by Ashley Burr

Created on: October 29, 2008

The day is drawing near and I will, frankly, be elated when this election which has gone on far too long, even for my liking, finally comes to an end. As it stands, McCain has an impossible hole to climb out of. I am intrigued for what comes next with President Obama and his no doubt dynamic cabinet. But since he has no bearing on the all important Proposition 8 (yet), I move on.

I will argue here that the rights of individuals and minorities end where they begin to infringe on the rights of the majority; in other words, granting homosexuals the right to marry was unconstitutional in the first place and must be nullified by passing Prop 8. Schenk vs. United States was the original inspiration for this though, as I recalled from my Political Science courses. Note: the overall premise of this case has largely been discredited.
I bring up a specific comment from the case only as a contextual reference, not to substantiate my claim.
Justice Oliver Wendell Holmes wrote the opinion for the case, making this hallmark claim:

"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Since the Prop 8 debate revolves largely around weighty issues pertaining to the first amendment that is where I will turn to substantiate my claim:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances."

Now, here is where the two relate. Holmes' statement, while no longer the basis for sound restriction of first amendment freedoms, highlights a common misinterpretation about our most controversial bill of right. And that is that it does not in fact grant anything, but rather prohibits Congress from encroaching on liberties that already fundamentally exist. Ultimately and inevitably, our so called inalienable rights come into conflict with one another in ways that neither the Constitution nor hundreds of Supreme Court cases can viably or consistently answer.
When this happens, as in the current clash over Prop 8, it is not the government's job to guarantee rights to any group,

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