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?

Michael Boldin

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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