Should brothers and sisters be free to marry?

It’s a serious question, folks.  What are the Limits of Liberty?

See, in the comments here, Brett challenges my love of freedom.  As the W.O.R.M.’s sole axiom is “maximize liberty”, I have to respond.  Hopefully others will be interested or weigh in.    Brett’s a very thoughtful commenter, and definitely a liberty-lover, but I’m taking his argument to its logical limit.  Let’s see who blinks. 

I posited that progressives seek to control all aspects of life, whether to forbid (lengthy showers) or mandate (making states legalize sodomy).  I stated that sodomy isn’t a Constitutional right.  Brett countered with the 9th Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Does that really mean “anything goes”?  Attorneys?  Isn’t it to limit the Federal Government, not to prevent states from regulating themselves?  I’d argue that one of those “retained” rights is the right to ban absolutely anything not Constitutionally guaranteed.  Brett disagrees: 

…I place protecting the rights of the individual, not the demands of the majority, as the true purpose of government.  Yes, dry counties are unconstitutional.

Okay then.  Time to whack injustice with our mighty 9th Amendment hammer!  Prostitution is legal in Nevada, so it must be required everywhere else.  Dry counties are unconstitutional?  Then everyone, including the Amish and Mormons and Baptists, must allow alcohol in even the smallest communities.  And if sodomy is guaranteed by the 9th, so is incest.   

Isn’t it, Brett? 

How dare you prudes deny us Southerners our world-famous brother/sister unions!  Hey, if the spawn is genetically unfit they can always abort it, right?  And if a daughter is of age and wants to have sex with Daddy, it’s unconstitutional to outlaw it.  What is the age of consent?  It’s 16.  You states that say 18 better shape up.  And if any state ever lowers it all the others have to follow.  Why?  9th. 

Best of all?  long pig is back on the menu!

Did any of those disgust or appall you, Brett?  They’re just as protected by the 9th as sodomy.  And if alcohol can be forced on dry counties then incest can be forced on the prudes.  All  300,000,000 of them.  You don’t get to pick and choose.  There’s a serious whiff of “that which is not forbidden is mandatory” coming off your strategy.  You’re saying if something’s not specifically forbidden by the Constitution, the 9th Amendment requires states to allow it?  Then the (absolute) lowest common denominator determines what is legal across the entire country.

I’m not budging from my argument.  Maximizing liberty means giving people specific areas where their word is law.  Don’t like it?  Move.  “Your house, your rules”?  As long as I’m free to leave, fine.  Your neighborhood, your rules?  Certainly.  Your state, your rules?  That’s the way I read the Constitution. 

Wait, somebody wants to ban free speech?  Sorry.  Not possible.  It’s an enumerated right.   So is the right to bare arms (the Constitution has typos).   

But if your state wants to ban heterosexual activity?  Er…okay, I guess.  It’s not a specifically enumerated right, so you’re free to do so.  Go for it, we’ll see what happens.  Probably not overpopulation, so you got that going for you.

To repeat: my sole axiom is to maximize liberty.  I’m as opposed to tyranny by majority as Brett, but the terminus of his argument is even worse:  Tyranny of the Shameless.  The single least principled, least cautious, least dignified person is freed; all others are shackled.  That’s why I’m fighting Brett tooth-and-nail here.  Tooth-and-nail. 

I’m not gonna be Lindsay Lohan’s bitch.

About wormme

I've accepted that all of you are socially superior to me. But no pretending that any of you are rational.
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7 Responses to Should brothers and sisters be free to marry?

  1. SDH says:

    Isn’t the 10th amendment closely tied to the 9th? i.e. States may further limit ‘rights’
    but cannot restrict the ones enumerated in the Constitution? That’s what the D.C. handgun ban was about, right?

    My understanding is a State/County could restrict your shower flow, outlaw booze, redefine marriage etc. but this is beyond the control of the Federal Government, barring a Constitutional change, though the Commerce Clause seems to be used to get around this restriction.

    • wormme says:

      You’ve got it spot on. The Commerce Clause is the country-wide loophole they pass most stuff throught. Redefining marriage at the state level is complicated a bit by the Full Faith and Credit Clause, but states have been trying.

      • Brett says:

        I thought the discussion was intentionally tilted to the abstract, as the politic worm (Hamlet IV, iii) wished to undercut my position by forcing a defense of the indefensible he conceived to be the logical outcome of that position.

        On the practical level entertained by his reply, the divide and conquer strategy intended by a federal union of states is certainly a ripe tactic to be aimed at the Federal government. I would note the states can only seize power by keeping the revenues their citizens pay the Federal government and spending them according to their own governments’ dictates, or leaving them with the citizenry. It’s not as though the Federal judiciary will suddenly disempower itself.

        But allowing the states to dictate to their citizens without limit–and I mean a limit greater than the enumeration of rights in the constitution–is to subject us to the very same arbitrary and capricious experimentation by government lamented on this weblog several weeks ago.

        I reckon I distrust government on principle.

        Allowing for the tendency of the the emotional and irrational to use the government to tyrannize the unpopular–as islamic “governments” do– recognizes the weak nature of mankind, but fails to win me to such a lukewarm definition of my liberty.

        Semantic quibbles:”balance,” is a grade school shibboleth –well, junior high for this generation of pupils–intended to calm the conscience and gain the acquiescence of a majority engaging in tyrannical policy. Usually nothing is balanced–one party gets its way. That is the usual aim of those promoting “compromise.”

        What an unreliable teeter totter our rights become when a hostile party wishes to “balance,” them. Sorry, I grant neither permission nor consent. That leaves those hostile to the exercise of my rights only two options: tolerance or tyranny. There are no third ways; that is a Marxist trick, born of Hegel’s warbling.

        In the end, tolerance requires less government than balancing 300,000,000 desires, and smaller government is our common aim, is it not? Let’s not threaten the coalition with nonsense that purports to find tolerance of a despised activity as mandatory participation. A leftist couldn’t make a worse argument: “the toleration of superstitious theology makes me a mandatory and unwilling participant!”

  2. Brett says:

    I simply do not equate a collective (a state) with the individual. Individuals have rights, states do not. “States’ rights” has always been a misnomer for “states’ powers.”

    Agreed that the Constitution is and was conceived to be a limited structure of the Federal Government, and that the states were originally conceived to have more power over their citizens than I would grant them because of the inherent contradiction in the position that the Federal government cannot violate the rights of the citizens to liberty of action but the states can. The lukewarm application of the well-intentioned though flawed 14th amendment in placing the same limitations on the several States that the Federal government must labor under is a tardy recognition of the problem.

    I’m not challenging your love of liberty–I’m simply pointing out one of America’s traditional contradictions, born of the confusion of individual liberty with democracy. The first is the aim, the second is a tool intended to further the aim. That tool has failed in recent decades, as so few voters would place limitations on majority rule until their own oxen are gored.

    As for your examples, it harms not the Amish if their neighbor can buy beer nearby, and they are free to forbid it on their private property. As far as I’m concerned, one can be a puritanical tyrant or a foolish libertine on one’s own property using one’s own means. My position in no way allows murder to effect a cannibal diet, as the prohibition on murder that is the right to life is a central tenet of our understanding-in-progress that is our political philosophy. One of my limits is that I do not dispense with the concept of the age of majority, though I might prefer less variation in the determination of that age. Consensual adult incest, despite my attachment to that very strong taboo, should not clog our justice system, nor should consensual adult prostitution.

    I do not see toleration of these controversial practices as forcing anyone to participate in or approve of them. The rights of association and opinion and speech guarantee that. You are not shackled at all by tolerance, and that argument is a straw man best left to the left. You wouldn’t know from my arguments how much I disapprove of drunkenness. That being my personal position, it is my responsibility to avoid such situations, not forbid them by force of government. It’s all well and good to say leave, but under widespread tyranny–which your position does not prevent– there is nowhere to go but the next world.

    I find your impulse to liberty salutary, but your position that only enumerated rights are free from state bans is absurd, as it makes individual liberty a dead letter. No state has the power to outlaw heterosexual activity, for instance, despite the silence of the Constitution on the issue.

    I’m well aware I’m in a minority position, as most of us cannot resist the blandishment of power to enforce our personal prejudices and preferences. We are still unaware of the power of our philosophy.

    • wormme says:

      Agreed, the word “right” only truly applies to people. Abstract entities like governments are tools, not actors. And “animal rights” is absurd because animals don’t have responsibilities.

      If this was an abstract matter my position would be virtually identical to yours. You and I can tolerate horrible behavior, or remove ourselves from it. And knowing that such behavior is going on behind closed doors does not threaten us.

      But then, we’re mutants. And you don’t really think people will ever be educated or trained or conditioned to our level of tolerance, do you? That they’ll rationally analyze emotional hot buttons? They’re not just intolerant; they refuse to become tolerant. You preach liberty at them and you’re just part of the problem. They’ll be damned before putting up with you or those fags/fascists/druggies/theocrats who are ruining the country!

      The only way your approach works with actual human beings is if we brainwash the lot of ’em. Which is a bit of a Catch-22, eh? Your idea of liberty is only attainable by forcing everyone to be tolerant.

      That’s why my precept is “maximize liberty”, not “demand impossible liberty”. People are tyrants about emotional matters, and that will not change. You’re willing to let them be tyrants on their own property. Well, baby steps.

      They’re currently unwilling to leave out-of-staters alone. You demand they keep their noses in their own backyard when right now they’re poking them into places 3,000 miles away?

      I’m trying to cut meddling back to the state level while preserving full freedom to move about the country. And it’s probably hopeless, but at least it’s theoretically attainable by human beings. Unlike a utopia which requires people to tolerate, right next door, things that horrify and disgust them.

      My way would result in the freest nation in human history. I’ll worry about counties banning alcohol after states mind their own business.

      • SDH says:

        Exactly W.O.R.M., any government will restrict individual rights, so we must strive for that perfect balance: only as much government as necessary, which will maximize liberty.

        The Founding Fathers seem to have recognized this, and limited the scope of the Federal Government, allowing the States to govern themselves in the manner the people wished.

        On a theoretical basis, I think I do agree with Brett, but on a practical basis, common decency, like communism, doesn’t scale.

  3. wormme says:


    I picked outlandish examples for banning, like heterosexual behavior, to illustrate the point that having the right isn’t the same as exercising it. How many states would actually do it? Zero. Our lives are our own, so we have the “right” to commit suicide. How many do so? Relatively few.

    And the suicide example might be telling, because self-destruction or mutilation is the only case in which I would forbid an individual’s freedom. If they attempted it in my presence, and I could stop them, I would.

    My rationale: it’s a right they can only exercise once, so I haven’t denied the right, only delayed its execution. And some people rethink the whole idea, after an aborted attempt. Regardless, I would have trouble living with myself if I let someone die. By doing it in my presence they’re actually preying upon me.

    So, theory aside, would you prevent someone’s suicide, if it was in your presence and you could stop it? Can you imagine your thoughts and feelings as you did it?

    Well, scale that feeling waaaay back, and we’re probably near where most citizens are. Some of their laws are meant for our own good, like it or not, and some are because they are affronted by witnessing that behavior.

    Take sex as a spectator sport. In theory, you should be free to have sex anywhere on your private property. In practice…why would someone do that in their front yard with people watching?

    As SDH says, common decency doesn’t scale. At some point you have folks who get off on outraging others. If they’re allowed to outrage the vast majority, isn’t that tyranny of the majority?

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