I don't find a discussion of "unalienable rights" in the Constitution. I do find one in the Declaration of Independence. "endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the Pursuit of Happiness..." True, the language is "among these" indicating there is more than just the three.
I must admit to being confused by the interplay of government in your concept though. Initially, it sounded like you were saying that the rights, later guaranteed by government, always existed. That would mean that contrary to the language in the Declaration, "that to preserve these rights Governments are instituted among men....," up until the passage of the 19th amendment, the Government thwarted that right.
But you said that Government doesn't thwart rights, they guarantee rights. So now I'm adrift again. Prior to the passage of the 19th amendment, how was government not thwarting the right of women to vote that you say is an inalienable right granted by their Creator?
They were thwarting the rights of women. But that doesn't mean that thwarting was the function of the government. It simply means the government acted wrongly.
btw, I didn't say the government doesn't ever thwart rights...hell, it does it all the time. But that is not the purpose of the government, at least not our government. In reality the 19th amendment should not have been necessary.
Sorry for the break. I actually had to work...
But, in the meantime I've educated myself on the origin of rights as a function of the social contract. Not that I was uninformed, but we can always learn more. Obviously, the issue I was most confused about was the interplay between the completely free individual endowed with free will and living in John Locke's state of nature (as opposed to Thomas Hobbes' state of nature which is a wholly different thing), and when that free individual signs the social contract and becomes a part of a given society.
So, I turned to the same person the founders did (aside from Rousseau), William Blackstone. Luckily, he was able to explain to me the disconnect I was having. So that now I understand the nature of the rights held by the individual in the state of nature is:
But when a person becomes a part of society, his rights become more limited because:
So, in the context of our conversation about newly found rights such as women's suffrage, we can say that had their been a need for women to vote in the state of nature, they would surely have had it, however being alone, it would have been of little use. Upon joining the social contract (by proxy of men), women agreed to give up their ability to vote to purchase safety and security. Thus:
So, the return of the liberty that had been deprived by the society which initially viewed the deprivation of the liberty (voting of women) necessary to the continuance and growth of the civil society, has now grown in understanding and is under the current belief that women's suffrage does not damage or undermine that civil society we all have agreed to live in.
Here's the meat of it then, and I'll take this part bit by bit:
This, Ravi, is at the heart of what you were saying, I believe. So, only the rights that existed in the state of nature as modified by the constraints of living in a civil society exist. Ok, now I'm tracking.
So, Blackstone is saying the constraints on liberty that exist in the civil society are "necessary and expedient" for that society to exist and thrive. But, that's not the end.
Blackstone argues here that reduction of natural liberty to do mischief to others stands in equipoise to the increase in civil liberty of the society. In other words, civil society is better off because you may not rob me, even though that limits your freedom. Ok, I can get with that.
but that every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny; nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty;
Now, we get to what the topic of this thread is. Whether restriction of people of the same sex to marry one another is a "wanton and causeless restraint" and thus a degree of tyranny. Or, whether the opposite is true:
whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state, of society, which alone can secure our independence
So, under Blackstone's concept of civil liberty, the question favoring the prevention of same sex marriage is whether public advantage may come from the restriction. If there is public advantage in it, then it is legitimate to restrict in the name of preserving and advancing the civil society.
My consequent analysis, now that Ravi, PI and I are all speaking the same language, it this:
In favor of the restriction of the liberty: The current institution of marriage advances the goal of a thriving civil society by the promotion of largely self sustaining and supporting family units having the capacity to pro-create (again generally speaking). Creating a legitimate family unit that does not have (generally speaking) all of these same attributes, would not advance the civil society as well, and therefor should be restricted under the law.
In favor of the newly unrestricted liberty: The new family unit created by allowing same-sex marriage legitimizes units that existed outside the law. When the units existed outside the law, the civil society was damaged in that the unit was prevented from being as self sustaining as might have been the case by laws which did not recognize the existence of the unit. Since no other unit existed in fact, it led to distortions of law and effect which did not exist in the rest of society. Had the same effects been felt in rest of society, laws would have been changed to address the disparity.
Since all members of the civil society are equal under the social contract that created the society, having laws that create disparate effects on equal partners in the contract should be disfavored in the law. Thus, laws should be repaired to correct the disparate effects.
By creating a new type of family unit, legitimized under the law, it meets the interest of the civil society by creating yet another self sustaining (nuclear) unit that is within the law instead of outside the law. Having units exist outside the law should be disfavored where ever possible.
Based on a balance of the equities, I believe that same-sex and poly relationships should be legitimized absent some REAL showing of damage to the civil society. I think there is clear damage having these relationship exiting outside the civil society. The burden is on PI to show the damage of having these relationships recognized.
