How about an amendment that contains the text of the Tenth Amendment*, but adds, "This time we really mean it."

* "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

I think it's less a problem of a commitment to federalism as it is a commitment to maintaining the bounds of gov't power.

A gov't statute was challenged (in Ashcroft v Raich), the gov't will defend the constitutionality of that statute. Not for any love out for the regulation, but on the principle that they're the Executive damn it, so don't screw with us.

Note how this is different from Ashcroft's DOJ memo offering a "reinterpretation" of the 2nd that included a personal right to keep and bear arms. There, it wasn't a direct challenge to a federal regulation (though the memo did prompt some challenges that never got to SCOTUS) that--rather, it was more a unilateral declaration by the Executive.

Granted, the Exec never had to deal squarely with defending that position in the High Court as they did with the CSA--but it strikes me as far fetched to suggest that even a conservative Executive would concede the point that a statute they are trying to enforce is unconstitutional.

To gay marriage specifically, both Ace and Pejman are right. It is both a federalism issue and a legislative/judicial power issue. If the judiciary wasn't trying to impose its moral norms in an antidemocratic way on the populace, you wouldn't have the Bush Admin attempting to impose the arguably an anti-federalist FMA.

The situation with the FMA is similar to people's incorrect perceptions about Roe and abortion.

Roe was a ridiculous decision whose constitutional rationale came almost out of nowhere to justify a result that 5 justices liked. But besides that, people are generally of the very mistaken belief that if Roe were overturned (as it should be), suddenly abortion would be illegal throughout the country. I have to listen to ignorance like that every day.

Sometimes I take the time to patiently explain to them that abortion would only then become illegal in those states that chose to make it so. Some probably would, a lot probably wouldn't.

Other times I just say things like, "You're an idiot. Stop talking."

Point taken, but still it's nice to see Glenn and Andy back together doing their softshoe routine for the leftists in the audience. It's like Bugs and Daffy at the beginning of the Bugs Bunny Show. Oh, what heights we'll hiiiit....

Russell,

Well, I think people are basically right when they say the FMA will outlaw gay marriage--it will.

While it might still allow for civil unions and all the "incidents" of marriage is a separate question.

While overturning Roe would not outlaw abortion, passing the FMA certainly would outlaw gay marriage.

A-double-lizzle!!!!! Good to see ya around, bud! :)

You are so right about the Reynolds/Sully soft shoe routine. Let's just hope that Reynolds doesnt start crossdressing like Bugs in an attempt to finagle a kiss out of Sully's Fudd.

Now wouldn't that make an inspired photoshop, Oh benevolent one! :)

Oh and Ace...good post bud. It might even be, dare I say it, respectable and thoughtful!!!!!

Oh and Ace...good post bud. It might even be, dare I say it, respectable and thoughtful!!!!!

Let's just get the government out of the damned marriage business for both gay and straight couples. You wanna split your property or designate someone to terminate your life support, draw up a contract.

Yeah fat kid, I was afraid that by daring to say it I was going to Jinx Ace's entry.

You know, the same phenomenon that occurs when a basketball announcer says "Fat Kid is the country's best free throw shooter..he has made 36 in a row and is 98.5% on the season. He sets, he shoots...clank."

Oh Most Glorious of all the blogging dieties,
Why do you mock us so?

Your Humble Servant
Iblis

While personally I take Joe R.'s position (keep gov't out altogether), what's wrong with asking the states to follow proper legal procedures AND keeping the federal government where it should be (outta our bidness)? The FMA was a HUGE expansion of the reach of federal government, and nobody wants that. In states where the courts overrule the legislatures, the legislatures can respond. It happens all the time, just with less explosive issues.

The reason Mass. was such a big deal is that it takes so long for them to amend their constitution. But they'll be able to do it, and the people of Mass. will eventually be able to enact their will. Is avoiding the delay worth extending the reach of the federal government, as well as denying the right of individual states to determine what's best for them? Of course not!

The FMA was an unenforceable disaster; leave it to the states -- they may fumble, but if the people in any particular state are serious about their position, the constitutions will eventually get amended to reflect that position.

I'd say "Full Faith and Credit" is a baseline that tromps all over federalism as it is. (Yes, I know the arguments on why it doesn't apply, but you think our oh-so-enlightened judicial overlords are going to see it the same way?)

Ace, you're finally taking my advice on how to get linked by Insty. Just ridicule him like OChub does.

Now how about the OW/Fat Albert crossover/tie-in?

And as far as the legislative nature of the fight, here in Oregon, it's painfully obvious, especially after Measure 36 (our marriage amendment passed in Nov), that the gay activists are deathly afraid of the popular will.

Here they criticise using the constitution as a vehicle to "enshrine discrimination," yet use that same constitution to have a court amend the constitution in no less a substantive way (demanding gay marriage).

The constitution's going to get amended. The question is whether the people or the courts do the deed. And it's absolutely apparent which directions each respective institution will take. If we leave it alone, and the militant homosexuals (distinuished from most random, largely apolitical gay folks) keep pushing in the courts, gay marriage will become mandated across the country. If we push for the amendment, then the People will enshrine no traditional marriage and prohibit the use of the federal constitution to require gay marriage.

Chris, you're wrong that the FMA will prevent a state from allowing gay marriage. Federal benefits will simply not be available for them and the federal constitution can't be used to demand them in every state in the union. Current federal law 1 USC sec 7, prohibits gay marriages from being recognized for federal benefits purposes, and marriage has always been a federal concern to some extent (Utah wasn't allowed in until they denounced polygamy).

The question is whether we want to keep a societal institution that is about as old as history itself. Joe, you suggest the libertarian perspective of abandoning state involvement in marriage entirely. Maybe, but I don't think most people would agree with that. Marriage has always been one foot in the state and one foot in the church. Again, I think the question is whether we keep marriage (and the meaning of that term) or not.

If it's up to the courts, we don't, if it's up to the People we do. Which one sounds more (small "d") democratic?

For your next column of Sulli bashing, I propose mocking his recent creation of the Michelle Malkin award for the most cliche-ridden sentence written by a pundit (it appears that Sulli doesn't check his own archives, because there's a plethora of wonderful candidates he seems to be forgetting about). Yes, it took Sulli six months, but he findly thought up a snappy comeback to Malkin's post about $100,000 bandwith costs.

A recent letter to the editor of my local paper complained that conservatives are trying to force their view of marriage on everyone else. I got a real laugh out of that, because maintaining the status quo is never forcing one's view, it's maintaining the status quo.

Also, I heard on Neal Boortz today that employers in Massachussetts who had been offering "domestic partner" benefits to gay employees are dropping those benefits. Why? Because gay couples shouldn't get benefits without marriage if unmarried heterosexual couples don't get the same benefits.

Of course there's an uproar, but that's the Law of Unintended Consequences for ya.

So your response to the federalism question is: Federalism is good except when it's not? You don't even address the inconsistency between limits on the powers of the federal government and the FMA. You just change the subject. There's a logical fallacy web site that I am too lazy to link that explains why changing the subject is not a response to an argument.

> gay marriage will become mandated across the country.

That's right. Everyone will be forced to marry a gay person.

I voted for Bush, I'm in favor of the war, so I should be a Republican, right? But it's this kind of crap that keeps me from being one. What the hell difference does it make to you if two gay people want to get married? I still have never heard a persuasive answer to that question.

Hobgoblin,

I have a hard time reading "Marriage in the United States shall consist only of the union of a man and a woman" as anything other than wholly precluding gay marriage.

Maybe my skills at reading a statute aren't up to snuff, but "shall consist only" is pretty solid and exclusive language.

Yes, the second clause of the amendment deals with "the legal incicidents" of marriage there can be found your "benefits" argument--but you can't ignore the first clause.

If the argument is that it refers to the "United States" rather than the states, and in that protects a state's ability to permit gay marriage, then you have to square that reading of "United States" with the 13th Amendment, which does not speak of the states either--only outlawing slavery in the US and all areas subjectto its jurisdiction.

I have no problem with the FMA as written, but to read it so narrowly as you seem to be doing wholly undermines the stated purpose of the amendment (it's not the Federal Marriage BENEFITS Amendment)--and is something of a stretch.

Brett,

Federalism is not an absolute principle. As committed a Federalist as I am (President of my law school's chapter of the Federalist Society)--it's far less problematic to principles of federalism when the issue is a Constitutional Amendment.

I posted on this today and rather than rehash the argument, I'll just throw up a shameless link.

Why do we need a federal remedy for the abuses of state judges? If they usurp legislative power, impeach them. And then kill them and loot their bodies.

Um, no. Just because something is embodied in an amendment rather than legislation doesn't mean it's not anti-federalist. The point of federalism is that unless something is an enumerated power of the federal government, it should be left to the states to decide, INDIVIDUALLY. The point of federalism is that policy diversity among states is to be encouraged, not squashed. Yeah, states get to vote on the amendment, but if they vote against, and it still passes, the will of the federal government is imposed on them despite there being no enumerated power in the Constitution granting the federal government the right to decide marriage policy.

You say that the process is federalist. Process doesn't matter when the result is anti-federalist.

It's debtates like this that make me think it's not so much the Substantive Due Process of Locher and Roe that's the problem; Marbury is the problem.

If the Court's can't keep themselves to a narrow, strictly textual reading of what the Constitution means, there needs to be a democratic means for curtailing their abuses. Yes, this means the majority gets their way more often; yes, this could slow down the rate of social "progress", but it would also leave the American people in control of their destiny.

Forget the FMA. I want a Constitutional amendment that says a Constitutional interpretation passed by Congress and signed by the President (normal veto rules applying) can overrule the shennanigans of the Supreme Court. Five unelected, life-term scholars can then say whatever the hell they want, but if the people don't want it, the people don't have to take it.

Brett,

By that token, EVERY amendment (even the first ten) is also anti-federalist.

And by passing an amendment, you've enumerated the power (or lack of, or whatever the text of the amend. says). The power to amend the Const. is not an Art I Sec 8 power, it's a function of the document itself.

And 3/4 of the states ratifying an amendment isn't the FEDERAL gov'ts imposing its will over the other 1/4. To state the proposition is to refute it.

Here's a novel Federalist position. The Full Faith & Credit clause allows Congress to specify the manner by which one state's official acts will be recognized by another state. SCOTUS jurisprudence has held that a state's legitimate public policy interests supercede the automatic extraterritorial application of another state's public acts. Congress, under the powers granted to it in Article 4 Section 1 has declared via the Defense of Marriage Act that no state can be forced to recognize another state's marriage certificate in the case of a same-sex marriage. Until such time as the Supreme Court finds that Congress exceeded its Article 4 Section 1 power in the DOMA, any talk of the FMA is exceedingly premature.

Given our current SCOTUS and its rediscovery of federalism, I firmly believe that they would uphold DOMA.

Ned,

I'd believe you if the court actually had rediscovered federalism. I think a solid 4 justices would consider DOMA just peachy. I am unsure if they could get a fifth though.

And to what extent they HAVE rediscovered federalism will really be tested with Ashcroft v Raich.

I agree with Brock. Who the hell says that judges rule? Doesn't say that in the Constitution. Marshall just plum made it up in Marbury.

If the judges are not limited by the specific text of the Constitution, how can they claim to be "interpreting the Constitution"?

Jen,

You're wrong. The problem is that state courts frequently declare the state constitution to be unconstitutional and rule as they wish.

Massachusetts' Constitution specifically stated that the law of marriage would be promulgated by the legislature. They Just ignored that.

An amendment to the Nevada Constitution stated that it would take a 2/3 vote in the leg. to raise taxes. The court decided that the imperatives of funding education and such were odds with that constitutional amendment, and thus ignored it-- or abrogated it, at least, deciding that it only applied when they felt like it should.

A constitutional amendment was passed in Florida limiting the justices' (I think) power to overrule state legislation. The court decided that this amendment -- limiting their power, mind you! -- was "unconstitutional," claiming that the people who had voted for it had been misled or uniformed or were perhaps not appreciative enough of how important it is to let judges make the law.

This talk of state const. amendments solving the problem is simple bullshit. When a court wants to, they routinely declare their own constitutions unconstitutional and do whatever the hell they want.

Only a federal constitutional amendment constitutes a barrier they won't (or, perhaps, are reluctant to) cross.

It's all about the killing them and looting their bodies.

From brett: "What the hell difference does it make to you if two gay people want to get married? I still have never heard a persuasive answer to that question. "

What the hell difference does it make to you if a mother and adult son want to get married?

What the hell difference does it make to you if someone wants to have sex with children, as long as they're not your children? If a man or woman is sexually oriented towards children, and AS WE ALL KNOW sexual orientation is inborn, then why do we see it as a perversion?

Something doesn't have to affect you personally for it to be wrong.

The same type of argument was used to enact no-fault divorce. "These people are no longer in love and they want divorce to be easier. That doesn't affect your marriage, so why should you care? If you don't want a divorce, don't get one!"

No-fault divorce has been in effect nationwide for decades now. Has it improved our society? No, far from it. It was purely an assault on the family structure, just like the push for gay marriage is today.

I'm doubtful you will find that a persuasive answer, but I'm doubtful you and others like you would find any answer persuasive. Gramsci wins again.

Ace:

"If the judges are not limited by the specific text of the Constitution, how can they claim to be "interpreting the Constitution?"

Marbury is an important check on legislative power that we'd be unwise to toss entirely. However, I like the idea of a broad Amendment which would limit in law the extent of this check. Rein in the courts. Bring their power back to explicitly granted powers in constitutional law.

I've got other comments on this post at my blog. If it's bad ettiquete to say this, or to link my blog please let me know. I would have emailed you instead if you had it listed.

Anyway, Ace, thanks for Ace of Spades. I love it.

I really like your blog, but for the life of me I just can't read the little tiny print inside the grey text areas... and it dosen't seem to respond to view resizing from my browser. I don't really know why your quotes and comments are a problem, when those of other munuvians aren't. But I practically need a magnifying glass to make it out.

Demosophist,

Is the problem only in the comments, or in all boxed text quotations?

I can see about upping the print size in the comments, or softening up the gray.

Social conservatives don't believe in federalism. And they're lying when they say they do. Federalists believe in Federalism.

Conservatives only believe in federalism when it's convenient for them. When it's not, they immediately abandon it.

For example, I had dinner with my brother-in-law tonight, and he said that "states rights is the only thing that is going to save this country".

And I said "I agree, but I don't think you do". He is a staunch, social conservative. I am a staunch federalist.

I said "Do you believe that Oregon has the right to make assisted suicide legal?"

And he said "no way"

He's also against California legalizing medical marijuana.

As are almost all social conservatives.

Again, social conservatives are not federalist.

The same is true on gay marriage. Of course an amendment to the constitution would solve it once and for all. But how many people here think it is legal for the federal government to recognize some state marriages, but not others. Because Massachusetts' gay mariages are NOT recognized by the federal government. There is ample support that that is unconstitutional. George Bush thinks so. That's why he says an FMA is needed.

And I'd like to hear why Loving v. Virginia, which made interracial marriages legal was a proper constitutional decision, but the ones that made gay marriage legal are not?

And the comparisons between gay marriage and abortion are false. As someone said (I forget who), "abortions are sad. marriages are happy".

I really don't understand why everyone is so up in arms about preventing a loving gay couple from getting a civil license. There is nothing religious about it. I've never heard a non-religious argument against gay marriage. So why is everyone so intent on forcing their religious views on others?

Lad,

How about this: How come you're so adamant about changing the fundamental structures of society to fit a tiny subset's personal predilections?

Changing the definition of marriage changes society.

FYI, Loving was based on the express language of the 14th amendment regarding race. Race is explicitly mentioned as protected in the federal constitution. Sexual orientation isn't.

Why don't gays get a federal amendment passed guaranteeing them equal treatment? Then you'd have a Loving-type argument.

Fact is, militant gays are afraid of any public processes. They'd rather have their liberal crony judge friends rewrite the laws for them.

Don't believe me? Check out the latest briefing in the Oregon gay marriage case. After our gay marriage amendment passed, the gay couples decided that hell, they were just joshing when they said civil unions were unconstitutional, and can they have them now, please? This runs wholly counter to all judicial rules, but since it's the sypatheic gay folks, why not just let them do what they want?

No offense, but this squishy logic (like your Loving example) is just deeply flawed.

What difference does it make? When you're talking about making constitutional rulings on society's most fundamental unit, it makes all the difference in the world.

In a sense, you views on "absolute equality" are just as religious (in the sense that they are based on faith) as the religious right's views on marriage. Your faith cannot admit that thtere are fundamental biological differences between gays and straights, and that these natural distictions are legitimate bases of differences in treatment. Marriage isn't about "loving relationships," it's about the perpetuation of society itself. You want validation? Take a self esteem class. Really, the narcissism expanded to a political agenda of the militant gay lobby is pretty contemptible. It's all about them, isn't it?

And it's not just the right who cares about marriage. 61% of Oregon (a very Blue state population wise) thinks traditional marriage should be protected.

Guess what. These aren't all religious zealots.

Get off your high horse and look at some practical problems with what you're asking for. Vilifying normal people isn't a good way to start.