Phony Federalism

The Republican Party is a fickle friend to the 10th Amendment.


The 10th Amendment to the Constitution is like the skinny teenage girl who blossoms over the summer and suddenly finds herself besieged by suitors. Once ignored, it has found a host of champions among Republican presidential candidates who are competing to show their devotion.

The amendment contains just one sentence: "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."

It is a bulwark of federalism, which allows states the freedom to adopt different policies reflecting their peculiar circumstances. It was meant as a check on those who would demand uniform practices from one end of America to the other.

Given the conservative preference for local control and distrust of national mandates, it's no surprise to hear Republicans asserting the central importance of this provision. In his book Fed Up, Texas Gov. Rick Perry said attacks on the 10th Amendment have led to "unprecedented federal intrusion into numerous facets of our lives."

When he was governor of Minnesota, Tim Pawlenty said he might invoke the amendment to resist implementing President Barack Obama's health care reform. Former Massachusetts Gov. Mitt Romney used it to explain why his state health program is constitutional while Obama's is not. Rep. Michele Bachmann (R-Minn.) is also fond of citing it.

They all seem to grasp the point of the 10th Amendment. As the Center for Tenth Amendment Studies at the Texas Public Policy Foundation says, it is to "protect our freedoms" and "prevent federal government power from controlling our everyday lives."

Liberals, by contrast, have never had any strong attachment to state sovereignty. Since the New Deal, they have regarded centralized power as the best way to advance the welfare state. They may favor state discretion when it favors their causes. But they don't pretend to be consistent on the issue.

Conservatives, however, do. Pretend, that is. When there is a conflict between state sovereignty and conservative policies, their reverence for the 10th Amendment abruptly goes by the wayside.

That became apparent several years ago, when the Bush administration asserted its power to prevent Californians from using medical marijuana after the state allowed it. It also tried to block an Oregon law allowing doctor-assisted suicide. Attorney General John Ashcroft had no qualms about mobilizing the fearsome resources of the federal government when states veered out of line.

He has new company among the GOP presidential aspirants, who support the 10th Amendment except when they don't. When New York legalized same-sex marriage, Perry first said, "That's New York, and that's their business, and that's fine with me." But he soon reversed course, endorsing the Federal Marriage Amendment, which says marriage "shall consist only of the union of a man and a woman."

Bachmann has made a similar exception. Asked about same-sex marriage in New York, she said that "the states have the right to set the laws that they want to set." Then she threw herself behind a constitutional amendment to repeal that right.

Pawlenty? Romney? More of the same. The conspicuous exception is Rep. Ron Paul (R-Texas), who has a weirdly consistent respect for the principles of federalism.

Perry tries to reconcile the contradiction by insisting that he's merely trying to keep activist federal judges from overruling the states that limit matrimony to its traditional form. He fears the U.S. Supreme Court may someday rule that gays have a constitutional right to wed their partners.

But that's not an argument for a constitutional amendment to ban same-sex marriage. It's an argument for a constitutional amendment to guarantee states the right to ban it.

Perry and the others are straining to make two and two equal five. "The support of a marriage amendment is a pro-states' rights position," he says, "because it will defend the rights of states to define marriage as it has been." This is like saying that a draft protects a young man's right to serve in the military.

The more important fact is that the amendment takes away the right of states to make their own choices—and in a realm where they have always had great latitude. It does not uphold the sovereignty of states to let them adopt one policy and only one. The test of a commitment to federalism is supporting it even when it yields unpalatable outcomes.

The 10th Amendment has plenty of admirers professing their love. But as any fetching young female soon learns, such declarations are not always sincere.


NEXT: Vonnegut Out

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  1. Yes, but what does Matt Damon think?

    1. The 10th Amendment gets a shitty salary.

    2. That’s funny every time!

    3. Yul Brynner was so cool.

      1. He actually was.

        1. My wife dragged me to a stage revival of the King and I, before Yul died. Secure in my masculinity, I can say it was pretty damned good.

  2. “The support of a marriage amendment is a pro-states’ rights position,” [Rick Perry] says, “because it will defend the rights of states to define marriage as it has been.”

    So much for Rick Perry.

    1. Wasn’t he saying the opposite not too long ago?

      1. From HERE:

        When a principle or premise defends one’s case, it is affirmed; when it doesn’t, it’s denied. Think about these two statements:

        * Individuals have the right to engage in consensual private behavior even if it can harm them.

        * The government has the duty to stop individuals from engaging in consensual private behavior that can harm them.

        So, which does our “liberal” believe in? Well, if the issue’s smoking, the second. But if it’s “sodomy,” then the first. And the “conservative”? Just the reverse. What prevails is a now-you-see-it-now-you-don’t commitment to any tenet. Moral integrity falls to personal prejudice, and hypocrisy becomes the standard of “social democracy.”

        1. Got to agree with this one.

        2. This is a strawman argument. No liberal says that smoking is bad because it is consensual private behavior that can harm themselves. It is banned because it affects every single person around them. Children around parents, waiters and bartenders in restaurants, other occupants.

          Sodomy just can’t get into the air as easily.

          1. Says who?

          2. Arguably it has been far more than bans in private (i.e., consensual*) places:

            HERE and HERE

            *You are no more forced to attend a smoking restaurant than a gay bathhouse.

            1. You are no more forced to attend a smoking restaurant than a gay bathhouse.

              Still more coercion for your own good. Oh and….fify!

              1. I don’t believe you’ve made your point clear …

          3. OK, then replace “smoking” with transfats, high-fructose corn syrup, salt, caffeinated alcoholic beverages, raw milk, driving without a seatbelt, etc.

          4. OK, then replace “smoking” with transfats, high-fructose corn syrup, salt, caffeinated alcoholic beverages, raw milk, driving without a seatbelt, etc.

          5. Horsecrap. Liberals ban (and tax) all sorts of things based on the premise they harm the person in question. In fact almost every bit of the vast arsenal of US regulation impedes a consensual exchange between two parties that would otherwise have both found the arrangement agreeable.

            If I want to sell you French Fries with the option of putting salt on it, it’s none of your damned business. If I want to pay someone to do my interior design (or anything) that hasn’t bothered to comply with some licensing regime it’s none of your business. If I want to work for lower than minimum wage because I want to learn a new skill or impress an employer it is none of your business. If I want to drink raw milk it is none of your business.


            If it were true, that liberals didn’t want to meddle in consensual transactions then that’s not a liberal. That’s a libertarian or anarchist.

          6. Actually they just claim it affects people who so much as see a picture of a smoker in order to justify partially banning it. Truth be told though, they really want you to smoke smoke smoke because they’re so dependent on the taxes taxes taxes. They just want you to do it where they won’t see it.

      2. He was a democrat not that long ago. He’s like a reformed drunk or a whore who got religion.

        1. And as with most Republicans, still a whore

    2. God, please let this clown run. Get him the fuck out of this state.

  3. Slimy politicians support the Constitution when it suits their purposes, ignore it when it doesn’t.

    In other news, the sun rose in the east this morning.

    I have no illusions about the twits who inhabit both parties. The only way to vote in the 21st century is to vote for the lesser of two weevils.

    1. He who would pun would pick a pocket.

    2. “Slimy politicians….”
      That implies there is another kind!

  4. The conspicuous exception is Rep. Ron Paul (R-Texas), who has a weirdly consistent respect for the principles of federalism.

    You just had to use the W-word, didn’t you?

    1. You got something against weevils?

      1. I always choose the lesser of two weevils.

  5. Come on, now. I don’t support the idea, but Bachmann and Perry are not defying the 10th amendment when they champion a marriage amendment. If anything, realizing the need for an amendment shows deference to the 10th. (The Bush examples were good ones.)

    1. Yeah, the author makes a shift from writing about the 10th Amendment specifically to writing about Federalism in general. A marriage amendment would show respect to the 10th, but would undermine Federalism….

      1. How does/does the Full Faith and Credit clause apply to marriage? If State X allows marriage at 15 and two 15 year olds get married and move to State Y, which requires people to be 18 to get married, does State Y have to recognize the marriage?

        If so, a marriage amendment could at least theoretically support federalism. If not, it would seem superfluous.

        1. Answer: no. Full faith and credit does not require another state to recognize or enforce a result that is contrary to the state’s public policy. E.g., there was as publicized case of two women who got “married” (or civil union, or whatever) up north somewhere – Massachusetts, maybe? And then moved down here to Virginia. Virginia did not recognize their legal union. Then they wanted to get divorced. Virginia was saying they couldn’t get a divorce here, since VA never recognized their marriage in the first place.

          Obviously, I don’t recall all the details, but you get the gist.

          Just because Chuck and Fred get married in Massachusetts or NY does not mean Virginia has to treat them as a married couple, because VA does not recognized gay marriage.

          1. But did the couple challenge this in court and lose? If they never took it to court then we don’t really know how the Fed. Gov. feels about this…

          2. “The Supreme Court has not ruled on how or whether these laws are affected by the Full Faith and Credit Clause. However, in August 2007, a federal appeals court held that the clause did require Oklahoma to issue a revised birth certificate showing both adoptive parents of a child born in Oklahoma who had been adopted by a same-sex couple married in another state. Another federal appeals court held differently in April 2011 in a Louisiana case, Adar v. Smith.” — Wikipedia, take it for what it’s worth.

            I think the answer is: We don’t know. However, just looking at the text of the clause, State Y would have to recognize the marriage from State X.

            1. I don’t think so. States issue lots and lots of licenses that aren’t recognized in other states.

              1. Growing your own wheat is also interstate commerce.

              2. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

                Is there a public act or record corresponding to the marriage of Dick and Jane in State X?

                1. Probably about like the public act or record corresponding to the issuance of professional licenses or concealed carry licenses.

          3. VA does not recognized gay marriage

            Not until the courts order them to.

        2. Yeah, I’ve been wondering about that one too… It looks like the FFC clause would circumvent the 10th amendment in this case. The Feds couldn’t force State Y to marry the couple, but the Feds could force State Y to recognize the marriage after it happened in State X…

          1. I don’t think it circumvents it.

            “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.”

            The power not to recognize the official acts of other states is prohibited by the FFC so the 10th doesn’t apply. That’s how I read it anyway.

    2. You beat me to it.

  6. What a weak article.

    So conservatives don’t respect the Tenth because Bush (not even close to a conservative) opposed some state laws?

    The rest of the article is worrying about gay marriage. Somehow opposing activist judges or desiring a Constitutional Amendment is anti-constitutional. Everyone knows none of it is going to happen.

    Why not just call the article “pseudo conservatives suck and Libertarians are much cooler” and be honest about it?

    1. Paleo-conservatives suck, too.

      1. I’d much rather habe a paleo-conservative president than a neoconservative president.

        1. I’d rather have a Conservative President.

          1. Again, the lesser of two weevils.

  7. I’m quite certain that Gary Johnson also has a consistent respect for federalist principles. Too bad the article, like most of the media, forgot to mention him.

    1. Gary Johnson would make a great Vice Presidential Candidate for Ron Paul. I think they ought to join forces. Together they would be a more powerful force in the election.

      1. I think Ron Paul has no chance of winning because of his history. He should drop out of the race and throw all of his support behind Johnson. Suddenly Johnson would “deserve” mention in most media outlets.

        1. Do you mean because of articles that he did not write and that were published in a newsletter he was not running at the time? Is that the “history” that you mean?

          1. Yep. Sorry, mere fact doesn’t matter, just the phrase “racist newsletters”.

            1. It fits very nicely into a 30-second sound bite. Here’s another one: Ron Paul hates puppies.

            2. There is a certain segment of the population that would never vote for any Republican candidate as long as Emperor Obama is the Democratic nominee. For many of those people, you are correct.

              However, for most of the rest of the population, they have heard the term “racist” used to describe anyone who merely criticizes Obama on any issue so often that it is has turned a once powerful stinging rebuke into a late night comedy punchline.

          2. Look, fair or unfair, those articles appeared in a newsletter that had HIS name on it. Stop defending this crap. If he wasn’t running it, or paying attention, he was irresponsible for allowing his name on the cover. They will easily sink his chances. I’ve read many libertarians who are pretty happy with Gary Johnson but won’t vote for Ron Paul. Johnson has executive experience he can point to. Paul does not.

            1. I would happily vote for Gary Johnson if he got the Republican nomination. However, you must admit, that at this point in the game Ron Paul has far more name recognition and that counts for a lot. Ron Paul also has an organized cadre of loyal – and I mean LOYAL fans who break their backs to spread his message. That counts for even more.

              I would be happy with either Paul or Johnson. But I think Ron Paul has a better chance of making it to the finish line.

              1. Paul has no chance. Like you say, he has name recognition and loyal fans, yet he barely registers in the polls. People know who he is, they just don’t plan on voting for him. Johnson, on the other hand, they have never heard of.

                1. The media will not recognize Johnson’s existence. They can’t.
                  If they did then Paul would no longer be the lone nutter. There would be more than one. It would acknowledge that libertarian principles may have validity if more than one candidate subscribes to them.

                  Never gonna happen.

                2. “they just don’t plan on voting for him.”

                  As the economy further sours and voters look for answers that will change. Paul is better known for his knowledge of economics than any other presidential candidate.

                  1. The average voter has very little knowledge of economics.

                    When a politician says “government can fix it by spending money” the average voter says “yeah, that makes sense”, never asking the question “where does the money that government spends come from, and what is the opportunity cost of removing that money from the economy?”

                    Nor does the average voter care.

                    1. “The average voter has very little knowledge of economics.”

                      Well then, I guess were sunk and we should just give up and go live as hermits in the desert.

                      Or, alternatively, we could try to educate people and see if we can get at least a plurality of registered voters educated enough to vote for someone who is not a socialist progressive.

                      One of the things Ron Paul does best is education.

                    2. You can’t teach someone who doesn’t want to learn.

                      Face it. This country is fucked.

                      The average person couldn’t give a shit about principles.
                      They care about what someone is going to give them. They don’t care where it comes from or what the cost is, as long as they get their free shit.
                      They don’t care about the long term consequences, because if they did they wouldn’t allow themselves to be dependent upon others.

                    3. One thing that depresses some is they think we need a majority. We do NOT need a majority.

                      Most people don’t even vote.

                      We don’t even need a majority of voters.

                      We only need a plurality of people who bother to show up at the polling locations.

                      Somewhat off topic (but related). I know there are libertarians who do not vote for philosophical reasons. I have respect for these people, enormous respect, but I must disagree. Lysander Spooner said it better than I ever could in No Treason No. 6 :

                      “”In truth, in the case of individuals, their actual voting is not to be taken as proof of consent, even for the time being. On the contrary, it is to be considered that, without his consent having even been asked a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practice this tyranny over him by the use of the ballot. He sees further, that, if he will but use the ballot [*8] himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, he finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. And he has no other alternative than these two.”

                    4. We only need a plurality of people who bother to show up at the polling locations.

                      And it ain’t gonna happen. Never.

                      People who are libertarians in their heart who don’t know it generally don’t vote. They don’t want to control other people. That’s the essence of libertarianism: leave me alone and I’ll leave you alone.
                      So that’s what they do. They leave people alone by not participating in the government that never leaves people alone.

                    5. “Face it. This country is fucked.”
                      Yes, none of this other bullshit matters.

                    6. What do you mean by “removing that money from the economy”?

          3. Do you mean because of articles that he did not write and that were published in a newsletter he was not running at the time? Is that the “history” that you mean?

            Calm down. I didn’t mean that BS. I meant the fact that he has run twice before and gotten nowhere. I mean the fact that the Democrats have successfully painted him as a scary Libertarian who would destroy our roads and leave the old and infirm to die in what’s left of the streets. I mean the fact that the Republicans have succssfully painted him as a scary Libertarian who would let drug addicts murder our children and let Russia/China take over the world.

            Gary Johnson at least has a relatively clean slate.

            1. Logic vs Emotion

              It is very difficult to get people to reason logically when children are starving and Islamic terrorists are trying to kill us.

              Which is why neither Paul nor Johnson have a chance. However, perhaps they could get people to start to see the irrationality of their shameless emotional appeals.

            2. If the problem you are concerned about is the way the term libertarian is painted, that label will follow ANYONE who is, well …. libertarian.

              People who are hardcore enemies of libertarianism will not vote for any libertarian candidate anyway, you don’t need to try to cater to them. What we need to do is bring more people into the libertarian philosophy. Then, we need to make it less scary to those who are the fence riders. Ignore those who are not at least somewhat open minded – they are not our audience.

              1. People don’t like to think. Thinking is hard. It’s so much easier to just go with your feelings.

                That is why libertarians will always remain a marginalized minority.

                Logically libertarians are correct, but the philosophy lacks an emotional appeal.

                It’s all cognitive. I mean, you got to learn shit like economics and stuff to understand libertarian principles.

                Who the fuck are you trying to teach me something? Fuck you!
                I refuse to learn on general principle!
                School never taught me nothin and you won’t either!

        2. While both Ron Paul and Gary Johnson only have a slim chance of winning the nomination, I can think of one really good reason why Paul should drop out and support Johnson – Johnson can speak fluidly and engagingly, Paul not so much. One thing I’ve noticed in election debates between two candidates is that, all else being about equal, the better speaker wins.

      2. Because Ron Paul has so much more executive experience? How well did he do as Governor?

        1. As Ron Paul knows, the office of POTUS was originally a fairly weak executive. If you plan on letting people live their own lives you don’t need much “executive skill”. Read up on the history of British Hong Kong. Find out how it because prosperous.

          Don’t get me wrong, I would happily vote for Gary Johnson if he gets the Republican nomination. I just don’t think he has as good of a shot at doing so.

          1. Unfortunately, it will take a strong executive to pull out some of the entrenched bureaucracies by the roots.

            1. Unfortunately, people do not seek power for the purpose of dismantling it.

              1. What about the saintly Ron Paul seeking the Presidency?

                1. What about the saintly Ron Paul seeking the Presidency?

                  Actions speak louder than words.
                  Ron Paul continually brings home the bacon while bitching and moaning about federal largess.
                  He’s just another politician putting on a show.

      3. Johnson has the guts to talk about the decriminalization of marijuana in a way that makes economic sense to the typical voter. If he apply that to other issues there is a chance that a Paul Johnson ticket would be a winner.

        Paul is becoming some more than the cranky uncle in the attic to the Team Rad and Blue media types. This could become a very interesting election.

  8. Police arrest man after short standoff

    Police have arrested a 54-year-old man who was allegedly armed with a machete and had barricaded himself in a Tamiami home early Tuesday morning.

    After about an hour of negotiation, Dominguez surrendered himself. He faces a pending charge of aggravated battery.

    Area libertarians scramble to find and post incidents of police violence. Puppets dance. Nothing else happens.


    1. I hope they mobilized a backup SWAT team.

    2. I didn’t kill anyone today either. Yay for me!!

    3. Another Isolated Incident,

      Please compare the number of libertarians who didn’t kill anyone yesterday w/ the number of cops who didn’t kill anyone yesterday.

    4. AII,

      Thanks for reminding us that not all LEOs are corrupt and abusive. It makes me happy to know there are a few good eggs still left out there among the rubbish.

      1. 99% of cops give the rest a bad rap.

        1. Bullshit!

          I’ll believe they give 05% of the rest a bad rap but only when I find one government authority that requires a study of the Constitution (and follow-up refresher courses) for EVERY employee of the police agency.

    5. It’s been a couple days since you’ve posted. Is it that hard to find stories of police arresting people without violating their rights?

    6. If the pigs were not such dicks, maybe there would have been no machete incident.

    7. Another Isolated Incident|8.4.11 @ 7:48AM|#
      Police arrest man after short standoff

      This is a very good example, thanks!

      Note that in this deployment of SWAT they were used for their originally intended purpose – dealing with an armed and dangerous person barricaded in a house. Also note that in this incident they did not initiate an assault of the dwelling using flash-bang grenades and automatic weapons, even though the occupant was only known to be armed with a machete knife. They waited and negotiated a surrender.

      Somehow the fact that this seems to be the default position when facing a known “armed and dangerous” individual while the default behavior for suspected drug users is a surprise breach raid at odd hours.

      It should be fairly clear from this dichotomy that SWAT tactics are not being used as advertised, they are being deployed in the most violent version when the police believe there is the least likelihood of violent resistance, and in the least violent, least confrontational version when there is a near certainty of violent resistance.

      A moment’s consideration should lead you to the conclusion that SWAT is routinely introducing violence where there is no violence to begin with. This has deadly consequences for police and citizen, but heavily disproportionately for the citizen.

      1. Puppets dance as predicted.
        Nothing else happens.


        1. And you have no defence for his argument.

      2. Cyto, I generally agree with the points that you’ve made, but I think it’s necessary to look at one unstated component: When dealing with suspected drug dealers, surprise is essential in order to preclude preemptive destruction of evidence.

        The barricaded “armed and dangerous” person isn’t going anywhere and is ready made for negotiation.

        1. Are suggesting a major drug dealer has so little drugs it can be flushed away in seconds ? Think .

        2. When dealing with suspected drug dealers, surprise is essential in order to preclude preemptive destruction of evidence.

          Evidence of what? Drugs are a good and why should the police be afraid they are destroyed or not?

        3. Never heard of turning the water off?

      3. Note that in this deployment of SWAT they were used for their originally intended purpose

        Serving warrants on non-violent opthamologists?

        1. Sorry my mistake…..busting raw and natural foods providers.

  9. “The conspicuous exception is Rep. Ron Paul (R-Texas), who has a weirdly consistent respect for the principles of federalism.”

    It is a sad time in history when consistency is thought of a “weird”. To quote Rufus Scrimgeour:”These are dark times, there’s no denying,”

  10. All the Tenth Amendment says is that the feds have to butt out of areas where they don’t have delegated power, and where the Constitution doesn’t limit the states. It doesn’t say that there shall never be any constitutional amendments limiting the states.

    Imagine this situation: A candidate says that the U.S. Constitution does not allow the federal government to second guess the states about their tax rates, but when prompted, he adds that the states have been abusing their power by overtaxing the people. So the candidate supports a constitutional amendment saying that the states cannot tax the people beyond X percent of GDP, or what have you. Unless such an amendment were passed, however (which would require 38 of the 50 states), the candidate makes clear that the feds cannot meddle in state tax policy, since the Constitution does not delegate power in that area to the feds, nor forbid it to the states.

    Would Reason run angry articles calling the candidate a hypocrite and a phony for claiming to support the Tenth Amendment? “If you claim to support the Tenth Amendment, then you must never, ever, propose any constitutional amendment limiting what the states can do!”

    Just before the Civil War, Congress proposed a constitutional amendment saying that the constitution could never be amended so as to “abolish or interfere” with slavery. The states did not ratify. Should we say that every Congressman or state legislator who opposed this amendment was a phony and hypocrite if he claimed to support the Tenth Amendment?

    1. Can a Constitutional amendment be declared unconstitutional? Wouldn’t that defeat the purpose of the amendment process?

      1. Excellent question – I don’t see how it could have worked in practice. It got overtaken by events and was never passed.

        Come to think of it, though . . . there was no deadline on ratification, so what would stop the states from ratifying this amendment now?

        The twenty-seventh amendment was proposed in 1789 and proclaimed ratified in 1992 – quite a delay there!

        In addition to protecting slavery, the proposed amendment (“Corwin Amendment”) protected other, undefined “domestic institutions.” The amendment wouldn’t reinstate slavery (which has already abolished, and the Corwin Amendment only applies to *future* amendments). Instead, the Corwin Amendment would protect “domestic institutions” such as New York’s same-sex marriage.

        If sincere supporters of the Tenth Amendment have to renounce future amendments, ratifying the Corwin Amendment seems like the way to go. No future amendments would be allowed to violate “states’ rights!”

  11. Anyone who wants to amend the Constitution to abolish slavery is a hypocrite and, like, a total phony. I thought these Republicans were all about, like, respecting the constitution and stuff!

    1. Republicans were your opposition President Davis.

      1. That’s why I was going all sarcastic on them.

  12. Where was Perry’s pro-Tenth Amendment grandstanding when Bush was trampling the Bill of Rights for eight years?

    1. Where is all the Democrat grandstanding now that Obama has not reversed a single one of Bush’s Bill of Rights trampling policies?

      Oh, you mean it’s OK when one of your guys does it, but bad when one of the other guys does it?

      You mean you’re a raging hypocrite?


      1. Who says he’s a Democrat?

      2. Good call, sarcasmic.

      3. God, I hate this shit sarcasmic. The article is about Perry who is a Texas Republican (same as Bush). Perry finally finds his balls during a Democrat administration? This is the problem with you people–goddamn Democrats do it when people mention Obama’s abuses.

  13. To be fair, an amendment overturning states’ rights is a lot better than federal legislation overturning states’ rights. Saying you would support a gay marriage banning amendment is just pandering, the chances of it passing are low and it pacifies socons at the same time.

    The drug war however, should be unconstitutional. At least progressives during prohibition realized you needed an amendment to do something so ridiculously stupid.

    1. Also Reason writer’s do not support state’s rights in relation to marriage. Their championing the “equal rights” argument for same-sex marriage implies that the states have no authority to limit marriage to opposite sex couples. They would be quite pleased if the federal government through the Supreme Court took the marrauge issue away from the states.

      The Reason staff is being dishonest when touting the10th amendment in relation to marriage.

      1. Principles end where wants begin.

        1. I think we may have the long-awaited new Iron Law!

          With your permission, of course.

          1. You need my permission?

    2. “the chances of it passing are low”

      The chances of it getting through Congress are low.

      If such an amendment were to get through Congress, then the odds are that 38 states will ratify it and make it part of the Constitution.

      Most proposed amendments which get through Congress end up being ratified. There are exceptions like the proslavery amendment mentioned above, the child labor amendment, and some others.

      If Congress wanted to *guarantee* that a marriage amendment would pass, then instead of sending it to the state legislatures, they could send it to the voters in each state (technically, to “conventions” which rubber-stamp voter decisions, like the Electoral College).

      1. The amendment couldn’t even get a plain majority 7 years ago. And that amendment just basically made DOMA part of the Constitution. The amendment being discussed now is much farther reaching and would ban states from recognizing gay marriage, or so it would seem from the discussion. The chances of it passing are almost zero.

        1. Could be – but I believe this roadblock is in Congress, not the states. In Congress, the members don’t want to take sides on the issue, because either way they’ll lose votes and/or campaign contributions.

          One might think that this would be a chance for Congress to pass the buck to the states – they usually *love* buck-passing.

          Once an amendment gets out of Congress – whether a “states’-right” amendment or an anti-SSM amendment – the states would probably pass it – especially if the legislatures are bypassed in favor of the voters (technically, rubber-stamp “conventions” which ratify the wishes of voters in each state). This worked with the 21st Amendment (Prohibition repeal). I suspect that, in the privacy of the voting booth, if voters are asked whether marriage should include same-sex or polygamous unions, they would say “no!” in at least 38 states.

    3. an amendment overturning states’ rights is a lot better than federal legislation overturning states’ rights.

      And both of them are far superior to court-made legislation (Griswald, Roe, Loving, etc) overturning states rights. But I’ve noticed that a lot of libertarians take a rather worshipful attitude towards the judicial branch of government.

  14. Phony Federalism hits both ways on this and many other issues. The real answer is to get the government out of many of these issues. Many so-called libertarians are eager to expand a government licensing fiasco that has resulted in innumerable oppressive laws and regulations in family law and all areas touching it. Rather than expand this licensing regime, they would be found much less hypocritical if they campaigned to get government out of marriage rather than expand its role in our personal lives to the point of suffocation. YES. I’m calling you hypocrites.

    1. “Many so-called libertarians are eager to expand a government licensing fiasco”


  15. “We support your right to do what you want unless it’s something we don’t want you to do.”

  16. Seems to me, once the “pursuit of happiness” was incorporated as founding law, defining the basis for marriage became an individual right, for that high-sounding phrase would ring empty indeed if it did not confer, at a minimum, the ability to determine the nature of of one’s long-term, committed relationships.

    1. And on individual rights the government should be both invisible and blind.

    2. Where was pursuit of happiness incorporated as founding law?

      1. Not an atty here, Rage, but I do know that the D of I is treated in law as one of the “Organic Laws of the USA,” indeed, that declarational law is perceived as superceding even constitutional law as it provides the basis for it, that it has frequently been cited in SCOTUS opinions, that many grants (all?) of state charters set a condition of adhering to the Constitution, BofR and DofI, and so on.

    3. “…defining the basis for marriage became an individual right, for that high-sounding phrase would ring empty indeed if it did not confer, at a minimum, the ability to determine the nature of of one’s long-term, committed relationships.”

      The laws governing marriage do not prevent anyone from determmining the nature of their personal relationships. But no one has a right to expect society as a whole to accept and respect that determonation.

      1. Agreed. A concept of happiness as extending out of membership in a like-minded community would, I think, be consistent with the founding notion.

  17. Those guys really do make a lot of sense when you think about it.


  18. View the question in broader context.

    We have tripartite government at the federal level, for a separation and balance of power.

    Then (oddly named) “federalism” balances the national government with the states’ powers and prerogatives.

    Beyond that, there are social institutions meant to countervail government at all levels ? Church, press, business, universities, unions, and social organization like the Salvation Army and the Boy Scouts.

    It is the weight of these countervailing institutions that separates authoritarian regimes from totalitarians.

    So while it’s damaging for the federal government to undercut states (block grants, outright arrogation), it’s even more insidious and dangerous when government suborns all those other social bulwarks?derogates religion, seduces the press, bribes business, outright captures universities and unions, and finally scorns and isolates the Boy Scouts?

    Not conspiracy, but the result of that blind, vegetative will to power.

  19. When everyone can vote…everyone loses.

  20. “When New York legalized same-sex marriage, Perry first said, “That’s New York, and that’s their business, and that’s fine with me.” But he soon reversed course, endorsing the Federal Marriage Amendment, which says marriage “shall consist only of the union of a man and a woman.”

    There is no inconsistency here, is there? How is it a contradiction to support the 10th Amendment while supporting a 28th Amendment? He didn’t reverse course – he still believes, as far as I can tell, that as long as marriage is not protected in the US Constitution, the 10th Amendment controls. If we went through that most difficult and democratic processes of amending the US Constitution, that wouldn’t mean we are violating the 10th Amendment…unless you’re going to argue that every amendment (11-27) are examples of the Constitution “violating itself.”

    1. Absolutely. So let’s abolish the confederacy (well, it’s a de facto unitary democracy now, but I’m sticking to official niceties) and reestablish a republic with a more just constitution!

  21. maybe because there are no serious democrats anymore

    1. Considering their leadership?!? … that is the truest statement I have read all day. Pelosi looks like she is over-medicated.

  22. Ideally, violent insurrection would annihilate the federal government, a new, minarchistic, and unamendable constitution would be ratified, and a powerful but minimalistic republicanism would dominate.

    But it ain’t gonna happen, homeboy, it ain’t gonna happen, and I be weepin’!

  23. The GOP may be a fickle friend, but the Dems despise the 10th entirely.

    1. Republicans (big “R”) are still much better than Democrats, and they still suck most of the time — that should give you an idea of just how much I fucking hate Democrats.

      1. I agree. There’s plenty that the Republicans screw up, but between the two major parties, they’re still the lesser of the two evils most days. Hence why they frequently get my vote. I’m not quite ready yet to vote third party.

        1. How are they the lesser of any evil?

          Bigger deficit spenders, bigger warmongers, bigger crony capitalists, bigger religious fundamentalists. Oh but they like slightly lower taxes on millionaires. Guess that makes up for all the other stuff?

          1. Bigger warmongers, Tony? You sure you want to play that game?

  24. Maybe it’s just me, but I think that there are a lot of things that the federal government needs to regulate, for the sake of national uniformity. After all, we’re not the same people that ratified the 10th amendment – we’re a lot more fluid, moving across state lines frequently.

    Imagine this – a gay couple weds in a state where it’s legal. They go skiing in a state where it’s not, and one of them has an accident that leaves them a vegetable. Since the state doesn’t recognize gay marriage, the partner has no marital rights – can’t make the decision to pull the plug, can’t even visit, etc. – even though they’re legally wed back home.

    That’s not to say that the federal government needs to be getting their fingers into absolutely every aspect of our lives, but there are things now that it would be a whole lot simpler if they did. Using the gay marriage example, the states can still regulate how many hoops someone needs to jump through to get a license (i.e., do they need a blood test), but it does need to be that if someone is legally married somewhere in the United States, then they need to be legally married everywhere in the United States. Leaving the hot potatoes to the states to sort out just leaves us with a patchwork quilt of laws that will cause unnecessary headaches.

    1. “…I think that there are a lot of things that the federal government needs to regulate, for the sake of national uniformity.”

      Spoken like a true liberal.

      1. Them’s fighting words!!!!

        The difference – a liberal wants Mommy Government to regulate everything to Orwellian proportions. I’m not asking for increased regulation, just consistency of the existing regulation (or lack thereof).

  25. This is a strawman argument. A Constitutional Amendment, by definition, becomes part of the Constitution, and so is not in opposition to the 10th Amendment. A Federal law defining “marriage” merely sets the groundlaws for which out-of-state marriage licenses any given State is *required* to honor. In fact, the more specific the Federal definition of marriage, the fewer licenses a State is mandated to honor, thus preserving more choice for each State as to how they handle other State’s marriage licenses.

  26. Let’s not forget that conservatives’ rather creative interpretation of the 10th amendment only exists for the purpose of advancing conservative causes. So if they are inconsistent it’s no surprise. States’ rights has never been just about states’ rights.

    1. Exactly where do you have a dog in this fight? You have no belief in the existance of human rights and promote the authority of the government to do whatever a majority wants.

      You cannot comment rationally on anyone’s consistancy on the 10th amendment as you do not recognize its very legitimacy.

      1. I recognize it exactly as what James Madison and constitutional case law says it is: an explicit restatement of the implicit notion in the constitution that federal powers are enumerated. It does not, however, negate any of those enumerated powers, including the necessary and proper and commerce clauses, which, again according to case law reality, do confer somewhat broad powers.

        1. go fuck yourself with a barbed, metallic gladiatorial weapon and drop dead

          im a conservative and not a libertarian, and i agree with these people — you’re just fucking unbelievable

          you’re a pragmatic, unprincipled shit who not only understands absolutely nothing about American law (starting with the constitution and ending with case law regarding scope of economic regulation), you also have no belief whatsoever on that basis of natural rights — what the majority decides is reality and morality, and that’s it

          jesus fucking christ, i’ll take mitt romney types over your hell-bound ilk any fucking day of the week. every time someone like invokes james madison’s name and ideals, he rolls in his grave violently and the laws of physics are broken by the sheer power of your hypocrisy.

          1. Harumph!

          2. What you mean by “pragmatic unprincipled shit” is that I don’t share your policy preferences, and you think you deserve extra credit for yours, just because. None of us gets to appeal to magic, including natural rights. Rights are human inventions that are supposed to service human well-being. I probably believe in more rights, thus more individual liberty, than you do, as I’m not encumbered by the supposed requirements of an abstract holy book of rights that just so happens to be very limited in its scope and thus appeals to conservatives who traditionally care only about their own rights at the expense of others’.

            1. How can you have natural rights political expression freedom health if it doesn’t take months to get signs things government approved pharmaceuticals approved by petty municipal bureaucrats. Waiting periods for guns, waiting periods for political lawn signs supplements if I need you to suppress them so I can take from you the fruits of your labors to give them to those who won’t labor…its all part of making life better for the people.

  27. The 10th serves one vital purpose. It cements the fact that the powers enumerated in the Constitution ARE THE ONLY POWERS given to the Federal Government and that this is what the founders intended. Madison thought this was already apparent in the original document so such an amendment wasn’t required. The convention wanted it included because they felt there would be those who would argue that the enumerated powers were “among” those given to the Feds and not all inclusive.

    The joke is on both sides. Not only was Madison wrong on this count, because the Feds obviously believe they are omnipotent, BUT the 10th proved an ineffective measure, in that ever since FDR, the Government has chosen to ignore it and the sheeple have refused to hold them to task.

    What is a population to do when its government willfully chooses to ignore the restrictions placed upon it?

    1. Declare the illegitimacy of the government and arm themselves for war?

      1. I’d actually like to see the Tea Party with its Hoveround cavalry try to take on the US armed forces.

        You only get to declare the government’s illegitimacy if it stops allowing elections. Otherwise you’re just whining like a little baby girl because you don’t always get your way on policy.

        1. Your first paragraph doesn’t even merit a response. Same shitty excuse for a terribly shitty excuse for an awfully shitty excuse for a canard.

          But that second paragraph — boy, oh, boy, are you a fucking moron.

          I’m starting to think that’s a spoof. Is it a spoof?

          1. Might be, he just gets nuttier and nuttier. Perhaps someone has taken over his moniker, because he rarely has a coherent thought anymore.

            1. Team Blue whines when it doesn’t get its way, Tony.

              You DO watch Ed Schultz, right?

        2. Been in the military…they ARE the Tea Party. Not to mention that little oath they took to “support and defend the Constitution against all enemies, foreign and domestic.”

          1. That doesn’t include Democrats because you don’t like their policies.

            Maybe this country does need a good old fashioned revolution, but unfortunately you guys have your invective aimed in exactly the wrong direction.

            There are people stealing this country from you & me, and it’s not poor people.

            1. You did it, pally, you finally did it. Zero IQ. It’s fucking unbelievable. You’re a marvel of science!

              1. Dude….! Relax it was inevitable that the spoofs would become so sophisticated that they assumed lives of their own.

              2. What did I say? That maybe it’s not just colored folks stealing your livelihood, maybe it’s the people who a) caused the economic crisis in one of the biggest failures of capitalism in history and b) think the country exists to supply them with hookers and cocaine?

                1. the people who a) caused the economic crisis in one of the biggest failures of capitalism in history

                  Wait, I thought you were *for* the Democrats. Because if either party was to blame for the meltdown, it was the Dems, between Clinton and his sub-prime loans, and the likes of Barney Frank and Chris Dodd getting kickbacks from the banks to make sure their little cash cows weren’t messed with by the Senate and House fianance committees.

                  1. Contrary to the FOX News narrative, it wasn’t Barney Frank what caused the collapse of the housing bubble. You seem like a reasonable person, you’ve just been fed a big pack of lies by the GOP propaganda machine.

                    1. Really? Guess you missed this piece of video of Frank, chair of the House Fianance Committee (and thus responsible for oversight of Fannie Mae and Freddie Mac), insisting that there was no housing bubble. There are other videos out there of other speeches and tirades he made in Congress, adamantly pushing to keep Republicans from increasing regulation of the industry (out of fear that increased regulation would mean the end of Clinton’s subprime loans), though I wasn’t able to find the clips this time around. They’re out there, if anyone can provide a link.


                      If this video is part of the “big pack of lies by the GOP propaganga machine,” then I hope Frank was compensated nicely for selling himself out in it.

                    2. I’m still stuck on him saying “colored folks”.

                    3. So are we.

    2. The 10th serves one vital purpose. It cements the fact that the powers enumerated in the Constitution ARE THE ONLY POWERS given to the Federal Government

      That argument became a nullity with the (highly illegal) “ratification” of the 14th AMdt, which is a blank check on which the feds may write whatever they wish.

  28. And the Democrats are what sort of friend to the 10th Amendment? (Or the 2nd, 4th, or take your pick… )

    And painting it as “the Republican Party” who in the Dem Party would be the equivalent of, for instance, Ron Paul? Where are all- any- libertarain-leaning voices or influences in the Democratic Party?

    Nah, better to broadly bash the GOP because all of it’s members don’t meet sufficient (for some) libertarian purity… a purity that has served the LP so well in elections over the years, huh?

    1. “It doesn’t matter what my side does because THE OTHER GUYS ARE WORSE!”

      1. No… just pointing out a fact. It would have been instructive if you had refuted my point by, I dunno, pointing out where or how the Dems ahve bene “friends” on any of the amendments listed… or referenced any significant Dem officeholders equivalent to the GOP’s Ron Paul (or Gary Johnson.)

        What team are YOU on? Hopefully not a perennially losing one that simply bleats but lacks the heft to institute ANY progress toward a freer society, even if not at the speed of the “I WANT IT ALL RIGHT NOW!!!” dreamers. (See? I can use caps as well.)

        Have a nice day.

        1. The Republicans did institutionalize torture of suspects.

          But you’re right, Dems wanting sensible regulations so that there isn’t an armed free-for-all in inner cities is so much more of a negation of the bill of rights.

          1. Ah yes Tony, we all see how well federal handgun regulations have kept inner cities from becoming breeding grounds for violence.

            1. Like your Team’s policies actually cure poverty…

          2. Ahem

  29. Your comostarian is really showing in this one.

    Rick Perry is a grade-A prime douchebag, but just because he isn’t PC enough for you, you are calling him anti-10th ammendment. There is nothing inconsistent about believeing the 10th means what its says, and also believing that the constitution should be changed.

    Throw in a back handed complement of Ron Paul too. Well done.

    Have fun at the Cocktail Party.

    1. +1

  30. This is a really retarded article. Possible it’s a really dishonest article as well.

    As I’m sure Chapman knows, the federal government has already “federalized” marriage. It is a NOT a state issue, regardless of whether conservatives or libertarians want it to be. The US Constitution requires each state to respect the laws passed in every other states.

    Whatever the law on marriage is to be, it will be the same law everywhere in America. That’s in spite of conservatives and not because of them.

    All that’s left is to argue about what the marriage law will be in the US. The states rights question sailed a long time ago, and did so to the applause of the libertarians.

  31. Libertarians also believe in the 10th Amdt whenever it suits them. You don’t see a lot of REASON contributors blasting the federal government for attacking states which attempt to crack down on illegal immigration. On that topic REASON suddenly loses all interest in states rights.

  32. A lot of conservatives backed what was a pretty obviously stupid marriage amendment as a tactical maneuver to counter what was an equally obviously stupid attempt by the courts to push the matter to judicial resolution. What is Perry saying about it now?

  33. Inspite of the hypocrisy (nothing new) of the largest portion of the current crop of Republican candidates, I find it heartening they are testing the waters with various libertarian positions. Thanks Ron Paul.

    I think it is important for libertarians to feel some sense of accomplishment with each little victory if we are to maintain any kind of enthusiasim over the long term.

    1. Liberterianism does seem to be going more and more mainstream of late. I’m betting it’s the neocons you can thank for this, as they started a real schism in the party.

      Short of the heavy spending on defense, the GOP has traditionally been beholden to the concept of smaller government. Bush came in and started spending like a Hollywood Democrat with his first black AMEX. I myself used to consider myself a moderate Republican until Bush started pushing for the marriage amendment, I felt they were way overstepping their bounds, but not enough to jump ship over to the Dems. It just seems that after the Bush era, there’s a lot of Republicans like myself that have become disenchanted with the party under the control of the neocons.

      1. All Republicans do is talk about small government. Take a look at the chart on this page.

        You’re basing your political beliefs on a false stereotype supplied to you in the interest of Republicans.

        1. At least they talk about it without sneering and invoking total-collapse bullshit…

          1. No just lying on a constant basis.

            1. No just lying on a constant basis.

              Good thing the Democrats never do that. Oh, wait ….

  34. This is all Lincoln’s fault for imposing welfare state priorities on the states’ rights to enslave people if they wanted to. Next thing you know, everybody has to be all equal ‘n stuff. What’s next, Libs? Hmmmm?

    Abraham Lincoln, our nation’s first RINO.

    1. Lincoln was a piece of shit who jailed his dissenters, suspended habeas corpus for murder trials, and drafted black soldiers (not even the South did that–they allowed them to join voluntarily). He’s a fucking shit.

  35. Reminder to Steve: States don’t have “rights”; People Do! (States have “powers” and there is a difference).

    1. Plus, it’s a loaded term, associated with slavery and Jim Crow. “State sovereignty” is better.

  36. It’s only “loaded” because disingenuous, honorless liberal assfucks *turned* it into a “bad” phrase.

  37. This article is just silly. Of course proposing an amendment to the constitution is a pro-states-rights, pro-tenth-amendment position. What, would you prefer to have Eric Holder decide the same-sex marriage issue for your state? Or Clarence Thomas? Or the New York Legislature? See, that’s the problem, it’s not just ‘let each state decide for itself’ thing, is it? Look, the Constitution and the Bill of Rights are not holy writ, set in stone forever and immutable. If the logic this article presents were true there would be no amendments after the Tenth. Favoring same-sex marriage is a liberal position, not a libertarian one. Stop hiding behind the tenth-amendment and, like Governor Perry, tell us what you really want. Libertarian, heal thyself.

  38. I do not support the amendment, but saying someone is hypocritical about following the constitution for being in favor of changing it according to the constitutional process is… hypocritical.

  39. Although there have been some federal marriage amendments proposed which do actually protect the states’ authority.

  40. In this article Mr. Chapman makes an interesting observation about how our Politicians “use” the Constitution when it fits their purpose, I whole heartily agree with this assessment. Also this comment; “The conspicuous exception is Rep. Ron Paul (R-Texas), who has a weirdly consistent respect for the principles of federalism.” Why has it become a “weird” practice to follow (to the letter) the Law of the land? Who gave anyone the right to subvert one crossed t or one dotted i without first amending it? Most of our Congressmen and Presidents and a number of Federal judges are Law breakers, plain and simple. This is exactly why this country is in such a mess and why we no longer operate as a Republic. To top that off Obama and the Progressives have kicked in the afterburners of lawlessness and I don’t see anyone with enough spine or standing to stop it.

  41. “He fears the U.S. Supreme Court may someday rule that gays have a constitutional right to wed their partners.

    But that’s not an argument for a constitutional amendment to ban same-sex marriage…”

    This kind of wording is based on the myth that there is currently a “ban on gay marriage”.

    Drugs on the Federal “controlled substances” list are banned nationwide, handguns are banned in certain large US cities, and practicing certain professions is “banned” without holding a state issued license; since banned means that you are arrested for possession or activity without government permission.

    If you truly understand what a real “ban” is, like most libertarians should be well aware of, you would recognize that no one has been arrested for saying vows in a wedding ceremony to a same-sex person, or being married without a marriage license. Therefore use of the word “ban” is the kind of conjecture that distorts, rather than clarifies, the discussion, and blocks one of the libertarian solutions that I champion: get all governments out of the marriage license business by stopping ALL issuance of marriage licenses.

  42. One of the ideas I see in the constitution, and hinted at but misused in the 14th Am., is that the states can pass their own laws, but if they take away freedoms, the Fed can grant exceptions and restore the freedoms to the people. The converse of this is also true, if the Feds take away a right or impose a tax, etc. the states can restore that right.

  43. Of course, left out in this debate over gay marriage, or, aka, recognition of reality by any name under the sun — is the more fundamental right, with which we are endowed by our Creator — to life, liberty and pursuit of happiness — equally before the law for all, without kowtowing to this or that religion. And instead we get a discussion of at which level should the inequality merit institution. And Gay folks pay for this nonsense against us, while our religious rights, our first amendment speech rights, our right to freedom of assembly, our right to defend ourselves, and on and on through the rights enumerated in the Constitution in order to implement the more fundamental right of the pursuit of happiness. No. We are so special, that we not only shall we be denied official recognition under the laws we pay for — but the very concept of our existence is somehow anathema and the reality ignored. And we’re told “change, or suffer” — and this is what the NO GAYS! Movement, also known as the Anti-gay movement, the anti-gay marriage movement, or religious freedom for some other brand of religion I do not want — they want us gone. They are clear about it. It is genocidal, cultural, morally, emotionally, spiritually and even sometimes suggested, physically – to rid the nation of gay folks. And the hell with that crap. This is not 10th Amendment territory — this is 8th — the cruel and unusual punishment rendered by these anti-gay laws – -and it is a bill of attainder — for it targets a specific named group, levies a penalty and does so without any judicial proceedings whatsoever.

    And that’s the problem with this whole discussion — some in it want gay folks gone, and they are not shy about saying so — believe them; for they are crazy.

    1. Jim Hlivac,
      You are actually asking here for a benevolent despot (or a supreme court judge) who is going to legislate your own individual preferences from the bench, irrespective of what majority of people wants. This is ok just don’ t pretend to speak in the name of “constitutionalism”. The Constitution is a document that limits severely federal power and not aggrandizes it, ie. allows it to correct every perceived injustice or grievance of anyone. Where in the Constitution is said that a law banning the gay marriage is unconstitutional? Nowhere. The laws banning the homosexual sodomy (nothing to say about the “gay marriage”) where on the books for almost two centuries in many states. None would think off them as unconstitutional. But, I forgot, you libertarians are the “living constitution” folks, “evolving standards of disency” and that stuff. So, I think that you at least should have enough disency to concede that you don’t give a damn about the Constitution and the rule of law, but just want to see your own policy preferences imposed, by whichever means possible.

  44. “Bachmann has made a similar exception. Asked about same-sex marriage in New York, she said that “the states have the right to set the laws that they want to set.” Then she threw herself behind a constitutional amendment to repeal that right.”

    What is inconsistent here? She wants to employ the regular way of amending the constitution devised by the Framers. So unlike the liberals and many of you libertarians who rather prefer judicial fiat and “constitutional law” to invent the “rights” that do not exist in the Constitution.

    This is so weird: libertarians who never, ever criticize Roe vs Wade, which is a de facto constitutional amendment done by the Supreme Court fiat, while attacking someone who wants a regular, lawful constitutional amendment.

    Where are the “libertarians” in this picture? It seems to me that they are not better than conservatives as far as 10th goes. They are all for it in the case of marijuana, but when it comes to abortion, not so much.

  45. “One of the ideas I see in the constitution, and hinted at but misused in the 14th Am., is that the states can pass their own laws, but if they take away freedoms, the Fed can grant exceptions and restore the freedoms to the people. The converse of this is also true, if the Feds take away a right or impose a tax, etc. the states can restore that right.”

    The second part is ok – the right of the states to nullify unconstitutional federal laws is well established in both the ratification debates and the Virginia and Kentucky resolutions written by Madison and Jefferson respectively.

    But, the first part is nonsense. The 14th amendment was ratified and applied as a very modest restriction to states rights, which included just the obligation that blacks must have a regular trial by jury etc. The doctrine of “incorporation” was invented by the Supreme Court some 40 years after the 14th was adopted and was used as a vehicle of judicial usurpation and the growth of federal government ever since. It has no basis whatsoever in the text or the original understanding of the 14th amendment.

    You have to understand that the Constitution is not a natural law documents or a catalog of ” individual rights” that have to be preserved by federal government, but a set of restrictions to the same federal government. As James Madison said “the federal powers are few and defined while the states rights are indefinite and many”.

  46. thank you man

    thank you man

  47. “But that’s not an argument for a constitutional amendment to ban same-sex marriage. It’s an argument for a constitutional amendment to guarantee states the right to ban it.”

    … trumping the Constitution and the Bill of Rights? Uh! Uh!

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