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.”
MM
