I have many problems with the US constitution, but it is the legal regime we are told we live under. Marriage, to take one example, is mentioned nowhere in the constitution, and therefore is no business of the federal congress, the federal courts, nor any other arm of the DC leviathan. The feds, according to their own constitution, have only the powers they are specifically given. Some black-robed occupier in California may not overturn a popular vote against gay marriage, nor throw out a voters’ ban on welfare for illegal aliens, to take an earlier example. On the other hand, the Massachusetts. federal judge who ruled that marriage is none of the federal government’s business, and therefore Massachusetts may enact it, despite the defense of marriage act, had a strong case. He is ignored, however, while the crazed California judge is heralded.
Unfortunately, in the American system, there are only states rights. This was a mistake. There should also be town rights, county rights, etc. as Jefferson noted. If San Francisco wants gay marriage, so be it. If Dubuque does not, so be it.
Government took over marriage, a matter for the Church and subsequently other private bodies, in the 18th century, with the expected negative results. But having taken it over, it ought to be decentralized, not nationalized.
NB: while I can’t stand the foreign-government loving, war-mongering fundamentalist right, I do think they have one point. The heterophobes want to outlaw Church discrimination, that is, freedom. For many activists, government gay marriage is only one step towards even more totalitarian anti-discrimination laws.
But if marriage were an entirely private institution, or even highly localized, we could live and let live. I believe the Church is right, but if traditional Mormons want to practice polygamy in Utah, I really don’t think that is any of my business. Oh, and though the gay activists oppose it, same-sex unions ought to be available to two heterosexual spinsters or bachelors living together,for example, for tax and other reasons.
Oh, and as to immigration, it is also mentioned nowhere in the constitution (unlike naturalization), and therefore is the responsibility of the states under the current legal regime, as it was in the early days of the republic. Constitutionally, which is not to endorse things otherwise, Arizona is entirely within its rights. No federal judge has authority to say it nay.
As Murray Rothbard said, the judiciary act of 1789, establishing the federal judiciary, was another huge mistake. It ought to be repealed.
cross-posted from the LewRockwell.com blog