Turek’s Tiresome ‘States’ Rights’ Argument

Christian apologist Frank Turek has a column at Townhall full of the same old tiresome arguments about marriage equality, with the added bonus of a really bad states’ rights argument. For instance, he trots out the same ridiculous argument used against interracial marriage:

Last week, one unelected judge, overturned the will of 1,317,178 North Carolinians when he declared North Carolina’s definition of marriage in violation of the United States constitution. Judge Max Cogburn, appointed by President Obama, said that the definition 61 percent of voters approved just two years ago violated the “equal protection” clause of the 14th Amendment—the same rationale used by judges elsewhere to violate the expressed will of the people. This is beyond absurd.

It’s absurd rationally because everyone already has equal marriage rights. Every person has the same equal right to marry someone of the opposite sex.

This is exactly the same argument made by the state of Virginia in defending its ban on interracial marriage: Blacks and whites are equally free to marry someone of the same race. Voila, no equal protection problem! But just as the Supreme Court unanimously rejected that argument in Loving, it shouldn’t take it any more seriously now.

These rulings are also absurd constitutionally. The 14th Amendment of the U.S. Constitution was passed in 1868 to prevent states from discriminating against newly freed slaves. At that time blacks and women didn’t even have the right to vote, yet no one ever thought a court could use the “equal protection” clause to change state voting laws. So why do courts think they can use it now to change state marriage laws? Are we to believe that “equal protection” does not guarantee a woman’s right to vote but does guarantee a woman’s right to marry another woman? What planet are these judges ruling from?

No, actually the Equal Protection Clause should have been used to enforce the right to vote for women and blacks. Turek makes the mistake of thinking that the meaning of a constitutional provision is determined by the “original expected application” of the people who wrote it. But if he believes that, he would have to agree that Loving v Virginia was wrongly decided because those who wrote and ratified the 14th Amendment explicitly said that it would not overturn state anti-miscegenation laws. Do you think he would apply his reasoning consistently? I highly doubt it.

Anyone who wants to change laws should convince their fellow citizens to do so at the ballot box, not through unelected judges. Unfortunately, activist judges won’t honor the ballot box. 41,020,568 people across more than half the states have voted to recognize marriage for what nature’s design says it is—the union of one man and one women. Yet just 23 unelected judges have overturned those 41 million people across about 20 states! I don’t care where you stand on the marriage issue: when 23 people substitute their personal policy preferences to overrule those of 41 million Americans, we are no longer free or equal.

Turek is either too dishonest or too clueless to realize that he is arguing against the Constitution itself here, which deliberately sets up a system that gives judges the power to overturn laws no matter how popular they may be. Indeed, the entire purpose of the Bill of Rights was to remove the power of the majority to deny equal rights to the minority. Yes, this is an explicitly anti-democratic design — and that’s a good thing.

Of the approximately 30 states that now have same-sex marriage (it changes every day), only one state has done it through popular vote (Maine). The people of Maryland and Washington narrowly voted not to overrule the same-sex marriage provisions their legislatures had approved. Eight laws were changed by state legislatures without popular input.

Wait, what? The Maryland and Washington legislatures passed laws legalizing same-sex marriage and voters then endorsed those laws in a referendum that was designed to overturn them. And what on earth does it mean to claim that eight state legislatures passed such laws “without popular input”? Does he think legislatures didn’t care what people thought? That opponents of same-sex marriage didn’t flood their offices with letters, emails, phone calls and petitions? That there wasn’t a vigorous public debate over it? That’s all nonsense. He seems to think that only a direct vote of the people makes a law democratic, and then only if he agrees with the outcome. If it was a law that he agreed with that was passed and opponents claimed that the law was passed by legislators “without popular input,” he would surely find such a claim laughable. But again, he won’t apply his own reasoning consistently.

As unwise as I think changing the institution of marriage is, I can at least respect the process when it is done democratically. For all their talk about equality, the other side does not respect democracy unless the vote comes out their way.

Pot, meet kettle. And why does he think that democracy and equality are the same thing? Democracy is often the enemy of equality. This is all just meaningless blather.

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  • John Pieret

    Well, he at least has that paragon of consistency, Justice Scalia, on his side:

    [Interviewer] In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

    [Scalia] Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

    http://www.callawyer.com/Clstory.cfm?eid=913358

    But when it came time to decide if the 2nd Amendment prevented states from regulating revolvers and automatic pistols, Scalia was able to find that the 2nd Amendment prohibited it, despite the fact that, at the time it was passed, no one thought it applied to anything but muzzle-loading, black-powder pistols, muskets and cannons.

  • John Pieret

    He seems to think that only a direct vote of the people makes a law democratic

    Heh, that flies in the face of the Republican refrain that America isn’t a “democracy,” it’s a “constitutional republic.” And the Constitution itself (which he will no doubt tell you he reveres) wasn’t adopted by popular vote but by a constitutional convention and 3/4 of the state legislatures.

  • Jared James

    They haven’t learned anything since 1867; why would we expect reactionaries to suddenly catch on that the world left them behind given a hundred years less time for it to sink in?

  • dhall

    None of them seem to remember that part about checks and balances being necessary to prevent a tyranny of the majority either.

  • Michael Heath

    Wingnut:

    It’s absurd rationally because everyone already has equal marriage rights. Every person has the same equal right to marry someone of the opposite sex.

    This argument would be valid if government granted our rights; but that is not the premise buttressing the U.S. Constitution. Instead the constitutional framework is that the people reserved their rights (aka immunities) and jurisprudence is charted with understanding the delegated extent or the limits of government power to infringe on our rights and the obligation of government to protect some rights.

    A proper understanding of the Constitution regarding rights (immunities) reveals that the equal protection is quite clear and applicable when it comes to marriage rights. That’s exactly why there’s been so much consistency with the appellate courts; that along with recent SCOTUS rulings such as Windsor which also validate this premise.

    The courts have long recognized that the right to marry is an inalienable right, which they call, wrongly I think, a “fundamental right”. Wrongly because I think all our rights are fundamental as the courts use the term. In addition the equal protection clause of the 14th Amendment requires states to protect our protected rights equally. Here’s the relevant constitutional language which includes the due process limitation of power at the state level:

    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.

    Liberals also frequently contribute to this fundamental misunderstanding of rights when they falsely claim somebody doesn’t have a right to do X. Or when a handful claim we have no immunities or reserved rights but instead government grants us our rights. This is not how the federal courts address the issue of government power and rights. Instead they seek to understand whether the government has the delegated authority to infringe upon a particular right or instead are obligated to protect a particular right. When the government infringes upon a particular right in order to protect the competing right of another, this delegation of power to do such infringing is referred to as a “state interest”. It was this latter controversy that David Souter noted was the most difficult of controversies to consider; I agree.

  • steve84

    States don’t have rights. People do.

  • John Pieret

    Or when a handful claim we have no immunities or reserved rights but instead government grants us our rights. This is not how the federal courts address the issue of government power and rights. Instead they seek to understand whether the government has the delegated authority to infringe upon a particular right or instead are obligated to protect a particular right. When the government infringes upon a particular right in order to protect the competing right of another, this delegation of power to do such infringing is referred to as a “state interest”. It was this latter controversy that David Souter noted was the most difficult of controversies to consider; I agree.

    Oh, hell … I promised myself that I wouldn’t get into this again …

    … but where the heck are these “immunities or reserved rights” stored? I’d like to go and see them! Federal courts sometimes “seek to understand whether the government has the delegated authority to infringe upon a particular right” but, strangely, decide those rights aren’t there … as in Dred Scott. Where do we go to but the courts, legislatures, the executive or eventually the people, all part of our government, to enforce these “immunities or reserved rights”?

    The Founders, correctly I think, kept the Constitution and even the Bill of Rights vague. Compare it to, say, the EU constitution which is some 1,500 pages long. That doesn’t mean that there are “immunities or reserved rights” that are separate and apart from what our government actually does.

    It was a nice rhetorical trope invented by Jefferson (and Franklin) that there are somehow, sort of “divine rights” bestowed by Nature and Nature’s God … but, then again. they were arguing against the “divine right of kings.”

    In the end, though. any immunities or reserved rights exist only as long as people enforce them through government and the law.

  • Michael Heath

    John Pieret writes:

    . . . where the heck are these “immunities or reserved rights” stored? I’d like to go and see them!

    Your rhetorical argument here reveals a fundamental misunderstanding of the nature of rights. I suggest reading those opinions which remain holding rulings.

    John Pieret writes:

    Federal courts sometimes “seek to understand whether the government has the delegated authority to infringe upon a particular right” but, strangely, decide those rights aren’t there … as in Dred Scott.

    Uh, wow. Dredd Scott is considered by all constitutional experts one of the most fundamentally defective opinions ever published by the courts.

    John Pieret writes:

    Where do we go to but the courts, legislatures, the executive or eventually the people, all part of our government, to enforce these “immunities or reserved rights”?

    You seem to arguing with an imagined strawman rather than what I’ve written. In fact if you comprehended what I’ve always written on this subject in the past, you’ll have noticed that I’ve always pointed out that when the courts consider a case regarding rights, the decision and framing is always in regards to what the government must and can not do. E.g., “Does the government have constitutionally delegated authority to act in a way that infringes upon a right?”, “Must the government rescind a law because it infringes upon a protected right?”.

    John Pieret writes:

    The Founders, correctly I think, kept the Constitution and even the Bill of Rights vague. Compare it to, say, the EU constitution which is some 1,500 pages long. That doesn’t mean that there are “immunities or reserved rights” that are separate and apart from what our government actually does.

    I have no idea how this advances your argument that rights (immunities) are not reserved by each of us individually as both the framers and courts assert, but instead our rights are, as you baldly assert, “bestowed” on people.

    “Vague” is not a correct description. Instead the framers focused on a document that revolves around principles rather than say, Germany’s post WWII constitution, which is related to statutory law. That’s why U.S. liberal and moderate appellate court judges/justices who combine original meaning with abstract principalism are able to make far more cogent arguments than conservative justices who concoct an original intent argument.

    John Pieret writes:

    It was a nice rhetorical trope invented by Jefferson (and Franklin) that there are somehow, sort of “divine rights” bestowed by Nature and Nature’s God … but, then again. they were arguing against the “divine right of kings.”

    It would take a long essay to unpack all the ahistorical wrong in this short passage. I’ll stick with the stuff directly relevant here.

    The courts do not and don’t have to concede the inalienable rights are divinely “bestowed” on us. Nor is your “divine rights” reference even consistent with how natural rights were argued during the drafting of the DoI and U.S. Constitution – including by both Franklin and Jefferson. Asserting that our rights are inalienable does not even require a belief in theism or even in deism.

    The courts rightly and modestly concede that our rights are inalienable. The courts, correctly, don’t search for the source of these inalienable rights but again ad nauseam, instead consider the obligations of the government in terms of the government’s delegated authorities and obligations to protect, ignore, or infringe upon rights.

    John Pieret – again, before arguing this further, I highly recommending reading some federal court opinions on rights. You’ll find they’re very consistent when it comes both the framework and premises uses in its opinions – and in direct contradiction to your ahistorical unconstitutional argument. The gay marriage and gun rights debates are both serviceable topics.

  • Michael Heath

    John Pieret writes:

    It was a nice rhetorical trope invented by Jefferson (and Franklin) that there are somehow, sort of “divine rights” bestowed by Nature and Nature’s God … but, then again. they were arguing against the “divine right of kings.”

    Besides my fisking above, here’s one of the most ironic rebuttals. Here is Thomas Jefferson in his first draft of the DofI:

    We hold these truths to be sacred & undeniable; that all men are created equal & independant, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness . . .

    Benjamin Franklin and John Adams were also members of the drafting committee. The final revision out of the drafting committee had Mr. Jefferson removing “sacred” and instead using, “self-evident”.

    It should also be noted that “sacred” didn’t always equate to the theistic reference to Pieret’s use of the term, “divine”. Context matters where there are times when there’s insufficient context to determine with precision whether ‘sacred’ presupposed a belief in the Christian god or even a nameless providential god.

  • John Pieret

    The final revision out of the drafting committee had Mr. Jefferson removing “sacred” and instead using, “self-evident”.

    That was, it is believed, Franklin’s change.

    Your rhetorical argument here reveals a fundamental misunderstanding of the nature of rights. I suggest reading those opinions which remain holding rulings.

    Why? All they do is repeat your rhetorical fiction that there are rights that exist “out there” that have nothing to do with what government does. And, yes, Dred Scott was a horrible decision but not because the court failed to find that ethereal “right” somewhere out there but because our government had not granted that right and it took a bloody Civil War for it to do so.

    Now, I’m going back to my promise to myself and not talk about this anymore.

  • Michael Heath

    John Pieret writes:

    . . . repeat your rhetorical fiction that there are rights that exist “out there” that have nothing to do with what government does.

    I’ve not only never argued our rights, “have nothing to do with what government does”, but I’ve instead repeatedly asserted that court rulings regarding rights are entirely comprised of what the government must do or isn’t allowed to do. I.e., The courts do not delve into your false claim that governments “bestow” rights onto us and therefore conjure up rights that exist or do not exist. What the courts instead consider is how the government must act regarding our rights and the framework within which they consider rights – that we reserve our rights (“immunities”) and they be constitutionally infringed upon, can be ignored, or must be protected.

    And when you claim what I write here is “rhetorical fiction”, you deny the very existence of that which is written in the DofI, the U.S. Constitution, the federal courts opinions, the Federalist papers, and the writing of the framers – some of which I’ve cited here which in plain language falsifies your perspective and validates mine. I’m amazed anyone would make your argument within the framework of how the U.S. courts act.

  • scienceavenger

    It’s absurd rationally because everyone already has equal marriage rights. Every person has the same equal right to marry someone of the opposite sex.

    It’s hard for me to understand how someone over the age of 5 could make such a stupid argument. I suppose Turek, when faced with women complaining of the sexism behind putting urinals in their bathroom, would say ‘there is no sexism, everyone has an equal right to pee standing up’.

    The law allowing only marriage to members of the opposite sex was made that way because that’s what the heterosexuals who wrote it wanted. It’s a “heterosexuals can marry who they want” law, written at a time where no other sexual orientations were recognized as non-deviant and deserving of consideration. Now that they are being considered, the law is clearly discriminatory, at least to everyone with a brain bigger than a pea.