Wednesday, August 31, 2011

Federalism And Why Rick Perry Hasn’t Flip-Flopped On Same-Sex Marriage

Explain the change, the difference between
What you want and what you need
There’s the key
—R.E.M., I Believe

Full disclosure:  I’m a Texan.  But no, this isn’t a campaign endorsement.  It’s just an effort to keep the record clear.

Since the day Rick Perry made it official that he was running for President, the Houston Chronicle has cranked out daily (sometimes more than one a day) hatchet pieces all but expressly aimed at discrediting his candidacy.  It’s almost as though they had an inventory of such articles in the can and ready to go.

Shocking, I know.

Saturday’s article stems from Perry’s signing of the National Organization of Marriage (“NOM”) pledge to seek a constitutional amendment defining marriage as the union of one man and one woman.  The Chronicle headlined this article with the notation that “[a] month ago, he said same-sex marriage was for states to decide[,]” referring to Perry’s remarks at a Republican Governors Association gathering about New York’s recent legislation permitting same-sex marriage.  The suggestion is that by signing the NOM pledge Perry has changed his position to pander to social conservatives who immediately criticized his remarks.

I have news for both the Leftist media and the social Right (the latter of which I count myself as being among): Rick Perry’s position on the New York same-sex marriage statute was and remains correct, and by signing the NOM pledge he hasn’t flip-flopped on the issue.

Let’s start by looking at what Governor Perry actually said:

“Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex.  And you know what?  That’s New York, and that’s their business, and that’s fine with me.  That is their call.  If you believe in the 10th Amendment, stay out of their business.”

Perry didn’t say he supported same-sex marriage.  He simply didn’t.  What he said was what New York does on that issue is New York’s business.  And this highlights a fundamental point that so many misunderstand.

There is a basic misconception in this country that States are merely subordinate branches of a single government that emanates from Washington.  We’ve seen this misconception manifest itself repeatedly in the Obamacare discussion as supporters ridiculed those who criticized the program’s individual mandate as unconstitutional by pointing to car insurance.  Of course government can require the purchase of health care insurance; every state in the union already does that with car insurance.

The problem, of course, is that States aren’t subunits of the federal government, and the rules for States are, in fact, very different than they are for the federal government.  This is why the car insurance analogy was always irrelevant to the Obamacare debate, and why criticism of Mitt Romney over Massachusetts passing a similar statewide healthcare law during his watch as Governor is largely misplaced.  Recall that at this nation’s inception the colonies-cum-States were 13 individual sovereign entities, and the very core of the debate over whether to ratify the Constitution and create the Union at all was the concern over how much of that sovereignty the States would retain.  The Ninth and Tenth Amendments were specifically added to the Bill of Rights to guarantee that the States retained their sovereignty with very limited and specific exceptions, and were necessary inclusions to secure ratification; without them, the Constitution would never have been adopted, because States like Virginia, South Carolina, and even New York would never have agreed.

Under the Ninth Amendment: 

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And the Tenth: 

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 Framers couldn’t have been more clear.  Certain specific powers are conferred upon the federal government, and EVERYTHING else is reserved to the States or to the people.  James Madison famously elaborated on this idea in Federalist Paper No. 45: 

The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Try as you might, you won’t find marriage discussed in the Constitution.  It’s just not there.  And because it’s not among those matters specifically delegated to the federal government, it is an issue expressly reserved to the individual States.  This is the point Perry was making with respect to New York.  I don’t like it, but at present there’s nothing Texas or the federal government can do about what New York has decided with respect to same-sex marriage within its borders. 

Perry understands what the Left can’t or won’t accept:  there are rules that are supposed to bind what the federal government can and can’t do, and if you want something at the federal level that isn’t provided for, there’s a process for accomplishing that and that’s called amendment.  And perhaps this is what has the Leftist media confused.  They can’t figure out why Perry wouldn’t simply appoint a judge to overrule the New York statute.

Isn’t that how we always do it?

The fact is that Perry hasn’t flip-flopped on the same-sex marriage issue.  In 2003 he signed Texas’ state version of the Defense of Marriage Act, specifying that Texas does not recognize same-sex marriages or civil unions.  In 2005 he supported the Texas Marriage Amendment to the State Constitution (which passed in a statewide referendum by an overwhelming 76% of the vote) making it unconstitutional for the State to recognize or perform same-sex marriages, plural marriages, or civil unions.  Perry’s statements regarding New York and his signing of the NOM pledge are consistent with his opposition to same-sex marriage and view that the issue is one for the individual States.

If you don’t like what New York has done with same-sex marriage, don’t move there.  But don't blame Rick Perry for it.

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