Yay 10th

Yay, 10th Amendment!

Or, a gay "marriage" ruling I might be able to support.

We all know that marriage as an institution has nothing to do with homosexuality. Saying this is not an expression of prejudice, but a simple statement about an institution that is as old as mankind. It has been practiced in many different ways in many different places, but never in human history until the current generation did anyone think it could be, or ought to be, applied to one's same-sex lover.

Many of us generally oppose attempts to revise or undermine the basic institutions of society; as an instinct, we believe that such institutions are what hold up the world. This is at the heart of the revised Constitutionalism that underlies the Tea Party movement.

Nothing is more important to that movement than to get the Federal government to respect the traditional, intended limits on its power. Supporters of an ever-expanding Federal government believe, I think, that they are on the side of the Federal government. This is not so. Continual revising of the social contract undermines that contract. The chief danger to the Federal government, as to the Republic at large, is that it will expand until it must be resisted; that it will revise the social contract so often that a majority of Americans become alienated from that contract, and no longer believe it applies. If the Federal government holds to its traditional and Constitutional limits, it might last a thousand years. If it refuses, it may not last out this generation.

On the other hand, the same people often wish to have substantial liberty from institutions: freedom to associate with them, and freedom for the institutions to uphold their own standards independent of the passing whims of society; but not a requirement that individuals be subject to those institutions. One can marry or not, for example. If you don't like the terms, don't.

So here comes a movement that balances two of those instincts against the third. It offers a vigorous and much-to-be-desired rebirth of the 10th Amendment!

However, it undermines the institution of marriage by redefining it so far from its original core purpose -- that of establishing new families to provide wealth and security for the next generation -- that it is undefinable. Further, it will require all of us to play by someone else's rules: under Full Faith and Credit, what we end up with is not "each state may determine the laws of marriage," but "the lowest-common denominator will apply everywhere." Freedom of association is not being respected; what is disguised as a state sovereignty ruling actually undermines the ability of states to uphold the traditional standards. What it really does is empower any state that wishes to undermine those standards.

As Dad29 points out, there's no reason to believe that the 10th will be applied in this way anywhere else; this seems to be special pleading for gay "marriage," when viewed in context of Federal jurisprudence.

However, as Volokh points out, the same arguments could be applied to destroy the unconstitutional health care regime being imposed. And, actually, a whole lot of unwise Federal regulation falls under this heading.

So... do we get behind this or not?