From Whence Cometh Gay Rights? Part 3

If you have not read parts 1 and 2 of this topic, posted on January 30 and February 3, I encourage you to do so before reading this post.  You should see how I defined “morality” and “interpersonal relationships” and consider my understanding that our Founders rightly believed that power to “legislate morality” should be reserved to smaller governmental units and kept out of the hands of federal government.

In my last post I made the case for the proposition that the larger the reach of your authority and the more voters it takes to elect or “un-elect” you, the less responsive you have to be to the desires of the average person and the more prone you are to impose your personal values on those you govern.

Those who have the greatest ambition to impose their beliefs and values on others tend to rise to positions of power at the highest levels of government. That is where they can affect the most people, or put more crassly, that is the position from which they can tell the most people what to do. Even more bluntly, that is where they get to impose their morality upon the most people. It is not fashionable to say “I want to impose my morality on others,” of course. It is usually couched in words like “fair” or “just” or even hintingly religious phrases like “following the Golden Rule.” But no matter what words are used, a politician making people do what that politician thinks is fair, just, or right is the politician imposing his morals on us. They want to limit freedom in interpersonal relationships.

Someone with very openly stated ambitions along those lines recently said:

“Well, it turns out our Founders designed a system that makes it more difficult to bring about change than I would like sometimes. But what we have been able to do is move in the right direction. And you know what? One of the things about being president is you get better as time goes on."

Those with such ambitious aim for a seat in Washington, D.C.. The above was President Obama, with three years behind him, suggesting that after his re-election he will be better able to impose his morality—what he thinks is “the right direction”—on all of us.  For most of the first century, however, Washington politicians found two things that got in their way due to the wisdom of those Founders Obama laments:

1. The Bill of Rights only restricted Congress. As Washington politicians looked down upon the elected officials in state and local offices, they saw Minor-Leaguers—they might even say Little Leaguers—getting to decide issues of morality for the local citizens. When the “big” politicians with the “big” aspirations wanted to dictate what is “right and wrong,” that included their desire to tell the “little” politicians what could be defined as moral (and what could not be legally defined as immoral!).
2. The limitations the Constitution placed on the federal government prevented Congress from overtly legislating the interpersonal relationships of people, that is, from getting into what people “ought” and “ought not” do in their personal lives.  The Constitution said Congress could “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

If you are a powerful politician in Washington, how do you get around these limitations on your concentrated power? Let’s tackle the first one first, since that is the way they were attacked historically. We will discuss the second more in the next post.

These power limitations were first attacked through the 14^th Amendment which began:

 “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.”

Here was a loophole. Washington could indirectly regulate the morality (what people “ought” and “ought not” do) if they could get federal courts to apply the Bill of Rights against state and local governments.  Let me explain.

Recall earlier posts. Under the constitution as interpreted until the 14^th Amendment,  small government bodies got to determine the culture, set standards of conduct, establish penalties, and enforce the rules for local communities. That was a multi-cultural nation and democracy at its best.  The Bill of Rights said Washington D.C. (“Congress”) could make no laws abridging freedom of religion, speech, press, association, etc. But states and cities could regulate such things, and they did! Because of this, you could establish your home in a community where people shared your values, where your kids would be around other families who shared your values, and where friends became spouses and started another family in the community, and so forth. If you did not like the culture of your area, you did not necessarily have to move far to find a community that fit your values. Some states used tax dollars to support certain religious denominations. Many municipalities banned obscene materials, or even regulated political speech (even when such speech is not obscene!). Some had religious tests for holding public office. Nevada was known early as the state that allowed gambling and prostitution, while Utah allowed polygamy.

The most powerful politicians—President and Congress—could not tell you what the cultural values of your community had to be. It was none of their constitutional business! For those who wanted make the rules for everyone, who want to impose their morals from Washington, this system made it difficult. It was supposed to be that way. But the ambitious don’t like to have their will restrained! So these most powerful politicians—President and the Senate—who appoint federal judges started appointing judges who would interpret the 14^th Amendment roughly as follows:

1. All people are US citizens and should be guaranteed the same liberties; not just the same as other citizens in the state or city in which they choose to live, but the same liberties as all citizens in all states.
2. What defined “liberties” shall be guaranteed? Those liberties that “Congress” shall not abridge. Therefore, the Bill of Rights should be universally applied around the US.  
3. Hmmm, now what exactly do we want those amendments to mean…?

Thus the Bill of Rights was twisted from a limitation on the most powerful politicians (President and Congress) into a power grab by them! Where previously they had no power to dictate rules of morality, they could now appoint judges who, by interpretation and extension of the Bill of Rights, would dictate the rules of morality these politicians favored.

How did this work out? Following are examples of rules of morality—what is fair, just, or right, and how people ought and ought not act toward one another—that were democratically enacted and permissible at the local level, but which were declared unconstitutional under the new interpretation that the 14^th Amendment now restricted the state and local governments’ legislative power:

• Protection from having private property taken without compensation, 1897
• Freedom of speech, 1925
• Freedom of the press, 1931
• Freedom of assembly, 1937
• Freedom to exercise your religion, 1940
• Freedom from being compelled to support a religion, 1947
• Right to a speedy trial, 1948

If you want to live where the city officials prohibit large public gatherings, you are out of luck. There can be no such place in the United States according to the powerful politicians and their hand-picked appointees. If you want to live in a town where everyone must  support the Catholic church, and that view is shared by all voters…too bad! The supreme powers from Washington have now decreed that no town can through its elected officials collect taxes to support a church. If you want to live in a town where all citizens preferred not to be assaulted by lewd magazine covers in the drugstore or checkout lanes…to bad! The morality dictators from Washington declare that no ordinance can be passed to prohibit such displays. If you want to live in a district where everyone is Mormon and wants the school day started with an appropriate Mormon prayer, tough. According to those who have worked their way into power, no public school board in the country can allow it. And if you want to live in a community where sexual activity is legally permissible only within lawful marriage…I’m sorry. Our least accountable rulers have decreed that setting any such standards is, in their view, immoral. Now, whatever the most powerful politicians want people to be “free” to do can no longer be made illegal by the locally elected, officials: township, city, county or state.

Again I ask: “who or what will keep the lawmakers moral?” What we are seeing in constitutional law is exactly what the Founders of our nation feared. Fewer and fewer elites are exerting their will over more and more citizens. We are witnessing the destruction of democracy. Those who appoint federal judges are the ones who determine the moral standards of our nation.

If you look at my title, I trust that the dots are starting to take shape. How might we define “liberal” and “conservative” in current political context? On government power, conservatives (I do not pretend that this includes all Republicans) favor traditional subsidiarity: that the federal government should do only those things that the individual states cannot do, states should only do what local governments cannot do, and so forth (see post #2 for more on subsidiarity). The liberal philosophy is one of greater centralized power: more power should be placed in fewer hands to impose what is fair, just or right on the presumably unenlightened masses.

Where do they stand on what standards of morality should be imposed? Liberals like to call themselves “progressives” largely because they believe in moving from long-standing traditional standards. Conservatives tend to stand for preserving, or conserving, the standards that have generally been bedrock for stable society, values that come from the Judeo-Christian heritage, which values tended to be agreed upon when local governments were permitted to set their standards.  

In my next post we will explore how Washington politicians escaped their remaining constitutional shackles, and achieved unlimited power to legislate morality and interpersonal relationships.