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Archive for the category “history”

Is Marriage Unconstitutional?

This began as a comment at The Conservative Sociologist in response to her reaction to the GMM (Gay Marriage Movement).  She isn’t opposed, but finds the logic and media presentation to be flawed and annoying – she writes an interesting blog, you should check it out.

What I said was:

What I rarely see discussed is the unconstitutional nature of government regulated marriage in the USA.

In English Common Law (the law of the land when what would become the USA was still British colonies) the State is the Church and thus there is no conflict between the governments regulation and sanction of an expressly religious ceremony. The US Constitution explicitly forbids government sanction or recognition of religion. On its face, this would seem to make (federal of a certainty and arguably state as well) government involvement in marriage unconstitutional as a matter of constitutional prohibition.

Making this all so much about anything other than the gender of either participant is the acknowledged transfer of ownership of real property (to include at least one of the participants for the historical purists amongst us) that is part and parcel of the religious ceremony in contention. I don’t know about a crisis necessarily, but it is certain that no government will waste an opportunity to claim taxes and fees so I don’t expect the Supreme Court to take up this issue any time soon.

Of course, anyone seriously advancing this argument can be certain pretty much everyone will have the knives out in response … literally; virtually all of human society bases property rights and law on this explicitly religious arrangement, whatever particular religion may be the facilitator.

To be constitutionally consistent in the USA, marriage would have to be strictly a religious commitment and property rights associated with that arrangement would have to be explicitly made a contractual and entirely separate agreement between the involved parties, whether part of a civil union type contract or otherwise.

I think we can take it as a given that the GMM will be among the most fervently opposed to this question ever arising.

Marriage as it is commonly practiced in the US is an historical relic from a time when the state and church were functionally combined; the US constitution explicitly forbids state and religious union (I know that’s not a direct quote).  The US Supreme Court has a history of straining social camels through the constitutional needles eye, so that isn’t a realistic objection.  If all that be true, to be constitutionally consistent shouldn’t we either amend the document to grant explicit exception to the “no established religion” prohibition regarding the institution of marriage or write a law that makes formal the distinction between the religious commitment of marriage and the issue(s) of property rights and inheritance and all the rest?

Along with everybody else (to include Mrs. [and Mr. for all of that] Supreme Court Justice), I think it a given the gay folks amongst us will be just as much up in arms about such a ruling as pretty much everybody else will be; they are the stars of the marriage movement at the moment, in this circumstance they aren’t any different from their parents and that can’t be what equality is all about can it?

I expect this is all built on very shaky constitutional ground and has long since been resolved, but it applies an interesting filter to the questions surrounding marriage nonetheless, I think.

Picture Of War Crime Justice

At the very end of his Dec. 22 Chaos Manor post, Jerry Pournelle links to a Treppenwitz post, now several months old, which examines a famous photo from the Vietnam War. Therein blogger David Bogner reviews some of the lesser known facts surrounding both the picture itself and people’s perception of the recorded image.

All of that is interesting, yet the single most operant fact that contributed to the circumstance playing out as it was recorded at the time is never directly mentioned.

Without recounting the Treppenwitz post, the basic facts are: in 1968 the Communist Viet Cong/Viet Minh insurgent forces staged extreme acts of violence in violation of a negotiated truce throughout much of then-South Vietnam. Captured in the act of mass murder, one of these VC was summarily tried and executed by the military and civil police commander for the city and military district of Siagon (the city since re-named as Ho Chi Minh City). This summary execution was captured on both still and motion photography, the still image probably being the more historically famous of the two.

Here’s the thing; the executed man (formally Captain Bay Lop, South Vietnamese Communist Party Army, Viet Minh) was properly judged and sentenced “in accordance with the provisions of the Geneva Convention (aka Laws of Armed Conflict) regarding “Armed Partisans”, ” civilian combatant s”, and “crimes against non-combatants”. Were an American or other NATO officer to be presented with an insurgent in Afghanistan captured committing the same crimes, he would be equally in accordance with the law (negotiated treaty having force of same in the USA) in also issuing a summary judgement and execution. We would also subsequently crucify him too.

We cry about how terrible something is, empower someone to impose our considered will upon any perpetrator of that thing, and then cry in horror that we didn’t mean for what then happens to take place, all while we set out to destroy those who did our bidding in our name. Police, soldiers, politicians; you name it, the list is virtually endless. We put people in a position to act with our authority, then refuse to accept responsibility for the predictable results of our decision. If we want honest and open enforcement of our societal decisions, we must be prepared to accept responsibility for what those we so empower do as a result. Further, if we want an open and honest society (government, law enforcement, whatever) we must judge all things – not least ourselves – just as openly and honestly.

In executing Capt. Lop, South Vietnamese General Nguyen Ngoc Loan was photographed performing his sworn duty in an entirely lawful manner. The honest image of that honorable act was subsequently used in deliberate campaigns of lies and misdirection, both here in the United States and elsewhere, which are themselves symptoms of what still ails American society – possibly fatally. We very well may not be able to elect ourselves out of our present national condition, but I suggest Gen. Loans experience is instructive of the consequences if we don’t.

My thanks to Jerry Pournelle for this timely reminder at the outset of our latest national election year. Sometimes, harsh facts are best illustrated by harsh images.

Merry Christmas.

Know what today is?

Fort Sumter fired on by Confederate batteries — the conflict begins.

From an interesting resource fairly new to me, Naval History Blog is sponsored by the US Naval Institute – Naval History & Heritage Command. Much of history is recorded from a political or land-oriented military perspective. It’s proving educational to be able to correlate events and personages from the seaborne aspect.

Strongly recommended.

On Precedence and Seniority

As part of this post, RobertaX makes the following statement in a parenthetical footnote:

2. No, I’m guessing. But the USN is the Senior Service, after all.


In her comments section I observed that this wasn’t actually true. Since I think her subsequent comment a bit ambiguous, I offer the following excerpts from the wikipedia pages for both the US Army and Navy

The United States Army is the branch of the United States armed forces responsible for land-based military operations. It is the largest and oldest established branch of the U.S. military and is one of seven uniformed services. The modern Army has its roots in the Continental Army which was formed on 14 June 1775,[1] before the establishment of the United States, to meet the demands of the American Revolutionary War. Congress created the United States Army on 14 June 1784 after the end of the war to replace the disbanded Continental Army. The Army considers itself to be descended from the Continental Army and thus dates its inception from the origins of that force.

Congress formally authorized creation of the Continental Army more than a year prior to the actual Declaration of Independence. Congress formally replaced the Continental Army with the United States Army on 14 June 1784.

The US Navy wikipedia page is composed quite differently to that for the Army, so the quotes are more extensive:

In the early stages of the American Revolutionary War, the establishment of an official navy was an issue of debate among the members of the Continental Congress. Supporters argued that a navy would protect shipping, defend the coast, and make it easier to seek out support from foreign countries. Detractors countered that challenging the British Royal Navy, then the world’s preeminent naval power, was a foolish undertaking.[5]

Commander in Chief George Washington commissioned seven ocean-going cruisers to interdict British supply ships, and reported the captures to the Congress. This effectively ended the debate in Congress as to whether or not to “provoke” the British by establishing a Navy as Washington’s ships had already captured British ships, somewhat a provocation.

While Congress deliberated, it received word that two unarmed British supply ships from England were heading towards Quebec without escort. A plan was drawn up to intercept the ships—however, the armed vessels to be used were owned not by Congress, but by individual colonies. Of greater significance, then, was an additional plan to equip two ships that would operate under the direct authority of Congress to capture British supply ships. This was not carried out until 13 October 1775, when George Washington announced that he had taken command of three armed schooners under Continental authority to intercept any British supply ships near Massachusetts. With the revelation that vessels were already sailing under Continental control, the decision to add two more was made easier;[9] the resolution was adopted and 13 October would later become known as the U.S. Navy’s official birthday.[10]

The Continental Navy achieved mixed results; it was successful in a number of engagements and raided many British merchant vessels, but it lost 24 of its vessels[11] and at one point was reduced to two in active service.[12] As Congress turned its attention after the conflict towards securing the western border of the new United States, a standing navy was considered to be dispensable because of its high operating costs and its limited number of roles.

The United States would be without a navy for nearly a decade—a state of affairs that exposed its merchant ships to a series of attacks by Barbary pirates. The sole armed maritime presence between 1790 and the launching of the U.S. Navy’s first warships in 1797 was the U.S. Revenue Cutter Service (USRCS), the primary “ancestor” of the U.S. Coast Guard. Although USRCS Cutters conducted operations against these pirates, the depredations far outstripped the abilities of the USRCS and Congress ordered the construction and manning of six frigates on 27 March 1794;[11] three years later the first three were welcomed into service: the USS United States, USS Constellation and USS Constitution.

From this we can see that Congress formally authorized a national army on 14 June, 1775 and a national navy (if you consider 2 ships to qualify as such) on 13 October, 1775. Since these are the dates both branches of the military regard as “official”, I stand by my assertion regarding the question of “senior service” within the US military hierarchy. I seem to recall from my own service that the Navy, at least, pretends not to notice such petty distinctions and the Army just assumes its “natural” superiority in the scheme of things. Until it needs a ride somewhere.

I don’t really expect any of this to settle the question, of course, but it does make for slightly more substantial filler than available elsewhere. 🙂

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