compromise simply because any compromise leads inevitably not to a slippery slope but rather directly to the proverbial cliff. Anyone who supports gay marriage has no standing to oppose any other 'marital arrangement' someone might propose. That is a road I will not willingly travel.

Topic: I support/am against same sex marriage because...

The protections guaranteed and Rights recognized by the Constitution and its amendments apply to everyone who has entered into the contract that is the Constitution. There are two groups who have done so: 1) Natural born citizens and 2) Naturalized citizens.

The commenter to the original post suggests that the Equal Protection clause of the 14th amendment indicates that the entire Constitution applies to everyone in the country whether they are here legally or not. Let's take a quick look to see if that stands up. Here's Section 1 of the 14 amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What I get from this is, first, that states cannot make or enforce laws that infringe upon "privileges or immunities of citizens of the United States". To me, that sounds like the amendment is directing that states will not abridge my free speech just because that particular right is not recognized in my state's constitution.

Second, no state is allowed to "deprive any person of life, liberty, or property, without due process of law." That, obviously, means that even illegal immigrants are guaranteed a fair trial before being jailed or deported.

Finally, no state is allowed to "deny to any person within its jurisdiction the equal protection of the laws." That does not, however imply that the rights recognized, or the privileges granted, to individuals in the Constitution apply to non-citizens/illegal immigrants. And, of course, you don't get to pick and choose which laws you'd like applied to an illegal immigrant (or anyone else for that matter). So laws regarding illegal immigration still count.

While this may sound cold hearted and just plain mean I think it is important for two reasons. First, to say that the Constitution applies fully to anyone who happens to be standing on American soil leads to all sorts of problems. Are POWs guaranteed due process if brought to the US? The answer is, and must be, and emphatic 'no'. How about invading enemy soldiers? Or perhaps just a bunch of thugs in some 3rd world hell hole that manage to breech the physical defenses of an American embassy?

Second, if one applies to the rights recognized and protections granted in the Constitution to those who enter the country illegally, then what is the incentive for following our laws in the first place. It's the same old (yet valid) argument that by not punishing those who break laws you are actively encouraging others to break more laws.

The Constitution is a contract that one enters into by right of birth (unfair, maybe...but that's just the way it is) or by choice via legal immigration (a difficult process surely, but again...too bad, that's just the way it is). Anyone who chooses to enter our country while choosing to not enter into the contract as proscribed by law is not worthy of its protections.

Who is protected by the US Constitution? It is a difficult question to answer because it isn’t quite spelled out in the text, yet it isn’t quite open to interpretation. As Elliot Essam noted in his comment to the Question of the Week, the 14th Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

That seems pretty straight forward, but the obvious test is obviously staring us all in the face (though we’ve gotten pretty good at ignoring it). That test would be the detainees at GITMO. Those detainees, while on US soil, aren’t in any particular state. From a moral stand point that distinction is a pretty thin dodge, but as much as we might prefer otherwise, the law means what it says, not what it ought to mean. Indeed, the provisions of the 14th Amendment regarding human rights are actually encompassed by the 9th Amendment. The fact that the 14th had to be enshrined in our highest law is , in essence, proof that a law must say what it means to be effective. A further example would be the “Schiavo Special” cooked up for the famed Florida case. Based on the law, as written, in conjunction with the words of that law’s framers, the Federal courts correctly ruled that they could choose not to intervene, in spite of the obvious (after the fact) truth that the law was meant to compel the court to do so. Why bring up the morass of the Shiavo Incident? Because that particular case provides a useful distinction. One of the primary deciding factors used by the federal court was the “intent” of the law’s framers. Not their actual intent, per se, but the intent they admitted to in the official record, i.e. the words the spoke on the floor of the Congress.

IANAL, but I do play one on TV*. Keep that in mind as up examine the following. While it can be debated that the equal protection clause is a limit to the states, and not binding on the Federal government, there’s no need to look at the intent of those framers to answer our question. The first 10 Amendments were specifically binding upon the federal government and the same concepts that are enshrined in the clause are distributed through the Bill of rights. The 14th Amendment, among other things, overturned interpretational precedent that had been constructed in an attempt to preserve the Union against the specter of civil war.

In the Bill of Rights, only the 5th through the 8th can be unambiguously stated to apply to any person in the jurisdiction of the United States. The other enumerated rights are specific to “the people” or the States. Since the Preamble has been supported as defining law, one can reasonably suggest that ‘the people” are defined by the phrase, “We the People of the United States…”

This seems to imply that the full protection of the U.S. Constitution need only be applied to citizens of the United States. However, that test alone would be weak basis for argument. One would be forced to turn to the “official record” seeking the words of the framers, in order to divine their intent. Lacking a legal team to pour through the wealth of information left to us by the founders, I turn to the document that ranks beside the Constitution in the heart and minds of many Americans. In the Declaration of Independence many of the Constitution’s framers signed off on the simple statement, “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. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed…”

The Preamble, and the Bill of Rights both echo the sentiments of that simple statement, that opening justification for rebellion. It would be difficult to argue that this statement did not provide insight into the intent of the framers. The key phrases being “all men” and “endowed by their Creator with certain unalienable Rights.”

What does this mean for our detainees at GITMO? Nothing, really. Amendment V provides for and exception for capital or otherwise infamous crimes during time of War. Futher, those detainees aren’t necessarily being held for criminal justice reason. They are Enemy combatants and thus can be treated, in some ways, like POWs. Certainly POWs can be held for the duration of a conflict. Of course they aren’t POWs, They are illegal and irregular forces. Historically, the prescription for such was execution.

For the other obvious segment of non-citizens, illegal aliens, the Constitution does appear to extend the full legal protection of the law. That does not mean they are entitled to the services of the state, only that they enjoy the same protections under US law as a citizen. The 14th Amendment does provide that level of protection to non-citizen in the jurisdiction of the several states. From that standpoint, the Constitution does belong to everyone.

* I don't really play a Laywer on TV.

This weeks question of the week brought to you by Morgen.

Who does the US Constitution, and all its rights belong to? Everybody in the US or just to citizens and legal residents?

I had, honestly, meant to tackle last week's question, but I found myself rather short on free time. Additionally, I had found myself with no clear opinion on what to say about the whole mess. Obviously Rove did something he shouldn't have. Whether he should stay or go would (in a perfect world) depend on his motive, and on his knowledge of the situation.

One of the points of contention being batted about is whether Rove identified Ms. Plame by name. Examination of the relevant statute suggests that point is irrelevant. It is a criminal offense for an official with access to classified information to provide ANY data that leads to the identification of a covert operative. Rove, in identifying Ambasador Wilson's wife as some one "who works for the CIA on WMD", Rove provided more than enough information for anyone to find out who Plame really was, as this report demonstrates.

Rove's story neatly circumvents that problem, however. The White House Advisor claims that he didn't come by Plame's identity via priveleged info, but from yet another reporter. It is an American ideal that the accused is innocent until proven guilty, so we'll assume that Rove's story is true (lacking evidence to the contrary). That still doesn't satify the question of intent. If, as Wilson suggests, Rove was acting in retribution it is obvious he should be asked to step down. Not because retribution is an ignoble motive, but due to the consequences of his actions. Rove was used as a point of confirmation about Plame's identity which makes him an unwitting accessory to a crime. On the other hand, Rove may have had a ligitamate interest in demonstrating that Wilson was lying about the circumstances surround his fact finding mission to Niger.

All of that hinges on events occuring in a perfect world. The world is far from perfect. Rove has friends in the higest places. It is likely that we'll never know exactly what happened and how he was involved, so it's unliked--baring seriously damaging evidence, that Rove would ever face criminal charges. Rove is an icon of everything the opposition finds wrong with the present administration, so it is unlikely that he'd ever get a fair and honest hearing in the court of public opinion. In the end, that court is the only one likely to matter. So long as Karl Rove remains no more a liability to the administration than he already is there's no reason for him to be removed from his post. Firing him, or accepting his resignation, would be a sign of weakness.

Content restrictions are, at best, of dubious value. This is not an opinion formed due to a desire to protect my "freedom" to make copies of the stuff I buy. In a certain sense I believe I have that freedom, but I rarely make those copies. From a practical standpoint it is a non-issue, for me. The value of DRM and content control depends on whether or not they actually protect the profits of the content providers. I don't think these technologies do that.

What they do is dissuade the casual copier. They keep the average American from easily running off a duplicate of a movie or album for his or her friends, in the way that the cassette tape had during its heyday. The true pirates are only mildly hindered by this stuff. Protections can be bypassed, encryptions can be broken, and the "hackers" of the world are itching for the chance to do so. One DRM's original proponents, Microsoft, has been beaten in an arena it claimed it was unbeatable. If a researcher can do it, a team of motivated hackers can copy the feat.

Efforts to beat those hackers can only result in an arms race, funded (of course) by cost increases passed on to the honest consumer. Why all this trouble? Largely to fight the age old menace of second and third world pirates selling the content to second and thrived world customers who can't afford the real deal, or the increased costs associated with the DRM war.

Of course, they don't pay those costs, the American consumer does. There is, reasonably, the specter of mass digital file sharing. Certainly a valid danger, but not (I think) a pressing one. Americans have, time and again, proven that they will pay for something convenient even if a little work would get them the same thing free. The growth of piracy in the first world is partly (dare I say 'largely') a result of overpriced entertainment.

And of course, DRM is annoying for some. It can cause certain issues. Even a leading proponent of DRM has had a few problems.

Call me a Libertarian, but I think there should be no (zero, zilch) restrictions on the content of video games, movies, books, TV or any other form of entertainment. I'm not opposed to the rating system to give people a relatively standard heads up on what they might be getting into, but to actually restrict what can or cannot be presented as entertainment is totally outside the power of the government.

Who is responsible for protecting The Children^TM? Parents.

Any questions?

And the Question of the week:

Are content restrictions on entertainment such as video games, music, and movies helpful, or do they simply create more legislation, restrictions on freedom and glorify what ever they are trying to restrict by making it taboo?

Should Rove stay or go?

Its actually pretty easy to answer: It depends.