Governor Perry seems to have taken two completely contradictory positions by saying he is OK with the mighty state of New York allowing gay marriage but also coming out and saying he would support a constitutional amendment banning gay marriage ( It would seem that such an amendment would would interfere with a state’s ability to allow gay marriage but this is very much in line with the concept of state’s rights.

In order to understand the concept of state’s rights we must acknowledge that each state has every natural power associated with a sovereign nation except for the ones specifically denied to them by the constitution such as the power to go to war or print money. These things are denied to the states by the constitution itself and it is the only legal document that has any power to subtract any already existing powers from the states. It is the common law of the states and each state is free to do everything that isn’t denied to them by the constitution. You can say they have certain immunities under the law that no other code of law can interfere with (aka federal statutes). This may seem contradictory to those who believe that federal law is the supreme law of the land but this puts the constitution directly above the states and the only legal authority of the states since it is the constitution is the supreme law of the land. This removes the federal government from the chain of command.

This is reinforced in the tenth amendment as well because it specifically says that the constitution prohibits the people and the states not the federal government. In it it says “nor prohibited by IT to the States, are reserved to the States respectively, or to the people” and the IT it is referring to is the constitution itself. This means that a state is immune from the authority of any other government but is not immune from the authority of the constitution. In fact, most state constitution acknowledge the constitution as the supreme authority in that state but not the federal government.

The position that Governor Perry has taken puts him squarely in line with the federalist philosophy of the tenth amendment because he recognizes the authority that New York has to allow gay marriage (as well as other states to ban it) and at the same time he recognizes that authority of the constitution to ban gay marriage across all fifty states. He never said that the federal government has the power to deny the right of New York to ban gay marriage or strike down gay marriage bans in other states. That would be a violation of state’s rights since each state (as well as people) enjoy certain immunities under the constitution and any other thing that attempts to interfere with those immunities would be a violation of state’s as well as people’s rights.

The tenth amendment establishes that principle but one might wonder what about the powers granted to the federal government? The tenth amendment accounts for that as well because it says that this rule only applies for “The powers NOT delegated to the United States by the Constitution”. Those prohibitions outside the delegated powers can only be done by the constitution which means that you should not worry about what the U.N. says because if it isn’t found in the constitution then you can put it in the ignore file.

This does not mean that powers delegated to the federal government are prohibited to the states either because there is nothing in the constitution that says powers delegated to the federal government are stripped from the states. This makes it possible for states and federal governments to utilize the same powers such as enforcing immigration which is why it is possible for both the federal government and the state of Arizona to enforce immigration laws. Those powers are neither is prohibited to the federal or state governments so you can say they both enjoy an immunity under the constitution. This is what we mean by state’s rights in that each and every state (as well as person) has certain immunities from the supreme law of the land that allow them to act freely without the fear of any punishment. It would not be a violation of state’s rights if the constitution bans gay marriage but it would be a violation if the federal government attempted to do so since states have a certain amount of immunity over that particular area that the federal government can not interfere with.

Edward Browning Bosley
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