States Rights, Federal Robes

This post addresses Right Wing News' John Hawkins' recent musings about Federalism. I agree with some of the sentiment there, but not the solutions:

1. I see no reason to make marriage a Federal issue, which John's proposed Amendment would do. The argument that once passed, such an Amendment would not be unconstitutional is true, but trivial. The essence of the proposal is a massive transfer of power to Washington--almost always a bad idea. Among 51 jurisdictions, someone's bound to get it right--which will become an example.



2. One exception to the foregoing is the effect of the "Full Faith and Credit clause in Article IV, Section I. That provision requires each state to presume the validity of the laws and decisions of other states. It's what makes a Las Vegas divorce valid back in New Jersey. And, over time, the trend has been to accept out-of-state acts except in extraordinary circumstances. Which, in the worst case, might permit one state (or three states) to authorize gay marriage throughout the nation. Last year, Vice President Cheney, Senator Hatch and others mooted an Amendment that exempted marriages other than between one man and one woman from Full Faith and Credit. That would preserve marriage as a state-law issue.



3. Preservation of states rights, accompanied by a revival of the 10th Amendment, recognizes that unanimity is impossible, and so the most "democratic" approach is to push decisions down to the lowest unit of government. The Founding Fathers didn't have all the answers; instead, the created a process that best promotes democracy--by letting the people (or their Representatives) vote. As I've previously argued, "This tends to ensure that citizens have the maximum possible ability to monitor and participate in policy determinations, making law and regulation the responsibility of legislative and executive bodies most closely connected to those directly affected." The result "gives Americans the right to be wrong. And that's a civil right worth defending."



4. For 50 years, over-Federalization has been the first page of the Democratic Party platform. As John's post recognizes, their weapon of choice is the imperial courts, "repeatedly lobbing judicial "Hail Marys" to Federalize abortion, consensual sodomy and -- any day now -- gay marriage." Conservatives should continue to oppose these unconstitutional, elite and anti-democratic tactics.



5. That doesn't mean conservatives should abandon Federalization. Congress and the Administration recently Federalized a portion of state tort law and, of course, tried to Federalize the Theresa Schiavo case. Conservatives were widely derided as hypocrites. Which is nonsense: at least conservatives don't evade majority rule via the courts. More practically, "Why should we disarm unilaterally? . . .I'll renounce further interference with states' rights the moment Democrats do the same."

Conclusion: The Founders wanted to safeguard the rights of future generations of Americans, but couldn't anticipate or resolve disputes yet to arrive. Instead, they established a process for resolving disputed issues, embodied in the Constitution.

The process worked well for a 150 years: as an example, though the 14th Amendment guaranteed every "person . . equal protection of the laws" and all "privileges and immunities" yet, that didn't authorize women to vote in Federal elections--because that was beyond the Amendment's scope and intent. So women's suffrage advocates campaigned and won support for the 19th Amendment--via the democratic process. If "equal protection" didn't apply to women, how could it possibly authorize gay marriage?

Impatient and condescendingly paternalistic, Democrats gave up on democracy almost fifty years ago. Instead, they encouraged one-vote majorities of a handful of judges to invent non-existent Constitutional language, thus politicizing the judiciary beyond repair. Such "judicial overstretch," as John says, violates the 10th Amendment, and is antithetical to the Founders' intent.

Put differently, the Democratic Party platform is un-American. It's time we said so. "Free the 10th Amendment!"