Loving ruled that anti-miscegenation laws violated the Federal Constitution, not that the federal statute could overrule state statute on the definition of marriage. How the heck would this be striking down Loving?
Except that the Tenth Amendment has squat all to do with rights, as evidenced by the absence of the word from its text. It defines powers – specifically, that powers not granted to the Federal government (according to later case law, explicitly or implicitly by the Elastic Clause) are reserved to the states, or to the people. Nowhere is the distinction of what rights are reserved to the states and what to the people, but an analysis of the Constitution as “supreme law of the land” (Article VI) would suggest that:
[ul]
[li]Powers explicitly guaranteed by the Constitution to the states inhere in the states.[/li][li]Powers forbidden the states in Article I, Section 10, and elsewhere inhere in the people[/li][li]Powers exercised in violation of a right guaranteed to the people are forbidden to the states, and therefore inherent in the people.[/li][li]Those powers not granted the national government or meeting one of the three previous clauses are the police powers inherent in the states.[/li][/ul]
In the United States of America, liberty under law is the principle. Maybe in Shodanistan, the all-powerful state is conceived of as beneficiently condescending to grant rights to the people, but that is not how America has been understood by people from George Mason to Lawrence Tribe, from Thomas Jefferson to Barry Goldwarer Sr. Your theory that the Tenth Amendment empowers states to grant rights has to it only the point that states are empowered to recognize rights by virtue of being representative bodies politic, and it otherwise addresses the residuum of unenumerated powers which the Constitution did not explicitly address.
According to this ruling does the federal government have to recognize a same-sex couple who legally married in MA, but are now living in say Delaware, or must they still be living in a state where SSM is legal?
But who determines what these ninth amendment rights are?
Since this power to recognize these ninth amendment rights are not granted to the national government, then they are reserved to the states by virtue of the 10th. That is what Jefferson thought anyways.
Madison, actually. He wrote the Tenth, But the rest of your post (IMO) is spot on.
The power to establish or enumerate rights is a power. That power is reserved to the states, or the people.
No, we have gone over this before. The federal government does not grant rights. People are endowed by their Creator with rights. The power of enumerating which rights are under the protection of the government belongs to the states, or the people.
Rights enumerated in the Constitution are brought under the protection of the federal government. The power of establishing the other rights mentioned in the Ninth are reserved to the states, or the people. Not the federal government. That’s what the Tenth Amendment says.
Now this decision seems to be saying the same thing. IOW, Loving was wrong. If you want to be consistent.
Regards,
Shodan
It seems like this one decision was saying Loving was wrong in that it says that marriage is one of the “basic civil rights of man”, but not in saying that a ban on interracial marriage would violate the equal protection clause.
Agreed. Although I am not sure how you can argue that you have been denied equal protection of a right that has not been established to exist.
Regards,
Shodan
It’s not equal protection of a constitutional right. It’s equal protection of the law. A person doesn’t have a constitutional right to a job, but the goverment still couldn’t put out a job notification that says, “no black applicants will be accepted”.
It would be like that with our fictional post-Loving world. The state could say, “Nobody is married”, but couldn’t say, “People can be married but not interracially.”
I see Shodan is spreading his usual 10th Amendment tripe.
To borrow from the Barenaked Ladies:
Just like everything else in our great Constitution, all three branches of government have their role to play, and each has checks and balances of the other. The legislature, the judiciary, and the executive all can determine what rights should be/can or shouldn’t be/can’t be protected. It’s one othe most wonderful things about our Constitution, a system of separation of powers and checks and balances to attempt to protect the people from governmental abuses.
Well, like many other provisions in the U.S. Constitution, where the text and its words have a meaning, the 9th Amendment also has meaning. Randy Barnett has written a very good article on the meaning of the 9th Amendment and the article is available online.
In short, the 9th Amendment’s protection of rights is broad and vast. Furthermore, the 9th Amendment’s meaning was not something Madison or others would have left to the branches of the federal government to interpret, at least not the congressional and executive branches. The 9th Amendment was conceived to serve as a restriction on the powers of the legislative and executive branches and so it is dubious to think these two branches should be permitted to interpret the very amendment serving as a restriction on their powers.
:o I’m guessing that my post was kind of stupid, since no-one has replied.
Anyone want to explain it in really simple English to a foreigner?
Unfortunately there is nothing in the Constitution, and nothing in the writings of the people who wrote the Bill of Rights, to suggest that they meant to exclude the judicial branch from the general restriction intended to create limited government.
You will note that the Tenth does not say that the judiciary had the power to enumerate rights.
You are asserting a distinction that doesn’t exist.
Regards,
Shodan
I’m not following you. My understanding is that Loving was struck down because the laws against inter-racial marriage did not equally protest black and white people from exercising their right to marriage - defined as “one man and one woman” (no reference to race). The state of Virginia essentially defined marriage as “the union of one man and one woman who are of the same race”. That was their definition of marriage.
Now this Tenth Amendment decision seems to be saying that the states can define marriage anyway they like, including same-sex marriage. And also including, presumably, non-interracial marriage.
If they are going to assert that marriage is one of those Ninth Amendment rights, fine - how was it established? The Tenth says it can’t have been by the feds. Was it by the states? Then who the hell is the federal government to tell them how they have to define marriage - including or excluding same-sex or same-race couples.
Regards,
Shodan
I think you’re misunderstanding what Loving said (or I am). Loving said, as far as I read it:
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Marriage between a man and a woman is a fundamental right, and Virginia’s ban on interracial marriage is unconstitutional because it violates that right (the Tenth Amendment decision would probably get rid of this reason)
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The ban on interracial marriage serves no purpose “independent of invidious racial discrimination. . . designed to maintain White Supremacy”. Such racial discrimination violates the Equal Protection Clause of the 14th Amendment, and is therefore unconstitutional on those grounds, because any law passed that serves no purpose “independent of invidious racial discrimination. . . designed to maintain White Supremacy” is unconstitutional, no matter what the subject of the law is. (the Tenth Amendment decision wouldn’t affect this reason).
It’s more that married people get certain benefits under federal law in this country, when it comes to things like filing taxes, getting Social Security (old age pensions), and so on, and also that spouses of federal employees get benefits (they can be covered under the spouse’s health insurance, they can get the spouse’s federal pension, and so on).
Under the DOMA law, the federal government doesn’t have to give these benefits to same sex spouses. If this court case holds up, they will have to.
Well, let’s be clear here. My remarks were not made in any manner, or in any context of a “general restriction intended to create limited government.” So the very fact you have conceived of a context in which my remarks were not made within has you saying very little to the point I am making. So, when and if you actually decide to say something germane to the point I ACTUALLY made, then you and I are going to have a very short exchange.
You quite simply are addressing a point I never made. Have fun debating with yourself on this one. When you want to discuss what I said, we can then perhaps have a very good dialogue.
The federal government doesn’t have the power to not recognize rights. The Ninth Amendment sees to that. To say that the federal government can’t recognize those rights is to construe the enumeration of rights in the Constitution as denying or disparaging other rights.
The purpose of the Constitution is to produce limited government. That is the Tenth Amendment. Any time you are talking about the Constitution, you are talking in that context, and especially so when you are discussing limits on the powers of the federal government.
Your point AFAICT is that the Ninth Amendment was supposed to be a limit on the powers only of the legislative and executive branch. A point for which there is no scrap of evidence, and which is rather directly contradicted by the amendment following the Tenth immediately.
If you would like to claim that the Founding Fathers intended there to be no check on the power of the judiciary, feel free to produce some evidence of this.
Regards,
Shodan
No, the idea of limited government is enshrined in the U.S. Constitution’s enumeration of powers for each branch of government. The 10th Amendment is merely an affirmation of the idea nothing enumerated to the federal government is denied and retained by the states.
This is not correct. I never made the claim the 9th Amendment was a limitation on the powers of only the executive and legislative branches. This is, as I said before, a strawman argument. Try addressing what I did say, not what you wanted me to say.