Sunday, July 06, 2008

Personal Accountability

"What is the area within which the subject -- a person or group of persons -- is or should be left to do or be what he is able to do or be, without interference by other persons." This is the essence of liberty.

The real question that hides behind other premises on the subject of gay marriage is if this liberty, when used, causes social harm. The other side of that coin asks by what measure do we gauge this?

"The Bill of Rights protects the freedoms of speech, press, and religion; the right to keep and bear arms; the freedom of assembly; the freedom to petition; and prohibits unreasonable search and seizure; cruel and unusual punishment; and compelled self-incrimination. The Bill of Rights also prohibits Congress from making any law respecting establishment of religion and prohibits the Federal Government from depriving any person of life, liberty, or property, without due process of law. In Federal, criminal cases, it requires indictment by grand jury for any capital or "infamous crime," guarantees a speedy public trial with an impartial jury composed of members of the state or judicial district in which the crime occurred, and prohibits double jeopardy. In addition, the Bill of Rights states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,"[2] and reserves all powers not granted to the federal government to the citizenry or States. Most of these restrictions were later applied to the states by a series of decisions applying the due process clause of the Fourteenth Amendment, which was ratified in 1868, after the American Civil War." -Ref

"...prohibits the Federal Government from depriving any person of life, liberty, or property, without due process of law..."

Let's review Due Process:

Due process (more fully due process of law) is the principle that the government must respect all of a person's legal rights, instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. In the laws of the United States, this principle gives individuals a varying ability to enforce their rights against alleged violations thereof by governments. Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to guarantee fundamental fairness, justice, and liberty. The latter interpretation is analogous to the concepts of natural justice and procedural justice used in various other jurisdictions.

Due process under the U.S. Constitution not only restrains the executive and judicial branches, but additionally restrains the legislative branch. For example, as long ago as 1855, the Supreme Court explained that, in order to ascertain whether a process is due process, the first step is to “examine the constitution itself, to see whether this process be in conflict with any of its provisions....”[Murray v. Hoboken Land] In case a person is deprived of liberty by a process that conflicts with some provision of the Constitution, then the Due Process Clause normally prescribes the remedy: restoration of that person's liberty. The Supreme Court held in 1967 that “we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights.”[Chapman v. California]

In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being punished, which would be tantamount to cruel and unusual punishment.[Herrera v. Collins]

John Stuart Mill, in his work, On Liberty, was the first to recognize the difference between liberty as the freedom to act and liberty as the absence of coercion. In his book, Two Concepts of Liberty, Isaiah Berlin formally framed the differences between these two perspectives as the distinction between two opposite concepts of liberty: positive liberty and negative liberty. The latter designates a negative condition in which an individual is protected from tyranny and the arbitrary exercise of authority, while the former refers to having the means or opportunity, rather than the lack of restraint, to do things:

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. – John Stuart Mill

What you are left with after the legalese is done flying around is a system that guarantees we will be judged as individuals, not as a class of people, and that we will be measured under the "harm principle" when curtailing liberties, which does not assume harm where none is proven. Boil that down a little further and you simply get personal accountability. I am accountable for the things I do, just as my neighbor is. We are both assumed innocent of any accusations made against us while expecting the accuser to provide proof beyond a reasonable doubt. This accusation has to provide a harm factor within it strong enough to countermand the strong protections over individual liberties the Bill of Rights affords.

There is overwhelming proof that a few radical opponents of equality are clinging to their loosely woven lies and the ignorance of the uninitiated. We as a society have the responsibility to call out these lie and hold people accountable for their actions. Our society will only be as good as the effort that is put into it. As Rev. Dr. Martin Luther King Jr. once said:

"Discrimination is a hellhound that gnaws at [minorities] in every waking moment of their lives to remind them that the lie of their inferiority is accepted as truth in the society dominating them."

It is fair to ask someone to be accountable for their actions. It is unconscionable to deny someone their civil rights because of who they inherently are. It is not just discrimination, it's oppression. Having failed in all cases to prove the need for protection against same sex marriage, and having failed also "harm principle" we are left only with the obvious fact that the inequality now recognized must be corrected. We must admit to ourselves we are no longer truly following the fundamentals that make America so great, or live the lie a little longer. I vote for the former!


John said...

John, this is a great essay; thanks for writing this.

The difference between positive and negative liberty is the root of almost all of the "democracy vs. liberty" argument.

And when the two conflict, as they often do, Democracy can take a long walk off a short pier.

John Hosty-Grinnell said...

Thanks for the kind words.

It seems that people want to point at an unvarifiable ill that marriage equality (GLBT life for that matter) but then forget thier own shortcomings. Why bother holding me to a Christian standard when you can't hold yourself to one?

It seems like all the conversations I have with the Christian right all boil down to the same thing:

"You're an active homosexual, so you're a sinner!"

"OK, but what about the two great commandments? Remember one of them being 'love thy neighbor like thy self'?"

"That doesn't matter because you are a homosexual!"

The hypocrisy is staggering.

John said...

"You're an active homosexual"

So, is that how you keep your weight down?