Abandon Ship!

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Nullification, state sovereignty and the Tenth Amendment have become all the rage over the past year, especially in Republican Party, right wing, Tea Party circles. So much so that most mainstream media reports frame the Tenther movement as an exclusively conservative/right wing phenomenon.

But in truth, many of these new-found disciples of the Tenth Amendment seem to view state sovereignty as simply an arrow in their quiver, a weapon effective in fighting legislation they disagree with. When the rubber meets the road, many of these ardent supporters of  “states’ rights” hop ship when the principle begins to clash with their political ideology.

Take Obama’s recent assertion that the Defense of Marriage Act is unconstitutional. He got it right. The Constitution grants the federal government no authority to regulate marriage. Decisions on marriage rightly belong at the state level. But today, the airwaves and editorial pages can barely contain the social-conservative voices howling in protest. Pundits insist the President overstepped his authority when he directed the Justice Department to discontinue defending the constitutionality of DOMA.

Yet these same voice cheer when states resist the federal health care act, passing Health Care Freedom Acts and even nullifying the act all together.

The difference?

These fair weather Tenthers don’t want health care, but they do support DOMA. It’s pragmatism, not principle.

At the Tenth Amendment Center, we stand on principle.

That means sometimes we battle against federal acts we may philosophically agree with. Why?  Because the Constitution doesn’t grant powers in those areas.

We do it – not because we want to advance a particular political agenda – but because we believe in the principles of freedom and liberty, and we understand that the original Constitution protects those cherished principles.  But only when applied on a consistent basis. One can’t just pick and choose, applying the Constitution only when politically expedient.

At TAC we insist on one thing – Follow the Constitution, every issue, every time, no exceptions, no excuse.

About Mike Maharrey

Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of '98 - Kentucky. See his blog archive here and his article archive here. He also maintains the blog, Tenther Gleanings.

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7 comments
ChrisNJ
ChrisNJ

I agree on the point that the Supreme Court is not properly the sole arbiter of what legislation or action is within the bounds of the Constitution. That responsibility is shared between all three branches, the states, and the people. Powers not granted to the federal government by the Constitution are not supreme law.

On one point I am uncomfortable. The time for Congress to take a stand on the issues of Constitutionality is when they propose and before they pass the illegal legislation. The President if he (or she) considers the bill improper, should veto it. If passed by a previous Congress and improperly signed by a prior President, the current President should ask Congress for a repeal.

Perhaps there is a place for an Executive Order in this matter, but tolerating and leaving an arbitrary decision as to which laws to enforce and which not to enforce up to a single person, I think also carries with it a great deal of risk, in elevating the rule of man over the rule of law.

Even action by the states I think has more standing in establishing the unenforcability of federal law within that state's borders, than does the idea of the executive branch exercising selective discretion in law enforcement.

Mike Maharrey
Mike Maharrey

Derek - my thoughts are along the lines of Austin. Really, the only federal issue that I can think of involving marriage is the tax advantage for married couples. If we had a sensible tax system in this country that treats everybody the same - that issue goes away. There may be other fed issues, but I can't think of them off the top of my head. The other issues are state issues anyway - joint property ownership, inheritance, parental rights, decision making rights in health care and things of that nature. So federal marriage recognition or lack thereof really would have little impact.

The other issue is the one Derek raises, recognition of marriages across state lines. But I'm not sure that matters so much either. The example of federal employee benefits is always a federal decision anyway. So if the feds recognize same sex couples for a specific benefit, they can receive that regardless of where they live. That is a contract between the fed employer and the employee. In fact, the same thing already happens in the private sector. I used to work for a company that provides health insurance and other benefits to same sex "domestic" partners. The company operates in multiple states and those same benefits extend to employees in every state, regardless of the states definition of marriage.

If states make their own decisions on how to define and recognize marriage, they can also decide how they will handle "married" couples from other states that define it differently. Much like conceal carry. If I have a Kentucky conceal carry, Florida law allows me to carry there under reciprocity agreements. New York - if I'm not mistaken, does not. So...if I wanna carry, I don't go to New York.

Of course, those who lobby for same-sex marriage will argue that all of the states MUST accept it under the 14th Amendment, equal protection. I would reject this argument. The 14th Amendment has nothing to do with marriage - same sex or otherwise.

Austin
Austin

Does this mean the President believes in Executive Nullification?

Ausitn
Ausitn

I'm not a lawyer, so feel free to tear this appart if I'm wrong...

Derek brings up good points. However, as I see it, if we got government, at all levels, out of marriage (or civil unions) all together it would solve the problem. Why do we need any government to approve of marriage (essentially a contract w/religious origins)? Why do we need government to approve of civil unions (essentially a contract)?

Decouple marriage from economics. A person pays for a license (contract) from the state to receive legal protection under common law, but end the special economic privileges (specifically tax benefits). That contract is legalling binding in all states, right? We don't need to re-define marriage or make a new class of people, we need to recognize and protect contract rights.

Philosopherking
Philosopherking

I agree with the bit about ending licenses for marriages. It should remain a private institution as it historically has been.

DerekSheriff
DerekSheriff

While I would rather that the federal government simply deal with individuals, rather than couples, families or groups, I tend to agree that ultimately the authority to define marriage is reserved to the states or to the people. But I'm wondering how this would work in practice. For example...

If a federal employee residing in a state that recognizes same sex marriage produces a marriage license in order to enroll their spouse in a federal program or obtain federal benefits as the spouse of a federal employee or beneficiary, it seems pretty simple. The federal government must treat them as they would the spouse of a heterosexual union. But what if the federal employee or person due federal benefits resides in a state that does not recognize same sex marriage, but can produce a marriage license from another state that does?

If each state has the authority to define marriage within its own boundaries, under the Constitution, and the federal government must recognize two (or more?) people as being married if a state recognizes the union, how will this be worked out by federal bureaucrats, given that states will have different and sometimes contradictory laws regulating marriage?

Philosopherking
Philosopherking

I would say the federal government is plain out of luck and are at the mercy of each state's own laws about the issue.