More Constitutional Makeupery

Making The Constitution Up As We Go Along:

So the other day we noticed Rep. Stark saying that the Constitution contained no meaningful restrictions on Federal power...

...except for those unconstitutional programs that might prevent illegal aliens from getting a job.

Now, the woman's point about the 13th Amendment is preposterous. Saying that the Federal Government has an obligation to provide a service is coherent with the 5th Amendment's provision that the Feds can seize property for the public interest, provided they pay a fair market price. There's no reason they can't require your labor of you for some similar public interest, provided they likewise pay what's fair. (Which may not be what you think you deserve, or could be earning in another line of work, but only what is fair for the particular type of labor they force you to provide: see, inter alia, the draft.)

However, the 10th Amendment provides a very clear division between Federal and State powers; and the 14th Amendment, which brings many state issues under the jurisdiction of the Federal courts, does not thereby bring those issues under the jurisdiction of Congress. Congress still has only its Article I powers. All the 14th is supposed to do is ensure that the states may not tread on the normal rights of Americans.

What are those rights? The 14th Amendment spells out one of them plainly:

But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime…
So, the same amendment that defines the power of the Federal courts to serve as enforcer of 'equal protection' rights defers to tradition in ideas of what those rights may be. Women did not gain the right to vote in the 14th Amendment. "Equal protection" clearly did not intend to mean that every person was to be given precisely equal rights and privileges. Rather, they were to be given rights and privileges equal to others of their status: men for men, women for women, felons for felons, citizens for citizens, non-citizens for non-citizens, etc.

Women do, of course, now have the right to vote. That is because of the 19th Amendment, which was passed according to the normal Article V process. What that means is that those who wanted women to vote -- both men and women wanted this -- constructed an argument and took it to the people. In time, they convinced Americans of the rightness of this position. The majority of states ratified a proposition that had been passed by supermajorities of both houses of Congress.

As a result, although it was a massive change in our social structure to grant women the right to vote, we have made that change with great stability and without noteworthy friction. Compare with the voting rights issue the 14th sought to protect, which was being imposed by force instead of argument: a hundred and sixty years later, and we still have some disputes about it.

Prop 8 opponents believe they have made an argument, of course; but they have so far convinced only the court.
I think they’ve made a needless mistake in pushing this in the courts instead of doing it legislatively state-by-state. The optics are uniquely bad — a federal judge imperiously tossing out a public referendum enacted by citizens of one of the bluest states in America on the shoulders of a multi-racial coalition.
The thing is, a legislative victory probably could have been achieved without even the time required to build the 19th Amendment coalition. The culture appeared to be moving that way. Imposing a settlement by force in this area is an unwise maneuver. I leave aside the oddness of the court's finding that there is no rational basis for thinking that sex has something to do with marriage. The broader point is that, win or lose on that argument, the court has decided to make up the Constitution instead of enforcing it. They have done so in a way that does not adhere to the will of the People -- even a 'diverse,' and blue-state People -- but that slaps it aside.

There will be consequences to choosing that road. For one thing, it ties their movement tighter to that faction in our government that refuses to abide by what the Constitution actually says about restrictions on their power; but which offers ever-more inventive arguments about its restrictions on the People. That is the wrong side, even if their cause is the right cause.

About the latter question I disagree with them, but only mildly. About the former question I have a great and unshakable conviction.

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