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Marriage: “Core” and “Penumbral” meaning

August 31, 2009 at 3:03 am · Filed under Uncategorized ·Tagged , , , ,

This post is not intended as a commentary on gay marriage per se. The impetus for this post was a youtube link sent to me by a friend. Here’s the link in question – a televised interview of Alan Keyes on the topic of marriage, see here: http://www.youtube.com/watch?v=_9BA7i3sgCU.

In the interview Keyes is asked to reconcile his view that marriage is procreative by definition (therefore making gay marriage an absurdity) with heterosexual married couples that are unable to procreate by reason of infertility or elderliness. He was asked if this meant the law should not permit those who are infertile or elderly to marry. He replied “no” because marriage in those cases do not change the “core” or essential meaning of marriage. I believe he’s referring to the distinction made by H.L.A.Hart between “core” and “penumbral” meaning. (This is reinforced by his comment, “in (the) law we work within definitions.”) In terms of the law the “core” meaning is what the statute intended to cover. For example a statute that bans vehicles from a park was obviously intended to ban cars. A “ penumbra” case would be one not considered by the creators of the law, such as an overhead aeroplane or helicopter etc. We could easily extend the definition of a “vehicle” to a horse or bicycle without altering the “core” meaning of vehicle as it was intended. However, in the case of flying aeroplanes or helicopters invading airspace the definition has been stretched. Thus, on the issue of infertile couples Keyes offers the analogy of the worm and the apple: because an apple has a worm, does not make the worm part of apple. The “core” meaning of apple is not changed. He suggests gay marriage falls so far on the periphery of penumbral meaning that we cannot recognise it without breaking from the “core” meaning of marriage.

Please note this post expresses no opinion on the issue of gay marriage either way. If you must express an opinion please ensure it’s relevant to the argument discussed above.

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The Australian Flag and the need to protect it

January 27, 2009 at 1:35 pm · Filed under Aussie Flag, Australia Day, Australian Flag, Uncategorized

In the aftermath of Australia Day celebrations I was thinking how much a symbol of unity and history our flag is. (Not that I am one to hang mini-flags from a car aerial or drape myself in a flag – that is frankly not to my taste!) However, I think sufficient mechanisms in place to protect our flag are lacking. We need to protect the flag both from zealous politicians (particularly those of similar vein to Paul Keating) who insist on changing it without popular approval, and from dangerous persons who may publicly desecrate our flag.

Constitutional Protection:
 
The Howard Government provided legislative protection of the national flag when the Flags Amendment Act 1998 was enacted. Section 3 imposes the condition that the flag can only be changed or replaced if it has the support of the majority of State and Territory electors. However, a subsequent act of federal parliament could easily repeal this provision, and indeed change the national flag without the consent of the citizenry.
  
I am of the view that a constitutional amendment is in order to create some provision that removes the possibility of arbitrary change. The provision would contain the existing description of the flag found in Schedule 1 of the Flags Act 1953, this way our flag could only be altered by constitutional referendum pursuant to s128 of the Constitution Act 1900.

Anti-Desecration Laws:

Many nations prohibit public burning or desecration of the national flag. To my knowledge of the liberal democracies Austria, Germany, Finland, New Zealand, Portugal and France all have laws of this nature. While they all fall within the relevant criminal code or act of the nation, the penalties range from fines to imprisonment and penal labour – or both. In Australia and the United States passing laws which subject desecration of the flag to criminal penalty has been no easy task. The Australian Flags (Desecration of the Flag) Bill was tabled in senate but ironically lacked the support of John Howard. While in the USA  the Supreme Court has been the major obstacle. The Supreme Court declared such legislation to be “unconstitutional restrictions on freedom of expression” in both Texas v Johnson, 491. US 397 (1989) & United States v Eichman 496. US. 310 (1990). Dissenting Justice Rehnquist in Texas v Johnson characterized flag burning as, “the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.” I find the following passage from his judgment most compelling:

“The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.”

(In 2006 a proposed constitutional amendment to prohibit flag burning was defeated in the US senate by one vote.)

Nonetheless, I do think  think legislation of this nature necessitates careful drafting. Further, thought must be given to what penalty would be most effective. In France desecrating the flag in public incurs a penalty of €7,500 and 6 months incarceration, under the Portuguese Penal Code the penalty is 2 years which extends to destruction of Portuguese symbols of sovereignty.  (The Coat of Arms etc.) I believe a prohibitive fine in this case to be a more appropriate and effective penalty than incarceration – how many people do you know who boast about parking infringements? Whereas, prison sentences might encourage demonstrators to make themselves martyrs for various extremist left-wing causes.  I would be tending towards treating desecration of the flag as a strict liability offence. However, this would infact be a rare situation where I think considerable discretion over sentencing should be left to the judiciary.

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Liberal Party: The party for upholding the Constitution ?

September 30, 2008 at 1:38 am · Filed under Uncategorized ·Tagged , , ,

  Glenn Milne saw fit to write some unconscionable garbage in reference to the Coalitions thwarted attempt to originate a money bill in the senate. (See here: http://www.news.com.au/dailytelegraph/story/0,22049,24411595-5001030,00.html). The bill was passed by the senate with cooperation from the Greens, it saught to increase old age pensions by $30 a month. This is what Mr Milne had to say:

“…As with Rudd individually, the government collectively did not respond well. First, it tried arguing that the pensions Bill was unconstitutional because Oppositions cannot introduce money Bills.

Well, frankly, who cares?

This issue is about a bit of social justice and calling governments to account, not the finer points of Constitutional law.”

  The notion that money bills may not originate in the senate is hardly a fine point in constitutional law. Rather, it is a well known limitation on the powers of the senate explicitly stated in the constitution:

Section 53 of the Constitution Act 1900: “Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate.”

   A fact many of us learned in high school, and if not certainly in introductory Australian politics or constitutional law classes at university. This kind of tripe is a sad indictment on Milne as a political journalist, and reflects an inability to balance partisan sympathies with journalistic impartiality. Even an opinion writer must be limited by a respect for facts in their commentary, otherwise what he or she writes is just unsubstantiated diatribe. Further, considerations like “social justice” must not come before the constitution, the very instrument that underpins our democracy and guarantees our freedom. It is reprehensible to declare a clause in our constitution unimportant and to act in a way that is clearly contrary it – especially given that our constitution only allows for change subject to the approval of the Australian people.

  While this stunt has all the hallmarks of political genius on the part of the Liberal Party it was totally improper. The clerk of the House was correct to dismiss the bill, even if it was passed by the house the Governor-General would have no option but to refuse assent.

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