Monday, September 14, 2015

Obergefell and the Powers of the Federal Government




When women were given the right to vote, why was a constitutional amendment passed? Why did not Congress simply pass a law? Or failing that why did they not simply induce the Supreme Court to say that that was somehow required by the 14th Amendment?

When alcohol was banned, why did not Congress simply pass a law? Or failing that, why did the President induce one of his departments to pass some regulation?

Why was a Constitutional Amendment required to institute an income tax?

Why, when in the 1930s they wanted to ban machine guns, why did they do it under the guise of a tax?

Why is it, dispite the huge expansion of Federal power, have there been no Constitutional Amendments since 1971 (the 27th Amendment which was ratified in 1992 doesn't really fit into this question. It had been submitted for ratification back in 1789 along with what became the Bill of Rights but did not receive the necessary states for ratification until 1992) and no amendments relating to the powers delegated to the Federal Government since the end of prohibition?

The answer lies in the fact that there was general recognition until about the 1930s that the powers of the Federal Government were limited only to those explicitely delegated in the Constitution.

The fact is the Federal Government simply does not function any more the way they teach in civics class. Such classes have become such fairy tales.

Anymore, the way you get what you want in today's land is that you convince the Supreme Court to see it your way.

Layered on that is the fact that large portions of the Constitution have become a dead letter. Examples abound. Religious freedom comes to mind but the right to keep and bear arms remains a right only as a result of great push back at the grass roots and a 5-4 Supreme Court decision to recognize the plain meaning of the Second Amendment. It could easily have gone the other way.

Layered upon that is the fact that we have largely forgotten the federal nature of our government. The founders were emphatic that what they were creating was not a national government but a Federal government. I doubt that 5 voters today out of a hundred know the difference. States are by degrees becoming mere districts of a national government.

The fact is when the United States won its independence from Britain, each of the 13 states was essentially independent from each other. The United States government such as it was had no authority over the individual states. Each state was essentially independent. When delegates gathered to amend the articles of Confederation, they wound up drawing up a new constitution. In that Constitution certain specific powers were to be delegated to the new Federal Government, the States were to retain all undelegated powers.

We see evidence of this in the amendments that gave women the right to vote, banned alcohol, that instituted the income tax, and in the way the Federal Government went about restricting machine guns. If Federal Government had wanted to institute same sex marriage in those days, they would have done it by amending the Constitution. Because there is nothing in the Constitution that gives the Federal Government the authority to define marriage.

Justice Kennedy based his decision on this out of the 14th Amendment. "No State shall...deny to any person within its jurisdiction the equal protection of the laws."

That amendment was ratified in 1868. What was happening in 1868? We had just finished a Civil War and millions of former slaves were now free. The question was what their status was before the law. Indeed, the infamous Dred Scott decision had only 11 years earlier declared that black men had no rights that a white man was obliged to respect. By the way, that decision rested partly on the observation that that would mean that black men would have the right to carry guns indicating that the understanding that the right to keep and bear arms is an individual right is not a recent invention of the NRA. The intent behind the 14th Amendment was to put blacks on an equal legal status as white people before the law. That was the intent because that was what was going on at the time.

Does anyone seriously think that the people who passed that amendment were in effect authorizing same sex marriage? To assert that it doesn't matter what they thought is to in effect repudiate the whole notion of self government. The people who passed the 14th Amendment had certain outcomes in mind. To twist that amendment to mean totally unrelated and unintended outcomes is corrosive to the whole notion of government by consent of the governed which was the key foundational concept in the Declaration of Independence. According to the Declaration, when a government no longer operates by the consent of the governed, then the people have to right alter or abolish said government.

We are at a place where the plain meaning of many parts of the Constitution are ignored and meanings nowhere to found are substituted in their place. We are at a place where the Constitution means what five men in black say it means.

And by the way, the Constitution nowhere gives five men in black that kind of authority; authority to have the last word on any subject what so ever. It does not have that kind of authority. I would suggest googling the Dred Scott decision and the reaction to that decision. It was far from established in that time that the Supremen Court had that kind of power.

What would have happened if Obergefell had come down say sometime prior to 1860. Even with a 14th Amendment in place there would have been a general recognition that the Supreme Court has over-stepped its bounds and people would have acted accordingly.

People today celebrate Obergefell because they wanted same sex marriage. My question to them is: how do you feel about self government? People today worry today about things like voter ID as a threat to voting rights. The biggest threat to voting rights is the Supreme Court. Decisions like this make people's votes meaningless.

Wouldn't it have been better for gays to win same sex marriage rights through the political process rather than by edict from on high? Had the political process been allowed to play itself out, I dare say, gays would have won same sex marriage in a number of blue states. Other states would have stuck with traditional marriage. Still others would have been willing to recognize same sex marriages performed in other states. Instead, what we have is a one size fits all solution imposed by 5 judges on a nation of more than 300 million people and which overrode the laws of upwards of 45 states. It is especially absurd when you consider that it takes 38 states to amend the Constitution.

Essentially what has happened here is that San Francisco had imposed its values on the entire country, something which the founders did not intend to happen. They intended that each state be free for the most part to live according to its own values.

The picture is of a gentleman who best embodies what the remedy should be when the Federal government exceeds its authority: John C Calhoun. He is regrettably also famous for being a champion of slavery and it is unfortunate that resistance to the Federal government is so often associated with slavery. It has a much broader pedigree than that. In fact, one of the finest examples of resistance to Federal authority are those who refused to go along with the Fugitive Slave act. The Fugitive Slave act though federal law and as such the law of the land was reduced to a dead letter in many areas of the North by people simply refusing to comply with the law. And it wasn't just people. The Wisconsin Supreme Court at one point declared the federal law unconstitutional! The phrase 'law of the land' fell on deaf ears in many areas of the North with respect to the Fugitive Slave act.