So Kiss States' Rights Goodbye

The 10th Amendment to the Constitution of the United States of America reads as follows:

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 the two hundred and twenty odd years since that amendment was ratified, it has generally been understood that meant that what the Feds claimed as theirs was theirs, and anything else was to be decided by the states at their discretion.  Chief Justice John Roberts explained as much in his opinion (page 10) for the NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL

v

. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL

Roberts:

Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives,liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293

(J. Madison).

However, that doesn't mesh with what the Supreme Court recently decided in the OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL.

In this decision, the majority of the Supremes determined that the 14th amendment of the U.S. Constitution superseded the powers granted to the states in the 10th amendment.  On one point, and one point only, I would agree with them, however, the amendment has nothing to do with what was in front of the Court that day.

The 14th amendment was the second of 3 amendments collectively known as the "Reconstruction Amendments", and they were passed in 1865 (13th), 1868 (14th), and 1870 (15th.)  For the Court to assert that these laws apply to gay marriage is ridiculous on its face for any number of reasons, no less than the fact gay marriage was not a topic of discussion at that point in time in U.S. History, nor was homosexuality in any real manner of speaking, despite the fact that there anti-sodomy laws on the books dating to the 1600s.  It was not until post-1880 that these laws began to be really enforced, and even then, the focus wasn't an anti-gay stance, but rather one that was specifically anti-sodomy, regardless of the sex of the members engaged, according to Margot Canaday, in her review of William Eskridge's Dishonorable Passion for The Nation magazine.

A further reason it is ridiculous for the Court to have reached such a decision is because it requires the Court to step outside of its Constitutionally appointed role in government, which is to essentially uphold the rule of law.  Its role is not to interpret and reinvent the Constitution as it sees fit their particular political leaning at the moment.  Extending the 14th amendment past its intended goal is absurd, and is without question a usurpation of powers.  To the amendment, which reads as follows:

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. 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, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Points 1 - 4 list out exactly what it is that the amendment is looking to achieve, point 5 says who has the power to enforce the law through legislation.  You'll note that there is no mention of gay marriage, nor is there any mention of the U.S. Supreme Court having the authority to enforce or alter the amendment.  Why?  Because it's not their job, and it has nothing to do with gay marriage.

It is also important to note that in provision 2, the right to vote was extended to all men, ages 21+.  This was underscored when the 15th amendment was passed:

1. The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or
previous condition of servitude.

 Women would have to wait until the 19th amendment for their chance to vote, to vote without having to potentially pay a poll tax the 24th amendment, and those who were aged 18 - 20 would have to wait until amendment 26.

The point is, the Constitution is not some malleable, living document that can be changed on a whim.  It should be, and was designed to be, the bedrock upon which our society was built.  If something about it needs to be changed, their is a proper course of action (pass a new amendment.)  Don't believe me?  Let's ask two Founding Fathers who were instrumental in the writing of the Constitution.  First, George Washington's thoughts on how and when the Constitution's might be changed:

 ...Changed by an explicit and authentic act of the whole people.  If in the opinion of the people, the distribution of modification of the Constitutional powers be in any way particular wrong, let it be corrected by an amendment in the way which the Constitution designates.  But let there be no change by usurpation; for though in this one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.

Thomas Jefferson would write in 1803:

Our peculiar security is in the possession of a written Constitution.  Let us not make it a blank paper by construction.

The Court's decision overstepped its bounds, and put our Nation on the path to oligarchy.  The question is not whether or not gay marriage should have become law, but rather the means that goal was achieved.  Instead of putting in the hard work of achieving a Constitutional amendment, gay rights 'activists' chose the short cut of going to the courts.  Instead of thinking of long-term consequences, they thought only of their own short-term desires, and the Supremes kowtowed to pressure from which they are supposed to be immune.  This was a disaster for our nation, in ways that may not yet have been imagined.