Jacob Sullum, senior editor at Reason, takes Rick Perry to task for wanting to amend the U.S. Constitution:
It soon became clear that Perry, who wrote a book championing federalism, does not really believe in the 10th Amendment. In a July 28 interview, he assured Tony Perkins, president of the Family Research Council, that he supports amending the Constitution to declare that “marriage in the United States shall consist only of the union of a man and a woman.” So much for letting states define marriage as they see fit.
[. . .]
Two days later, Perry’s spokeswoman told The Houston Chronicle he “would support amending the U.S. Constitution…to protect innocent life.” Most versions of the Human Life Amendment would ban abortion throughout the country, even in states that want to keep it legal.
After Saturday’s rally, Bryan Fischer of the American Family Association, which sponsored the event, enthused that “the governor is a staunch social conservative, believing in both the sanctity of life and marriage not just as personal principles but as principles of public policy.” The evidence: “He supports federal amendments to protect both the unborn and man-woman marriage.”
Fischer and Perry seem to have similar ideas about constitutional fidelity. Fischer supports the First Amendment except when it comes to non-Christians, while Perry supports the 10th Amendment except when it comes to marriage and abortion.
These “fair-weather federalists” are growing tiresome. No, I don’t mean Fischer and Perry, I mean folks like Sullum. If they were willing to follow their logic they’d argue we should have never added the 13th Amendment since it interfered with the states’ right to legalize slavery and involuntary servitude. But they have no qualms with that particular amendment since it matches up with their own moral values.
When exactly did supporting the 10th Amendment mean that you could never, ever support a constitutional amendment that limits the rights of states? (My guess is that many conservatives and libertarians want to set the cut-off date on December 6, 1865.)
August 10th, 2011 | 11:56 am
What silliness. The Tenth Amendment says:
“ 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.”
Supporting an amendment that delegates a new power to the United States means changing the Constitution to delegate that power. Thinking you’re anti-Tenth Amendment because you want to delegate a specific power differently is like saying “We shouldn’t outlaw something that isn’t already illegal, because people have a perfect legal right to do that.” It’s gibberish.
Being anti-Tenth Amendment would mean supporting an Amendment that changes the the default delegation of powers, not the delegation of *one* power.
August 10th, 2011 | 1:08 pm
“The powers not delegated to the United States by the Constitution”
Thanks to modern commerce clause jurisprudence, are there any such powers? (other than the power to regulate one particular surgical procedure, of course)
August 10th, 2011 | 1:46 pm
I don’t follow the logic of Joe’s entry. The 10th amendment sets out in which part of the body politic powers reside when they are not specified in the constitution. By adding the 13th amendment to the constitution, rather than enacting a federal statute, the nation further defined the limits of power of both the federal and state governments.
The problem that Perry and other 10th amendment advocates want to address by adding a marriage amendment is the sticky problem created by the “full faith and credit” clause in Article IV, Section 1. If a gay couple marries in New York then moves to Mississippi, the state of Mississippi is obligated under the clause to recognize the validity of that marriage, no matter what Mississippi law says. Such an outcome is not far fetched, and is in fact a reasonable interpretation of the clause. For example, although Louisiana does not recognize common law marriages, if a couple enters into a valid common law marriage in a state that does recognize them, then moves to Louisiana, Louisiana will treat that couple the same as the one that was married under more conventional circumstances.
Without some barrier being erected in the constitution, every state will have to accept sex marriages, whether their laws provide for them or not.
August 10th, 2011 | 2:03 pm
The title to this post, if it is to be even the least bit accurate, should be something like Why Libertarian Federalists Should Hate the 13th Amendment. Since no one being discussed here has spoken out against the 13th Amendment, it is very misleading to imply that their attitude toward the 13 Amendment is one of hatred. We can in fact presume it is not, and so the title is presumptively false. Someone who claims to be in a position to teach journalism to The New Yorker should do better himself.
August 10th, 2011 | 2:15 pm
Since no one being discussed here has spoken out against the 13th Amendment, it is very misleading to imply that their attitude toward the 13 Amendment is one of hatred.
Oh, good grief. C’mon, David, how long have you been on the Interwebs? The title was intended to be a sarcastic version of the silly “Why does Group X hate Good Thing Y?” way of framing online debates.
I suspect you’ve been reading me long enough to know my general view of things. Do you really believe I think that anyone (at least any decent Americans) hates the 13th Amendment?
August 10th, 2011 | 2:46 pm
“By adding the 13th amendment to the constitution, rather than enacting a federal statute, the nation further defined the limits of power of both the federal and state governments. ”
By enacting a Human Life Amendment, the nation would further define the limits of power of of the federal and state governments such that they could no longer exclude certain classes of people from human rights protections.
By enacting a Marriage Amendment, the nation would further define the limits of power of of the federal and state governments such that they could not create a new meaning for the institution of marriage.
The same argument applies to both, although it is more obvious in the case of human life — the situation we have now is the extension of federal power to deny human rights to the unborn, regardless of the will of the states. That should be limited, and it is entirely appropriate also to limit the states in that respect.
August 10th, 2011 | 5:46 pm
Do you really believe I think that anyone (at least any decent Americans) hates the 13th Amendment?
Joe,
No, not really.
I have been on the interwebs since before the interwebs existed—probably since about 1983, first on local BBSes, then on BBSes networked by overnight data transfers via long distance telephone, then CompuServe and Prodigy. I remember when I thought AOL was really cool! At that point, the web hadn’t been invented yet.
And I admit my critique of the title of your post must certainly have been one of the least important messages I have written in all these years.
August 10th, 2011 | 5:56 pm
David Nickol And I admit my critique of the title of your post must certainly have been one of the least important messages I have written in all these years.
Sorry if I got a bit snippy. I know I should probably stick to more straight-forward writing on this blog since not everyone that reads FT is a old school geek and versed in all the weird cultural subtexts. But that would be kinda boring so I don’t know if I can do that.
By the way, I’m old Compuserve guy myself (was the “resident fundie” on the main Atheist Forum). I remember paying something like $2.99 an hour to chat on the BBSs. Oh man, I wasted a lot of money in those days. Now all I have to really waste is my time.
August 11th, 2011 | 9:21 am
Joe,
There’s something from the earliest days of my participation in online forums that I always remember when conflict arises. Prodigy had “bulletin boards” for almost every topic under the sun. I spent most of my time in the one devoted to Catholicism, where tempers flared rather frequently. People were always writing messages about how unfortunate all the arguing over religion was, and one day someone responded to one of them saying, “If you think it’s bad here, you should see what it’s like over on the pet care board!”
August 11th, 2011 | 11:14 am
Jaime
The problem that Perry and other 10th amendment advocates want to address by adding a marriage amendment is the sticky problem created by the “full faith and credit” …
Two problems:
1. They could simply propose an amendment making it clear states have the right to decline to recognize the marriages of other states.
2. Before interracial marriage laws were struck down, this is generally NOT what happened. An interracial couple that went to a state were such marriages were legal and then tried to return to their home state found state courts did NOT recognize their marriages. The only exception was when it appeared the couple was ‘caught in the middle’, say traveling through the state with the ban.
3. There are some marriages that states do NOT recognize as part of public policies, such as first cousins even though other states do. I think the common law cases you are talking about have more to do with how a marriage came about rather than the marriage itself.
4. Oddly the FMA also seems to attack polygamy. Now granted there’s no states that seem to want to have polygamy as a marriage option but except for a brief period where the Fed. gov’t put conditions on Utah entering the Union, it was a power the states have if they wished to use it. Why the ‘power grab’ over something that has nothing to do with same sex marriage?
Well #4 makes sense when you look at everything else. The right is pushing amendments to ban abortion, ban unbalanced budgets, restrict tax increases, manage entitlements etc. What seems to be happening is that the right views the Constitutional Amendment not as a change in the structure of our gov’t but as simply legislation by other means….a type of ‘super law’ that once you get it in you can’t get rid of it without a supermajority. That is so painfully obvious about the FMA which is more about burning the bridges in a strategic retreat rather than a democratic process were one side actually tries to convince the other that its preferred policy is better AND maintains that consensus.
This happens a lot on the state level, which is why many state constitutions are unreadable messes that go through dozens of pages covering trivial matters like casino gambling, school funding and a host of other things which are properly the domain of policy debates, not the structure of gov’t.
August 14th, 2011 | 8:08 am
Gay rights advocates believe that states should not have the right to define marriage: they believe that the Equal Protection Clause of the 14th Amendment requires states to accept same-sex marriage.
Religious Right advocates *also* believe that states should not have the right to define marriage: they believe that the federal Constitution ought to be amended to impose a federal definition of marriage, that would be imposed on the states.
There are only a small number of “true federalists” on this issue, and they are not organized and are thus not capable of meaningfully influencing the public debate.
Links
Blogs
Find Us
Contact