Anti-Commandeering: James Madison’s Advice Put into Practice
A Federal Judge today ruled in favor of the Tenth Amendment, which is an unusually rare result. What was the issue? DOMA and gay marriage. From the WSJ blog:
U.S. District Judge Joseph Tauro ruled that the federal Defense of Marriage Act, which prevents the federal government from giving pension and other benefits to same sex couples, is unconstitutional, reports the Associated Press.
Tauro wrote that the 1996 law ran afoul of the Constitution’s Tenth Amendment. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment,” Tauro wrote.
The problem, though, is that they don’t apply this same principle to everything. They should – and need to.
A few quick points.
a) The ruling affirms the states’ reserved power over marriage – as something not delegated to the federal government in the constitution. This is correct. The 10th makes clear that We the People of the Several states created the federal government to be our agent for certain enumerated, or listed, purposes – and nothing more. (even the Necessary and Proper clause would be a huge stretch on this social issue)
b) The ruling does NOT strike down Section 2 of DOMA – which allows each state to determine whether or not they will recognize gay marriages licensed in other states. This is also correct, because it leaves the proper situation of each state being able to decide its own fate – and not being forced to recognize another’s decision.
If the courts were trustworthy, they’d do the same for healthcare, education and all kinds of other powers that the federal government has usurped.
So would politicians – who seem to champion the 10th only when it’s in their partisan best interest.
Will they? I doubt it. You?
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Michael Boldin
Michael Boldin [send him email] is the founder of the Tenth Amendment Center.He was raised in Milwaukee, WI, and currently resides in Los Angeles, CA.Follow him on twitter - @michaelboldin, on LinkedIn, and on Facebook.
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I kind have been thinking for a long time that the best strategy to push localism or state's rights is to use liberal the tenth amendment argument for liberal causes. It forces them to accept this and it becomes acceptable for both sides to use the tenth amendment to justify any argument. From their we can then take down the federal government and drive all government to the local level. The key is to get the left to use the argument as much as the right because then the argument never be about the validity of the tenth amendment since both sides have accepted it as the basis for their own argument.
I'm against gay marriage because I think it is immoral but this is a good ruling that will help reestablish state's rights. I think if the community of one state wants to go this route then let them as long as they let other state's go another route.
Personally, I oppose all government marriage licenses. But – getting the feds out of the issue is a step in the right direction!
Same here because why do we need a license for personal activities. Its like needing a license to eat unhealthy foods. I'm against gay marriage but I would have no power to stop anyone else from entering into that kind of union if they wanted to. That is the real meaning of freedom which is realizing we have no power over other people's lives. It may seem like an unfair limitation on ourselves but it actually is a protection for our own freedoms since no one else has any power over our own lives.
Interesting. Michael, what would you propose in place of government issued licenses in order to protect parental, family privacy, and property rights? I think I agree, but believe that there must be some contract or license to protect these rights from the government and others, one that is recognized by our government and court system. I don't think it necessarily needs to be tied to Judeo-Christian "traditional marriage", but call it whatever you want, I need to make sure my assets go to my partner (wife and biological mother of my children in my case) and not to the state (federal or otherwise).
you would need the federal government to ensure that? Or, are you saying that a government (of some level) permission slip (which is exactly what a license is) is required to make a contract?
I have a rental contract with my landlord that can be enforce without the two of us going to get a government-approved license to be in business together first.
Michael–But that's the irony of this case. In the report that I read at Fox News Website, it stated that the people suing were protesting being denied Medicaid because of DOMA! Medicaid is also an "unenumerated" federal benefit–something the judge failed to mention. What could he be thinking?
No doubt about it, Julie! The whole argument about benefits from the feds is the problem – we should also be arguing the unconstitutionality of Medicaid…