DOMA ruling a small victory for state sovereignty

BOSTON (May 31, 2012) – On Thursday, the First U.S. Circuit Court of Appeals ruled section three of the Defense of Marriage Act (DOMA) unconstitutional, citing a state’s power to determine its own definition of marriage.

Appeals Court Judge Michael Boudin, a President George H.W. Bush appointee, wrote the unanimous opinion for the three-judge panel.

“Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

DOMA passed in 1996 during the Clinton administration. Section two of the law stipulates states do not have to recognize same-sex marriages valid in other states, and section three creates a federal definition of marriage.

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

The law does not invalidate same-sex marriages in states that allow them, but it does deny same-sex couples federal benefits, such as the ability to file as “married” on tax returns and access to Social Security survivor benefits.

The appellate court ruling dealt with section three.


Squat, Cough and Spread Your Cheeks! Is This Really Constitutional?

Are body cavity searches constitutional? In the recent Supreme Court, decision Florence v. County of Burlington, the Court ruled 5 to 4 that law enforcement may strip search those arrested for even minor infractions before incarceration, “even if the officials have no reason to suspect the presence of contraband” (Adam Liptak, Supreme Court Ruling Allows Strip Searches for Any Arrest, New York Times, April 2, 2012).

This is not particularly new, as the Supreme Court had previously ruled in 1979 that “visual body cavity searches of all detainees after they had contact with outsiders,” was permissible. In practice, however, lower courts had ruled “the prison had to have a reasonable suspicion that the arrestee was concealing contraband before subjecting him to a strip search upon entering the facility” (Glenn Greenwald, The Obama DOJ and Strip Searches, New York Times, Apr. 3, 2012).

But the Obama Department of Justice and five conservative justices (strange bedfellows) both wanted a blanket, more universal policy. When you have a rule that treats everyone the same you don’t have folks that are singled out. You don’t have any security gaps,” argued Justice Department lawyer Nicole A. Saharsky. So now everyone arrested is subject to possible strip searches on the discretion of law enforcement alone.

The Fourth Amendment to the U.S. Constitution reads in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Clearly the states, who initiated the Bill of Rights as a condition of their acceptance of the Constitution, had had negative experiences with government overreach with respect to “unreasonable searches” and wanted no such practices from the new government they were creating.


Bipartisan Change You Can Bet On

A recent AP article featured in the Las Vegas Review Journal has said Governor Chris Christie plans to defy the federal government regarding sports betting.  According to the article, Christie said his administration will make no attempts to overturn a 1992 law that limits sports betting to four states.  But he doesn’t sound like he intends to follow it either.

“We intend to go forward,” the Republican governor said. “If someone wants to stop us, then let them try to stop us. We want to work with the casinos and horse racing industry to get it implemented.  Am I expecting there may be legal action taken against us to try to prevent it? Yes,” the governor said. “But I have every confidence we’re going to be successful.”

Way to go, Governor Christie!  I’m going to start calling you “Tenth Amendment Guy” if you keep it up.

Unlike his recent veto of the Legislature’s bill that would have implemented the health care exchanges under ObamaCare in New Jersey, the governor appears to have support from some big names across the aisle.  Senator Raymond Lesniak, who attempted a lawsuit to overturn the federal ban, had this to say, “To those with a vested interest in the status quo – the professional sports organizations who take a hypocritical stance that wagering will ‘ruin the purity of the game,’ and the Nevada-based gaming conglomerates that have enjoyed that state’s stranglehold on sports wagering for the last 20 years – I respectfully say, ‘Bring it on.’  The sooner you make an issue of New Jersey’s noncompliance with an unconstitutional federal ban, the sooner we can defeat that ban in the courts, and put New Jersey on the same competitive footing as the rest of the nation when it comes to sports wagering.”


Rescuing the Constitution

Of the many grievances endured by our Constitution, our current President’s indeterminate nationality is a minor one. This does not mean I disapprove of the biographical colonoscopy presently being conducted by breitbart.comJerome Corsi and others; I say have at it. But even if Geraldo Rivera were to track down a Standard 8 film of Barack Obama’s water birth in the Mogonga River, liberals aren’t going to start plastering Romney ’12 stickers on their Chevy Volts.

Most of the other infractions, a roll call of which would include Obamacare, the NDAA, the Departments of Education, Energy, Housing and Urban Development, Agriculture, Labor and Transportation, and the Federal Reserve, are far more deleterious to our wallets and our liberty. The absence of the foregoing would not result in urban areas not being developed or kindergartens being shuttered. I imagine dairy farmers will figure out how to market milk, and banks, without Freddie Mae and Fannie Mac, will underwrite risk-worthy mortgages.


Should We Obey All Laws?

by Walter Williams

Let’s think about whether all acts of Congress deserve our respect and obedience. Suppose Congress enacted a law – and the Supreme Court ruled it constitutional – requiring American families to attend church services at least three times a month. Should we obey such a law? Suppose Congress, acting under the Constitution’s commerce clause, enacted a law requiring motorists to get eight hours of sleep before driving on interstate highways. Its justification might be that drowsy motorists risk highway accidents and accidents affect interstate commerce. Suppose you were a jury member during the 1850s and a free person were on trial for assisting a runaway slave, in clear violation of the Fugitive Slave Act. Would you vote to convict and punish?

A moral person would find each one of those laws either morally repugnant or to be a clear violation of our Constitution. You say, “Williams, you’re wrong this time. In 1859, in Ableman v. Booth, the U.S. Supreme Court ruled the Fugitive Slave Act of 1850 constitutional.” That court decision, as well as some others in our past, makes my case. Moral people can’t rely solely on the courts to establish what’s right or wrong. Slavery is immoral; therefore, any laws that support slavery are also immoral. In the words of Thomas Jefferson, “to consider the judges as the ultimate arbiters of all constitutional questions (is) a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

Soon, the Supreme Court will rule on the constitutionality of Obamacare, euphemistically titled the Patient Protection and Affordable Care Act. There is absolutely no constitutional authority for Congress to force any American to enter into a contract to buy any good or service. But if the court rules that Obamacare is constitutional, what should we do?


Fantasies of Liberty

This piece by Columbia Tribune Titled Nullification a Right Wing Strategy, shows the level of illiteracy and indifference people have regarding the Constitution in specific, or just issues of liberty, in general.  In an article that apparently is attempting to make fun of Missouri’s latest attempt to check the unbridled expansion of the federal leviathan, the Columbia Tribune shows their statist colors. Throughout the article, columnist Henry J. Waters III spews misunderstandings, fallacies and silly stereotypical cartoon images of the ongoing battle to restore the Republic.  We here at the Tenth Amendment Center would be remiss to let the article stand without setting the record straight!

First of all, he starts out identifying nullification as a “right-wing” strategy.

“This whole idea of nullification typifies the current state of myopia gripping many conservative politicians. It is a civilized version of tactics used by people holed up in remote cabins with guns ready to defend themselves against any interloper.”

The fact is, that in recent years the most consistent and successful nullifiers are on the left.  Medical Marijuana and Hemp legalization are by far the most frequent nullifications to date.  Real ID is another frequent nullification, all of these where started in opposition to primarily Republican policies.  Firearms Freedoms Acts and Obamacare nullifications are fairly new by comparison.


Does America still need a president?

California headed toward “nation state” status when it moved to link its carbon markets with Québec’s. But as Douglas A. Kysaw and Webb Lyons report in the Huffington Post, as much as California may envision itself a global player, “the fact remains that it is a state, and as such operates under a set of constitutional restraints that limit its involvement on the international stage.”

Has the American Presidency become an anachronism? Does centralized government today hinder the progress of mature states like California? Ours has become a government of political tribes and generations, not states – that idea was killed in 1913 by the 17th Amendment. But centralized government may soon become a thing of the past. Tea Party is not just for us New Hampshire hillbillies any more. Arnold Schwarzenegger and New Jersey’s governor Chris Christie have signing on.

California and Quebec ignore both American and Canadian governments and go ahead together as free states and regions. As governor, Schwarzenegger pioneered this approach.

Schwarzenegger declared California to be the modern equivalent of the ancient Athens and Sparta. “‘We have the economic strength, we have the population and the technological force of a nation-state,” he said in his inaugural address. “We are a good and global commonwealth.”


ACTION ALERT: NC Agenda 21 and NDAA Vote on Wednesday

North Carolina General Assembly


Wednesday, May 30, 2012
4:00 p.m. – 5:00 p.m. 

Room 544 – Legislative Office Building
300 N. Salisbury Street, Raleigh, NC 27603-5925


Mr. Stewart Rhodes, founder of Oath Keepers ,will be speaking about the National Defense Authorization Act (NDAA) along with Jeff Lewis, co-founder and National Director of the Patriot Coalition and Rep. Glen Bradley, sponsor of H.R. 982 & H.R. 983.

Mr. Rhodes and Mr. Lewis, along with Patriot Coalition General Counsel Richard D. Fry, co-authored model NDAA resolutions that have been introduced and/or adopted by sheriffs, other law enforcement, county commissions, and state legislators across the country.

Legislators need accurate, honest information to make informed decisions regarding We the People’s business. Provisions in the 2012 & 2013 National Defense Authorization Act (NDAA) violate no fewer than 14 provisions of the U.S. Constitution, including over half the Bill of Rights, and many more provisions of the North Carolina Constitution and the Declaration of Rights.


Three Things You Can Count On; Death, Taxes, and UN Encroachment

While millions of Americans are barbecuing their way through Memorial weekend, the UN carries on with it’s plans for world domination. This time, or perhaps I should say today, it is through Internet regulation via the International Telecommunication Union. As if it wasn’t enough to worry about CISPA and all the other Internet related bills coming down the pike, Congress will now be considering a UN proposal which, among other things, would give the UN more control over data privacy and cyber security.

For now, it doesn’t seem that lawmakers on either the left or the right are very enthusiastic about this proposal, but then again, some of those folks change their opinion more often than they change their socks. It might be best not to trust them to remain steadfast on this issue.

Their concern over the proposal also raises the question; why are they hearing it in the first place?