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Australian Prime Minister Proposes Non-Binding Plebiscite On Same-Sex Marriage

Australia’s Prime Minister is proposing a national vote on the issue of same-sex marriage:

SYDNEY, Australia — Australia’s divisive debate over same-sex marriage returned to Parliament on Wednesday when Prime Minister Malcolm Turnbull implored lawmakers to support a bill that would ask Australians to vote yes or no on gay marriage.

“If ever there is an issue to be put to a plebiscite, this is one that can be and should be because it is a very straightforward question,” Mr. Turnbull said. “We put our faith in the Australian people, and we know that their answer, whether it is yes or no, will be the right answer.”

Mr. Turnbull needs the support of Parliament to pass the bill, which calls for a plebiscite — a national, nonbinding ballot — to be held on Feb. 11. The bill would ask Australians, “Should the law be changed to allow same-sex couples to marry,” Mr. Turnbull said. “This is a simple question.”

The speech on Wednesday was the first time Australians had heard the details of the bill, and the first time that Mr. Turnbull, the leader of the Liberal Party-led conservative coalition, had outlined his agenda on same-sex marriage since his government was re-elected on July 2.

But many in Parliament think that the bill calling for a plebiscite is doomed. A national poll would cost about $138 million, including funding for the “yes” and “no” campaigns, and its result would be nonbinding. No matter how Australians would vote, lawmakers could vote against changes to marriage laws. And many lawmakers who support gay marriage say the plebiscite is not the right platform and instead favor a direct vote by lawmakers on the issue in Parliament.

Mr. Turnbull said that his party had won the elections after campaigning to allow Australians to vote on same-sex marriage. The majority of Australians support changes to existing marriage laws that state that marriage must be between a man and a woman.

But the conservative coalition was returned with such a slim majority that Mr. Turnbull’s status within his own party was weakened, and the coalition party’s hold on Parliament was reduced to a one-seat majority in the lower house, the 150-seat House of Representatives. Mr. Turnbull must also woo a disparate band of independents in the upper house, the Senate, to pass bills into law.

A bloc of politicians, some of whom support gay marriage, have said they will not vote in favor of allowing a plebiscite, possibly scuttling hopes for any change.

The plebiscite is a “platform for prejudice and a megaphone for hate speech,” Bill Shorten, the leader of the opposition Labor Party, told Parliament on Monday. The “no” campaign would probably torment teenagers struggling with their sexuality and could push some toward suicide, he said.

But Mr. Shorten has not declared whether the Labor Party would support the plebiscite when lawmakers vote on the bill, which will be debated in the coming weeks.

(…)

Even without outside dissent, Mr. Turnbull has had to corral his own party members, some of whom are deeply conservative. Some did not support his ascension as leader after he toppled Tony Abbott, a former seminary student, nor do they want changes to Australia’s marriage laws.

Mr. Turnbull became prime minister one year ago. His tenure has been marked by falling opinion polls and general disarray, including a close-call election that he thought he would win convincingly.

In an unusual show of unity, his party members agreed on Monday in a cabinet and party room vote to allow the bill on the national plebiscite to be sent to Parliament. They also agreed to spend $11 million on public debate, equally split between the “yes” and the “no” camps.

Before his elevation to leader, Mr. Turnbull firmly favored a vote in the Parliament for change to the marriage laws. In Parliament on Wednesday, he told lawmakers that he and his wife, Lucy, had been married for more than 36 years and would both vote to allow same-sex couples to marry.

Unlike the other major English-speaking countries in the world, where same-sex marriage is legal in Canada, New Zealand, the United Kingdom, the United States, and Ireland, Australia has slow to move on same-sex marriage even though polling shows overwhelming public support for legalization of same-sex marriage. Efforts to change the national laws on marriage through the Australian Parliament in the past have stalled, however, thanks to conservatives in the governing coalition who have managed to put together enough of an opposition to block a bill in one chamber or the other. Since the referendum that is being proposed is non-binding, it’s still possible that nothing will result from this but, hopefully, this will help expedite marriage equality down under.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. We desperately need Monty Python to come out of retirement and do a skit with people debating the merits of Bruce-Bruce Marriage vs. Bruce-Sheila Marriage

    Like or Dislike: Thumb up 2 Thumb down 0

  2. Gustopher says:

    The rights of minorities, and human rights in general, shouldn’t be subject to the whims of the majority. I understand that Australia isn’t the US, and that their system derives more from the Magna Carta — do they even have a constitution that protects rights of people? — so if this is how they have to do it, then fine, but it’s still bothersome

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  3. Mister Bluster says:

    Australian Citizen voices opinion of his governments Compulsory Voting.
    Mr Perryman suggests compulsory voting ends up favouring the Labor Party.
    “It must skew the vote and I suspect it skews it towards the lowest common denominator.”
    http://www.abc.net.au/news/2016-06-07/why-do-we-have-compulsory-voting/7484390

    Mr. Turnbull needs the support of Parliament to pass the bill, which calls for a plebiscite — a national, nonbinding ballot —
    A national poll would cost about $138 million, including funding for the “yes” and “no” campaigns, and its result would be nonbinding.
    In an unusual show of unity, his party members agreed on Monday in a cabinet and party room vote to allow the bill on the national plebiscite to be sent to Parliament. They also agreed to spend $11 million on public debate, equally split between the “yes” and the “no” camps.

    Like or Dislike: Thumb up 0 Thumb down 0

  4. Mister Bluster says:

    Well screw the Post Comment button…it just got in the way of my finger.

    Like or Dislike: Thumb up 1 Thumb down 0

  5. Mister Bluster says:

    So is this non binding, $138 million (Australian or US?) plebiscite also compulsory?
    It is bad enough that citizens may well be forced to the polls. It would be worse that electors are coerced to cast a ballot that doesn’t even count.

    “We should have compulsory voting here, they do it in Australia.”
    If I’ve heard it once I’ve heard it a thousand times.
    Just think of all the extra votes for Trump that might come out of the caves if Americans were dragooned into the voting booth by the government.
    I agree with Australian Citizen Perryman.
    “It must skew the vote and I suspect it skews it towards the lowest common denominator.”

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  6. Jenos The Deplorable says:

    @Stormy Dragon: Do that, and I’ll lob a Foster’s at your head.

    @Gustopher: The rights of minorities, and human rights in general, shouldn’t be subject to the whims of the majority.

    No, what is and what is not a “right” should be determined by a few elite judges, unelected and accountable to no one. The opinions of the people are to be totally ignored — “the masses are asses,” after all.

    The old methods of changing the status quo and radically redefining what laws mean are just that — old. Outdated. Irrelevant. “Whatever works” is the new Law Of The Land. At least, until that changes.

    Hey, here’s a fun idea. I keep hearing the argument that “a right you can’t afford to exercise is a right denied.” So I want a gun. It’s right there in the Constitution that I can own a gun, but I can’t afford one. Hell, I’ll even take a musket, if that’ll shut up the idiots who say that that’s all the 2nd Amendment covers.

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  7. An Interested Party says:

    No, what is and what is not a “right” should be determined by a few elite judges, unelected and accountable to no one. The opinions of the people are to be totally ignored — “the masses are asses,” after all.

    The old methods of changing the status quo and radically redefining what laws mean are just that — old. Outdated. Irrelevant. “Whatever works” is the new Law Of The Land. At least, until that changes.

    Indeed…damn that unanimous Supreme Court in Brown v. Board of Education…if southern white racists didn’t want their children going to school with colored children, what gave nine men in Washington the right to tell those bigots what to do…

    Like or Dislike: Thumb up 6 Thumb down 0

  8. michael reynolds says:

    @Jenos The Deplorable:

    Is that like a moron’s word puzzle of some sort? Did you perhaps translate it from another language? Because it doesn’t make sense in English.

    Like or Dislike: Thumb up 5 Thumb down 0

  9. michael reynolds says:

    @An Interested Party:

    Let’s vote on whether Jenos has the right to comment here. After all, rights are determined by the majority.

    Like or Dislike: Thumb up 5 Thumb down 1

  10. Jenos The Deplorable says:

    @An Interested Party: I’ll see your Brown v. Board of Education and raise you these.

    Well, most of those. And I’ll toss in Roe v. Wade — I’ve yet to find a supporter of it who can make a straight-faced defense of the alleged reasoning behind it. “Penumbra of an implied right” — that’s comedy gold right there.

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  11. MarkedMan says:

    I think conservatives and evangelicals and a few other sorts might be in for a real surprise if we suddenly could start voting on their rights. I would defend their right to speak, but others might not be so generous…

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  12. Jenos The Deplorable says:

    @MarkedMan: I think conservatives and evangelicals and a few other sorts might be in for a real surprise if we suddenly could start voting on their rights.

    Oh, go on, please. Elaborate on which rights you would vote on, and how you would determine whose rights you would curtail, without violating existing protections. I’d be fascinated to see how you would rationalize your discriminations.

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  13. MarkedMan says:

    The Roe decision has pretty straightforward logic: the entire bent of the constitution since the 14th and 18th (?) amendments are that governments don’t have the right to arbitrarily boss people around, absent a compelling interest. If you accept that a fetus is not a person, the government doesn’t have a right to tell a woman she must carry it to term.

    Of course, if you believe life begins at conception, then the compelling interest is to save the human being. But I’ve always wondered: why start at conception. Surely the individual egg and sperm are living cells. So every time you take old faithful in hand and “spilleth thy seed on the ground” aren’t you committing a holocaust?

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  14. MarkedMan says:

    @Jenos The Deplorable: You misunderstand me. I don’t think basic rights should be voted on. But if conservatives feel that the question of what is a basic right should be put up for popular vote, then they should be willing to have it applied to themselves.

    For example: should organized religion be allowed to avoid taxes on their property and income? Let’s put that to a vote!

    Like or Dislike: Thumb up 6 Thumb down 0

  15. Jenos The Deplorable says:

    @michael reynolds: Let’s vote on whether Jenos has the right to comment here. After all, rights are determined by the majority.

    Vote all you like. There are only a few votes that actually count. Yours isn’t one of them.

    One is mine, of course. I could “vote” myself out of here, and that would be the only vote that counted. The others are the site’s owners and moderators.

    Plus, your point is truly stupid. I have no “right” to comment here. It’s a privilege, one that can be suspended at any time for any reason, or no reason. I won’t even make the stupid “public accomodation” argument that gets thrown around all the time.

    Finally, go and read the founding documents. “Rights” are not determined by the majority. They are not determined by the government. They are recognized by governments, through various mechanisms, but not in any way granted, created, determined, or authorized by any government. The “creation” or “determination” of what rights are is reserved to a higher authority.

    Like or Dislike: Thumb up 1 Thumb down 4

  16. Jenos The Deplorable says:

    @MarkedMan: For example: should organized religion be allowed to avoid taxes on their property and income? Let’s put that to a vote!

    So, you want to amend a whole bunch of laws, starting with the Wilson-Gorman Tariff Act of 1894 and including a whole bunch of other laws, all passed by Congress by a majority vote? Sure, let’s have that debate!

    And thank you for proving my point for me: you cited a principle that was established by an Act of Congress, and reinforced by many, many others. It’s a principle that goes way back in English Common Law, but it’s formally recognized by US law on many, many occasions.

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  17. Jenos The Deplorable says:

    @MarkedMan: Hey, here’s a whole debate on the topic. Go and entertain yourself to your heart’s content.

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  18. MarkedMan says:

    I’m not sure if I really want that vote, but i’m curious – are you saying that only the laws legislative bodies passed are the only things that matter, and those are amendable by vote, but the Supreme court rulings wrt the separation of church and state, a founding principle, shouldn’t matter?

    Like or Dislike: Thumb up 1 Thumb down 0

  19. MarkedMan says:

    I’m not sure if I really want that vote, but i’m curious – are you saying that only the laws legislative bodies passed are the only things that matter, and those are amendable by vote, but the Supreme court rulings wrt the separation of church and state, a founding principle, shouldn’t matter?

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  20. An Interested Party says:

    I’ll see your Brown v. Board of Education and raise you these.

    Of course that does nothing to take anything away from the Supreme Court exercising its proper duty to interpret laws and the Constitution…so you don’t like Obergefell v. Hodges? Tough $hit…

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  21. Mister Bluster says:

    The “creation” or “determination” of what rights are is reserved to a higher authority.

    Pastrami, Salami, BALONEY!
    See:

    Article VI Par. 2 USCon
    This Constitution*, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
    *not your holy book.

    Like or Dislike: Thumb up 1 Thumb down 0

  22. Jenos The Deplorable says:

    @MarkedMan: I’m saying that sentiments like “(t)he rights of minorities, and human rights in general, shouldn’t be subject to the whims of the majority” gives me a serious sense of revulsion, as it evinces a fundamental distrust of the electorate. I’m also a big believer in that “the people get the government they deserve,” and I am deeply suspicious of the kind of gross paternalism demonstrated by the attitude of how people need to be protected from themselves.

    Like or Dislike: Thumb up 1 Thumb down 3

  23. Jenos The Deplorable says:

    @Mister Bluster: Man, you really, really don’t get it, do you?

    Cite a single fundamental right granted by the Constitution.

    Here’s I’ll save you the effort: there aren’t any.

    In each and every case, the right is not granted, it is recognized.

    1st Amendment: “Congress shall make no law…”

    2nd Amendment: “right… shall not be infringed.”

    3rd Amendment: “No soldier shall…”

    4th Amendment: “right… shall not be violated.”

    5th Amendment: limits on the government.

    6th Amendment: more limits on the government.

    7th Amendment: even more limits on the government.

    8th Amendment: Yet more limits on the government.

    9th Amendment: This list ain’t a complete list of rights held by the people, so don’t even go there.

    10th Amendment: If the federal government isn’t given a power here, then it belongs to the States, or the people. So don’t get grabby.

    Not a single right “granted” there. Or “given.” At no point in the Constitution does it claim to have created any rights.

    And, as you so gleefully noted, the Constitution is the supreme law of the land.

    As to your snide “holy book” remark, here’s the opening of the Declaration of Independence (emphasis added):

    When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

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  24. An Interested Party says:

    …how people need to be protected from themselves.

    Umm, no…people need to be protected from the rapaciousness of corporations and the bigotry of racists and homophobes, among other things…

    Like or Dislike: Thumb up 1 Thumb down 1

  25. Mister Bluster says:

    I’ve read The Declaration many times.
    We all know that it is NOT part of the United States Constitution which is the supreme Law of the Land;..
    (not your holy book)
    Don’t see any mention of nature’s god or creators in the United States Constitution
    which is the supreme Law of the Land;..
    (not your holy book)
    The only text I see addressing “higher powers” (whatever that means) in the United States Constitution which is the supreme Law of the Land is:

    …but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

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  26. Grewgills says:

    @Jenos The Deplorable:

    I’m saying that sentiments like “(t)he rights of minorities, and human rights in general, shouldn’t be subject to the whims of the majority” gives me a serious sense of revulsion, as it evinces a fundamental distrust of the electorate.

    A distrust that has been warranted time and again, as the tyranny of the majority has historically deprived minorities and women of anything approaching fair or equal treatment. The majority approved of slavery, of denying fundamental rights to women and minorities for the majority of our history. It was often the judges you disdain that were required to recognize the fundamental rights of minorities denied by the majority. I realize that you would probably be happier in a world where Brown, Loving, and Obergfell were decided differently, but they were decided rightly and recognized that minorities deserved the same rights as the majority.

    I’m also a big believer in that “the people get the government they deserve”

    That may be true for the majority of those allowed to vote. Did women and African Americans get the government they deserved prior to gaining the right to vote?

    I am deeply suspicious of the kind of gross paternalism demonstrated by the attitude of how people need to be protected from themselves.

    The attitude is more that people need to be protected from other people, see the tyranny of the majority referenced above.
    You see, this type of argument put forward by you is why people think you are a racist, a sexist, and a bigot in general. You argue against all protections for anyone not in the majority. I’m sure that attitude will take a large turn when the US becomes a majority minority nation. Times change and people change, or not.

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  27. grumpy realist says:

    @MarkedMan: even if the fetus is a “person”, why should a woman be forced to sustain it off her own bloodstream?

    I think if women can be forced to carry to term (as the pro-lifers want it), men should be forced to donate blood and bone marrow. Fair’s fair.

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  28. Franklin says:

    @Jenos The Deplorable:

    Do that, and I’ll lob a Foster’s at your head.

    That might actually be the least damaging thing you can do with a Foster’s. Whatever you do don’t drink that vile piss!

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  29. Franklin says:

    @grumpy realist:

    even if the fetus is a “person”, why should a woman be forced to sustain it off her own bloodstream? I think if women can be forced to carry to term (as the pro-lifers want it), men should be forced to donate blood and bone marrow.

    I’m ultimately pro-choice, but I never liked the above argument, at least as stated here. Something actually has to happen for a woman to have this blood-sucking creature to appear in her body, i.e. it’s a natural possible consequence of a particular action. So only men who engage in that action should be forced to donate blood and bone marrow, right?

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  30. Jenos The Deplorable says:

    @Mister Bluster: You seem to be convinced I’m some kind of religious zealot. While I find that amusing, it’s leading you to make some really, really wrong assumptions.

    I bring up how the Founders were, at least, nominally religious because it’s true, and it influences the founding documents. And it serves as the means by which the concept that “rights” are not something granted by Man, and therefore something that cannot be taken away by Man.

    And I favor legislative and/or generally “populist” solutions not because I think that they are innately more likely to be right, but because they are more easily corrected when they make mistakes. Judges and courts — not so much.

    You’re so terrified of the “tyranny of the majority” that you want to impose a tyranny of “whoever gets their judges in first.” And that, in my opinion, is more dangerous.

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  31. Jenos The Deplorable says:

    @Grewgills: That may be true for the majority of those allowed to vote. Did women and African Americans get the government they deserved prior to gaining the right to vote?

    And how did they gain that right to vote? Did they go to some court and beg and plead for justice?

    No, that right was acknowledged by Constitutional amendments, passed by the majority recognizing that right. And — fun trivia I just discovered — the 19th Amendment had the effect of overturning Minor v. Happersett, a Supreme Court ruling that said the 14th Amendment didn’t apply to women.

    So, there’s your Supreme Court, saying that women can’t vote. And there’s the majority of the citizenry, through a form of plebiscite, saying that women can vote.

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  32. @Jenos The Deplorable:

    I’m saying that sentiments like “(t)he rights of minorities, and human rights in general, shouldn’t be subject to the whims of the majority” gives me a serious sense of revulsion, as it evinces a fundamental distrust of the electorate. I’m also a big believer in that “the people get the government they deserve,” and I am deeply suspicious of the kind of gross paternalism demonstrated by the attitude of how people need to be protected from themselves.

    I would recommend reading John Stuart Mill, “On Liberty” if you want a starting spot on this topic.

    Beyond the irony that sometimes clear protection of minorities against the majority view is a key requisite for democracy, the bottom line is that simple up and down mass votes on complex topics tend to be a bad idea because the mechanism is not adequate for the task required. Plebiscitary democracy tends to be low quality democracy.

    Like or Dislike: Thumb up 7 Thumb down 1

  33. @Jenos The Deplorable:

    And how did they gain that right to vote? Did they go to some court and beg and plead for justice?

    If we are talking about the rights of African-Americans to vote, then yes. While it is true that the 15th amendment allowed blacks the right to vote, it took a long set of court battles to make sure that those rights were respected (often in the face of laws passed to put obstacles in the way of black voters–as passed by, and supported by, the majority). It took decades of such court cases to lead to the passage of legislation in the 1960s (which was also passed by a majority, but one cannot discount the court actions that lead to that legislation)–roughly a century after the amendment was passed–to get the right fully protected. We continue to see court challenges to make sure African-Americans have the opportunity to exercise their right to vote.

    Note that even the passage of an amendment, or of a law, guarantees application without court intervention.

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  34. Mister Bluster says:

    @Jenos The Deplorable Sez:..You seem to be convinced I’m some kind of religious zealot.
    Please show us all where I wrote that.
    @Jenos The Deplorable Sez:..You’re so terrified of the “tyranny of the majority” that you want to impose a tyranny of “whoever gets their judges in first.”
    Please show us all where I wrote that.

    Maybe Jenos the Religious Scholar can expand on his declaration that The “creation” or “determination” of what rights are is reserved to a higher authority.
    For starters he can tell us all what this alleged “higher authority” is and how it has been revealed to him.

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  35. Gavrilo says:

    @Steven L. Taylor:

    Plebiscitary democracy tends to be low quality democracy.

    Still better than judicial oligarchy though.

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  36. Grewgills says:

    @Jenos The Deplorable:
    You, of course, ignore the meat of your selected quote and the meat of my comment.
    But, moving on; in addition to Steven’s excellent points, how long did women and darker skinned minorities have to wait for the right to vote in the US?
    Did they deserve the government they got while they were waiting?
    Do people disenfranchised by laws designed to limit the ability of the poor and minorities to vote deserve the government they get now?
    Once again you argue from privilege; nothing prevents me and people like me from voting therefor everyone deserves they government they get from the process that is made easy for me. This is yet another reason people find your arguments to be support for bigotry.

    Like or Dislike: Thumb up 3 Thumb down 0

  37. Jenos The Deplorable says:

    @Mister Bluster: You brought up the “holy book” thing and tried to ascribe to to me, chump. And you strongly implied the distrust for public referendums.

    If you’re going to play the “I didn’t literally say that, and I deliberately said nothing substance game,” you should be aware that anjin has a trademark on that style.

    But back on topic… the Constitution is the supreme law of the land. That is not debatable.

    The Constitution also explicitly does not grant rights, it recognizes them. That is also not debatable.

    This is thematically linked to the Declaration of Independence, which explicitly states that rights are granted to men by their Creator

    This leads to the only logical conclusion: the Constitution defers the creation of rights to a higher authority than itself. And since it is the supreme law of the land, that means that the source is a higher power than Man.

    The arguments about previously-unrecognized rights all come down to interpreting the 9th Amendment, which states in full: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” From there, it’s an argument if the newly-discovered “right” has some basis in an existing part of the Constitution.

    If not, then it should take a Constitutional amendment to establish it as a recognized right.

    I fall back on Roe v. Wade: it declared abortion as a right by saying that it is inferred as part of the penumbra of an implied right. I think that ‘s about 3 degrees of separation from the actual Constitution, and to me that’s too far a stretch.

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  38. Jenos The Deplorable says:

    @Gavrilo: Still better than judicial oligarchy though.

    You’ll find that that depends on whose judges are the oligarchs. There’s not a lot of consistency out there on the topic…

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  39. michael reynolds says:

    @Jenos The Deplorable:

    Here’s the 2d amendment in full:

    A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

    And from that you discover a “right” to dispense with that whole “well-regulated militia,” thing and interpret it to mean that there shall be no regulation. “Well-regulated militia” = “Completely unregulated private possession.”

    Finding abortion rights is rather less of a stretch than direct, word-for-word contradiction, which you of course support because how else are you going to rationalize violent thugs like your hero, George Zimmerman, shooting defenseless black men?

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  40. @Jenos The Deplorable:

    The Constitution also explicitly does not grant rights, it recognizes them. That is also not debatable

    Actually, it is very much debatable.

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  41. Jenos The Deplorable says:

    @michael reynolds: One would think that a professional wordsmith as yourself would be familiar with what words mean — or, in this case, what they meant at the time they were used.

    That’s an interesting interpretation you have there — the right to bear arms only applies to the people when they are acting under the direct control of the government. Sounds more like a “right” of the government to control the people than a right of the people to exercise themselves.

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  42. Jenos The Deplorable says:

    @Steven L. Taylor: (shrug) That’s how I’ve always heard it interpreted. Do you hold to the belief that the Constitution grants rights?

    As I said, the phrasing is entirely consistent as an expansion on the part of the Declaration, and not at all receptive to conflicting with it.

    I also remember the comparison of the US Constitution with the Constitutions of the Communist bloc countries. They all had these glorious rights for citizens — but those rights were being given by the government, and that means that they could (and often were) be taken away by the government. In contrast, our rights weren’t given, but recognized, and I’ve always seen that as a very important distinction.

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  43. Jenos The Deplorable says:

    @michael reynolds: Oh, as for your latter “point:”

    how else are you going to rationalize violent thugs like your hero, George Zimmerman, shooting defenseless black men?

    1) Zimmerman’s no hero.

    2) Martin wasn’t “defenseless.”

    3) A guy in Florida is on trial for trying to assassinate Zimmerman. Have you contributed to his defense yet?

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  44. michael reynolds says:

    @Jenos The Deplorable:

    No, dummy, it was a ‘right’ they were granting to states to raise militias. Mostly for slave-hunting.

    Your interpretation requires the complete excision of most of the body of the amendment.

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  45. @Jenos The Deplorable: It is odd that you make a didactic statement and then respond to a challenge with a shrug. (But, I guess, par for the course).

    The issue of grants/protects is largely academic: even if we do, in fact, have natural rights to speech, assembly, etc., (i.e., that they are “self evident”) but there is no legal/institutional structure to protect them, guard them, etc., does it really matter if they exist?

    In other words, what really “creates” the right, an abstract principle or a concrete mechanism of protection?

    The question of the origins of the rights in question is philosophical. The question of actually enjoying them requires government. Human history rather definitely proves this point.

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  46. Jenos The Deplorable says:

    @michael reynolds: No, dummy, it was a ‘right’ they were granting to states to raise militias. Mostly for slave-hunting.

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    So, when it says “the right of the people,” we should read “state’s rights,” and the main purpose is to “hunt slaves?”

    Must be another of those penumbras of an implied right thing…

    Every now and then I think you actually believe what you’re saying, and you’re not just trolling, and I shudder.

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  47. Mr. Bluster says:

    So this is the same @Jenos Washington: that can’t comprehend that United States Senators are members of the
    United States Congress.
    I should have guessed.
    Now I’m not so sure I’d be all that interested in any “higher authority” he might conjure up.
    Hope my correction helps him get over his victimization complex.
    ……………………………………..
    Earlier in this thread:
    (Jenos said)
    The “creation” or “determination” of what rights are is reserved to a higher authority.
    (I replied)
    Pastrami, Salami, BALONEY!
    See:

    Article VI Par. 2 USCon
    This Constitution*, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    *not any of your holy books, y’all.

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  48. Jenos The Deplorable says:

    @Steven L. Taylor: The issue of grants/protects is largely academic: even if we do, in fact, have natural rights to speech, assembly, etc., (i.e., that they are “self evident”) but there is no legal/institutional structure to protect them, guard them, etc., does it really matter if they exist?

    I’ll go back to the Declaration of Independence:

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

    You say it’s academic, and, practically speaking, you might be right. (Hence the shrug.) But to me, it underlines the founding principles. The fundamental role of government is not to create rights, which are given by a higher power, but to “secure” those rights.

    The Constitution, through the Bill of Rights, details several of those rights, and then specifies that there are others not listed — the rights enumerated are NOT to be taken as all the rights there are. And, traditionally, other rights have been recognized through Amendments to the Constitution, to make certain they get the same level of respect and authority as the enumerated ones. This is how we abolished slavery, defined citizenship to include former slaves, recognized the right of blacks to vote, the right of women to vote, and the right of 18-year-olds to vote. (The last three of which combine to allow Malia Obama to vote this November.)

    And my lack of faith in the courts to make these sweeping changes correctly and in a way that sticks is based on the courts’ history of getting it wrong, and making that stick for far too long. (Going back to that list of “13 worst Supreme Court decisions” as a reference). There’s Dred Scott, Buck v. Bell, Korematu vs. United States, Plessy v. Ferguson, the Civil Rights Cases, Bowers v. Hardwick, Roe v. Wade, NFIB v. Sebelius, and Kelo v. New London as ones I find personally odious.

    The list also includes Bush v. Gore, Citizens United v. FEC, and Exxon Shipping Co. v. Baker, cases I happen to think were right or at least not that bad, but I’m certain there are plenty here who would be thrilled to denounce how wrong those decisions were. I’ll let others cite them of examples where the Supreme Court got it horribly wrong — while they’re disagreeing with me on that particular case, they’re actually reinforcing my main point.

    The point I’m trying to make is that you can’t reconcile “we should trust the Courts make the big decisions” while simultaneously denouncing the courts for when made the big decisions in ways you don’t like.

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  49. Mr. Bluster says:

    “…the Constitution defers the creation of rights to a higher authority than itself.”
    Hooey!
    If the authors of the United States Constitution wanted to recognize a “higher authority” they would have included it in the Articles and there would be no way that they could state that this Constitution…shall be the supreme Law of the Land.

    There is no mention of a “higher authority” anywhere in the document.

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  50. Wr says:

    @Jenos The Deplorable: @Jenos The Deplorable: Maybe if you spent a fraction of the time you whine on the internet getting an education you could get a job that pays more than minimum wage and afford one.

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  51. @Jenos The Deplorable:

    First, the Declaration is a polemical document, not one intended for governing. And yes, it makes a natural law argument and endorses a contractarian view of governance and popular sovereignty. Having taught basic political theory for almost twenty years I am extremely familiar with the concepts. I understand the point you are trying to make.

    However, the reality is, apart from the poetry of Locke as adapted by Jefferson and friends, that regardless of where rights come from, whether you think they come from God, nature, or a wormhole, apart from government they really don’t mean much.

    Go try to protect your god-given property rights in Syria right now and get back to me.

    And no, courts aren’t perfect (no institution is). The actual argument here is whether it is wise to commit the protection of minority rights to simply majority rule. Again: history dictates that that is not a good idea.

    To connect all of this: rights may no be creates by government, but it sure took a great deal of government (often court) action for African-Americans, women, etc. to enjoy their natural rights.

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  52. (One can note the historical record of the need for courts to rectify majority tyranny without saying that courts are perfect. This really is not that complicated).

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  53. Jenos The Deplorable says:

    @Steven L. Taylor: Yes, the Declaration wasn’t intended as a practical document, and it has no legal standing, but I believe that its sentiments were essential in influencing how the Constitution was written.

    And I think that its precise language were not accidental. The notion that individual rights are not something for the government to grant — and take away — was radical for the time, and sadly remains so.

    Your Syria aside is… well, I’ll go with “unworthy.” Syria has absolutely zero history of “consent of the governed” or a government with the slightest interest in securing any rights for individuals.

    Yes, the US has a history that includes elements of “tyranny of the majority.” But to refer to all examples of majority rule as “tyranny” is hyperbole. And of the examples of “tyranny” cited above (slavery, voting rights of blacks, women, and people between 18 and 21), all were reinforced by the Courts until they were addressed through Constitutional amendments.

    And yes, the Amendments didn’t automatically solve the problems they addressed. In some cases, they needed the courts to fix things. But the courts needed the foundations of those Amendments to stand on to assert that yes, what they were ordering was Constitutional, because there it was, in black and white, right there in the Constitution.

    I seem to be alone here in having faith in the American people to do the right thing. Yes, it seems that that Churchill’s famous quote that “you can always count on Americans to do the right thing – after they’ve tried everything else” has a bit of truth to it.

    But while we’re hardly perfect, we’re still the best in the world. We have a better track record for doing the right thing than any other country.

    I am more comfortable trusting the people than not trusting them. And when I encounter people who have a fundamental distrust of the people, who feel the need to control and limit them and restrain their choices, I wonder about the causes of that attitude.

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  54. @Jenos The Deplorable: You ae utterly missing the point about the Syria example.

    No government, no rights. This is just the way it is. Pick your place with a lack of government and tell me how you are going to protect your property rights (or any other rights). You can argue until the cows come home as to where they came from and whether they are granted or not by the government. The bottom line remains we need some level of government to ensure those rights to the point that there is no relevant distinction to made, save philosophically, about their origin.

    Further, I am not saying that the issue of natural v. granted rights isn’t worthwhile, it is just that I don’t think you get the way in which the practical applications differ from the metaphysical arguments about origins.

    And you are missing the broader point as well. This is not about not trusting people, and it is not about controlling them, quite the opposite. It is about appropriate decision mechanisms for different kinds of problems. Most complex issues are not amendable to simple “yes or no” questions and, more importantly, the rights of human beings should not be subject to mass vote.

    Ironically, if those rights are, in fact, natural this especially would mean that they should not be subject to majority vote.

    Really, I am not sure if you understand the arguments you are making. I do not say that to be snarky or rude, but to state an observation. You are mostly engaging in clichéd and simplistic approaches to subjects that are more complex than you appear to realize.

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  55. Jenos The Deplorable says:

    @Steven L. Taylor: Quite frankly, I don’t see any relevance in bringing up Syria at all, unless as an example of just how feckless the Obama administration’s foreign policy has been, and as a comment on how we can’t simply export what makes us exceptional. In fact, it reminds me a little of how libertarians are told to “go to Somalia and live in your libertarian paradise there.”

    But I think I can simplify matters here. The disagreement here seems to be about whether some matters are too important to be decided by some sort of plebiscite, that a consensus of the people is not an appropriate way to determine certain matters.

    To me, this raises some very troubling questions. The first is, since these things have to be determined by someone, who does the determining? And how are those people selected?

    The second one isn’t really a question. To talk of “the tyranny of the majority” is to treat “the majority” as some kind of monolithic bloc. To take the topic of slavery, it was implemented and enforced by people who were, almost completely, white and male. But it was also abolished by white males — they were the elected officials, they were the voters, and they were the soldiers who fought for it. And it was a majority of those white males who decided to end slavery, and did so. Yes, women and blacks played essential roles, but it was white males that provided the raw numbers that determined the issue.

    So ending slavery was a “tyranny of the majority.”

    I have faith that our country is inherently self-correcting. That we make mistakes, and we fix them. And I worry that attempts to change that risk wrecking that unique aspect of our country.

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  56. @Jenos The Deplorable: If you are trying to prove how you don’t get it, then congrats.

    You need to focus on what is being said and try and figure out why.

    I don’t see any relevance in bringing up Syria at all, unless as an example of just how feckless the Obama administration’s foreign policy has been

    BTW, everything is not a chance to try and make a lame partisan point. This does, however, illustrate that I really don’t think you want to have actual conversations about these things, but rather see every comment section as a weird version of Crossfire (or whatever Lib v. Con “debate” show one might cite).

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  57. @Jenos The Deplorable:

    To talk of “the tyranny of the majority” is to treat “the majority” as some kind of monolithic bloc.

    Yep, such a wacky notion.

    ‘ “the tyranny of the majority” is now generally included among the evils against which society requires to be on its guard.
    4
      Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant—society collectively, over the separate individuals who compose it—its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.”

    J.S. Mill..

    Now, just because someone of note wrote about something does not make it important, nor does it mean he is correct. However, this is not some new, weird issue.

    Beyond that, I would note that the very nature of the First Amendment is protection from tyranny of the majority (and, arguably, most of the Bill of the Rights fits into that category).’

    You don’t understand the claims you are making.

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  58. @Jenos The Deplorable: One last thing: the issues in this conversation are about 1) whether plebiscite, a very specific mechanism, is the best way to deal with fundamental rights and 2) whether or not certain mechanisms, such as courts, might be needed to thwart majority will to make sure minority rights are protected.

    Focus.

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  59. Jenos The Deplorable says:

    @Steven L. Taylor: One of the problems I’m seeing here is that we are bouncing back indiscriminately between abstract concepts and concrete examples.

    “Tyranny of the majority” is a thing. That is not disputable, and I would not dream of doing so.

    Finding actual examples in American history, though, is a bit more challenging. And in those cases, they tended to be corrected by the actions of the majority. Voting rights were initially limited to white males over 21; each of those boundaries were overcome by the actions of those who actually held the franchise, who believed and acted to extend the franchise to those denied.

    Slavery was the oppression of blacks by whites, and it was abolished by whites, who made tremendous sacrifices to end their superior status.

    In the major examples, the courts have taken a trailing role in enforcing civil rights, firmly reinforcing the status quo until the quo is changed (occasionally forcefully) through some sort of public referendum. That has been the trend of US history — until recently.

    Part of my personal definition of “conservative” is “stick with what works, and don’t discard things that work for something new unless you can prove that the replacement is superior.” So far, using the courts to bypass the public participation role has not proven to be superior, and in many ways inferior.

    I will restate my earlier point: part of the reason I think that the US has suffered very little “tyranny of the majority” is that, for most of our existence, we haven’t had a stable, coherent majority that can agree on enough to make any kind of tyranny stick .The biggest example — slavery — was defeated because a majority of the majority decided they didn’t want to be the beneficiaries of that tyranny.

    Every single advance in civil rights for minorities has been made because a significant portion of those who were not part of the oppressed chose to side with the oppressed against their own class. And that is a huge part of what I consider “American exceptionalism.”

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  60. Grewgills says:

    @Jenos The Deplorable:

    “Tyranny of the majority” is a thing. That is not disputable, and I would not dream of doing so.

    Finding actual examples in American history, though, is a bit more challenging.

    Only if you close your eyes. I cited a few above: Brown, Loving, and Obergfell. There are plenty more, but those should get you started.

    Every single advance in civil rights for minorities has been made because a significant portion of those who were not part of the oppressed chose to side with the oppressed against their own class.

    That is untrue. See above. More examples can be provided if you can’t pry your own eyes open.

    There is a reason that our constitution was designed with more than one way to settle problems. If majority rule was all that was necessary in all cases then all we would need would be the House of Representatives. There would be absolutely no need for three coequal branches of government.

    You also seem to think for some reason that because we ended slavery, pretty much after every other Western democracy and at the expense of a bloody civil war (not only fought by whites as you imply) that that is somehow evidence of American exceptionalism in a good way. That is truly hard to fathom.

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  61. Jenos The Deplorable says:

    @Grewgills: You need to get past your prejudices about me and pay attention to what is actually being discussed.

    I cited a few above: Brown, Loving, and Obergfell.

    Brown v. Board of Education: reinforced existing laws and amendments. And the civil rights movement would not have succeeded if a significant number of whites had not agreed.

    Loving v. Virginia: again, reinforcing existing laws. The vast majority of Americans, at the time, were not interested in participating in an interracial marriage, but supported it as a right.

    Obergefell: the aberration.

    If your argument is that “sometimes the courts get it right,” that follows in the “no shit, Sherlock” category. My point is that to base your entire principle on the courts can be trusted to always get it right, I bring up the above cases. And, just to be snotty back at you, welcome you to embracing how the courts assured justice in the cases of Bush v. Gore and Citizens United v. FEC.

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  62. Grewgills says:

    @Jenos The Deplorable:

    My point is that to base your entire principle on the courts can be trusted to always get it right,

    That was exactly nobody’s point. The point which you keep (deliberately?) missing is that the courts act as a brake on the tyranny of the majority.

    Brown v. Board of Education: reinforced existing laws and amendments…
    Loving v. Virginia: again, reinforcing existing laws.

    That is all any of the court decisions do. They reinforce existing law. That is why the courts weren’t able to stop any of the things that you point to majoritarian rule overturning. They don’t have that authority. They can, however, enforce existing laws despite the majority on a national or local level choosing to interpret them in a way that enforces the tyranny of the majority on oppressed classes. In some cases they get it wrong, as all procedures sometimes fail.
    Majoritarian rule failed spectacularly for the rights of women and minorities for the majority of our nation’s history. It is still failing, though less spectacularly on those fronts.
    I notice you elided one of the main failings of majoritarian rule that I brought up, slavery. Slavery was not ended by normal majoritarian procedures of US government. Those procedures failed, spectacularly and did so for over 100 years. It took incremental change splitting our country and forcing a civil war for over half of over half of our country to decimate the other half and force an end to slavery on the treasonous confederates who rebelled to protect that institution. It was exceedingly bloody and we are still suffering the aftereffects over 100 years later. This was NOT a success of the majoritarian principles you claimed it was. It was one of their most massive failures, alongside the genocide of native peoples*. Courts aren’t perfect, majoritarian rule is not perfect, the executive isn’t perfect, not a damn thing is perfect. We are best served by having multiple decision making mechanisms specialized for specific types of decisions, each acting as a break on the other. Liberals are not, as you claim, yearning for a judicial oligarchy. The liberals and moderates here are pointing out the role the judiciary has in acting as a break on majoritarianism run amok.

    * Another group you presumbably think got the government they deserved

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  63. Grewgills says:

    @Jenos The Deplorable:

    Loving v. Virginia: again, reinforcing existing laws. The vast majority of Americans, at the time, were not interested in participating in an interracial marriage, but supported it as a right.

    That is simply untrue. Loving v Virginia was decided in 1967. It wasn’t until after 1968 that approval of interracial marriage exceeded 20% and it didn’t gain majority support until after 1995. In the South that came later (if it has yet come) and there are still large pockets where support is less than a majority. Your point here could not be much more wrong. It was the courts that forced the nation to live up to the laws and amendments we had made despite the majority not realizing the implications of those laws and amendments when passed. It was the courts, not the majority that got it right. If we had left it to the majority to resolve it wouldn’t have happened until at least the late 90s and with the brakes we have in the Senate it might still be illegal in large swaths of the country.

    Brown v. Board of Education: reinforced existing laws and amendments. And the civil rights movement would not have succeeded if a significant number of whites had not agreed.

    Yet those significant numbers of whites along with vast majorities of minorities had to have the courts drag significant parts of the country kicking and screaming to the ethical decision. You have often defended the states rights position. That position, if not countered by the courts, would have left schools and other public areas segregated for at least a generation longer and in some areas still segregated. Where I grew up in Alabama, there were still (illegally) segregated restaurants and other public accommodations in the 1980s. Even in the country as a whole it was only a narrow majority that thought Brown v Board of Education was rightly decided at the time (~55% according to Gallup). That was not a large enough majority to push through direct legislation to solve the problem the courts resolved. Here again it was the courts that got it right and forced an end to the tyranny of the majority in many states.
    Obergfell has done the same as Loving quite recently. Here again the courts have resolved an issue of equal protection that (in this case despite popular approval) cannot be solved at a national level by majoritarian means because of how the House and Senate function. Once again, your approved method at the very least delays justice by a generation or more. Justice delayed by generations denies justice for generations. That may be easy to swallow if the justice isn’t being denied to you and people like you. If, however, you are the one that is forced to wait your turn for equal protection it is much harder to be so sanguine.

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  64. @Grewgills: I will say this exchange gives me some insight: Jenos seems to think that most major social injustice in the US has been solved by gracious white action. No wonder he doesn’t take the race issue very seriously.

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  65. Jenos The Deplorable says:

    @Steven L. Taylor: Jenos seems to think that most major social injustice in the US has been solved by gracious white action.

    Feel free to cite a successful social movement that did NOT involve a very significant number of white people Statistically speaking, looking at US demographics, and the laws and rules controlling who had political power at the time, it’s hard to see how any social progress could have gotten anywhere without the support of a majority of the majority.

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  66. @Jenos The Deplorable: The point being that you are telling yourself a fairy story about majorities, rights, and timeframes.

    And given your overall thesis in this thread, “significant number of white people Statistically speaking” is nothing more than weasel words.

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  67. And to repeat myself:

    One last thing: the issues in this conversation are about 1) whether plebiscite, a very specific mechanism, is the best way to deal with fundamental rights and 2) whether or not certain mechanisms, such as courts, might be needed to thwart majority will to make sure minority rights are protected.

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  68. Grewgills says:

    @Jenos The Deplorable:
    As expected no response to being called out for being dead wrong on points of fact and I’m near certain you will repeat those claims at a later date, In that at least you are consistent.

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  69. Tyrell says:

    @An Interested Party: Some issues should be left to the local towns and counties to decide. Our town has voted more than once to not allow alcoholic beverage sales of any kind. People can drive up the road about 15 minutes and get a drink.

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