The Missouri Health Care Vote & The CA Prop 8 Ruling: The Supremacy Clause And The Tenth Amendment

Two things happened last week that bear on the proper constitutional powers of federal versus state government. First, Missouri voted that Missourians should not be subject to either a federal mandate to purchase health care insurance nor be deprived of the power to choose a plan of their own favored price and design. Most every discussion of the matter in popular media described this vote as “symbolic, because federal law trumps (the most favored word) state law.” The “Supremacy Clause” of The Constitution is what is declared to so dictate. True enough, that is what most classrooms teach today, including those of our (dubiously) esteemed law schools.

However the discussion linked from among those of The Tenth Amendment Center describes how this question was debated in the convention before the Constitution was ratified, and the upshot of that debate asserted no such thing. When the clause was introduced, some feared it could open the door to a usurpation of state sovereignty. From our position of hindsight and even with the clear statement ot The Tenth Amendment in place, we can ask relative to such a possibility, “…ya THINK?!” After the discussion, a vote of the convention determined that federal law would NOT negate state law except where Pursuant (capital P) or according to the enumerated federal powers of The Constitution, and that a Bill of Rights containing an unambiguous Tenth Amendment would be added which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The same Article VI not accidentally includes the oath to protect and defend The Constitution which is a solemn oath to their God (however defined a transcendent standard) that every official is to take in all branches and at both federal and state levels of government. All officials were to submit to the authority of The Constitution, but ALL officials were to hold ALL others at every level accountable to those principles. No other authority is given to any to prevail over another. So in a similar way as to how a soldier is not only licensed but obligated to discount an unlawful order, so states and their officials have a duty to nullify unconstitutional orders from any level of government.

The same also applies to the ruling of a federal district judge to overturn the democratically expressed will of the California voters on Proposition 8 that marriage should be between a man and a woman. No federal official of any branch has any legitimate such authority. To dispense with the analogy usually made, there was such authority to overrule racially discriminatory states, as racial discrimination acted to restrict the Constitutionally protected property, liberty, and sometimes even life of black citizens. There is no Constitutional right to a state-issued marriage license and there is not action or property taken from homosexual citizens without one. Proposition 8 merely defines marriage in California as between a man and a woman. Not only a gay man, but any man is unable to license marriage to another man. But short of injury, all couples may do with each other as they like.

Experienced and principled former Bush Solicitor General Ted Olson defended the case for declaring Prop 8 unconstitutional with liberal lawyer David Boies, and appeared on FOX News Sunday. Unsurprisingly, Olson’s defense of his position was clear and logical: denying marriage to gay couples was an unconstitutional denial of equal rights. If I believed that homosexuality was an unambiguous physical condition like race, to which it is always compared, I would agree with him. But I don’t. Plainly, a physical condition isn’t obvious, and I’m aware of all of the scientific explorations that have been done. I am pretty confident that if there were a definite discovery, we would have heard it loud and clear and repeatedly. But it sometimes sounded as though Olson was not making a case that homosexuality was an identifiable physical trait, but that people have a right to marry the person of their choosing. They can be with the person of their choosing in the manner of their choosing. But a state can define the parameters of marriage like any other license. I also don’t believe that a state-issued license of marriage is anything like a basic human right, and the state has other interests in male-female marriages. Consider this article. And homosexual couples are nowhere denied the freedom to love and behave how they want with anyone they want, even in the most tactless expression, as long as no harm is done. They are in most states denied a piece of paper. That is hardly a horror

But Olson did use some unfortunate phraseology. He threw out the time-honored and dreaded charge that homosexuals were being treated as “second-class citizens.” Thrown out of public accommodations? Denied the right to vote? Do banks, lenders or others not want their money? I don’t even know what that refers to. Olson also said that “people were being hurt.” It seems to me that I am more ridiculed on Blogs than most homosexuals are in society, especially by the state. For whomever might be “hurt,” they need more toughness than that, just to navigate life in general. We don’t know what The Supreme Court is going to do, but a few weeks ago, someone asked why we don’t skip the long process in all of these legal cases and just ask (King) Anthony Kennedy what he’s going to decree with the other 8 justices split. 

I do think however, that though we once recognized the state as a common sanctioning authority in a society splintered into religious and other social sects and groups, it seems not to have worked out real well in the long run. Before homosexual marriage ever became an issue, having the state as the primary sanction of marriage has resulted in a sorely diminished institution of heterosexual marriage. Maybe we should be able to assign civil benefits to any individual we like including family and friends, and we could leave marriage to God and friends and our church or any other social group. If your group says you and a same-sex partner are married, it’s no skin off my nose. But it would be nicer and easier if the state weren’t involved. And there would need be no tax penalties or benefits for marriage, and all public documents and textbooks wouldn’t need to be altered to acknowledge different marriage arrangements. But in my state, I would still vote for adopting parents to be a man and a woman.

Now of course, anything may be imposed upon people provided the imposing entity is strong enough and/or the subject is passive enough. That has been called “might makes right,” which is exactly what our system was designed not to be. But without a doubt, human beings will take and exploit whatever power is surrendered to them. So, it falls more to the potential victims to resist unlawful abuse than to an oppressor to inhumanly decline unchallenged power. I think we should insist upon liberty for ourselves and our states. But, we can also grovel and roll over like the characters in The Wizard of Oz for the roaring head projected by popular media. I think the time is near when we will either jump out the window like The Cowardly Lion or rebuke the blustering incompetent like Dorothy. But read this article which explains the process which took place in the establishment of The Constitution. It’s a little bit long, but very relevant and corrective of popular misinformation.

Here’s a petition to sign to express your rejection of unconstitutional federal demands.


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