While I was on vacation, I received a bunch of messages taking me to task for my August 10 column about Rick Perry and the Christian right. Several expressed concern (or rather un-Christian glee) at the prospect of my eternal damnation. The less metaphysical ones questioned my argument that Perry's support for constitutional amendments banning abortion and gay marriage contradicts his professed commitment to federalism—suggesting, as I put it, that he "does not really believe in the 10th Amendment." These readers pointed out that Perry does not propose simply ignoring the 10th Amendment; rather, he wants to follow the constitutionally prescribed procedure for carving out new exceptions to it. Joe Carter raises a similar objection on the First Things blog:
These "fair-weather federalists" are growing tiresome. No, I don't mean [Bryan] Fischer [of the American Family Association] and Perry, I mean folks like Sullum. If they were willing to follow their logic they'd argue we should have never added the 13th Amendment since it interfered with the states' right to legalize slavery and involuntary servitude. But they have no qualms with that particular amendment since it matches up with their own moral values.
When exactly did supporting the 10th Amendment mean that you could never, ever support a constitutional amendment that limits the rights of states?
Paul Kroenke argues that amending the Constitution is itself an exercise in federalism:
How can mandating this or that at the federal level be federalist, you ask? The answer is simple. Amendments to the constitution are not fly-by-night mandates on the people a-la Obamacare's mandate that we all buy health insurance or face stiff fines. Amendments to the Constitution represent one of the most federalist processes we have to govern ourselves.
First, an amendment must be introduced in Congress, go through the rigorous process of debate and revision and whatnot, and then be passed by a 2/3 majority in both the House and the Senate. After this happens, the amendment is then sent to the states to be voted on, where it must be approved by 3/4 of all of the states to be added in as part of the Constitution.
This is not some top-down, anti-federalist ignoring of the 10th amendment to further one's agenda. This is the process by which a massive, massive majority of the country decide that we are going to fundamentally change the laws under which we live.
In supporting amendments to the constitution, Perry is indeed supporting the federalist process.
While the nationwide bans that Perry favors would be constitutional by definition, it is hard to see how a process in which a majority of states dictates policies to a minority exemplifies federalism. And Perry does not merely acknowledge what the 10th Amendment requires; he passionately defends the underlying principle of leaving all but a few specifically enumerated areas of public policy to the states, so that decisions can be tailored to local needs, values, and preferences. Furthermore, he has specifically cited abortion and marriage as matters properly addressed by state governments in accordance with this principle. Hence his current position is rather like defending freedom of religion while advocating a constitutional amendment denying that right to Muslims—after citing tolerance of Islam as an example of what's so great about the First Amendment.
Carter is right in suggesting that federalism is a means to an end, not an ultimate value. The Constitution imposes various limits on state sovereignty that, like the ban on slavery, aim to preserve liberty and prevent local tyranny. Although I do not see Perry's proposed bans on abortion and gay marriage in that light, perhaps he does. If so, however, it is hard to understand why he cited state autonomy regarding abortion and marriage to illustrate his federalist convictions. Would an abolitionist circa 1860 have seen diverse approaches to slavery as testimony to the genius of the Framers' design?