February 22, 2005

Sadly, the controversy over same-sex marriage has reached the point where the Constitution for the United States has become part of the debate. Those supporting a constitutional amendment that would define marriage as a union between a man and a woman are attempting take a document that was written to define and limit the powers of the federal government and use it to define and limit the social behavior of the American people. Irrespective of the reader's views of same-sex marriage, every freedom loving American should be vehemently opposed to any attempt by the federal government to use the Constitution as a hammer to suppress personal behavior that politicians find objectionable.

Advocates of the proposed marriage amendment, which was introduced in the House of Representatives in May of 2003, are operating on the principle that the Constitution is a social compact between the American people and the federal government was empowered by that document to control the interaction of individuals and society in general. This is a misconception of epic proportions. The Constitution is not a social document. Its only purpose was to regulate the operations of the federal government. Thus, a marriage amendment has no place in the Constitution.

Even Alexander Hamilton, who had been a proponent of a strong central form of government during the debates in the Federal [Constitutional] Convention of 1787 acknowledged that the Constitution was not a social document. In Federalist essay No. 84, Hamilton responded to criticism of the proposed constitution because it did not contain a bill of rights. Hamilton and his fellow Federalists were opposed to a bill of rights because the proposed constitution would establish a federal government of limited enumerated powers. Under this system of government, every power not granted would be denied irrespective of whether the Constitution contained a bill of rights. Since the federal government was not being granted any general power over the individual rights of the people, the Federalists viewed a bill of rights as superfluous and even dangerous because it would contain various exceptions to powers not granted. Hamilton wrote:

"But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns."

The proposed constitution, as stated by Hamilton, would be a political document, not a social document. Under the Constitution, the federal government would not be granted any authority over the institution of marriage within the several States. That power was reserved to the individual States.

Shortly after his death in 1850, John C. Calhoun's essay entitled "A Discourse on the Constitution and Government of the United States" was published in book form. Calhoun expressly stated why the Constitution was not a social document:

"It is federal, because it is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation."

The Constitution established a partial union between the several States. It did not consolidate the States or their people into a single nation under the control of a central government. Since the federal government was the States' government, it was not empowered to intervene in the internal affairs of the States or their people.

Thomas Jefferson discussed this principle extensively in writings throughout his political career. In 1824 he wrote:

"The best general key for the solution of questions of power between our governments is the fact that 'every foreign and federal power is given to the federal government, and to the states every power purely domestic.'... The federal government is, in truth, our foreign government..."

In the author's opinion, the proposed marriage amendment is simply part of the federal government's push to obliterate this principle and seize total control over every aspect of American life because there is no need for this amendment.

In 1996, Congress passed the Defense of Marriage Act (DOMA). The Act basically did two things. First, it defined the words "marriage" and "spouse" for purposes of federal law. Second, it provided that no State is required to give effect to a law of any other State with respect to "same-sex marriage."

Proponents of the proposed marriage amendment claim it is necessary because DOMA might be declared unconstitutional. This assertion, in the author's opinion, is just a scare tactic to garner support for a constitutional amendment.

For purposes of federal law, Congress already has the power to define marriage under the necessary and proper clause. (See Article 1, Section 8, Clause 18). Thus, an amendment is not necessary for Congress to exercise this power.

The Constitution states that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. (See Article IV, Section 1) In a recent speech, President Bush, who is pushing for ratification of this amendment, asserted that "those who want to change the meaning of marriage will claim that this provision requires all states and cities to recognize same-sex marriages performed anywhere in America." President Bush apparently does not understand this provision or is intentionally misrepresenting it. This clause vests Congress with the power to "prescribe the manner in which such acts, records and proceedings, shall be proved, and the effect thereof." In DOMA, Congress exercised this power to the letter.

If the Supreme Court declared DOMA unconstitutional, it would turn the Constitution on its head and establish the principle that one State has the power to legislate for all the States. Not only would this put all the States at the mercy of a renegade State or States, but it would also negate a constitutional mechanism for preserving State sovereignty from the acts of the other States. For this reason alone, DOMA cannot be declared unconstitutional. Thus, a marriage amendment is not necessary because DOMA is constitutional and sufficient to shield the States from the acts of the other States concerning same-sex marriages.

We should never lose sight of the fact that the Constitution defines and limits the powers of the federal government. It does not define or limit the rights or conduct of the people of the several States. This proposed amendment is a covert attempt to reverse this principle and expand federal power under the guise of protecting the institution of marriage. If it becomes part of the Constitution, then government will have successfully transformed the Constitution into a tool to define and limit the personal conduct of the American people. Marriage is one of the last institutions where the federal government has not been able to extend its tentacles. Let's keep it that way.

If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob

The Federal Government: Its True Nature and Character: Being a Review of Judge Story's Commentaries on the Constitution of the United States.

Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the consitution. Mr Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.

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