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Of Holes and Cannons
07/14/2003

Take a look at this political cartoon and come back (actually, it'll open in a new window, so you won't really leave).

Note the astounding imagery! States' rights is an ancient cannon — with cobwebs, no less — and the protestor is pictured as intending to destroy the Supreme Court in the name of "banning sin." I rarely disagree with C&F's cartoons, but this seems backwards in critical ways. Are states' rights really being cited in such a way as to destroy the Court? Or is the court stuffing elite public opinion into the end of the cannon threatening to cause it to explode?

For further indications of this turned-around thinking, read the text below the picture. Forkum quotes a letter to the editor of The New York Sun by Harry Binswanger. The cartooning team might have appropriately turned that cannon on Binswanger's argument considering the size of the rhetorical hole in the following:

Scalia in his dissent on the sodomy decision writes: 'It is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste.'

Sounds like he's trying to keep meddlesome government out of people's lives doesn't it? But look at the switch he has pulled: the 'judgments' he wishes to protect are the laws passed by the Texas legislature -- laws arresting individuals for behavior that, whatever one thinks of it, is clearly within their rights. The meddlesome 'governing caste' is the Texas legislature, which the Supreme Court properly told: stop arresting individuals for private, peaceful, consensual activity.

Yes, I'm sure the Texas law does reflect the will of the majority of Texans. So what? Slavery represented the will of the majority in the ante-bellum South. Hitler's Reich reflected the will of the majority of Germans in the Nazi era.

Unlimited majority rule is a form of statism, not Americanism. Our system, contrary to Scalia's notion, holds individual rights above the power of any majority to infringe, 'and among these are Life, Liberty, and the pursuit of Happiness.' A right is the individual's protection against the will of any collective, whether that collective is called 'the State,' 'the people,' or 'Das Volk.'"

Yes, of course there's the fact that Binswanger faults Scalia for making some sort of deceptive switch between "individuals" and "government" only to concede that the majority of "people" (Scalia's word) in Texas probably supported the law, but that's not the most dangerous leap in his thought. Note that he compares the $200 fine that sparked Lawrence to slavery and the Holocaust. The problem that this represents expands beyond its obviously being rhetorical hyperbole, as indicated by Binswanger's apparently unconscious shift toward declaring the Texas sodomy law to have been "unlimited majority rule."

To such people, any expression of group rights might as well be "unlimited majority rule." Is that belief seriously held, or does it merely indicate a gap, perhaps conscious, in those folks' understanding of reality? The option that they favor is essentially "unlimited minority rule."

Posted by Justin Katz @ 04:41 PM EST



2 comments


As an aside, why is it that when it comes to gay rights, the Constitution suddenly includes "and among these are Life, Liberty, and the pursuit of Happiness." But when it comes to the right to life of the unborn, the "right to Life, Liberty, and the pursuit of Hapiness" is no longer part of that same Constitution? I know many courts (I don't care what legal "scholars" think because their thoughts simply are not the law) have held this is not part of the Constitution itself, but they are wrong (surprise). This preamble sets the tone for how the following document, is to be viewed and interpreted. In fact, even though the preamble states it is self-evident, the drafters of the Con thought it important enough to expressly state such. Anyone with an ounce of common sense would not ignore, and actually defy, the very basis upon which the drafting of the document was based. Its simply absurd. Its like reviewing the recitals in a contract that explain what the main purpose and context of the agreement is, and then completely controvert that purpose/context through interpretation of vague language that is completely incompatible with the recitals. End of rant.

c matt @ 07/17/2003 06:56 PM EST


BTW, what is an "objectivist scholar"? What credentials does this Binswanger character have to even discuss legal issues? Is he even a licensed attorney? Has he practiced law a day in his life?

In our system, and every system of government, the right of the individual is only those rights the state chooses to recognize. The Constitution enumerates those rights (and the language he quoted, as explained above, is not part of the Constitution under current law). And it is only those enumerated individual rights that the majority cannot "unduly" infringe upon. For example, while gun ownership cannot be completely banned, some restrictions can probably be imposed. Until the Court created a right to sodomy out of thin air, there was none.

c matt @ 07/17/2003 07:06 PM EST