Oh, Bryan. You’re so zany when you try to justify your conflicting impulses. Some people, for example, believe that the separate states have the right to do largely what they please, except for some very narrowly defined powers reserved to the federal government. Other people believe that the federal government has the right to dictate to state governments on a wide variety of fundamental issues.
But you, Bryan, you sly dog — you think you’ve figured out a way to have it both ways. Dependent, of course, on whether it’s something you favor or disfavor. And you’ve done so just in time (by sheer coincidence) to continue to support your new Best Friend Forever, Rick Perry, the next Governor-wanting-to-be-President to come out of Texas.
Gov. Rick Perry has been castigated by some conservatives and 10th Amendment aficionados for his public support of federal amendments to protect the sanctity of life and the sanctity of marriage.
They accuse him of abandoning his commitment to federalism, states’ rights, and the 10th Amendment and committing unpardonable Tea Party heresy in the process.
A little backstory here. The legislature of the state of New York recently joined the bandwagon in recognizing the rights of same-sex couples to marry. Something, of course, that makes your very skin crawl, Bryan, I understand that.
Your BFF Rick got himself in a little hot water, because when asked how he felt about New York doing so, this staunch supporter of states rights, occasional suggester of secession on the matter, and proud scion of the Lone Star Republic of Texas, said:
“That’s New York, and that’s their business, and that’s fine with me. That is their call. If you believe in the 10th Amendment, stay out of their business.”
It was a bold, gusty move for someone angling for evangelical support for his planned Presidential run. But it is, at least, consistent with a states rights activist. Marriage has long been considered something states are responsible for defining (thus, for example, consanguinity laws varying from state to state). That doesn’t mean that a case cannot be made for federal intervention as a civil right, but conservative states righters have long argued that, under the 10th Amendment, the Feds shouldn’t be able to impose gay marriage on them if they don’t want it.
One of the arguments made for the federal Defense of Marriage Act (DOMA), in fact, was both that it prevented the federal government from recognizing gay marriage, but it declared that states weren’t obliged to recognize gay marriages from other states. That latter is a shocking breach of the “full faith and credit” clause of the Constitution, but so far it has held up.
Bottom line, though, it’s clear that states are free to recognize, or not recognize, same-sex marriages. And a states rights advocate should applaud that principle.
But Perry immediately came under fire from folks like Joseph Farah of WorldNetDaily who, despite always pushing for states being protected from the Evil Federal Government and its Communist Gang of Liberal Secular Commies, felt that this was taking things a wee bit too far. All things are allowed to the states, to paraphrase Orwell, but some things are more allowed than others. Heck, Farah would probably argue that making the suggestion isn’t even protected speech under the 1st Amendment, if pressed.
Within a day or two, Perry desperately tried to explain himself, noting desperately that he’d only been talking about the 10th Amendment, not gay marriage, as being “fine” with him.
“I probably needed to add a few words after that ‘it’s fine with me,’ and that it’s fine with me that a state is using their sovereign rights to decide an issue. Obviously gay marriage is not fine with me. My stance hasn’t changed.”
And, as a sign of consistency, he found himself in similar hot water over the topic of abortion and state rights, even going so far as to say:
“You either have to believe in the 10th Amendment or you don’t. You can’t believe in the 10th Amendment for a few issues and then [for] something that doesn’t suit you say, ‘We’d rather not have states decide that.’”
Exactly. Rightly or wrongly, you can’t be a part-time states rights advocate, just when it suits.
Which is why, of course, he then backpedaled on both issues, coming forth in favor of Federal Constitutional Amendments on both abortion and gay marriage. Yes, the Evil Federal Government would have a law — a constitutional diktat, enforced by Evil Federal Courts and the Evil Federal Justice Department — that would stop Sovereign States from allowing either gay marriage or abortion, whether they wanted to or not.
But, Bryan, isn’t that abandoning states rights?
But to consider amending the federal Constitution as an abandonment of the 10th Amendment and states’ rights absurd.
Oh. Well, you’re the expert on the absurd, Bryan. Explain it to me.
You can’t get any more “states’ rights” than amending the Constitution, for one simple reason: only the states can amend the Constitution in the first place.
Unless proponents can get voters in 38 states to agree with them, our supreme legal document remains unchanged.
When the Constitution is amended, this is the exact opposite of the federal government imposing something on the states, but is rather a manifestation of the states expressing their political will. If anything, it’s the states imposing something on the federal government. Everybody ought to get pumped up about doing something like that.
Aha! So if three-quarters of the states decide to impose something on the remaining quarter, that’s the ultimate example of supreme states rights! Of course! It’s so clear!
Of course, the constitutional amendment process it a bit tricker than that. The only way it’s ever been done is along one path the Constitution lays out, starting with a bill passed by a two-thirds majority of both houses of Congress. Now, some might call that an act of the Evil Federal Government (you know, the same Congress that voted for Obamacare and the Civil Rights Act and other unholy evils that oppress the states), but I guess when Congress is doing that, it’s acting as representatives of the states, rather than as Evil Federal Government Stooges.
After that, of course, the proposed amendment needs ratification by three-quarters of the states. So that’s some great State Power there, Bryan, except for the folks in the other quarter of the states who get to be imposed upon by the Tyranny of the Majority.
(The other way to amend the constitution is through a constitutional convention called by two-thirds of the state legislatures, passing proposed amendments to then be passed by three-quarters of the legislatures. That’s never actually been done.)
We must never forget that the Constitution, indeed the federal government itself, is the creation of the states,not the other way round. The creator – the states – have the right to amend the document they created as they see fit.
Yes, that’s true. Though, as noted, the process has only ever been initiated at the federal level.
It’s a challenging process, and there is a very high threshhold to reach, as it should be, which is why the Constitution has only been amended 27 times in 224 years. It can’t happen without the direct authorization of three-fourth of the states.
Yup. And (in every case to date) the federal legislature.
So not to fret, constitutionalists. The 10th Amendment and the Constitution would be safe in the hands of a President Perry. He hasn’t changed his commitment to federalism in the slightest.
Except that a sovereign state would have its sovereign rights taken away by the federal government, authorized by three-quarters of the other states.
But you’re also changing the terms of the discussion, Bryan. Federalism is all about the balance of power between the state governments and the national (federal) government. Federalists were those who wanted a strong central government that had power over the states; anti-federalists were those who wanted states to have supreme power over their own affairs — not just against the central government, but against each other.
In other words, yeah, South Carolina wasn’t eager to have the Federal Government tell it what to do. It also wasn’t eager to have Virginia, Pennsylvania, and New Hampshire tell it what to do, either.
The 10th Amendment is about the protection of the states ‘rights, not about how states can band together to take those rights away. It’s certainly possible to argue for the national government to decide upon a new imposition on those rights, with the concurrence of the three-quarter supermajority of the states — but while that is federalism and constitutional, it’s still also an imposition on “states rights” — a term that you conveniently drop from your final paragraph, Bryan, because it’s hard to baldly make the case that states rights mean a big gang of states have the right to impose their will upon the rights of a few of the states.
Don’t get me wrong, Bryan — I’m a federalist, and an expansive one at that. I believe the states have local governmental uses, but I strongly suspect I think there are far more things that the Feds are allowed to do, even under the 10th Amendment, than most “states rights” types would agree with, yourself included.
But that does make me wonder, Bryan. What would you (and your BFF Rick) think if a constitutional amendment were proposed to require recognition of gay marriage, rather than forbid it? Would you still consider that, if passed, an expression of and paean to states rights?
Of course not. You’d be denouncing it as a commie plot hatched by anti-Christians to impose national values on the states. Because, Bryan, I strongly suspect you have a very selective love of “states rights.” When we’re talking about a state doing something you agree with, then you’re all for it. But if a state does something you disagree with — well, “there oughta be a law [or a constitutional amendment]” to stop them.
Which is fine, I guess, but then trying to justify it, not as being guided by some inner sense of Right and Wrong, but arguing that a ganging up of some states on others is an expression of “states rights” is so incoherent as to be silly. Or to make you seem a dolt.