All ten amendments in the bill of rights were passed at the same time. I’m not sure how you break it down as 8 + 2.

The first eight are rights-bearing(hence, Bill of rights), the ninth and tenth are close cousins dealing with federalism and construction.

I still fail to see how the Article V process that the framer’s put into the constitution requiring state assent to changing it is an affront to federalism.

I guess it depends on what your understanding of Federalism is. If you understand Federalism to be a principle that guides the judiciary, and requires them to respect the boundaries of state and Federal power, then no, amending the constitution isn’t an affront to Federalism. But that is not what Federalism is. Federalism – at least in the American context – is the principle that you have different governments with overlapping areas of responsibility, in furtherence of two seemingly incompatible axioms: that government should operate (and be controlled) as close to the governed as possible, and that some matters of policy (the military, foreign poluce, etc.) must be handled by the national government. Those goalsare incompatible in a nation the size of the United States, unless you are willing to split the atom of sovereignty: the ingenious idea that you can have one government empowered to exercises national powers, and an entirely different one empowered to exercise the other traditional functions of government. The American Federal system was specifically designed to minimally contract the sphere of state action by narrowly defining the scope of Federal power.

Simply put, everything about the Federal Constitution’s design telegraphs its purpose: to exercise a few necessary competencies, and ONLY those competencies, and to have robust power to excercise those competencies, while leaving the states essentially free to do what they want in all areas not reserved to the national government.

As a general rule, state constitutions tend to grant state governments the police power. Unwise though that may be, it is probably true to say that mostly everything is within the legislative scope of the states. Ipso facto, a Federal Constitutional provision (or amendment) which bars a state from undertaking certain action is necessarily a contraction of the power of the state.

This is a metaphor in terrible taste, but I think you’remaking the mistake of thinking this is rape when it’s murder. As I understand it, your point is that this isn’t an affront to Federalism because it would be consensual, as as long as there’s state consent (more accurately, as long as three quarters of the states consent) it’s fine. But the law recognizes no such thing as “consensual murder”.

All ten amendments in the bill of rights were passed at the same time. I’m not sure how you break it down as 8 + 2, but that is semantics.

While I give you points for your stick-to-it-iveness, imho we’re long past the days of serious argument about the legitimacy of incorporation.

I still fail to see how the Article V process that the framer’s put into the constitution requiring state assent to changing it is an affront to federalism. Perhaps we could agree on a middle ground that it’s certainly not the affront that federal legislation or federal judicial opinions that wrest authority away from the states, is. Or, alternatively, it the preferred method for affronting federalism.

But my original point it is decidedly not, not taking states’ rights seriously, particularly when compared with judicial activism. You can be a good federalist and still think some matters are important enough to warrant seeking the consent of the governed for a legitimate national policy.

The first eight amendments of the Constitution, which are the Bill of Rights, constrained the Federal Government, not the states, so I suppose your beef is with the Fourteenth Amendment and incorporation (by whichever road one reaches it), not the bill of rights. However, yes, as a normative matter, I absolutely think that some things are more meritorious of being protected by the Federal Constitution than others.

Kip,

IMO, whether or not you can marry your partner is a debate that should be between you and your fellow New Yorkers. For what it’s worth (which is probably very little), I believe marriage IS sacrosanct, but I also think there are things that married heterosexuals do that inflict far more damage on the sanctity of marriage than would two men or women in love being married to one another. Quickie divorce, sex-drenched modern culture, infidelity, Britney Spears: if none of these things existed, it might be possible to talk seriously of homosexual marriage harming the sanctity of marriage in some quantifiable sense, but since they do exist, any damage that homosexual marriage might to do the sanctity of marriage (and I’m not convinced there is any) would be a drop in the bucket. Moreover, I’d point out that people who cheat on their spouses are thereby estopped from entering the debate on homosexual marriage; I make a policy of agreeing with most of the things that Newt Gingrich says, but I am not going to take a lecture from that man on the sanctity of marriage. Two people in love is not a threat to the sanctity of my marriage, or anyone else’s.

But that is for you to convince your fellow New Yorkers, and me to convince my fellow Hoosiers. I don’t see it as a bad result if you succeed and I fail, and thus some parts of the country recognize homosexual marriage and some do not, just as some parts of the country have always had different standards for marriage without tension. But it is normatively undesirable to resolve this question at the Federal level, in my view, and a fortiori to do so at the level of a Federal Constitutional Amendment.

Be careful not to conflate – as your last paragraph does – the question of procedural legitimacy with that of substantive wisdom. I support the right of my fellow Americans to enact uncommonly silly laws, but I reserve the right to point and snigger when they do, and to write and even vote against them, as the opportunity presents itself. To be clear: I am not arguing that America CANNOT do this, I am saying that America SHOULD not do this.

Federalism isn’t just a procedural commitment, it’s substantive, too. I’m not just in favor of Judges respecting Federalism because that’s what the Constitution requires (although I am in favor of that), I also see Federalism as a normative good, too. This amendment detracts from Federalism by contracting the sphere of the state action, and for those reasons, I oppose it.

Lest their be any doubt, I oppose this on federalism grounds, and herein take no side on the wisdom (or lack thereof) of permitting or prohibiting homosexual marriage as a matter of public policy. I would make precisely the same arguments against a Federal amendment permitting homosexual marriage as I am now making against a Federal amendment prohibiting homosexual marriage. This. Is. A. Matter. For. The. States.

That’s a non-sequitur. You don’t have a right to something that the Constitution specifically prohibits – unless folks want to start arguing that natural law trumps constitutional law. Constitutional amendment and ratification of this measure – if it ever passed – is the ultimate public policy decision that a people can ever make. If passed this is would be no more or less a statement of our national policy on marriage than the 14th Amendment is our national policy on naturalization and equal rights. It wouldn’t “trample[]” your rights anymore than the 14th Amendment trampled people’s rights.

If that’s what people call “federalism” these days, then count me out.

P.S. Specter, not Spector.

You are not taking something away – if ratified -the states are handing it over to the federal government.

And Simon, if you have confidence in the wisdom of Americans when it comes to modifying our Constitution, it seems to me that that has to cut both ways: you have to trust their judgment on this proposal.

Talk about a one-way rachet – folks on the left don’t mind the unelected courts deciding issues for the states (so long as they agree with the courts’ decisions) – but the voters should not try to undo those decisions and our elected representatives should not take action to make sure the courts don’t take away states’ rights in the first place. Then, having set the rules of the game, the left simultaneously decries actions by conservatives both legislatively and judicially to return matters to within the states’ control.

While I completely agree with this comment, on its face, am I alone in seeing the irony here? You complain that “the left decries actions by conservatives . . . to return matters to within the states” while simultaneously arguing for precisely the opposite result: the taking away of matters from the states!

That’s a fair argument, but it’s not really satisfying. I fully agree that submitting this amendment through the Article V process is certainly legitimate, and certainly, it is more defensible than would be imposing the same policy through the judiciary, but it remains inescapably the case that this amendment is imposing a national solution to an area that has previously been within the purview of the states. And you are simply wrong to say that “this is not a bill banning states from recognizing same sex marriage”; that is precisely what it is, no matter that it would be legitimately ratified. It is still a bill to change the delegations of power from the people to the Federal and state governments, it is still a bill that will impose a blanket national solution, and it will still be a bill that makes the mistake of elevating a policy fad to Constitutional status. George F. Will has written:

It used to be said that libraries filed French Constitutions among periodicals. The [proposed 500+ page] EU Constitution will someday seem as dated as a yellowing newspaper, because it gives canonical status – as fundamental rights elevated beyond debate- to policy preferences, even to mere fads, of the moment.

Our Constitution has endured in a way that few other constitutions have endured precisely because – until very recently – we resisted such temptations. We understood that not every right or activity must be protected by the Constitution in order for it to be protected in some manner (which is precisely what I argue the ninth amendment’s injunction against disparaging other – i.e. not constitutionally protected – rights means), but rather, that the Constitution set a floor and a structure for the American polity. We abandon such thinking at our peril.

This is not a “bill. . . banning states from recognizing same sex marriage” – this is a bill to amend our constitution. I can hardly think of a more democratic action.

Rail against it all you want, but asking the states to ratify a constitutional amendment is absolutely the OPPOSITE of not respecting states’ rights.

It also seems to me to be an amazing turn of events for those on the left to rally around states’ rights – while having no problem with decisions like Roe and Lawrence being made for states by unelected federal judges – and then lambast the quintessential democratic action to amend the constitution so that super-majorities of our state and federal elected branches will decide if this is an issue for the exercise of federal jurisdiction.

Talk about a one-way rachet – folks on the left don’t mind the unelected courts deciding issues for the states (so long as they agree with the courts’ decisions) – but the voters should not try to undo those decisions and our elected representatives should not take action to make sure the courts don’t take away states’ rights in the first place. Then, having set the rules of the game, the left simultaneously decries actions by conservatives both legislatively and judicially to return matters to within the states’ control.

I wonder if those many Federalists who take states rights seriously will speak out. I hope so.

Let me be the first to get on the record as so doing. The Federal government should have no role in such matters, either promoting homosexual marriage or prohibiting it. What little Constitutional authority it has to intervene now should not be expanded; the passing fads of fashionable policy solutions should not be enshrined in the Constitution.

The reality is that this is just posturing; the GOP is using the issues to pander to their base, and the Dems are doing the same. It’ll never pass, and sooner or later, either the Supreme Court will hand down a ruling that will make a great number of people really, really mad, or the issue will be resolved conclusively at the state level, as we are already starting to see happen.