Today’s gathering of 2012 presidential candidates for the American Principles Project Palmetto Freedom Forum highlighted the continuing salience of social issues in the Republican coalition, as evidenced by the questions of Prof. Robert P. George. At the same time, the 2012 election is shaping up to be as much about differing theories of constitutional interpretation as it is about contrasting policy platforms. Thanks in large part to the Tea Party movement — a force behind the Palmetto debate — conservatives have recommitted themselves to grounding their positions in a vision of the Constitution. The Tenth Amendment has played an integral role in this new constitutional conservatism, but confusion has pervaded the discussion of this important amendment as applied to the issue of marriage. What many have missed is that while the Tenth Amendment tells us what the national government can do, the issue of a federal marriage amendment is a question of what the national government should do.
This is not a complicated point, but it is easy to miss. David Boaz of CATO, for instance, has written with regard to the federal marriage amendment about the “tension between support for the Tenth Amendment and support for federal laws and amendments to carve exceptions out of the Tenth Amendment.” Boaz pointed to Rep. Michele Bachmann’s stated support for the Tenth Amendment and her advocacy of a federal marriage amendment as an example of this tension.
Similar charges of inconsistency have dogged Gov. Rick Perry, who has for years trumpeted his commitment to the Tenth Amendment and initially reacted to the legalization of same-sex marriage in New York by stating: “That’s New York, and that’s their business, and that’s fine with me.” Perry later reaffirmed his support for a federal marriage amendment by signing a pledge put out by the National Organization for Marriage, which prompted this angry response from The Atlantic’s Conor Friedersdorf: “Perry has shown himself to be a 10th Amendment hypocrite whose credibility on any issue related to federalism should never again be trusted.”
But there is nothing inconsistent about advocating a federal marriage amendment and being a strong defender of the constitutional limitations embodied in the Tenth Amendment. The text of the Tenth Amendment makes clear that it is a descriptive provision, not a normative one: “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 amendment limits the powers of the federal government to those enumerated in the Constitution, but it does not say whether the federal government ought to exercise those powers. Undoubtedly the federal government has the power to pass a constitutional amendment that would define marriage as the union of a man and a woman and send that amendment to the states for ratification, so the real question is whether it should do so.
But if the Tenth Amendment and a federal marriage amendment are clearly compatible, why does confusion persist over this issue? Much of the confusion stems from a conflation of the Tenth Amendment with ideologically driven ideas of states’ rights. Commentators like Boaz and Friedersdorf, for instance, have used the Tenth Amendment as a stand-in for their particular conceptions of states’ rights. Thus, if a presidential candidate claims to support the Tenth Amendment but does not agree with these commentators’ views of states’ rights, accusations of inconsistency are sure to follow.
The accusations lack merit. As Sen. Rick Santorum pointed out in a Republican presidential debate back in June, a federal marriage amendment could be ratified only if approved by three-fourths of the states. If three-quarters of all states and two-thirds of the states’ federal representatives in Congress voted for such an amendment, it would be difficult to argue that the states’ rights had somehow been violated. Not only would there be broad state support for a federal marriage amendment; it would have been enacted by constitutionally legitimate procedures.
Moreover, as Prof. Michael Stokes Paulsen has stated, “The Tenth Amendment is an interpretive instruction”: It clarifies how the powers of the federal government are to be interpreted. In her excellent recent book Ratification: The People Debate the Constitution, American historian Pauline Maier documents the rationale for including this rule of construction in the Constitution. When the Constitution was being debated in the state ratifying conventions, there was a great deal of concern that the proposed federal government would claim powers beyond those listed in the document. Nothing explicitly precluded an interpretation that would have regarded the federal government’s enumerated powers as a non-exclusive listing. The Tenth Amendment was a response to these concerns.
Notwithstanding the Tenth Amendment’s raison d’être, one might reasonably argue that the amendment enshrines in the Constitution a broad principle of states’ rights, but it is hard to argue that that broad principle somehow contradicts the idea of a federal marriage amendment. If it did, the Tenth Amendment would stand opposed to Article V of the Constitution, a distinctly odd result that would have to be explained by opponents of a federal marriage amendment.
Nothing that has been said would prevent Boaz or others from arguing that the power to define marriage is a natural right of the states — a right existing apart from the Constitution — that ought not be overridden by a federal constitutional amendment, or that there are prudential reasons why it would be better, as a matter of policy, to allow the marriage issue to be played out in the states. But these claims are distinct from the Tenth Amendment argument, and that is a significant distinction to maintain in these debates going forward. Constitutional conservatism must begin with a clear understanding of the Constitution.
— Joel Alicea is a student at Harvard Law School.