Consitutional Amendment vs. State's Jurisdiction

Please explain to me the principles of government at work here. I am not asking about whether gay marriages are right or wrong, or whether Bush is evil.

Bush says he would propose a consitutional amendment recognizing marriage as the union of a man and a woman, but that it is up to states to decide about civil unions between gay couples. Where is the overlap of jurisdiction? How would a state’s laws on marriage relate to a constitutional amendment that might disgree with those laws?

Well, the situation is pretty simple, if slightly arcane to those who haven’t thought it through. Various parts of the Constitution, notably the first eight amendments, guarantee certain rights. The provisions of those amendments prohibit the Federal government from infringing those rights. Section One of the 14th Amendment says that states cannot infringe on rights of citizens of the United States. Beginning late in the 19th Century and coming to a peak in the Warren and Burger Courts, it’s been the common holding that the rights guaranteed in the Constitution and in particular in the Bill of Rights are those that that section is talking about.

Now, distinguish between rights and powers. The Federal government has a bunch of broad but explicitly limited powers, specified in the constitution as amended. Under the terms of Article VI and written out explicitly in the Tenth Amendment, any power not delegated by the Constitution to the Federal government or logically inferred from an explicitly delegated power via the Elastic Clause, belongs to the states.

However, neither body can exercise its powers in a way that deprives its citizens of guaranteed rights.

Enter the Ninth Amendment and the boogeyman “Substantive Due Process.” The first is a clear statement in the Constitution that in the view of the Founding Fathers there were other rights that were not explicitly listed, and that some had in particular been listed was not to be used to disparage other unlisted rights.

The Fifth and Fourteenth Amendments require that the Federal and State governments, respectively, not deprive any person of “life, liberty, or property without due process of law.” In general, when the courts are required to evaluate the claim that someone has a given unenumerate right, it’s in a context where he’s being deprived of the ability to exercise that right under a Federal or state law, most often the latter.

The term “substantive due process” is the usage of legal scholars to describe the application of the Fourteenth Amendment (or the Fifth when it’s a Federal law) to say, “You have the right to get married, or the right to move to a new residence, the right to privacy in one’s own home and person, or the right to associate with whom you please under what circumstances you please” without state regulation interfering with those rights.

“Strict constructionists” like Dewey Cheathem Undhow and Bricker here and some leading scholars on the court such as John Marshall Harlan II construe this use as giving unlimited license to a court to write into law its own opinions as to what constitutes a right. They have a point.

Those who hold to a “living constitution” in which legal principles set 225 years ago can be read to apply to changing circumstances – that the power to form an army and a navy, for example, implies the power to form an air force, or that the right to express one’s opinions without fear of the government or the law by speech or in the press extends to blogs and message boards, believe that the reasonable implications of the existing guaranteed rights and the long-standing common-law rights of individuals (to marry, to travel, to have privacy in one’s person, home and effects) will guide the application of such protections.

However, any amendment to the constitution supersedes any finding by any court or any law or regulation that contradicts it, as of the time of ratification. There’s a thread somewhere which specifies the cases where the Constitution has been amended specifically to overturn a Supreme Court decision. Notably, the Income Tax amendment specifically authorized a Federal income tax when SCOTUS had found that Congress did not have the power to levy and collect such a tax under the Constitution before that Amendment.

If the FMA were adopted and ratified in the language proposed and defeated earlier this year, it would prohibit any state from recognizing a marriage other than one between one man and one woman, and arguably from granting any of the rights and privileges associated with marriage to any other relationship that is not between one man and one woman – its phrasing being reasonably clear that the latter is implied.