From time to time, I get really thoughtful comments that make me want to respond a little more thoroughly than a usual quick reply, and unfortunately the WordPress system doesn’t allow for any sort of direct reply or notification. I got one of those comments the other day from reader Teresa on this post, and so I thought I’d post my reply here. It raises some interesting questions.
Yes, I think our descendants will be embarrassed about a number of things happening now. You bring up that there is a difference between a constitution and democracy, and that’s something most Americans probably wouldn’t think about. The Constitution lists what the government cannot do to us, while “democracy” is focused almost entirely at this time on what the government should be doing for us.
Obama has picked up FDR’s idea for a second Bill of Rights to give the country a “positive” list of what the government must do rather than what it must not do. Included in the list are things like jobs and houses and health care and education. But are those correctly labeled as “rights”? I understand a right as something natural that doesn’t impinge on another. If we guarantee everyone a satisfying job or house, then that means government must force someone else to provide it. I honestly don’t think most Americans have fully considered what Obama is proposing, or they are so stunned they don’t believe he will pursue these things.
The notion that Obama or his supporters would support the right to a job or housing or health care and construct the government machinery to strip mine the country for the resources but not the right to marry is outrageous, and I marvel still at the coalition of constituencies that gave him the election while denying this basic human right to the LGBT. Freedom and equality are not the same thing. Often they are contradictory, with freedom being the riskier, and only truly democratic ideal.
So what is a right? The classic notion is that for someone to have a right, someone else must have a corresponding duty. At the time of this country’s founding, the Framers were thinking about negative liberties in the context of an aggressive, intrusive imperial government. The duty of the government was simply to stay the hell out – don’t stop people from speaking, from practicing their religion, from electing representatives. These were freedoms from intrusion, not freedoms to a particular object. One man’s right ended where another’s began.
But then socialism began to ascend, along with the idea of a state that has a positive duty to provide certain benefits to its citizens, whether that be health care, a living wage, or education. People started talking about economic, social, and cultural rights. Personally, I’m a strong believer in these rights, and in the idea that the state, to the extent of its resources, has a duty to provide them. So my idea of rights does include jobs, houses, health care, and education, not only the “natural rights.”
Still, the “to the extent of its resources” bit is crucial. I tend to support politicians that I think lean towards my socialist ideology, which includes providing to the citizens. I also recognize that no politician can actually provide health care for all, quality education for all, a house for every citizen or a job for every citizen. I think we should work towards these goals, but we don’t have the resources to achieve them. We can’t achieve world peace, either, but does that mean that constantly working towards it is a waste of time? I don’t think so.
I agree with Teresa, though, that it’s interesting that people would simultaneously vote for a candidate who is trying to assure everyone these positive economic, social, and cultural rights and vote against propositions that simply assure everyone the civil and political right to be left alone. The right to marry does generally fall under positive rights, but as the Supreme Court has recognized there is a big difference between not having the resources to provide a service at all and having the resources but excluding only one group from its benefits. I do see how this particular fight can fall into the category of government intrusion into individuals’ private lives, and I find it upsetting that the people of several states have decided this election to allow it.
I’ve been writing a seminar paper on the democracy deficit in international law and arguing that the system can be legitimate without democracy because constitutionalism (and some other things) fill the void. I was thinking about the whole California issue last night and it occurred to me that it raises similar questions. Of course, we’re all raised to think that democracy is great and wonderful and special, but it does have its problems. One of those is that internationally, we tend to not accept democracy if it doesn’t get us the “right” leader. We don’t have that problem so much at home, but democracy doesn’t always work so well nonetheless. There’s a tension between “tyranny of the majority” and “tyranny of the minority.” Those of us who are gay or lesbian don’t feel so hot about the majority ruling on our rights, after all. We want to say that no matter what the majority of Californians think, it’s just not right. On the other hand, Californians in favor of the Proposition don’t like the idea of a minority of gay people, and the justices in kahootz with them, deciding what marriage is. As biased as I am, there are points on both sides.
A constitution is supposed to be a document that reflects a society’s fundamental principles. Of course, at the start, it was a democratic instrument, and it can be altered, but we have to sacrifice a teeny bit of the democratic element to protect vulnerable minorities and ensure that certain basic principles aren’t just vetoed. That’s why constitutions are so difficult to amend. There’s an argument coming out now, which I think is a good one, that Prop 8 is invalid because California has two different types of amendment processes and the ballot initiative one isn’t supposed to be used for amendments that fundamentally alter the existing nature of the constitution. I think this is a good idea, because the whole point of a constitution is to protect against temporary political surges. The amendment process is supposed to say “hey, are you sure you want to do this?” A simple majority vote doesn’t quite achieve that.
I understand the whole “judges legislating” argument, but let’s remember one of the key purposes of judges – to uphold individual freedoms. The thing about equality is, it benefits everyone. And this may bug some of us, some of the time. But on the whole, it’s a good principle. It protects straight people, too. Despite what some may think, it wouldn’t be constitutional for schools, for example, to promote gay marriage over straight marriage, or homosexuality over heterosexuality.
Sometimes I’m uncomfortable with my anti-democratic ideas, because a constitution could of course enshrine principles that are oppressive. But I don’t think this is an issue when it comes to equal protection. I think equal protection on the whole, works well, and the discrimination Californians are trying to enshrine in their constitution is based on bare animus towards a politically unpopular group – something the Supreme Court has rejected, and I think most Americans would reject (even Californians, if you put it in general terms). The problem is the cultural moment, and we’ve had many cultural moments in our history like this one, which we’ve eventually gotten past. As one blogger said recently, in 20 years we’re going to be embarrassed about this.
Oh, why not? All the cool kids are doing it.
Since I’m lame and go to bed early and can’t attend any parties, I’m going to celebrate here with you and CNN.com. I’ll be checking the results there all night until I turn in, and updating this post regularly with my thoughts and commentary. Be sure to check back periodically for updates, or tomorrow morning for my thoughts on the results.
5:44 pm CST: First exit polls out. The economy is the most important issue. Um… Surprise? No, no, we want to know who you voted for, folks! I’m also curious about the massive Republican vote suppression effort that was planned. Did it happen? I was supposed to do voter protection today, but due to an extremely frustratingly uncoordinated Obama campaign (more on that in a later post) I wasn’t given an assignment. Some friends did get to do it, so I’m anxious to hear how many challenges there were.
6:42 pm CST: I like how CNN calls Vermont for Obama with zero percent of precincts reporting. Classy. I’ve decided there’s no way I can handle watching the CNN.com live video. If I thought CNN itself could be annoying, these guys are total amateurs. Just refreshing the results on the website is much better.
7:01 pm CST: CNN is being a little sloppy. They’ve got blues and reds around the map but haven’t updated Obama’s electoral count, just McCain. Tennessee, South Carolina, Kentucky, Oklahoma going red – no big surprises. Illinois, Maryland, New Jersey, and miscellaneous New England states blue, also not so shocking. I have to wonder, if they’re going to call so many with no precincts reporting, why even wait for polls to close to call it? There’s really no point. And also, with Florida for example having something like 37% voting early or absentee and Iowa in the forties, what do tonight’s results really mean? They’d better count the early votes, because they could actually decide it in some states.
7:31 pm CST: This isn’t very exciting. I’m considering watching the West Wing (just got the entire series from Amazon) while I wait.
7:41 pm CST: CNN’s called PA for Obama. That’s a big one. Obama’s slightly ahead so far in NC but only 13% reporting. McCain’s ahead by about the same amount in VA and nearly half precincts reporting. Indiana also nearly half reporting, McCain just slightly ahead. Florida same situation and Obama slightly ahead. Getting interesting now. I think it’s kind of funny that NC might go blue and VA red, though we do have a lot of liberals in the cities. I suspect youth turn-out is particularly important with all the universities. Why oh why did I switch my registration? Didn’t get to caucus and IA isn’t even a swing state anymore! My personal election experiences have so far all been bad. Anyway, the numbers I’m really curious about are Measure 11 and Prop 8, and of course I probably won’t see the latter before bedtime. Think it’s time for that West Wing to soothe the nerves since I’m too tired for wine.
8:22 pm CST: Well, the West Wing is still brilliant. As for the election, Virginia’s narrowed to a one-percent margin. Do they have early voting? NC has also narrowed to four percent, though. It looks like Democrats are picking up at least four new Senate seats and Republicans none so far. Hagan’s got ten percent on Dole, and I am thrilled about that. I can’t imagine a Democratic woman in Jesse’s seat. Never thought I’d live to see the day. Perdue’s ahead in North Carolina, though CNN’s not calling it yet. I’d love to see her as governor. The bad news is that it looks like Florida’s gonna ban gay marriage. Measure 11 is No by 10% right now, but too few precincts reporting to know anything.
9:05 pm CST: Officially blogging from my warm cosy bed now. NC and VA are the states I’m really watching. VA has just crept up to Obama ahead 50 to 49 and NC has narrowed to the same 50 to 49. I have a feeling those are going to have to count absentees and we won’t know for a few days. Obama’s still ahead by 3% in Florida. If CNN’s right on some of the ones they called quickly though, he won’t even need the swing states. They’ve given him 206 electoral votes already, McCain 89. They’ve called Ohio for Obama, incidentally. Mom says the actual television CNN is predicting a big lead for Obama in Iowa. Definitely looks like Hagan’s in, though Perdue’s lead is narrowing. Measure 11 No still ahead by 10%, and Florida abortion ban still pretty likely to pass. I’m getting rather weary, so probably to bed in half an hour for me and you’ll hear from me again in the morning.
9:37 pm CST: Last update from me for the evening. I’m feeling good. It looks like Obama’s won it, and it looks like we’re going to do well in the House and Senate as well. Unfortunately, there’s no way of knowing about the one I’m most interested in (Prop 8), but we’ll see tomorrow. CNN has called 54 Democratic seats for the Senate, which is fabulous news. Obama’s up by two percent in VA right now and down by one in NC. Come on, home state! You can do it! Obama ahead by two percent in Florida, McCain by one in Indiana. Dead even in Missouri but less than fifty percent reporting. I’m glad the anxiety’s going to be over soon. I need my beauty rest!
Happy Election to all, and to all a good night.
6:28 am CST: So I should be happy, right? Obama won by a landslide. But he pretty much won the states he was expected to, with NC apparently still too close to call. And there are other good things. It looks like we picked up about seven seats in the Senate and about eighteen in the house. Perdue’s the governor and Hagan beat out Libby Dole. The Democrats won for House and Senate here by a landslide. South Dakota defeated Measure 11 by ten percent, which I admit is pretty awesome, and California also said no to abortion limits. 73% of Coloradoans said that life does not begin at conception. But folks, I cannot celebrate. Because it breaks my heart that Californians have banned gay marriage, as have Arizonans and Floridians, and that Arkansas has banned gay adoption. This election gave me a moment of hope, but that hope is extinguished. We really are second-class citizens, aren’t we? I’m not sure I believe that’s ever going to change. It may get worse. It’s hard for me to be proud to be an American, when American isn’t proud of me.
ETA: Correct predictions in blue, incorrect in red
Since I absolutely cannot work from the excitement, here are some predictions just for fun:
- Obama wins 60% of the popular vote
- Obama wins Iowa
- Obama loses North Carolina
- Bev Perdue wins in North Carolina (please?)
- Elizabeth Dole wins in North Carolina (I hope not)
- Harkin wins in Iowa
- Democrats gain ten additional Senate seats
- Loebsack wins in Iowa
- Democrats gain twenty additional House seats
- Proposition 8 passes
- Measure 11 does not pass
- Proposition 102 passes
- Amendment 2 passes
Obviously, on some of those I’m hoping to be proven wrong, but we’ll see. Maybe in 2012 I’ll actually do some real looking at House and Senate races and poll numbers, but this is just off the top of my head. Tonight, after I hopefully do some work, I’m going to crack open a bottle of Palin wine and do some celebrating on my own, assuming there are results before I go to bed at nine. Anyone have exciting election plans?
A lot of bloggers have been inspired this election. You’ve posted your critical thoughts throughout the campaign, and you’ve rallied friends and family to support Mr. Obama with phone calls, canvassing, and rides for elderly or disabled voters. In the closing moments of the campaign, you’ve been brought to tears of joy and feelings of profound hope. For me, that wasn’t this campaign. Some of the things said in the primaries still stick with me. Mr. Obama’s positions on some of my key issues are not strong enough, or are in actual disagreement with mine. I don’t necessarily believe that I can trust him to stand up for my rights. But you know what he has done? He’s treated women and LGBT people with dignity and respect in this campaign. That’s a crucial first step. We didn’t get that from the last president, and we didn’t get that from the Republican candidate. I may not be convinced that he’ll support my rights when the going gets tough, but he’s not going backward, and that’s absolutely crucial.
Furthermore, I can see that he’s a good man who ran a good campaign, and I can see what he represents for so many of you. This is not my campaign, but it is yours. Those of you who blogged about how Mr. Obama inspired your children nearly did bring tears to my eyes. For millions of kids out there, this campaign is something much, much bigger. It reminds them that there is someone – a really big someone – who judges them not by the hyphen in their identity but is proud of them as Americans, period. I’m glad that your children have that person. And you know what? My candidate will come. One day I’ll have my big moment – maybe I’ll be that sixty year old woman proudly making calls with my name written in marker on my phone at the campaign office when the first lesbian runs for President. I’d like to believe that it’s possible. Of course, I may not be a citizen by then, but you never know. My point is, I’m delighted that some of you had such a thrilling, inspiring two years. I was happy to vote for Mr. Obama, and I will be happy to call him my President. He’s a good guy, and this will be a good four years.
I already highlighted some reasons that even people who are sort of in the middle on gay marriage should vote No on 8 in this post. I showed you some powerful ads against the proposition in this one. But now I have another reason to vote no. This post is specifically for Write to Marry Day, an event hosted by Mombian to put the spotlight on Proposition 8. I’ve been thrilled to see how many bloggers are coming out against 8, including the awesome visual of the No on 8 quilt by Riese (I’m down there on the bottom). But even if you wouldn’t consider yourself a supporter, or are feeling a little uncomfortable or unenthusiastic about same-sex marriage, you need to vote no.
This isn’t just about gay marriage. People keep saying that this is about discrimination, hate, and equality, but one example really hits home for me why Californians need to get to the polls and defeat this proposition. You may have heard about how the Yes on 8 folks have been sending letters to small business owners who donated to No on 8, warning that if they do not donate the same amount to the Yes campaign they will be publicized as opposed to traditional marriage. That’s not just dirty politics, it’s terrifying. Because you know what this sounds like? It sounds like a time in our nation’s history where people were hunted down, blackmailed, beat up, and even killed because of the color of their skin or their sexuality. This isn’t just about gay marriage. If you’re thinking of voting yes on this proposition, please think long and hard about whether you want people who resort to these tactics to win. It won’t stop here. Marriage is just one step, and even if you can’t stand the idea of gay people getting married, think carefully about whether their ability to marry will hurt your life or your family. Remind yourself that you’re the one your children look up to, and that you can teach them whatever the heck you want. Yes, I’d personally prefer that children grow up to believe that it’s not who you love, but how you love them. But I’m willing to concede some ground here because the important thing is that whether or not you want gay people married, I don’t think you want them threatened, fired, or killed. These types of human rights violations are real. They happen in many parts of the world. Private citizens in this country commit serious hate crimes against gays and lesbians even as we speak. If you’re religious, I think you can agree that whatever God considers a sin, he isn’t asking you to beat up or kill the sinner. We aren’t so far away from turning the clock back to a time when gays and lesbians constantly had to fear for their lives and reputations. Don’t be responsible for turning that clock back. Vote no on Proposition 8.
I had intended to write separately about each of the marriage initiatives on various ballots, but since what I’ve already written about for Proposition 8 applies pretty much across the board, today I’m going to share some particularly effective campaign videos with you. Don’t forget to vote!
(No on Proposition 102, a constitutional amendment to ban same sex marriage)
(No on Act 1, a measure that would ban cohabiting couples from fostering or adopting children)
(No on Prop 8, constitutional amendment defining marriage as between a man and woman)
(No on Question 1, which would mean a constitutional convention and possibly overturning of gay marriage)
(No on Proposition 2, a marriage amendment that would also make heterosexual domestic partnerships illegal)
Everyone should see this video. But don’t watch when you’re somewhere where crying is inappropriate. (Happy tears, I promise.)
As you all know, I was in South Dakota a couple of weeks ago, helping the folks at the South Dakota Campaign for Healthy Families get the word out about Initiated Measure 11 and encourage South Dakotans to vote no. It was an interesting experience, as it always is when you try to look at or sell a political issue from a different angle. One thing that strikes me about the Midwest is how unpredictable it can be, politically (probably why it’s swing state territory). Midwesterners don’t necessarily fall into obvious “liberal” or “conservative” camps. For example, I know plenty of LGBT, pro-choice folks who also own a gun and love hunting and fishing. The “no government intrusion” angle really plays up here – and while my instinct is to have a knee jerk negative reaction to that angle, it actually is a positive thing when it comes to social issues, privacy rights, etc.
In South Dakota, women’s rights don’t play very well, and so as we walked around the town of Yankton canvassing, and did some phone banking the next day, we really emphasized the poor construction of the law and the unnecessary intrusion into family decisions. When Rita and I looked at our talking points and suggestions from the campaign office, we initially laughed a lot (in the car) about language referring to a decision between the woman, her family, her doctor, and God. But then, when we approached the first house, complete with a Virgin Mary statue in the front garden, we realized the benefits of the tactic and to my surprise Rita launched straight into talking about how this is a decision a woman should consult her family on and pray about. Well, when in Rome…
Though my own experience wasn’t so good numbers-wise (I got several undecideds and left literature at a lot of empty houses, but didn’t get a single person voting no), others reported some supporters. Reading the language of the measure itself, I think it’s fairly easy to see why it’s a bad idea. South Dakota already has the most restrictive laws on abortion in the country, and whether or not you think that’s a good thing, I can’t see why this measure would make things better for either side. From a pro-life perspective, there may be a small group of people who believe that abortion is absolutely not allowed in any circumstances, but for those who aren’t quite so rigid, there are clear reasons to vote no. For example:
- There is no fetal anomaly exception, and no exception for a fetus that cannot survive outside the womb. If a woman is carrying a baby that will not survive, she still has to carry it to term. One ad for the campaign features a South Dakota woman who actually faced this circumstance, and in an even more extreme case – she was carrying twins, and both would die if she did not have an abortion. She was able to have an abortion and the second baby is a healthy child. Under this law, she would not have had that option. This case may sound extreme, but where it occurs it is extremely difficult for the woman involved. She may be opposed to abortion, she may be very religious, she may not want an abortion – but if she makes the tough choice to go through with it to save a child, she would not be able to carry out that choice under the proposed law.
- The law includes reporting requirements that could harm a woman who was the victim of rape or incest and made the difficult decision to terminate a pregnancy. Doctors are required to keep the records of the abortion and circumstances in the woman’s permanent medical records. The Department of Health can request these records, and only the name must be redacted. In a small town, this isn’t much of a protection.
- The law is poorly worded and vague. Rather than allowing doctors to make decisions, courts will have the power to do so in interpreting this law. The law also contains no health exception, so the doctor must be medically certain that the woman’s life is in danger to perform an abortion if there is no rape or incest. There are a number of medical conditions that make carrying a baby to term inadvisable, but do not amount to life endangerment.
If you are registered to vote in South Dakota, please vote no on 11. If you know anyone else who lives in South Dakota, please pass this post on.
If you want to see some of the thoughts I had during the debate you can glance at my twitter (peachy_penumbra), but the big ones are that a) McCain’s paternalism and that damned voice make me want to throw up and b) I’m really bummed that it looks like Cold War Part II is coming and my American passport will keep me from spending any time in Russia, where I’d desperately like to go.