Guns, Gays, and Embryos
Thomas Paine once wrote, “Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.”
I think that most of us would agree that those sentiments have been continuously on display.
This last week brought arguments before the Supreme Court on the Defense of Marriage Act (“DOMA”) and California’s anti-gay marriage Proposition 8. On the gun control front, a White House event with Newtown families rather brutally demonstrated that the moment, if there ever was one, is long gone. In North Dakota, the GOP-dominated legislature has passed, and their Governor has signed, three bills that effectively ban virtually all abortions, except for those pregnancies that would result in death or “irreversible impairment” to the mother. The lawmakers in North Dakota were fully aware of what the law of the land is: they were foresighted enough to include taxpayer funds to pay for the legal defense of their actions.
Whatever your positions on DOMA, the Second Amendment, and abortion might be (and reasonable people can certainly disagree) it is the DOMA arguments that should draw your attention. The eventual ruling could have broad implications, far beyond same-sex marriage, because the issues go directly to the interplay of power between the Federal Government, the States, and ordinary citizens. Ultimately, all three, guns, gays, and embryos, raise the same question; what are the liberties law-abiding citizens possess and may enjoy without excessive government interference?
Think about your rights in two ways. Fundamental ones, such as those enumerated in the first Eight Amendments (freedom of speech, religion, etc.) and then all the rest. Fundamental ones can only be abridged if there is a “compelling interest” and even then only with due process. For every other right, including prosaic things like driving, selling hot dogs from a cart, practicing medicine, or drinking, the government needs only to demonstrate a “rational basis” to regulate or restrict.
Who can make these laws? Obviously, the Federal government is in charge of externals, such as treaties, tariffs, making war or conducting diplomacy. But, after those, we have the Tenth Amendment; “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.”
Does the Tenth Amendment allow states to choose which Federal laws they will obey? Not really. The Fourteen Amendment says; “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.”
And, does the Federal Government show modesty in expressing power; do they leave things to the states? Absolutely not. Instead, Washington often suddenly discerns an overpowering need for some sort of uniform national standard, and then charges in with “preemptive legislation” which supersedes the states.
As you might have anticipated, conservatives love the Tenth Amendment, dislike the Fourteenth Amendment, and hate preemption, except when they don’t. Liberals love preemption and prefer the Fourteenth Amendment to the Tenth Amendment, except when they don’t. What both sides really like is power, and the sides they pick in these little wars depend on which governments (and branches of government) they presently control.
DOMA demonstrates that. The law dates from 1996, when Congress, concerned that Hawaii might recognize same-sex marriages, defined marriage as between a man and a woman. It is a particularly unusual law, because it aims squarely and quite negatively at a defined class of people. But, does it unduly interfere with a constitutional right, or unnecessarily intrude in the state’s domain? Well, here is where we start to get into the murky area of what is an individual liberty, what is a state right, and what is a proper area for Federal preemption.
Traditionally, who can marry and under what circumstances has been defined at the state and local level. This was fine for conservatives when only opposite-sex marriages were being performed, but now nine states have permitted same-sex marriage. At oral arguments before the Supreme Court last week, Paul Clement, speaking in support of DOMA, struggled to explain this, as he claimed, in essence, that the Federal government must create a new protected class, men and women as married couples, and intervene to insure they were the only type of married people. This would foster a government interest in “uniformity” and justify preemption.
Whatever you may think of same-sex marriage, you can see the intellectual weakness in that position, and Justice Sotomayor called him out “How do you get the Federal Government to have the right to create categories of that type based on an interest that's not there, but based on an interest that belongs to the States?”
Justice Kagan noted that the only uniformity the Federal government has traditionally pursued in marriage is to uniformly recognize the marriages that were recognized by the states that married people were married in. In short, if it was good enough for New York, or Utah, or Louisiana, it was good enough for Washington.
Clement’s response was circular, and it was one that should give the Right, and actually, all of us nightmares. Times have changed, Clement argued, and so long as the States were following what Congress thought best, there was no need for Federal intervention. “When you look at Congress doing something that is unusual, that deviates from the way they — they have proceeded in the past, you have to ask, Well, was there good reason? And in a sense, you have to understand that, in 1996, something's happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the States and its historic practice of preferring uniformity…..Up until 1996, it essentially has it both ways: Every State has the traditional definition. Congress knows that's the definition that's embedded in every Federal law. So that's fine. We can defer.”
Justice Kagan pounced on him. What had really changed wasn’t the need for uniformity, but something more primal, a desire by Congress to single out a group for special opprobrium. She quoted from the legislative history: “Well, is what happened in 1996 — and I'm going to quote from the House Report here — is that "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality."
Clement seemed momentarily nonplussed; but good lawyer that he is, he pivoted and said, in effect, if Congress had a rational basis for discriminating, then the motives of “a couple of legislators” are immaterial.
There you have it. Congress may discriminate, and override state law, at the time or place of its choosing, and for any motive. It may intercede even when the clear intent of a law is to aim specifically at a particular group for no other justification besides that it doesn’t approve of their otherwise legal behavior? In the vernacular, that’s Clement’s story, and he’s sticking to it.
And that is why gays, guns, and embryos may all be linked. Divisive issues involving Constitutional rights being fought over in the legislative arena.
Congress didn’t like gay marriage in 1996, so it passed DOMA. But, let’s say times and attitudes change, and a new Congress, more tolerant, decides to go in the opposite direction. Does Congress have the right to preempt state and local laws as Paul Clement says they do? How would the good people of South Carolina feel if hundreds of gay couples decide Charleston is the perfect place for a June wedding?
How about guns? In District of Columbia v. Heller the Supreme Court held that the Second Amendment gave an individual the right to own and possess firearms for any lawful purpose. The Second Amendment right is not unlimited; you do not have a guaranteed right to keep and carry a weapon in any manner, in every place, and for every purpose. Nor does it preclude prohibitions on the possession of firearms by the mentally ill or felons. Does a more pro-gun control Congress have the authority to enact preemptive legislation that would create a national standard of “Heller compliant” restrictions that apply everywhere? Or, more likely, given the power that the NRA has, can Congress enshrine unlimited gun-rights as the uber-law in the country regardless of what would have been permitted the states under Heller? Imagine a phalanx of assault weapon-toting Texans marching over to Mayor Bloomberg’s home to say hello before heading down to the local library and elementary school to “protect” the children. Rick Perry might cheer, but I doubt too many New Yorkers would be happy.
And abortion? In Roe V. Wade the Court found a fundamental right to privacy that allows a woman to have an early abortion without a third party’s consent. The right to an abortion is not unlimited, the State can regulate after presumed fetal viability, but it cannot prohibit or unduly restrict it before then. For at least the first 24 weeks of pregnancy, it’s none of the state or federal government’s business. Could an activist Congress preempt all state legislation and create a national standard for abortions? A more conservative Congress would reel in the more liberal states. But, just as with guns, the Supreme Court has not defined what is too much abortion; instead it has indicated what is too much regulation. Could a more moderate to liberal Congress push a uniform national standard that goes beyond Roe? Hello, North Dakota.
Realistically, what Paul Clement was doing was playing with fire. He was centralizing power in a body (Congress) that he thought would be friendly on this issue, instead of respecting the states to make their own judgments based on their own social norms. It was only a year before when the same Paul Clement was a big Tenth Amendment guy, arguing before the Supreme Court that the Republican dominated Texas Legislature had the right to ignore the Voting Rights Act and draw its own voting maps without pre-clearance. Then, a few months after that, he did another about face, and authored a paper on behalf of the US Chamber of Commerce, advocating for preemptive Federal tort reform.
Clement is a brilliant man and a skilled advocate. But he’s not an idealist, applying empirical principles to achieve intellectual consistency. He’s a politician/lawyer/partisan, advocating for his, and his client’s moral, political, and business interests, regardless of what the Constitution may say. Tenth Amendment here, preemption there. Whatever works: just win, baby.
That is why the DOMA case is important beyond the implications for same-sex marriage, and, just as critically, why Clement’s profound indifference to the rule of law needs to be rejected. What Clement really made DOMA about is power, the power of a faction to gain control of the national government and impose their will, on any issue, at any time, and disregarding any precedent.
The promise of a democratic government is that it will work for the common good. The menace, in Tom Paine’s words, is clear. “Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.”
Or, as Benjamin Disraeli once said: “My idea of an agreeable person is a person who agrees with me.”