Wednesday, November 12, 2008

Disrespecting Federalism

The following is an e-mail I just received from a friend regarding the recent passage of Prop 8 in California, a referendum on the state ballot that created an amendment to the California State Constitution that states marriage is solely between a man and a woman. Here is the message:
"I wanted to share something with you that is a very important issue to me and many others. I don't know if you voted republican, democrat, or how you feel on any issues, but I don't think that vote forces you into agreeing with your party across the board. Therefore I wanted to reach out to all of you that I call friends to see if you will join me in a nationwide protest against the passing of Proposition 8.

This is not a California issue. This is an issue of equality across America. If equality for all citizens is something you believe in, please join me and countless others across the US to be sure our voices are heard. Join us on November 15 to unite our voices against H8 and other recent legislation that seeks to make second-class citizens of LGBTQ Americans! In DC we will be meeting on the steps of the Capitol and be marching down across the Mall and to the White House.

This is a nationwide event. Every major city in America (and some around the world) will be protesting on 11/15 at 1:30 EST (or 10:30 PST). Please pass this information along to anyone, here in DC, or across the nation, that you think would like to stand up and speak out for what they believe in.

Please check out the facebook event page for more details: DC Protest Against CA Proposition 8"

I have several issues with this effort, and they have nothing to do with supporting or defending gay rights.

  • Fighting this referendum disrespects what this country was based on when the Founders drafted the Constitution: federalism. The right of states to choose what is best for them and their citizens, whether it be from laws passed through their legislative body or via voter referendum, is vital to the sanctity of our Constitution.

    Why federalism? Our U.S. Constitution contains numerous mentions of the rights and responsibilities of state governments and state officials vis-a-vis the federal government. The federal government has certain expressed powers including the right to levy taxes, declare war, and regulate interstate and foreign commerce. In addition, the necessary-and-proper clause gives the federal government the implied power to pass any law "necessary and proper" for the execution of its express powers. Powers that the Constitution does not delegate to the federal government or forbid to the states—the reserved powers—are reserved to the people or the states. This simply means that California has every right to make up its mind for itself.

  • If anyone wants to protest Prop 8, they have every right to do so, but it must be based on the legality of the measure and nothing else. Simply because you don't like the result of an election is no rational reason to protest its outcome in an effort to overturn it. Now, without studying much into the legislation, there does seem to be a lawsuit currently filed that addresses the State constitutionality of the measure: On November 5, three lawsuits were filed, challenging the validity of Proposition 8 on the grounds that revoking the right of same sex couples to marry was a constitutional "revision" rather than an "amendment", and therefore required the prior approval of 2/3 of each house of the California State Legislature. If this is true then the opponents of Prop 8 may have a case.

  • Opponents of Prop 8 had their chance already. They blew it. The people of California spoke. Democracy worked. Get over it.


  1. We discussed this very issue over at chlorinated liberty.... here is our take:

    Yes Prop 8 is in part about marriage, but it is certainly also about the fundamental question of where ultimate constitutional authority rests. Our system of government has always been a system of winners and losers. Each election victory also means an election defeat -- yet by attempting to overturn that system we wrest control from the general populace and place power in the hands of a select few. (Remember CA had passed Prop 22 in 2000 and had that definition of marriage overturned by the courts) And such action has severe consequences.

    If the consolidation of power is allowed in such a way as to undermine the representative nature of our government, substituting the will of a few judges on the substance of the law for the will of the people or the representatives elected by the people -- then elections mean nothing, then laws are no longer being made by the representatives of the people, they are being forged by an oligarchy answering to no one except their own whims, their own will, their own judgment. That then is a threat to our ideals of federalism, but to the system of constitutional self-government.


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