It is not surprising that the official newspaper of the Federal capital would be opposed to any doctrine that tended to balance power away from the Federal government and toward the states. The Washington Post's constant disdain for the doctrine of States' Rights is only natural. It would be nice, however, if they would take the time to understand the doctrine before heaping it with scorn.
Today's lead editorial on the proposed Federal Marriage Amendment demonstrates their difficulty. The FMA is meant to prevent gay marriage by forbidding any state to allow it. Those who believe it necessary do so on the grounds that the current law--the Defense of Marriage Act--would be vunerable on multiple grounds to Supreme Court rulings, so that any state's legalization of gay marriage would quickly require all states to allow it. (Those interested in this argument are hereby referred to National Review Online and Andrew Sullivan, who have conducted a lively debate on the subject--check their respective archives, as both are on vacation just now.)
The Post contends that good conservatives should be against this, since:
there's another issue too, which has to do with federalism and the respect for states' rights, which in other spheres many conservatives tend to enshrine. A constitutional amendment defining marriage would federalize what has been among the most unquestioned of state responsibilities since the dawn of the American republic. The amendment specifies that marriage "shall consist only of the union of a man and a woman," and it would preclude state or federal law from being "construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." Certainly many Americans agree with Mr. Bush on his definition of marriage. But why should states with majorities that feel differently be barred from acting through their democratic processes?
The doctrine of State's Rights is not, and has never been, that -all- rights are State's Rights. It has also not been, as the Post suggests, that states are naturally better at democracy than the Federal government. The point is that the Founders' design was one in which the states had some rights, the federal government others, and some rights neither had nor were entitled to have (e.g., the right to require citizens to subscribe to a particular religion). This design produces a balance of power between opposed governments, which opposition between powers creates a space for liberty.
The determination of which rights pertain to which group (state, federal, or personal authority, that is) is codified in the Constitution of the United States and the constitutions of the several states, which represent the lasting will of the people. Constitutional Amendments, which specifically require ratification by state legislatures as well as the Congress, are not violations of States' Rights, but a natural outgrowth of this principle of Classical Liberal Federalism.
The proper way of thinking about this from Classical Liberal thinking is that ONLY a constitutional amendment can address the question of gay marriage. The reason is this: while the people have traditionally delegated to the state the authority to ajudicate certain questions about whether a given man may marry a given woman, they have never delegated to the state or the Federal government the authority to define marriage as something other than a union of man and woman. That understanding of marriage preceeded the formation of the American republic. It is not subject to the authority of the American republic, but remains a right reserved. If any state wants to legalize gay marriage, ONLY a constitutional amendment can do it. It means a concession of new, and great, authority from the people to the state. No judge, no judiciary has the rightful power to usurp that authority.
However, the judiciary has been in the business of arrogating new powers to itself for quite a little while now. It has reached the point that, practically, a Constitutional amendment is necessary if the judiciary is not to "discover" the authority to remake the social contract to fit its views, whatever they are. Such an amendment is not a violation of the republican ideals of the Founding, but a restatement of them; and neither does it violate States' Rights, as neither the states nor the Federal government have any authority here. Whatever solution is reached can only be reached legitimately by the amendment process, which consults both Congress and the legislatures of the several states for new authority.
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