Sunday, July 11, 2010

Gay Marriage Ruling Sparks Federalism Debate

A judge’s decision on Thursday declaring that a state law allowing same-sex marriage in Massachusetts should take precedence over a federal definition of marriage has exposed the fractures and fault lines among groups working to bolster states’ rights.

The decision, by Judge Joseph L. Tauro of United States District Court in Boston, supports and echoes a central tenet of the Tea Party, 9/12 and Tenth Amendment movements, all of which argue that the authority of the states should trump Washington in most matters not explicitly assigned by the Constitution to the federal government.

Congress, the judge said, had infringed on a question that was the province of local voters and legislators.

But in using the argument to support gay marriage in Massachusetts, where the case arose, the judge created an awkward new debating point within the less-government movement about where social goals and government policy intersect, or perhaps collide.

Some people involved in the campaigns to limit Washington’s reach cheered what they said was a states’ rights victory.

“The Constitution isn’t about political ideology,” said Michael Boldin, the founder of the Tenth Amendment Center, a group based in Los Angeles. “It’s about liberty, and limiting the government to certain divisive issues — I applaud what I consider a very rare ruling from the judiciary.”

The debate is good, and we should be encouraging people to think about the Constitutional limits of the federal government. But as Ralph Rossum pointed out in his great book, Federalism, the Supreme Court, and the Seventeenth Amendment:

Justice Anthony Kennedy wrote a concurring opinion [in United States v. Lopez] with decidedly more activist overtones; he emphasized the need for the Court to "ensure that the federal-state balance is not destroyed." He found it strange that, "of the various structural elements in the Constitution, separation of powers, checks and balances, judicial review, and federalism, only concerning the last does there seem to be much uncertainty respecting the existence, and the content, of standards that allow the Judiciary to play a significant role in maintaining the design contemplated by the Framers." However, had he understood that the framers depended not on the Court but on Constitutional structure, i.e., the mode of electing the Senate, to protect federalism, he would have found it less strange. And, further, had he understood that the ratification of the Seventeenth Amendment removed the structural protection of federalism and therefore fundamentally shifted the federal-state balance, he would have appreciated both the futility and the inappropriateness of his efforts to protect the framers' design, now amended out of the Constitution.

The debate over federalism is one we need to have, but we should recognize that the Supreme Court isn't capable of fulfilling the role the Constitution originally designed for the Senate.

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