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Positive Liberty » Blog Archive » The Fugitive Slave Law:
The very issue at the heart of the 14th amendment is whether or not someone's rights are consistent with regards to the federal government no matter what state they live in. The 14th, basically the final peace treaty between north and south (and, yes, forced upon the southern states as a requirement to rejoin - that's what victory in war gets you), asserts that the federal constitution and bill of rights, as well as all federally recognized rights that exist through the 9th amendment, holds over ALL.
The Fugitive Slave Act is a violation of that principle (though not the amendment since it wasn't written at the time).
So is, in my interpretation (and others), the Defense of Marriage Act. Your rights are different with regards to certain federal law provisions and protections depending on what state you live in. Now the view of this depends on whether or not you feel that marriage is a fundamental right under the 9th amendment or not. I believe it is. The irony, just like the "State's rights" vs "Fugitive slave law" irony of the past, is that those who most feel it IS a fundamental right and would argue such are the very ones who are trying to limit it to just *their* type of marriage, just as their argument for "freedom of the states" was really just for *their* particular version of "freedom" at the time.
The discrepancy between such views is why the government (at ALL levels) should just be getting out of the "marriage" business altogether and create a standard "family" contract, of rights, privileges, and responsibilities, to be protected and enforced under contract law.
If marriage is a sacred "rite" then fine, let the churches do with marriage what they feel like and let the irreligious do with marriage what they like. But aside from the right to perform such a rite, they shouldn't expect any other protection for it at all.
If marriage is a social contract, then fine, it's a contract. So treat it as such, fairly and for all, with no discrimination.
But as long as one side argues it's the one (a sacred church rite defined by a God whose authority this Constitution rightly does not recognize given that there's so many differing definitions of him), and then try to weasel their interpretation into the other (a social contract recognizing some minimum protections and rights within the members a household), this nation remains just as divided and discriminatory as we were 150 years ago.
Always remember - 40 years ago, under the definition of "marriage" according to the religions whose discriminatory beliefs dominated the law, I would not have been allowed to marry my wife.
I just have one item to add to Brayton’s post, and that is to mention that, at the time of the Civil War, the most horrendous attack upon the states’ autonomy, the worst assault on federalism that had been seen in the history of the union, was the Fugitive Slave Act. This act arrogated to Congress what amounted to a police power within the Free states, or anywhere else for that matter. It also directed the officers of state and local police agencies to arrest fugitive slaves or face federal penalties. Prior to this, state authorities were free to ignore federal fugitive slave laws, and it was often argued — successfully, and on the basis of English common law — that a slave was emancipated simply by entering a free state.For those that think that whining over "slavery" vs "state's rights" is mere historical guessing with 20/20 vision, it really is much larger than that.
I do not believe that a similar federal police power was again to be seen, outside of martial law, until Prohibition. The Fugitive Slave Act’s greatest champions were all from the Slave states — that is, the very states that would later whine the loudest about states’ rights. They cared about slavery; all else was a means to that end.
The very issue at the heart of the 14th amendment is whether or not someone's rights are consistent with regards to the federal government no matter what state they live in. The 14th, basically the final peace treaty between north and south (and, yes, forced upon the southern states as a requirement to rejoin - that's what victory in war gets you), asserts that the federal constitution and bill of rights, as well as all federally recognized rights that exist through the 9th amendment, holds over ALL.
The Fugitive Slave Act is a violation of that principle (though not the amendment since it wasn't written at the time).
So is, in my interpretation (and others), the Defense of Marriage Act. Your rights are different with regards to certain federal law provisions and protections depending on what state you live in. Now the view of this depends on whether or not you feel that marriage is a fundamental right under the 9th amendment or not. I believe it is. The irony, just like the "State's rights" vs "Fugitive slave law" irony of the past, is that those who most feel it IS a fundamental right and would argue such are the very ones who are trying to limit it to just *their* type of marriage, just as their argument for "freedom of the states" was really just for *their* particular version of "freedom" at the time.
The discrepancy between such views is why the government (at ALL levels) should just be getting out of the "marriage" business altogether and create a standard "family" contract, of rights, privileges, and responsibilities, to be protected and enforced under contract law.
If marriage is a sacred "rite" then fine, let the churches do with marriage what they feel like and let the irreligious do with marriage what they like. But aside from the right to perform such a rite, they shouldn't expect any other protection for it at all.
If marriage is a social contract, then fine, it's a contract. So treat it as such, fairly and for all, with no discrimination.
But as long as one side argues it's the one (a sacred church rite defined by a God whose authority this Constitution rightly does not recognize given that there's so many differing definitions of him), and then try to weasel their interpretation into the other (a social contract recognizing some minimum protections and rights within the members a household), this nation remains just as divided and discriminatory as we were 150 years ago.
Always remember - 40 years ago, under the definition of "marriage" according to the religions whose discriminatory beliefs dominated the law, I would not have been allowed to marry my wife.
