Power, like money, rarely trickles downward.
It’s from this perspective that I tend to view the concept of government. It’s also from this lens that I find ample critique of how we American’s define the scope of liberty. Some of this critique is found in my consequential objection to the notion that the 10th Amendment preserves individual liberty.
That objection stems from a personal thesis that posits that power will always be consumed at levels above the individual. Matters that are neither expressly given to the federal government, or to the states, are rarely if ever reserved to the people, because the states will more often than not, and more often than the federal government, take control over an unenumerated right.
This perspective is not an antithesis or objection to the United States government, and the countless lives lost in freeing itself, molding itself, and defending itself. Rather, this is the first breath in a long series spent on attempting to show a weaknesses in the philosophical preponderance for which we attempt to grasp at liberty.
Democracy is an important element in determining the scope and definition of rights. It is the democratic process that facilitates our civilian engagement in political affairs, and it is through this process that “long held traditions” may be challenged without fear of tyrannical encroachment of government, be it federal, or otherwise.
But the democratic process can also be a hindrance to the nature of liberty, be it a cause of tradition, or cause of power. In many cases, those two concepts are bound as one. The democratic process is why slavery continued to persist, and it is due to tradition that a perceived right to the power over people was maintained. It was through war that such a perspective was challenged. But it it wasn’t simply slavery that was being challenged, it was where power should be concentrated: should states have the right, or should the federal government have the right to maintain power, and depending on that answer, to what extent? One need not look too far in the constitution to see that States maintain sovereignty over their citizens and the affairs of them.
The issue of slavery is only the easiest to utilize in a series of examples of how the democratic process is a hindrance to liberty. This perspective assumes that all people should have liberty, not simply certain groups. It is from this view that I perceive the issue of liberty as being weakened through the democratic process. When any group, or person, should lose any freedom, there should be checks and balances to be sure that the person is not wantonly losing their freedom.
Slavery is an easy topic because it dealt with notions of personhood, and other rights that slaves did not hold, or rights that were otherwise warped. This is why the legal concepts of equal protection, and due process have otherwise become so empowered.
Another good example would be the issue of same sex marriage. The most recent case, being that of Obergefell et al. v. Hodges, in which the Supreme Court in a 5–4 decision ruled that it was contrary to equal protection and due process to ban same sex marriage. The dissenting opinions opposed this decision due to a number of reasons, and one of those reasons strongly emphasized has to do with the notion that the democratic process should have been left with the matter.
I understand full well the importance of the democratic process. But the question (whether it was asked by the petitioners in Obergefell or not) is whether or not same sex couples should be denied a certain right that is held by all others. Marriage is a fundamental right protected by the constitution. Thus, any attempt at prohibiting it for any person, or group, should be met with a high level of scrutiny. It isn’t enough to look upon the traditions of history, as the Marriage and Law Foundation did in their submission of an amicus brief expressed as much. History should no doubt be understood, and utilized in determining rights and whether or not such a right is being infringed upon.
Having read the dissenting views of Scalia and Roberts in this case, and in Hollingsworth, it seems prudent to question how long must the democratic process go back and forth on an issue concerning a fundamental right until either of them were to believe that time had passed enough to set a “precedent” defending the right of same sex couples to marry one another? To this extent, history also shows that much of the thought behind the infringement of a liberty may be false. It is in this case that I find ample evidence to support my perspective. While the Marriage and Law Foundation are right in pointing to legal and social traditions dating back to the mid to late 1800’s that marriage is defined as being between a man and a woman, much of that definition also hinged upon social notions of what was to be expected of a family. By allowing same sex couples to marry, no party loses a right, not even states. States may still regulate marriage in the same way that they have since the 17 and 1800’s — through taxes, licensing, annulment, divorce, etc. For nearly two centuries the question of same sex marriage, did not exist, in as much as a legal perspective was necessary. As the Marriage and Law Foundation points out, the answer to any question concerning same sex couples was that the marriage would be void because it had no defense in law.
If liberty was defended by the veil of history, then we should still function as a society that perceives woman as having no authority in society, that the world is flat, that children should be wed and bearing children in their teenage years, among many other notions. Much of tradition no longer holds in light of modernity. It is for this reason that I question the extent of the role for which democracy should play in determine the expanse of liberty. But this critique stems from a critique on democracy itself, and the underlying power struggle that exists.
As I said before, power, like money, rarely trickles downward. It is my view that history tells a tale that states have by and large infringed upon liberties more than the federal government in both expanse, and frequency. From slavery, gun rights, abortion, marriage, voting, etc, states prefaced the federal government’s expanse to regulate or infringe upon a liberty.
It is with this opening that I will begin expanding upon the historical nature of this view, as well as philosophical.