Marriage & The Feds

In the wake of the Supreme Court rulings on DOMA and California’s Proposition 8, I have been asked my thoughts on this matter. To recap, over the years so many social conservatives have looked to the federal government to uphold traditional marriage while social liberals ask the government to grant what they feel are basic civil rights to homosexuals.

Well, when it comes to the issue of marriage and the federal government my thoughts are quite simple.  The federal government has no constitutional authority to determine what marriage is or what it is not.  It is really that simple.  Regardless on which side of the social divide you happen to fall, granting the federal government this extra constitutional authority is not only improper, it is also dangerous.

For those of you who run to the federal government looking for a redress on this issue, my challenge to you is to clearly show where the Constitution authorizes the government this power.  Can you do so?  Or has the government in Washington become some sort of catch all, a governing body of unlimited power than can decide every facet of our lives?

What if the people of Massachusetts wish to permit gay marriage?  Is it their right to do so?  And should a heavy-handed federal government be able to squash this proposal?  Similarly, what if the people of Tennessee wish to outlaw gay marriage?  Are they allowed similarly to make that sort of decision?  Or should the federal government intervene to promote “the national will”?  Whether the definition of marriage ought to be left to the churches, the states, or the people themselves, one is hard-pressed to make the legal justification of federal involvement other than for the sake of national uniformity.

Now, that’s not to say that I do not have an opinion on the subject of marriage.  I do believe that healthy marriages are the fundamental building block of society and I supported the Marshall Newman Amendment to the Virginia Constitution in 2006 that defined marriage in this state as being between one man and one woman.  However, that decision came about through an amendment to our state constitution, the most fundamental ruling document in this state.  It wasn’t a mere law, but a power that required constitutional changes to allow the government to take a stand.  This same rule should apply to the federal government as well.  If it wishes to take a position on this issue either in favor or opposition to gay marriage, then pass a constitutional amendment allowing it the authority to do so.  Granted, it is not an easy process, but, much like the drug war, without this explicit power, any action that the federal government takes in this matter is a clear violation of the governing rules of our nation.

Regardless of how you fall in this issue, whether you seek to promote traditional values or to enhance the civil rights of our fellow citizens, I caution liberals, conservatives, and even some libertarians not to look to the federal government to solve this issue of marriage.  Keep in mind that whenever you surrender authority to this increasingly unrestrained body, you lose any moral grounds to complain in the future should they one day take a position that stands in stark contrast to your own.

In Defense of Federalism

Individual states ought to have more power and control over both the lives of the citizens residing and visiting within it, as well as territory under their control, than the federal government.  The purpose of our national government is to accomplish tasks that state government is either unable to provide, offer large-scale benefits to all states, or restrain the states in certain aspects.  For example, it only makes sense for the national government to have the sole power to declare war, defend the states from invasion, and create and maintain a national currency.  Despite what some might say, the powers and limitations of the federal government are pretty clearly defined in the Constitution and its amendments.  I assure you that the 10th Amendment is in there for a reason!

By contrast, states have far more latitude.  Unlike the national government, assuming their constitutions allow it, they can create a statewide health care system, legalize all sorts of drugs, or modify the drinking age (assuming the federal government didn’t mettle by withholding highway funding).  Now I’m not saying that I advocate these plans, but, as “laboratories of democracy”, it is far better for a state to tinker with such modifications than Washington D.C.  Once a plan is proven successful in a state or, better yet, several states, and assuming it is constitutional, only then should it be considered on a national scale.  This largely forgotten theory was one of founding principles of our nation.  You want state run health care?  Then move to Boston.  You want to smoke marijuana?  Then migrate to Los Angeles.  Otherwise lobby your state and not the federal government.   Let’s agree to keep such plans out of the hands of D.C. bureaucrats.  If you want Virginia health care, or the freedom to use recreational drugs in Danville, then I recommend talking to the folks in Richmond.  Just know that I have the right to argue for the other side.

You say that the constitution is outdated and states rights are a thing of the past.  Assuming you are right (I sure hope you aren’t by the way), consider this fact.  If I want to contact my State Senator or one of his representatives in person, I need only to drive a couple minutes to downtown.  Conversely, if I’d like to meet someone from my U.S. Senator’s office, I’d have to travel about 2 hours to go to either Richmond or Roanoke.  Furthermore, State Senators have approximately 1/40th of the constituents that our national Senators have.  Who do you think is more responsive to a citizen’s concerns?  I often get letters, emails, and cards in response to my inquiries with Senator Obenshain.  Guess what I have gotten from Senators Webb and Warner…that’s right, nothing!  One of them knows me; the other has a territory too large for any sort of personal relationship.  Now tell me, which one represents me better?  Which is better suited to make policy decisions regarding your city, town or county?  Is it the one who lives in your community or the one who, like a distant relative, visits once or twice a year?  If for no other reason than proximity, increased devolution just makes sense.  Unfortunately, if we leave it up to the politicians in the D.C., we will continue the slow march toward a unitary state.

For additional information on this topic, I encourage you to read a recent article written by Josh Eboch, State Chapter Coordinator for the Virginia Tenth Amendment Center regarding the tension between libertarians and constitutional conservatives over the 10th Amendment.  I hope you find it as worthwhile as I did.

The Fallacy of One Man, One Vote

When deciding what I should write about next, I first thought about the 3/5th compromise and then about Reynolds v. Sims.  Undoubtedly, the sarcastic reader would comment, “gee, that’s topical” as Reynolds v. Sims was decided in 1964 and the 3/5ths compromise was agreed upon in 1787.  Ultimately, I decided to include them both to discuss the fallacy of the concept “one man, one vote”.

For some reason, the idea of “one man, one vote” (or taken in the modern PC term “one person, one vote”) has been lifted up to just about sacrosanct terms.  I shudder to think of the millions of children in government schools who have had the thought drilled into their brains and now parrot the mantra ad nauseam.  Although on the surface “One Man, One Vote” seems to be fair enough, it was really a manufactured invention of the Supreme Court rather than a constitutional right.  The case which led to this principle was, as hinted at above, Reynolds v. Sims.  Prior to this case, many states apportioned representatives to the upper house of their legislature (most often called Senators) based partially or wholly upon county boundaries so that each county was given at least one.  The Supreme Court thought this idea was unconstitutional.  The justices, in their decision, drew upon the first section of the 14th Amendment.  It reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” They took this text to mean that if a citizen of one county’s vote was not roughly equal (when considering population) to that of a citizen of another county, then they both do not have equal protection under the law.  Although the Alabama Constitution required for each county in the state to have a representative, the justices declared that “one man, one vote” trumped the state law.  This idea was further enhanced and clarified in 1964 with Wesberry v. Sanders.

Now an astute observer of the Constitution might ask, how can the Supreme Court rule in issues like apportionment?  Is that a power granted to the court?  The answer, like unfortunately so many others, was that the court itself decided that it had that power.  When the watchdogs have no oversight above them, this sort of things is bound to happen.  In a previous ruling, Baker v. Carr, 1962, the court granted itself the power to oversee reapportionment when beforehand it had been the authority of the states, not the federal government and its courts.  It was yet another shameful example of how the 10th Amendment has been cast aside and federalism has been, and continues to be, undermined.

Another question you should ask yourself is, does the principle of “one man, one vote” have roots in our Constitution and history?  The answer is, not really. Now it is true that representation to the House of Representatives is based largely upon the population of each state, and therefore somewhat resembles “one man, one vote”, but the comparison really ends there.  For the record, when it comes to the House of Representatives, Article 1, Section 2, Clause 3 reads, “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.”

Look you might say, that’s pretty close to “one man, one vote”, but look closer at the text.  See the line “including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons”?  That comes from the 3/5ths compromise of 1787.  The issue of the 3/5ths compromise came about before the ratification of the Constitution resulting from the issue of slavery.  Should slaves count as persons for purposes of representation in the House of Representatives?  Personally, I don’t think so, as it is one of the many hypocrisies of slavery.  How can a person be denied so many freedoms that are enjoyed by man in his natural state (life, liberty, and property) and still be counted as a person?  If one is treated like chattel, should your masters enjoy the benefits of you counting as both a person and property?  From the moment of your birth to your eventual death, chances are that you will never be able to vote, so how can you truly be represented?  Nevertheless, the delegates to the Convention disagreed and settled upon counting slaves as 3/5ths of a person for enumeration.  I ask you, does this compromise embody the ideals of “one man, one vote”?  I think you would agree that it certainly does not.  Let’s move on to the issue of the United States Senate.

Article 1, Section 3, Clause 1, of the Constitution of these United States reads, “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”  Now is that “one man, one vote”?  Of course it is not.  If each state is given two Senators, and thus two votes, the opinion of a citizen in a small state carries much more weight than that of a large state.  For example, in the 2000 Census Wyoming had a population of 515,004, while California had 36,457,549, thus a citizen from Wyoming has roughly seventy times more influence in the Senate than a Californian.  The Senate certainly does not follow “One Man, One Vote”, but that was intentional.  When the Constitution was created, large states (like Virginia) wanted representation in both the House and Senate to be based upon populations.  Smaller states (like New Jersey) wanted each state to have the same number of votes.  Each of the two states created a plan to benefit their own interests and thus neither was acceptable to the other.  The end result of this wrangling was the Connecticut Compromise, which created the House of Representatives based upon population and the Senate based upon state equality.  The question now becomes, how is it that representation in United States Senate resting upon the equality of the states is Constitutional while representation in the upper houses of state legislatures based on legal and geographic areas like counties is not?

When taken in the larger scope of history and the Constitution, I believe that one can clearly see that the representative government of these United States was never truly intended to be under the guise of “one man, one vote”.  The 3/5ths compromise and the representation in the United States Senate clearly illustrate this point.  Are not the states allowed to determine their own rules for representation, even to follow models proscribed in the Federal Constitution?  As long as they adhere to a republican form of government, doesn’t the 10th Amendment afford them that right?  And yet, as was done in other Supreme Court cases (see Roe v. Wade) the court continues to grab power for itself and invent new laws placing itself above the people, the states, and even above the Congress itself.  So, the next time someone spouts the line, “one man, and one vote!” don’t be afraid to challenge him or her.  Sure, they may have the court on their side, but we know the court is not always right.

The 10th Amendment and the Joy of Federalism

(or I don’t care how they do things in Massachusetts). 

Note: This piece serves as a continuation and elaboration of Down with the Nanny State!

Ask someone what is the most important amendment to the constitution.  If he were a liberal, he would likely answer “the right to free speech”, the 1st.   If he were a conservative, he would likely answer “the right to keep and bear arms”, the 2nd.  Although all amendments are important (or at least those found in the Bill of Rights), I have another suggestion.  For those who fear the encroachment of an ever-expanding national government, might I recommend the 10th?  Now I know that no one really talks about the tenth anymore, but here it is:

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

Any questions?  I shouldn’t really think so.  It is simple and straightforward. 

But the problem lies in the fact that few these days tend to uphold the amendment.  For example, as written in one of my articles below, consider the Department of Education created in 1979.  Now don’t get me wrong, education is important, but the federal government has absolutely no authority when it comes to education as stated by the United States Constitution.  Now if I’m in error, let me know.  Prove it to me.  If it can be done clearly and without a lot of “promote the general welfare” jargon then I will gladly retract this statement.  

 

How about the arts?  I’m sure you know that we have a National Endowment for the Arts.  Is it constitutional?  Promoting the arts is constitutional, but how so?  In Article One, Section 8, it is written as pertaining to the powers of Congress, “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  That is the constitutional limits of the promotion of the arts.  According to the NEA website found at http://www.nea.gov/about/index.html, they write, “The National Endowment for the Arts is a public agency dedicated to supporting excellence in the arts, both new and established; bringing the arts to all Americans; and providing leadership in arts education. Established by Congress in 1965 as an independent agency of the federal government, the Endowment is the nation’s largest annual funder of the arts, bringing great art to all 50 states, including rural areas, inner cities, and military bases.”  Well, isn’t that nice…art to one and all?  Agree or disagree with the ideals NEA, which need I remind you has brought us such national treasures as the “Piss Christ” and “The Perfect Moment”, but the simple fact remains that the agency is horribly unconstitutional, plain and simple. 

 

Are there more departments, agencies, and laws out there that exceed the authority of the federal government out there?  I would wager that one could fill a textbook with examples.  If you care to add your own to this article, feel free to comment.

 

Ah, but let us now get to the second part, “The Joy of Federalism or I Don’t Care How They Do Things in Massachusetts.”  Federalism, of course, is the principle of states giving up some portion of their authority to a greater or larger government to achieve specific aims, such as a common defense, creating patents, declaring war, raising armies and so forth.  For all of the specific powers granted to the federal government by the states, I direct you to the Constitution. Although the federal government does not have any power to fund, promote, or mettle in education or the arts, states and, of course, citizens do.   Assuming that it is allowable under their state constitutions and laws, any state can and ought to be involved in these areas should the citizens of the respective states so desire.  Say that the commonwealth of Massachusetts (I select Massachusetts here because I believe many of their traditions, laws, and beliefs are antithetical to our Virginia) wants to offer free education to all of its citizens from grade school to post-graduate.  Believe it or not, I say, let them.  Will the tax burden of the average citizen skyrocket dramatically?  Without a doubt.  But that is the true joy of federalism.  What Massachusetts citizens want, as long as they obey the Constitution and their own laws, they should get.  Another example is mandatory health insurance.  In 2006 the state became the first to require health insurance of its citizens (passed by wacky Gov. “Massachusetts Mitt”).  Is it a horrid idea?  Certainly.  But they have that right to be the “laboratory of Democracy” a phrase used by Robert La Follette.  When other states see Massachusetts’ successes (or, in this case, failures) they will likely either adopt or reject their policies accordingly.  We apply the same principle to other countries, so why not other states.  Now there are caveats to this principle, of course.  If a state seeks to injure, undermine, or destroy, a citizen or another state, or the laws of that state, then certainly the federal government has a constitutional requirement to defend the injured party and ideally preventing the offense in the first place.

 

But let us turn back to liberal Massachusetts.  As stated, with a handful of exceptions, I don’t care how they do things in Massachusetts.  If they succeed, business and citizens will attempt to flock there, but if they fail the opposite will happen.  Heck, I’ll take that idea one further.  I don’t care how they do things in France, or Singapore, or Saudi Arabia.  As we respect the ability of others to govern themselves, so too should they honor our right.  Although many willingly choose to flounder under statism, we must jealously guard our own backyard.  If they, or anyone else, attempt to bring their socialist ideas to Virginia or our national government, we should fight them tooth and nail to defend our state, our country, our values, our culture, and our way of life.  If I wanted to live in a state like Massachusetts, I would move to Massachusetts.  Thanks, but you don’t have to bring it to me.

 

So what is the take home message from this tirade?  Slowly but surely the powers of the federal government have grown at the expense of the states and of ourselves, the citizens.  Whose fault is it?  Without a doubt, it is the unelected and “living Constitution” courts.  It is our weak-kneed or unscrupulous politicians who trade principles for patronage.  But, my friends, it is also ours, for we have remained either ignorant or silent.  I tell you that unless and until we have an informed public who demands that their legislators stand up for a limited and narrow federal government as the Constitution proscribes, the 10th Amendment will lay neglected and the ideal of federalism will wither until the states either become irrelevant or are dissolved.   Let us work to ensure that this dark day never comes.