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Debates Forum

Debates Forum

  1. Standard member wittywonka
    Chocolate Expert
    04 Aug '11 17:57
    Can one of our right-leaning friends here on RHP resolve for me the apparent contradiction in GOP presidential candidates' overwhelming support for a same-sex marriage ban--not to mention something along the lines of an "abortion ban" (see Rick Perry's write-up below)--and their vocal yet seemingly unsubstantiated support for states' 10th amendment rights?

    A couple of recent articles for reference:
    http://content.usatoday.com/communities/onpolitics/post/2011/08/mitt-romney-gay-marriage-pledge-/1
    http://content.usatoday.com/communities/onpolitics/post/2011/08/rick-perry-states-rights-constitutional-amendment-abortion-/1
  2. 04 Aug '11 18:10
    I don't favor a gay marriage ban and think it a wholly stupid waste of time. I also don't favor an abortion ban, though I can see the point here, if Santorum believes it is murder. Are the states supposed to be responsible for marriage? My understanding of the 10th amendment is that it's a state power as long as the constitution doesn't spell it out as a federal power. If an amendment banning gay marriage were passed, then it would be a federal issue as it would now be part of the constitution. I'm no legal scholar, however.
  3. Standard member wittywonka
    Chocolate Expert
    04 Aug '11 18:16
    Originally posted by dryhump
    If an amendment banning gay marriage were passed, then it would be a federal issue as it would now be part of the constitution. I'm no legal scholar, however.
    Most states have already made their decisions about whether to recognize gay marriage as legitimate.

    I understand what you're saying, that federal law should trump state law, but I can't grasp the imaginary threshold that the GOP presidential candidates seem to ascribe to where under certain circumstances, states' decisions should suffice, and where under other circumstances, the federal government should go out of its way to enact legislation (or a constitutional amendment) that dictates what decisions the states should make.
  4. Standard member sh76
    Civis Americanus Sum
    04 Aug '11 18:36 / 1 edit
    Originally posted by wittywonka
    Can one of our right-leaning friends here on RHP resolve for me the apparent contradiction in GOP presidential candidates' overwhelming support for a same-sex marriage ban--not to mention something along the lines of an "abortion ban" (see Rick Perry's write-up below)--and their vocal yet seemingly unsubstantiated support for states' 10th amendment rights ...[text shortened]... ities/onpolitics/post/2011/08/rick-perry-states-rights-constitutional-amendment-abortion-/1
    I favor allowing gay marriage, so I'm playing Devil's advocate here.

    That being said, many will argue that federal intervention is necessary to protect states' self-determination in this case. The "fear" is that people will go to Massachusetts or Iowa or New York and get married and then move back to Georgia and get a federal court to order Georgia to recognize the marriage under the constitutional "full faith and credit" clause.

    Yes, that is exactly what DOMA was meant to prevent. But DOMA is of questionable constitutionality. A federal constitutional amendment would be a much stronger and more secure statement on this issue.
  5. Standard member wittywonka
    Chocolate Expert
    07 Aug '11 00:26 / 2 edits
    In an interview with Tony Perkins, the Washington beltway’s resident social conservative enforcer, Perry argued that his support for a federal marriage amendment was consistent with his federalist view, because the amendment would prevent courts from imposing recognition of same sex marriage onto unwilling states. “Indeed to not pass the federal marriage amendment would impinge on Texas,” Perry argued. He added that the amendment would block “a small group of activist judges, and frankly a small handful, if you will, of states, and liberal special interests groups that intend on a redefinition of, if you will, marriage on the nation, for all of us, which I adamantly oppose.”



    Read more: http://swampland.time.com/2011/08/04/rick-perrys-retreat-from-federalism/#ixzz1UIYBdRIR

    ___

    I find this disgusting, personally. But as long as red meat exists, people will eat it.
  6. 07 Aug '11 01:21
    Originally posted by wittywonka
    Can one of our right-leaning friends here on RHP resolve for me the apparent contradiction in GOP presidential candidates' overwhelming support for a same-sex marriage ban--not to mention something along the lines of an "abortion ban" (see Rick Perry's write-up below)--and their vocal yet seemingly unsubstantiated support for states' 10th amendment rights ...[text shortened]... ities/onpolitics/post/2011/08/rick-perry-states-rights-constitutional-amendment-abortion-/1
    The truth is that the 10th amendment is only supported by either party when it tends to support an issue decided at the Federal level.

    Legal abortion on demand, resulting from a Supreme Court decision struck down hundreds of State laws regulating or prohibiting the procedure. The ruling wasn't based on any shred of textual law, but on the personal preferences and views of those Justices. Personally, I can see the rationale that certain abortions ought not be criminal, but that was a process to be taken up in State legislatures.

    A decision in Congress or SCOTUS overruling State laws permitting gay marriage is an example of the same extra Constitutional activity from the opposite side. I don't personally see the reasons for the contradictory gay marriage. I all honesty, I would like to see all government, all levels, be eliminated from the institution of marriage.

    As is evident in a host of other things, hypocricy is probably the most abundant element in Washington, DC.
  7. 07 Aug '11 01:34
    Originally posted by sh76
    I favor allowing gay marriage, so I'm playing Devil's advocate here.

    That being said, many will argue that federal intervention is necessary to protect states' self-determination in this case. The "fear" is that people will go to Massachusetts or Iowa or New York and get married and then move back to Georgia and get a federal court to order Georgia to recogn ...[text shortened]... onstitutional amendment would be a much stronger and more secure statement on this issue.
    "The "fear" is that people will go to Massachusetts or Iowa or New York and get married"

    That fear is exactly what the 10th amendment is supposed to enable. That States can be free to experiment as proving grounds for laws, without committing the entire nation to such. It also provides a place to move if you don't like the laws where you are now living.

    "get a federal court to order Georgia to recognize the marriage under the constitutional "full faith and credit" clause."

    That fear is rational, and we see the disolving of federalism as it was understood.

    Clearly, a Constitutional amendment would be more powerful, and a correct remedy for those in favor of banning gay marriage, just as it would have been the proper means of legalizing abortion rather than the capricious actions of SCOTUS in Roe v. Wade.

    Though I don't favor gay marriage, I think it would be preposterous for SCOTUS to rule all gay marriages and State laws unconstitutional which would parallel what they did in Roe.
  8. 07 Aug '11 01:36
    Originally posted by wittywonka
    In an interview with Tony Perkins, the Washington beltway’s resident social conservative enforcer, Perry argued that his support for a federal marriage amendment was consistent with his federalist view, because the amendment would prevent courts from imposing recognition of same sex marriage onto unwilling states. “Indeed to not pass the federal marriage ...[text shortened]...
    ___

    I find this disgusting, personally. But as long as red meat exists, people will eat it.
    "Perry argued that his support for a federal marriage amendment was consistent with his federalist view, because the amendment would prevent courts from imposing recognition of same sex marriage onto unwilling states."

    Perry's view is logical and consistent with the 10th amendment. Constitutional amendments are difficult to get done, deliberately so.
  9. 16 Aug '11 14:35
    We were taught in law school that the 10th Amendment is a truism without signficance.
  10. Standard member sh76
    Civis Americanus Sum
    16 Aug '11 14:42
    Originally posted by moon1969
    We were taught in law school that the 10th Amendment is a truism without signficance.
    The 10th Amendment has been used to disallow the federal government's mandating of state conduct.

    New York v. United States, 505 U.S. 144 (1992)
  11. 16 Aug '11 15:28 / 2 edits
    Originally posted by sh76
    The 10th Amendment has been used to disallow the federal government's mandating of state conduct.

    New York v. United States, 505 U.S. 144 (1992)
    You are correct. But with the right approach, Congress does not let the 10th Amendment get in the way. In other words, it is more about process and not substantive when it comes to regulatory effect or goal.

    Congressional staffers are generally too careful in wording to let that kind of case happen much. And, again, it is really not that substantive. Sure, Congress can't order a governor around, but the state can be easily subjected to Congressional regulation to accomplish the same goal.

    In contemporary Supreme Court jurisprudence, the 10th Amendment really has no bite. With that said, you point out a good case of where the 10th Amendment has an impact.
  12. Standard member sh76
    Civis Americanus Sum
    16 Aug '11 15:36
    Originally posted by moon1969
    You are correct. But with the right approach, Congress does not let the 10th Amendment get in the way. In other words, it is more about process and not substantive when it comes to regulatory effect or goal.

    Congressional staffers are generally too careful in wording to let that kind of case happen much. And, again, it is really not that substantive ...[text shortened]... no bite. With that said, you point out a good case of where the 10th Amendment has an impact.
    They don't let it happen much because now, instead of trying unfunded mandates to the states, they just use strings attached to federal spending to control the states. Same basic idea, but more constitutional.
  13. 16 Aug '11 15:42 / 1 edit
    Originally posted by sh76
    The 10th Amendment has been used to disallow the federal government's mandating of state conduct.

    New York v. United States, 505 U.S. 144 (1992)
    Justice O'Connor in the opinion for the Court, explained in length the legitimate enormous expansion in federal power. She also alluded to process and noted the following:

    "Petitioners do not contend that Congress lacks the power to regulate the disposal of low level radioactive waste. Space in radioactive waste disposal sites is frequently sold by residents of one State to residents of another. Regulation of the resulting interstate market in waste disposal is therefore well within Congress' authority under the Commerce Clause. [citations ommitted].

    Petitioners likewise do not dispute that under the Supremacy Clause Congress could, if it wished, pre-empt state radioactive waste regulation.

    Petitioners contend only that the Tenth Amendment limits the power of Congress to regulate in the way it has chosen. Rather than addressing the problem of waste disposal by directly regulating the generators and disposers of waste, petitioners argue, Congress has impermissibly directed the States to regulate in this field." (Emphasis added).
  14. 16 Aug '11 15:43
    Originally posted by sh76
    They don't let it happen much because now, instead of trying unfunded mandates to the states, they just use strings attached to federal spending to control the states. Same basic idea, but more constitutional.
    Good point
  15. Standard member sh76
    Civis Americanus Sum
    16 Aug '11 15:56
    Originally posted by moon1969
    Justice O'Connor in the opinion for the Court, explained in length the legitimate enormous expansion in federal power. She also alluded to process and noted the following:

    "Petitioners do not contend that Congress lacks the power to regulate the disposal of low level radioactive waste. Space in radioactive waste disposal sites is frequently sold by resi ...[text shortened]... Congress has impermissibly directed the States to regulate in this field." (Emphasis added).
    Yeah; it was a very narrow holding.

    The 10th amendment is kind of like the 9th in that regard.