Gay Marriage Legalized in Maryland and Thoughts on the Path to Legalization

Mentioning the issue in my last post reminded me that I haven’t put out an update on this issue in a while.  This one will be a bit longer than normal.  I considered breaking it into two posts, but didn't.

Continuing a string of gay rights victories, Maryland recently legalized gay marriage.  It is the eighth state to do so (Connecticut, Massachusetts, New York, New Hampshire, Vermont, Iowa, Washington state, and Washington DC already allow it).  As a side note, New Hampshire also recently defeated a bill in its legislature to overturn its gay marriage law, so that’s another win. 

Like Washington state, there is an effort in Maryland to put gay marriage up for popular referendum in the fall.  In addition, Maine is expected to have gay marriage on the ballot in the fall.  Minnesota and North Carolina are still expected to have gay marriage bans on the ballot in the fall, as well.  California remains a hotbed due to the recent overturn of Proposition 8, as does the federal level (DOMA).

To this point, I’ve been content to leave aside the question of what is the most appropriate avenue for getting gay marriage legalized.  I want to look at that here.  There are court rulings, the legislative process, and popular referendum at the state level, along with DOMA, the legislative process, and potentially the Supreme Court on the federal level.  I’ve never looked into the possibility of a popular referendum on the federal level, but I suppose it is possible in theory. 

Here’s the reality.  In the United States, the rights of the minority are not subject to the will of the majority.  It is one of the most fundamental underpinnings of the Constitution.  We see it repeatedly throughout the document, like the 14^th Amendment as I’ve laid out before.  This very basic tenet of America is the reason popular referendum, be it on the state or federal level, is simply not an appropriate way to address the matter.

So, with popular referendum out, we are left with the legal or legislative process.  They are simultaneously somewhat parallel, yet related, paths to the same end.  The courts could (and should) keep overturning gay marriage bans and upholding gay marriage legalization based on the Constitution, but they are limited by the cases brought before them.  The legislature, on the other hand, can write and pass a bill at any time (assuming the will is there, of course).  Both are appropriate paths to legalizing gay marriage.

We’re also left with the question of whether state-level or national-level action is appropriate.  This is kind of tricky.  On one hand, we have the states’ rights question, which I’ll address below.  On the other hand, even if we break away from the 14^th Amendment or legal rights issue, we see two additional layers. 

First, it’s my view that individual freedom is the ultimate deciding factor.  Basically, it’s the, “My rights end at your face,” line of thought.  I would pose the question to opponents how their rights are infringed upon by allowing gay marriage (it’s very obvious the rights of gay people have been infringed upon by being denied the right to marry).  This is actually a very significant question and I see no valid answer provided religious organizations are not forced against their will to marry gay people.  So, the rights of gay people are being restricted and ending that infringement would not impact everyone else.  This is an important underpinning to the gay marriage argument, and with that, we can move on to the next step.

The Constitution is the supreme law of the land and was written with the intent not to limit the rights of the individual, but to limit the power of the government to limit individual freedom.  Simply put, if the local and state governments are unwilling to take the appropriate action to ensure the rights of the individual, then the federal government is obligated to intervene to that end.  The inverse also applies, meaning that the state and local governments must also take appropriate action to ensure individual rights should the federal government attempt to violate them.  In other words, the rights of the individual trump the rights of the government on all levels.  The Civil Rights movement is a great historical example of the concept.  This can get very philosophical very quickly and we can branch off into a lot of other questions, but I want to stay on topic here and move onto the next facet of the federal versus state action discussion.

Second, as I’ve written before, a marriage license issued by one state must be recognized by all other states per federal law.  This is often framed in terms of age.  Suppose State A’s legal age for marriage is 16 and State B’s is 18.  If a pair of 16-year olds get married in A and go to B before turning 18, B still must recognize their marriage.  The same logic applies to marriage licenses for gay couples.  Alabama, for example, acts illegally when they refuse to recognize the legitimacy of marriage licenses issued to gay couples by another state (to my knowledge, Alabama is the only state to do this).  Interstate issues like that often ultimately require federal-level arbitration. 

The bottom line here is that, between the 14^th Amendment and interstate issues, federal-level resolution will ultimately be necessary to at least some degree unless all 50 states legalize gay marriage on their own.  I think DOMA would have to be overturned somehow (legislative process or Supreme Court ruling) because, as I’ve detailed before, a large number of states defer to DOMA.  Additionally, federal action that either explicitly disallows state-level bans on gay marriage and/or legalizes gay marriage throughout the USA may be necessary.

What about a Constitutional amendment?  It would be pointless because it would be entirely redundant to the 14^th Amendment.  We’ve seen this before.  Feminists were agitating for a similar amendment for women a few decades ago.  Back then, the amendment ultimately failed to gain traction due to the redundancy logic.  A similar amendment for gay marriage would fail in the same way for the same reason.

Note the absence of the executive branch.  Though it can serve as a bully pulpit, I don’t view executive action, either by a governor or a president, as a viable or legal path to legalization.  The executive branch lacks the power to do this unilaterally, though this hasn’t stopped them from trying (and often succeeding) to stretch/abuse their power in many other areas (also known as the imperial presidency).  Indeed, the executive branch on either level can be completely locked out from the process.  Legislatures can often overturn an executive veto with a 2/3 majority in both houses, the judicial branch is largely independent of the executive branch, and popular referendum doesn’t involve the executive branch at all.  The executive branch also has no place in the amendment process of the Constitution.

All that said, I’m a pragmatist on the matter and I want to see it legalized as widely as possible as quickly as possible.  The state legislative process is probably the best way to go on the offensive (as long of a grind as it is to get through 40+ more states), whereas the state legal process can be used more for both offense and defense (bearing in mind the limitations imposed by what cases face the courts). 

Given the 0 for 31 record gay marriage supporters have in state popular referendum, I have a different take there.  Principle and strategic disadvantage make popular referendum a bad place to be.  Obviously, playing defense there to counter bans is vital, but it’s not the place to play offense.  Victories here are still essential, especially on defense.  Going on offense in Maine is risky only in the sense that the odds of success aren’t favorable based on history, but there is nothing to lose besides resources and there is everything to gain because another state would legalize gay marriage and the momentum of a first popular referendum win would be very powerful.

Barack Obama and the Constitution

For my 100^th post, I wanted do something a bit more encompassing than I usually do, something that spans the 99 previous posts.  Because I write about a lot of different things, it’s not easy to string it all together, so I decided to take a look at Barack Obama’s presidency as it relates to the Constitution.  I figure this can help people assess his presidency.

Like it or not, the Constitution is the supreme law of the land.  On the whole, I think Obama’s record on the Constitution is not favorable (even compared to his predecessor, George W. Bush, who had a bad record here) and we see several areas in which he has either applied the Constitution in a questionable manner or ignored it entirely.  I find this tragically ironic because he was a professor of Constitutional law.  I’d think he’d use that expertise to uphold the Constitution rather than dismantle it so he could build an imperial presidency.  I’ve gone into detail previously on many of these, so this is more of a list rather than an expansive review of each scenario. 

On the negative side, we start with the Obamacare individual mandate, which would force an individual to engage in commerce by purchasing a government-approved health insurance product or face the consequences.  I think the Supreme Court got the ruling wrong by upholding it as a tax and it’s a very dangerous precedent, so I will count it against Obama (I’ll do a future post about the ruling and my opinion may change).  Feel free to disagree on either the constitutionality of the measure or my counting it against Obama’s constitutional record. 

Next, there’s this whole recess appointment business, in which Obama has disregarded checks and balances by attempting recess appointments while Congress was not in recess. 

Then, there was the Libya situation (probably others, as well) and Obama’s disregard for the War Powers Act.  At least when Bush took us into Afghanistan and Iraq, he took the time to get it approved by Congress versus Obama simply committing our forces to the effort without Congress’ approval.  We’ve also recently learned through the New York Times that Obama has continued and expanded the Bush administration’s cyber attacks on Iran’s nuclear program, which could be taken as an act of war.

More recently, he sidestepped Congress with regards to immigration by basically implementing portions of the DREAM Act via executive order.  Article I, Section 8 clearly empowers Congress, “To establish an uniform Rule of Naturalization,” which is the Founding Fathers’ way of saying that the president cannot unilaterally set immigration policy and Congress has power in the matter.  Note that Congress has repeatedly rejected the DREAM Act in a show of checks and balances, not obstructionism.  This also gets into the 14^th Amendment questions I’ve previously discussed regarding citizenship in the US.

The biggest problems of all were in the “War on Terror”.  If you thought Bush was bad here, wait until you see how Obama’s taken the torch and run with it during his term.  In general, yes it was George W. Bush who started us down this tyrannical path and laid the foundation for the future, but Barack Obama has gone down that path even more aggressively.  Here are a few examples of how Obama built upon Bush’s foundation.

Bush opened Guantanamo Bay and Obama went back on his campaign promise to close it (hypocrisy aside, the facility’s existence violates so much of the Constitution that I don’t even know where to start).    

Bush increased security at airports, which was bad enough, but Obama’s taken that to a whole new level with invasive body scans and searches, trampling the 4^th Amendment like I mentioned a while back. 

Bush also expanded the military commissions instead of and in addition to the courts for trials.  Obama has continued this practice.  I’ve also questioned the constitutionality of using military commissions versus civilian courts (at least with regard to US citizens).

But, wait, there’s more because Obama’s done a lot to blaze his own path.  Obama also assassinated Anwar al Awlaki, who was an American citizen.  This tramples on the 5^th, 6^th, 8^th, and 14^th Amendments (probably others, too).  I didn’t post about Anwar al Awlaki at the time because I was unable to verify his US citizenship, but I did recently and this episode becomes another bad one for Obama.  The government can’t be allowed to murder its own citizens.  Also, note the details recently published by the New York Times about the hitlist meetings. 

As if assassinating an American citizen wasn’t bad enough, Obama also more recently signed the NDAA to authorize the indefinite detention of US citizens without the right of a trial.  Surely, I can’t be the only one who’s troubled by a president who thinks he has the authority to indefinitely detain and/or murder American citizens (and, as I’ve mentioned before, there’s a school of thought suggesting that the legal protections outlined in the Constitution should be extended beyond US citizens to non-citizens). 

It gets even worse as Obama also recently signed an executive order updating the government’s power of eminent domain as it applies to “emergency” situations.  This is not limited to war and can be applied during times of peace.  Essentially, the government says it is allowed to seize and control pretty much anything it wants (food, water, energy, raw materials, etc.).  To be fair, the only real changes from the 1994 version of the order were to add in the Department of Homeland Security, so we can really only blame Obama here for upholding too broad of an existing power rather than new power like elsewhere in this list.

We’ll close this sorry list out with a quick mention of the NSA’s new Utah facility, which is another attack on our individual legal rights, as it enables the government to implement Obama’s recent guidance to the intelligence community stating that he thinks they now can store digital information on US citizens with no suspected ties to terrorism for up to five years (versus the previous directive to destroy it immediately).

On the positive side, Obama did stand up for the 1^st Amendment with regards to SOPA/PIPA, essentially forcing those bills to be dramatically altered, scrapped entirely, and/or restarted from scratch out of concerns for free speech and cybersecurity.  I’m sure this isn’t the end for the matter and I see this as an ongoing battle.

Obama gets both credit and criticism on gay rights.  He repealed DADT.  Obama has not yet pushed for a full repeal of DOMA and its unconstitutional measures, but he has stopped defending it.  So, he gets credit for agreeing with me on the constitutionality of DOMA.  However, the problem is the president is required by the Constitution to, “Take care that the Laws be faithfully executed,” per Article 3, Section 3.  So, he’s violating the Constitution in the process here.  We can’t have a president deciding that, just because he disagrees with a law, he won’t enforce it, whether we like the law or not.  The same goes for a president trying to enforce a law that doesn’t exist.  Both are dangerous.  Again, this is an ongoing battle.

Did I miss any?

I think it can always be worse, but I’m not about to detail exactly how.  Obama doesn’t need my help in coming up with ways to trample the Constitution.

Book Review – Myth of the Robber Barons by Burton Fulsom Jr.

I recently read “Myth of the Robber Barons” by Burton Fulsom Jr.  This is the second book of his I’ve read and reviewed, with “New Deal or Raw Deal” being the first. 

Let me just start off by saying this is a very quick read.  I read it on my way to Las Vegas this spring, which was a 6-hour flight.  It’s a short book at less than 150 pages with pictures and a large, spread-out font.  In addition to being small, it’s also hard to put down once you start a chapter. 

Fulsom challenges the popular historical notion that all of the successful big business leaders of 19^th and early 20^th century America were evil, exploitive, greedy, detrimental to society, etc.  He does this by acknowledging that, yes, some of them lived up to the anti-capitalist rhetoric.  However, he also presents several examples of men who did not. 

Fulsom created a vital distinction early in the book between market and political entrepreneurs (MEs and PEs for brevity from here on).  The PEs are what we would call crony capitalists today, meaning entities who tried to succeed in the economy not through competition (innovation, cost reduction, addition/creation of value, etc.), but by connection to and/or preferential treatment from the government (bailouts, carve-outs, regulations that help the PE at the ME’s expense, government contracts, etc.).  MEs are what we would call free market capitalists today and succeed through competition rather than government favoritism.

Fulsom presents several examples and key takeaways from each, which I’ll list briefly below.

The first chapter looked at Commodore Vanderbilt and steam ships.  The key takeaway is that price cuts can benefit people.  By competing on price, Vanderbilt made steamship travel accessible to the average American in the regions where he operated. A luxury became a commodity, in essence.  This forced the competition to cut prices to stay up with him (who says deflation is always a bad thing?).  He also presents a good example of an ME versus a PE, with Vanderbilt being the ME and winning multiple times. 

Chapter 2 explores James Hill and railroads.  This chapter was a compare and contrast exercise between Hill’s railroads and the Transcontinental Railroad.  What was interesting here was the discussion of incentive structures in the context of the public and private sectors.  The Transcontinental Railroad builders were paid on a per-mile basis, so they would lay as much track as fast as possible, leading to both shoddy work (that would need to be redone) and inefficient, windy paths.  Hill focused on building the tracks right, with straight lines and low grade whenever possible.

And we move onto the Scrantons, iron rails, and cities.  Here, it’s a discussion of the iron rail industry in the area and a compare and contrast of Scranton versus Wilkes-Barre (both in Pennsylvania) back when the state wasn’t fully settled.  Scranton is presented as an example of smart urban planning and preparation for expansion.  The most interesting discussion here was about succession of wealth and how well families can maintain a wealthy status over multiple generations.  Basically, dynasties aren’t so easy to build and especially don’t survive as well as commonly believed.

Chapter 4 takes us to Charles Schwab, Andrew Carnegie, and the steel industry.  The main thing to take away from this chapter is that high pay for high performance actually works as a compensation model.  It was how Carnegie and Schwab were able to dominate the steel industry (on multiple occasions).  Their workers were properly incentivized.  Schwab also presented an example of wealth not necessarily staying once it’s been built. 

We come to John Rockefeller and the oil industry next.  By dominating the industry via competing on price, Rockefeller brought energy to the masses.  What was previously a luxury confined only to the rich (oil-based energy) became accessible to the average American.  This is another example of price cuts (aka deflation) benefitting people and a luxury becoming a commodity.  Rockefeller was not unlike Vanderbilt from before.

Chapter 6 looks at Andrew Mellow as Secretary of the Treasury and the birth supply-side economics in today’s terms.  Mellon’s policies, and the results thereof, showed that tax rates cannot be confused with tax revenues.  Fulsom presented IRS data to make his case, which is an interesting one. 

The last chapter focuses on why most historians today miss the mark on this period of American history.  Aside from the ME/PE distinction, there is the question of whether these men got rich through monopolies, as many historians argue, or whether they got rich by being the best at what they do, as Fulsom argues.  Fulsom also highlights that these men often succeeded where the government failed.  He shows samples from several prominent US history textbooks and why their accounts are both misleading and inaccurate.  This was a nice, neat way to close it up.

Here’s the bottom line.  This is a quick and worthwhile read.  It’s particularly good for those who believe these men truly were robber barons rather than successful entrepreneurs.  Obviously, there are more detailed books about each individual, but this is a solid compilation.