The flawed logic of Prop 4

by Martin Green

Why would anyone spend four years wasting legislative time, energy, and taxpayer money to advance a proposed constitutional amendment purporting to somehow enshrine rights already provided in its constitution? Yet this is exactly what Prop 4 attempts to do.

Now, you don’t do something like that unless you are crafting some kind of artificial carve-in to grant certain groups special or “more equal” rights than those with which we already possess.

So, what then is purpose of the Vermont Constitution? This document recognizes the rights which guarantee that citizens are protected from a tyrannical government that would arrogantly assume it has the power or authority to deprive or otherwise infringe upon these rights. However, because the state does not grant these rights in the first place, the state cannot take them away. 

But in a perverse twist to this kind of state overreach, Prop 4 seeks to reinvent the wheel by somehow creating superfluous rights when these rights already exist. This means that in creating special rights for some groups—which, of course, it never has any business doing—it would infringe upon the rights of other groups which:

1.) Citizens already possess by virtue of the inherent value and dignity with which we are endowed by our Creator, and

2.) Would create special classes or groups of persons who, because of some arbitrary or faddish external identifier, will now be treated as “more equal” or assumed to warrant greater privileged rights than other classes.

Let’s take a hypothetical example to illustrate the absurdity of what Prop 4 purports to do and why it is utterly unnecessary. 

When American chattel slavery was abolished through the Emancipation Proclamation, and the Fourteenth and Fifteenth Amendments were added to the Bill of Rights, “new” rights were not being doled out to former slaves and Black persons because of  the largesse or noble overtures of the government. On the contrary, these amendments merely dusted the dirt off of the bedrock and recognized what had always been there:

The self-evident truth that all humans are created equal and are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. 

In America, these rights had long been shrouded and denied for Black persons because of the evil, folly, and arrogance of other humans who thought they somehow had the power or authority to determine who is human and who isn’t.

In the United States, the rules by which the state is constrained are that government derives its just powers from the consent of the governed. Our federal and state documents which delineate our rights only serve to inscribe with ink on paper what is already established objective and moral truth. This gives us something tangible on which we can put our hands and of which we can remind government when it is in danger of exceeding its proper boundaries.

To return to our illustration, can you imagine:

—If the governor issued a decree, or the voters ratified a constitutional amendment through referendum, which prescribed that freed slaves and Black persons were now to be considered to be a special group by virtue of their skin color or because they had been historically abused and marginalized? What special rights might they now be granted which those with different shades of skin color would be denied?

—Or if women, who had historically been disenfranchised but were finally granted suffrage, now possessed “more equal” voting rights and privileges not enjoyed by male voters?

—Or if a male high school or college athlete “decides” he is now a female and joins a female sports team? How do his “special rights” now egregiously violate the right to privacy of female athletes and students whose locker rooms and restrooms the state has permitted him to enter, not to mention the most basic norms of decency and modesty? Under Prop 4, he has now also been granted unfair access by the state to athletically and physically dominate and otherwise brutalize these female athletes.

—Or if a male convict “identifies” as female and is incarcerated in a prison for women? While some of the rights of the women in this prison are certainly curtailed because of their incarceration, they must still expect that their constitutional right to equal protection of the law will be upheld. But under Prop 4, the “more equal” rights of this deluded male now attenuate the rights of these female inmates and give him special access to sexually assault them.

—Or if a teacher or school staff desires to “affirm” the gender dysphoria of one of its minor students? Will they be now be granted “more equal” rights than that of the student’s parents by being permitted to hide crucial information about the student from them which would prevent these parents from helping their child?

What other kinds of preposterous scenarios can you plug into this equation?

Among the numerous flaws of Prop 4 is that pesky little elephant in the room which dictates that when special rights are granted to one group of persons, it necessitates that another group, which may not be regarded as special or “more equal,” is now going to have its rights infringed upon or somehow diminished by dint of its “less equal” status. 

A caution here: please do not conflate the condemnation of government overreach and the exposing of flawed logic behind thinly veiled ideologically driven political agendas such as Prop 4 with a lack of compassion, or worse, bigotry. 

But such red herring fallacies will be employed as an excuse to launch ad hominem attacks against those who condemn Prop 4.

Bear in mind that Vermont’s Constitution maintains that all citizens, whether considered to be historically marginalized or not, are already guaranteed the same rights as every other citizen. It is simply the executive branch’s duty to uphold and enforce these rights. It is not the legislative or judicial branch’s responsibility to create them out of thin air. 

This is merely a call back to truth, reality, basic civics, and common sense. 

Perhaps it is reasonable here to apply a few laws of physics to civics:

—Intrinsic human rights can neither be created nor destroyed by the state.

—For every reaction by the state for requests to grant special rights to one group of persons, there is an equal and opposite reaction: infringement upon the rights of another group. 

Any fault found with rights or equality ought not be attributed to the Vermont Constitution, but in its wrong application by fallible humans. No amount of legislation, codification, or constitutional amendments will ever prevent humans from acting according to misguided, corrupt, and selfish motives and influences. We need only call to mind the wickedness and horrors of Jim Crow laws which existed for one hundred years after the Fourteenth and Fifteenth Amendments were ratified!

Prop 4 is unnecessary, superfluous, and inherently flawed on several levels. The hubris and contorted logic of those who have crafted it have blinded them from seeing that they are perpetuating the very thing they purport to be preventing: injustice, discrimination, and identity politics which have no place in Vermont’s republican form of government. This is why it is imperative that we vote “No” to Prop 4.