Publius Redux

Alexander Hamilton on the right to marry¹ in Federalist 84:

Why...should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
...
What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.

I bring up this passage because it has always struck me as one of the most important constitutional concepts. Our founding document (which I ofttimes affectionately and lazily call the Big C) is a "prudent" document, if I might borrow from information security. That means our Constitution denies the government the right to do anything, except for specific powers enumerated in the various articles. In other words, anything not explicitly deemed to be in the demesne of the government is something denied to the government, and reserved as a right for the People (and/or the Several States).

That's a much better approach to defining government (or a security policy) than being "permissive"; that is to say, that the government can do anything it wants except for X, Y, and Z². That would make it much easier for a government to overstep its bounds, and much harder for people to regulate said government. Inherently, then, the Big C is a prudent security blueprint that limits what the government can do, all with the intent of protecting us from unwarranted intrusions into our lives.

And that was the point Hamilton (aka Publius) was making, specifically about the concern many people had that the proposed constitution lacked a bill of rights. His concern was that if you take the approach that you must spell out the rights of the People, you open the door for abuse even if you aren't really allowing government to regulate said rights. In my mind this also means you've just taken a step toward implying that if a right is not defined, it is either not important or worse, doesn't exist.

So I look at the current brouhaha over gay marriage. Some people in various venues have claimed there is no right to marry. I disagree strongly. The right to love and join someone in a meaningful union is self-evident, natural, and clearly something that is protected by the Big C because the government was not granted the right to regulate marriage³. Having the government in the business of defining this institution is an overstep of grievous proportions.

Of course, this is why the President and his bigoted partners in crime must resort to amending our Constitution. Once they define marriage in this way, then any considerations of Amendment I, or Amendment XIV or a Hamiltonian view are moot. The government will thereby be granted the power to regulate what marriage is and to whom it applies.

As most of you are aware, the last time we did such tinkering at the behest of moralizers was in 1919 with the adoption of Amendment XVIII--that was repealed in 1933 by Amendment XXI. At least Prohibition was not something aimed at only a particular segment of our population. As I alluded to below, when we adopted the Constitution we only counted (black) slaves as three-fifths of a (white) free person for purposes of apportionment. I find it appalling that we here in the 21st century are now going to repeat the 18th century travesty of reducing some of our people to less than full members of society.

This is why an amendment must be fought at all costs⁴, and I demand that the Democratic candidates stop dancing around the gay marriage issue. It is time for them to stand on principle and defend a fundamental civil and human right. It is also time for them to defend our founding document from tinkering and from being fundamentally altered in its purpose, for an amendment prohibiting gay marriage⁵ will change the Constitution from one that places limits on the powers of government to one that restricts the rights of the people.

ntodd


1 - Okay, I lied. Sorry, but I needed a hook.

2 - The analogy I use in class is a parent trying to regulate a child's behavior. If you tell your child not to draw on the wall with crayon, they could view that as license to draw on the wall with a marker.

3 - In addition to my Hamiltonian perspective wrt to our right to marry, I note that Article 16 of the Universal Declaration of Human Rights explicitly asserts that marriage is a right, though it is sufficiently vague on what "marriage" is.

4 - Of course it's not easy to amend the Big C, and clearly this is more crass, cynical political pandering on Bush's part, but if we don't stand against this, it could still happen.

5 - One proposal is S. J. RES. 26, which reads: Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the Constitution of any State, nor State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

[Update: I corrected a few items, and reorganized the footnotes.]  ¶ 11:54 AM