Judge's Decision Takes Power Away From People, States

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Column: Judge’s decision takes power away from people, states

Posted on09 August 2010.



By Andrew Lacy



Daily Nebraskan, U. Nebraska via UWIRE



A single judge overruled seven million voters last week, as Proposition 8 was struck down in U.S. District Court.



Prop. 8 is an amendment to the California Constitution which says “only marriage between a man and a woman is valid or recognized in California.” After a very heated campaign, the measure was passed by 52 percent of voters in the 2008 election and went into effect the next day.



Not surprisingly, the measure was almost immediately challenged. The California Supreme Court upheld the amendment in May 2009. Opponents then filed suit in federal court, arguing that it violated the due process clause of the Fifth Amendment and the equal protection clause of the Fourteenth Amendment of the U.S. Constitution.



Judge Vaughn Walker agreed. That’s how we got where we are now.



The problem with this ruling is that it’s based on the wrong parts of the Constitution. It should not have been decided based on the Fifth and Fourteenth, but rather the Tenth Amendment.



For those not familiar with the Constitution, the Tenth Amendment 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.”



In layman’s terms, if something isn’t in the Constitution it should be decided by the states individually. A quick perusal of the document shows absolutely no mention of marriage of any kind. Therefore, it is left to the states. It can be decided by state legislatures or by a direct vote as in California, but it is a state issue.



This should have been settled as soon as the California Supreme Court upheld the proposition. That ruling is correct, because Proposition 8 amended the California Constitution, making the law constitutional by definition.



Let me stop here to make something very clear: it doesn’t matter whether or not people find homosexuality immoral. Throw that notion out right now. This is a legal matter, particularly the right of the United States to govern themselves without the federal government overstepping its authority.

This is a battle that has been going on since the earliest days of the republic. It was first made a serious issue in 1791, when Thomas Jefferson and James Madison joined forces to oppose Alexander Hamilton’s attempts to create a national bank. The bill passed Congress despite Madison declaring the bill unconstitutional.



President Washington consulted his cabinet – which included both Jefferson and Hamilton – whether Madison was correct. Jefferson wrote back to Washington, saying almost verbatim the same thing as the Tenth Amendment, which had been passed by Congress, but not yet ratified.



How did Jefferson know the creation of a federal bank was unconstitutional? He read the Constitution, specifically Article I, Section 8. Nowhere among the powers of the federal government was there any mention of chartering banks, therefore the power didn’t exist.



The difference between Jefferson and Hamilton’s opinions is based on an assumption that is still relevant today. Jefferson assumed that the federal government only had the powers expressly delegated to it by the states. Hamilton assumed that the federal government was much like the British Parliament, in that it has all powers the Constitution does not expressly deny it.



Unfortunately, the big government Federalists won and Washington approved the creation of the First Bank of the United States. Since then, the federal government has been expanding its power while ignoring the rights of the states. That expansion led to the death of more than 600,000 Americans in the 1860s.



Yes, slavery was manifestly immoral. But the states were completely within their rights to secede and President Lincoln knew it. Even before running for president, Lincoln was quoted as saying The South would not be permitted to secede, not that they didn’t have the right to secede. It was the states that ratified the Constitution and chose to join the union. The same states had the right to leave.



The march of the federal government continued into the Great Depression, as FDR introduced a number of unconstitutional programs and agencies as part of the New Deal. The Supreme Court rejected many of Roosevelt’s actions, only relenting when the president concocted a court-packing scheme to put the majority of the Court in his favor.



And now the Supreme Court will once again be asked to rule whether the federal government can take away power from the states, this time as it applies to marriage. We can already predict how eight of the nine justices will vote. The four conservatives – Roberts, Scalia, Thomas and Alito – will support Prop. 8. The four liberals – Ginsburg, Breyer, Sotomayor and Kagan – will oppose it.



That leaves Justice Anthony Kennedy as the man who will decide this issue, either affirming the right of the states to determine gay marriage for themselves or legislating from the bench to effectively make gay marriage legal nationwide.



Do the right thing, Justice Kennedy. Uphold the Tenth Amendment.



Read more here: http://www.dailynebraskan.com/lacy-judge-s-decision-takes-power-away-from-people-states-1.2295519



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