Thursday, January 27, 2011

Tension and balance in the Constitution

About two weeks ago I wrote about how the Tenth Amendment and the Constitution's Spending Clause may create mischief if applied to the gay marriage cases coming out of Massachusetts and challenging the Defense of Marriage act. The author of that original explanation has expanded on it. I think it makes sense now.

The Tenth Amendment says that powers not spelled out in the Constitution belong to the states or individuals. This is supposed to limit the reach of the federal government. That hasn't quite worked that way. The prologue of the Constitution says the government may do what is necessary for general welfare and good order and to spend money needed to achieve those goals. Scholars (and lawmakers) will debate endlessly over the proper balance between the needs of general welfare and the need to keep government from intruding on the rights of the people. How does the general welfare of a healthy populace balance with your desire not to be taxed for it?

Judge Tauro, in this case from Massachusetts said the Tenth means the definition of marriage has been left to the states. Alas, says Ari Ezra Waldman, there are a couple problems with that claim. Modern tax code and welfare benefits have all kinds of definitions of the kinds of families that qualify. But if that conflicts with the Constitution, then Social Security, Medicare, Medicaid, and lots of other programs can be challenged as being in conflict with the Tenth. And, yes, there are many who would like to do just that. This is why Obama's Department of Justice had to defend the law, as bad as we think it is. The better course would have been to declare DOMA unconstitutional under the Fourteenth Amendment, the one about equal protection (as was done in the Calif. marriage case).

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