The real question is this: if D.C. becomes a part of Virginia, can the South be considered to have risen again?
Do you think it would have been better to wait and vote in interracial marriage, or was loving ok in your book?
But there’s no minimum size requirement. Congress could simply reduce the size of DC to whatever Federal buildings it wants to keep, and make the rest of it outside DC and admit it as a state.
Loving was OK in my book, because the thrust of the Fourteenth Amendment was to remedy invidious racial discrimination, and Loving gave effect to that view. That’s why we say that racial classifications are subject to strict scrutiny and other classifications are typically entitled only to rational basis review.
Moreover, Loving reflected the mood of the strong majority of states, and Congress’ then-recent enactment of the Civil Rights Act.
I can’t speak for Bricker, but yes, I think it would have been better to wait for a vote, since you could legitimately argue (a point I very much disagree with, to be sure) that equal protection does not apply because miscegenation was illegal for everyone, white or black.
That would run afoul of Art 4., Sec. 3:
The land for the federal district was the result of “cessation of particular States” for the purpose of creating a federal district. Congress may not use that land for the purpose of forming a new state without triggering Art 4 Sec 3’s language.
Except that’s not exactly true: black people were allowed to marry yellow, brown, red, and purple people. It’s only white people who were prevented from marrying folks of other races.
I’m of two minds about this:
- I think that the fourteenth amendment’s protections could and should be extended to cover same sex marriages. As such, I’m all about judicial fiat. The law is already on the books; it’s up to the courts to remind us of what the law says.
- On the other hand, I think that the court is a lot likelier to do so if there’s precedent for it, and the more widespread the precedent, the better. If DC legalizes SSM, it’ll be another drop in the bucket.
Daniel
I’m not reading this the same way you are. If Maryland ceded the land to the Feds, how is the land under the jurisdiction of Maryland or part of Maryland?
The constitutionality of enfranchising the D.C. delegate is certainly an issue that should be factored into the decision. But between the basic right of everyone’s representation and the marriage rights of certain residents… there is no comparison. If they can get the vote then that’s clearly the choice to make.
As has been pointed out, this is not the case.
But you speak as if you wish your unenfranchised fellow Americans would stop seeking representation. :dubious:
Why not? That section doesn’t say states can’t be formed from territory that formerly belonged to a state. And even if you are correct it would only require the assent of Maryland for Congress to create the state.
Well, as I hinted above, this is not exactly an argument upon which I’d be prepared to bet the farm… but the land was ceded by Maryland for the purpose of creating a federal district. Any other purpose does, as you suggest, at a minimum require Maryland’s permission.
Dred Scott wasn’t legislation; it was a Court decision. (Started, coincidentally, about 2 miles from where I am sitting right now.)
Bricker, correct me if I’m wrong, but that basically says Congress can do what it wants with D.C. Including giving it a vote in Congress. Am I reading this incorrectly?
The Constitution says that every state must recognize the legality of contracts made in other states. Article 4, Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. So if two people get legally married in one state their marriage in legal in all fifty states - and the Constitution doesn’t say “unless they’re gay or something.”
So it looks like you’re the one who needs an amendment. But don’t worry, there’s plenty of other anti-gay people who are already working on it.
I believe the Supreme Court said FF&C didn’t apply to marriage.
Well… maybe.
Art I, Sec 2 provides:
This seems to be fairly clear: only residents of a state may choose a representative, each representative must be a resident of his state, and representatives are apportioned among the states proportional to their populations. This doesn’t seem to leave room for DC to have a representative if it’s not a state.
In 1949, the Supreme Court said, in National Mutal Insurance Company of DC v. Tidewater Transfer Company:
Moreover, the bipartisan Congressional Research Service issued a report last year in which it concluded:
There are two problems with this claim. First, you failed to quote the full text of the FF&C clause:
Even if we assumed that marriage was covered by this clause, the same clause clearly gives Congress the overarching power to prescribe both the manner and the effect of such acts. And Congress has, with DOMA. So at the present, any reliance on the FF&C clause is useless.
And it’s useless for a more compelling reason, one that would apply even if Congress overturned DOMA. The FF&C clause does not apply when one state’s statutes contravene another’s recognized public policy – the so-called “public policy exception” to FF&C. As the Supreme Court said in Pacific Employers v. Industrial Accident Commission:
Doesn’t Congress’ exclusive legislative right over DC include the power to delegate that authority, in whole or in part, to a local body whose composition it can control, or further delegate to the people of the district? It has to, or there’d be no such thing as a city council or a mayor in Washington (Hint: There are).
So what prevents Congress from delegating the DC government every other power a state has, barring only the actual name? What Constitutional barrier is left to prevent Congress from making it a civil part of the union, if not actually married to it? Or from granting its Representative a vote (which s/he already has, in fact, except when it makes a difference)? Note, btw, that the House’s composition is set by mere statute.
The “public policy” clause is an easy cover story, easily ripped away by a Supreme Court not driven by result, as you know.
Vox was claiming that federal law has no authority over marriage laws. I was pointing out, and you appear to agree, that the Constitution does give Congress that power.
On the issue you raised, I don’t agree with you (or with Congress obviously). The Constitution says that the states must recognize each others public acts. The next sentence gives Congress authority to regulate public acts but I think it’s too far a leap to say that Congress’ power to regulate marriage includes the power to overturn the explicit direction of the previous line. Congress cannot delegate unconstitutionality to the states.
Absolutely. Within the District, Congress has the same plenary police power that the states have in their jurisdictions. Including the power to regulate marriage.
And you evidently don’t agree with the Supreme Court either.
Didn’t see that one coming.
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
Where do you get that this is talking about the District? Article 4 is about relations between the states. Where does a non-state enter into it?
My interpretation of Section 1 is that it says that each state must recognize the legal acts of other states. The second line says Congress can regulate the details of these acts as a central authority but only within the scope of the direction of the first line. Congress does not have the power to enact a law which would allow states to violate the constitutional requirement for full faith and credit.
Congress (or anyone else) cannot use one part of the Constitution as authority to violate another part of the Constitution. Congress could not, for example, say that firearms are a form of interstate commerce and therefore the authority given them in Article 1 to regulate commerce extends to prohibiting firearms - because the Second Amendment explicity protects firearms.
Congress’ authority to regulate commerce is limited by the explicit direction that firearms cannot be prohibited. And Congress’ authority to regulate legal acts is limited by the explicit direction that states must give each other full faith and credit.