States' Rights vs. Conservative Constitutional Amendments
Rick Perry has been catching some flak lately for stating (accurately, I think) that abortion and gay marriage are properly matters of state law under the Tenth Amendment.
Being a politician, Perry appears to have backtracked on both issues, "clarifying" that he would support a anti-abortion amendment and federal marriage amendment. But since you and I are not politicians, let's answer the question honestly: would you support any constitutional amendment(s) to enforce conservative social policy, even though such an amendment would detract from state's rights?
For me the answer is generally "no." But I hesitate on the human life amendment. The 14th Amendment already makes state deprivation of "life" a matter of federal constitutional law. Granted, the original meaning of the 14th Amendment almost certainly did not include the unborn. But given the advances in knowledge about the unborn and the phenomenon (unforseeable in 1868) of abortion on demand, I would support a life amendment.
Enough about me, what do you say?
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Mar '11
Re: States' Rights vs. Conservative Constitutional Amendments
Amendments are by their vary nature State's Rights since three quarters of the states need to ratify them. Unfortunately socially conservative amendments would be unlikely to pass in our more populous states with heavily democratic bases. However, a Balanced Budget Amendment, which most states already have, or Congressional Term Limits would easily pass even among the liberal jurisdictions.
May '10
Re: States' Rights vs. Conservative Constitutional Amendments
Excellent point. I never thought about it that way.
I'm not sure they would, unfortunately. But that is no reason not to try for a balanced budget amendment. You won't succeed if you never try.
May '10
Re: States' Rights vs. Conservative Constitutional Amendments
Prop 8 passed in-- California? And is being thwarted, as usual, by the judiciary.
Actually, I'm not 100% sure how it works, but don't constitutional amendments have to be voted on by the state legislatures, not popular vote? In that case, I'd have to concede you're probably right. The state legislatures in a lot of states don't properly represent their population on these issues.
But again, no reason not to try.
Edited on Aug 5, 2011 at 2:29pmDec '10
Re: States' Rights vs. Conservative Constitutional Amendments
I agree with Charley: the amendment process respects the rights of States to make their views known.
I disagree that a Human Life Amendment is socially conservative, any more than the amendments with respect to chattel slavery were socially conservative. The notion of granting recognition to the rights of unborn children to complete their gestation is more the removal of a pernicious societal notion that a woman's lifestyle takes precedence over a fetus's life. In that, it's similar to the removal of the pernicious societal notion -- not present at the original European settlement of North America -- that owning slaves was a right that took precedence over the slave's right to freedom, and its metastasized form of declaring that certain races of men were only fit to be slaves.
Oct '10
Re: States' Rights vs. Conservative Constitutional Amendments
Stuart Creque: I agree with Charley: the amendment process respects the rights of States to make their views known.
I disagree that a Human Life Amendment is socially conservative, any more than the amendments with respect to chattel slavery were socially conservative. · Aug 5 at 2:31pm
I'm fully in agreement with Stuart's position. Moral positions are not "social". Many of us come to these positions from deep religious conviction, and many others have developed them in other ways, but they still represent something much deeper than simple opinion. We live our very lives by these convictions.
Regarding the marriage issue; If it were possible for the courts to respect a state's electorate and allow for the state's right to deny the benefits of marriage to people who are "married" in another state, then perhaps it is a 10th amendment issue. Given the reality that the feral courts show utter contempt for both electoral and individual states positions, Prop. 8 for instance, we are driven to the Constitution as our only recourse. Even that esteemed document is routinely dissed by many courts, which leave, as in 1860, violence as the only last recourse,
God help us.
Dec '10
Re: States' Rights vs. Conservative Constitutional Amendments
Nope. I support it, completely, but do not think we should pursue it, nationally.
I prefer allowing states to decide individually.
This issue is too divisive and there are other issues that we could gain ground on, nationally, that will be impeded by a heated and divisive debate overshadowed by this one issue. Repeal R vs W, then allow the states to make their own decisions, and live with the consequences.
Jun '10
Re: States' Rights vs. Conservative Constitutional Amendments
Stuart Creque:
I disagree that a Human Life Amendment is socially conservative, any more than the amendments with respect to chattel slavery were socially conservative.
Hear hear!
The 10th Amendment reads: "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."
Most powers of government should be delegated to the states, except those few (like national defense) properly assigned to the federal government. But individual civil liberties must be protected against the powers of both the state and federal government. And among civil rights, the right to life is first and foremost.
Defending the "right" of any state to infringe the basic right to life of its own citizens is in no way conservative.
Oct '10
Re: States' Rights vs. Conservative Constitutional Amendments
How, precisely, can you err in pushing the decisions about the laws you live under as close as possible to the judgement of the people you live with? If you disagree with their decision, you can vote with your feet and go somewhere more closely aligned with your beliefs.
If laws are made on a continental scale (not to mention by unelected judges with lifetime tenure), expatriation is the only option. Hey, worked for me!
Aug '10
Re: States' Rights vs. Conservative Constitutional Amendments
Yes on a federal marriage amendment; no on an amendment to ban abortion.
We simply cannot trust the judges of this country to respect the will of the people of any given state to restrict marriage to one man and one woman. Hence the need for a constitutional amendment.
Although I am strongly opposed to abortion, I would make an exception for rape, incest and the life of the mother. People are free to make the choice to get pregnant but are not free to try to change the consquences of their choice by aborting their child. Victims of rape and incest did not get a choice and therefore should not be forced to submit to the consequnces of someone else's bad choice. At any rate, the issue should be decided at the state level.
Jun '10
Re: States' Rights vs. Conservative Constitutional Amendments
John Walker: How, precisely, can you err in pushing the decisions about the laws you live under as close as possible to the judgement of the people you live with? If you disagree with their decision, you can vote with your feet and go somewhere more closely aligned with your beliefs.
If laws are made on a continental scale (not to mention by unelected judges with lifetime tenure), expatriation is the only option. Hey, worked for me! · Aug 5 at 3:42pm
I'd be inclined to agree with you if unborn children had the option to move to pro-life states...
Oct '10
Re: States' Rights vs. Conservative Constitutional Amendments
Amendements are intended address the framework of rules for the Government at the Federal level. Such social hot button issues as marriage and abortions, etc. are left to the states.
If Conservatives promote such an agenda, they need to face the fact that they would be advancing social engineering. Something Conservatives loathe on the Left to no end. Both sides wish to claim the higher moral ground and lay groundwork for some measure of influence over the lives of others.
May '11
Re: States' Rights vs. Conservative Constitutional Amendments
The only Constitutional Amendment I would support in this area is one that said no judge will find a Constitutional right to anything if nobody else has ever noticed that right in the Constitution for the last 100 years. Oh, and repeal the Penumbra clause.
While I'm at it, these are my favorite Constitutional phrases that aren't actually mentioned in the Constitution:
1. "Separation of church and state."
2. The "right to privacy."
3. The "right to trial by a jury of one's peers."
4. Slaves were 3/5 of a person.
5. "Life, liberty and the pursuit of happiness."
Oct '10
Re: States' Rights vs. Conservative Constitutional Amendments
And here is my favourite, which is so mentioned: “Congress shall make no law”. I imagine a set of billboards with these on the radial roads from the beltway to the centre of the Imperium, as it is crumbling while Claire is mocking those who bought gold below US$2000/oz.
Aug '10
Re: States' Rights vs. Conservative Constitutional Amendments
When we lived in a world in which two people cohabiting were said to be "living in sin", sex between unmarried people was called "fornication", the children of unmarried couples were called "bastards", and these things mattered to people, then restricting the definition of marriage, or outlawing certain marriages, placed real limits on what people could do. None of that applies any more. "Gay marriage" is therefore not about letting people have relationships that they were formerly prevented from having, but entirely about forcing other people to call those relationships marriage, when thousands of years of human history says they're not. In my view, this is a totalitarian policy that no state has a right to impose, even if a majority vote for it, and a Constitutional amendment prohibiting it would be a good thing.
Jun '10
Re: States' Rights vs. Conservative Constitutional Amendments
No on marriage, yes on abortion. Adults should be free to order their lives as they see fit without interference from the State. Abortion is always and forever wrong, so I would support the amendment try for that.
Jun '11
Re: States' Rights vs. Conservative Constitutional Amendments
This is a tough question for me. I am radically opposed to abortion and I think it's a terrible mistake to re-define marriage. Nevertheless I believe these issues should be dealt with at the state level. I believe the national government should be dramatically smaller. Not just in terms of how much money it spends but also in terms of how many areas of our lives it touches. I expect that, if these issues were remanded to the states, the result would be that abortion would be illegal in most states and marriage would be redefined in a significant number of states if not a majority. Not the result I would like but perhaps worth it if it meant a much smaller federal government.
Jun '10
Re: States' Rights vs. Conservative Constitutional Amendments
I say no. And I don't like the term "states rights." I prefer the term "federalism." It has less of a negative connotation to the unthinking mind. (Meaning, all liberals)
Jul '10
Re: States' Rights vs. Conservative Constitutional Amendments
Marriage may almost require some kind of amendment. It won't be long before gay couples married in one state start suing to have their marriages recognized in states that have banned gay marriage thus attempting to circumvent those bans. That brings up problems under the Full Faith and Credit Clause of Article IV. Do you want this being decided by the amendment process or by another 5-4 decision by the roulette wheel we call the Supreme Court?
Edited on Aug 5, 2011 at 7:36pmMar '11
Re: States' Rights vs. Conservative Constitutional Amendments
Since social issues, even when conceived of as moral issues, tend to be more informed by informal practice and the mores of the day; and since law is a very blunt instrument, I tend to strongly prefer a federalist/10th amendment approach to the Constitutional Amendment approach.
(As an aside: The solution to judicial activism is to appoint judges who respect law and their proper constitutional role. Any judge willing to find "penumbras" and "emanations" can contort a law in spite of the text.)
On the specific issues you cited:
No on marriage. You get a marriage certificate from your local city hall, and vows are between the two people getting married and God. Leave it to the States, the churches, and to the people.
I am far more sympathetic in principle to a Life amendment. There are some thorny moral issues involved here, however, so I’d want to see the text before I could fully support it.
Jun '10
Re: States' Rights vs. Conservative Constitutional Amendments
Whiskey Sam: Marriage may almost require some kind of amendment. It won't be long before gay couples married in one state start suing to have their marriages recognized in states that have banned gay marriage thus attempting to circumvent those bans. That brings up problems under the Full Faith and Credit Clause of Article IV. Do you want this being decided by the amendment process or by another 5-4 decision by the roulette wheel we call the Supreme Court? · Aug 5 at 7:35pm
Edited on Aug 05 at 07:36 pm
States don't have to recognize marriages from other states now, so where's the difference?