Abandoning bedrock principles? The Musgrave amendment and federalism.

• Author: Bash, John

Activist judges ... have begun redefining marriage by court order, without regard for the will off the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process. Our nation must defend the sanctity of marriage.

--President George W. Bush, January 2004 (1)

1. INTRODUCTION

   In the wake of a surge of judicial activism aimed at creating a constitutional right to same-sex marriages, prominent conservatives and traditionalists have called for an amendment to the federal Constitution prohibiting same-sex marriages nationwide. (2) Representative Marilyn Musgrave of Colorado has introduced an amendment proposal that reads:

   Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the Constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman. (3) For those who view the separation of powers between states and the national government as fundamental to our constitutional structure, how should such a proposal be received? Is it the only tenable response to the usurpation of legislative authority by an increasingly activist, liberal, and secularist judiciary and the concomitant problems posed by the Full Faith and Credit Clause? Or is it a misguided and rash surrender of rightfully localized authority to the national government at the expense of core federalist principles?

   The growing interest in a constitutional amendment prohibiting same-sex marriages was provoked by the Supreme Judicial Court of Massachusetts's decision in Goodridge v. Department of Public Health, (4) in which the court ruled that a state law prohibiting same-sex couples from obtaining a civil marriage violated the state constitution. Although the court did not consider whether the law violated the federal Constitution, it employed rational basis tests under both due process and equal protection jurisprudence. Employing reasoning similar to that of the Supreme Court in Romer v. Evans, (5) the court found that the only state interest served by excluding same-sex couples from marriage rights was an unwarranted animosity towards homosexuals. As the Massachusetts court wrote,

   the absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. (6) It rejected a litany of rational bases proffered by the government and its amici, including the argument that the state's interest in promoting marriage is to foster stable environments for procreation and the rearing of children. (7)

   From the perspective of originalism, the decision in Goodridge cannot be justified, no matter one's position on the desirability of same-sex marriage as a social policy. While proponents of an activist judiciary see the ruling as the first step in a "legal revolution," (8) those who subscribe to the belief that constitutional provisions should be interpreted in accordance with their framers' intent should shudder at the decision. The court's expansion of equal protection was "not an adjustment of an old principle to a new reality but the creation of a new principle by tour de force or, less politely, by sleight of hand." (9) No legislator who passed the equal protection and due process components of the Massachusetts Constitution could possibly have envisioned that they were legalizing same-sex marriage. (10) The court created a new law that was never voted on, that was never debated in the halls of a legislature, and that now requires a state constitutional amendment to repeal. The Goodridge decision may lead to even more daring acts of legislative usurpation. Already in some states, local officials have defied state law and begun issuing marriage licenses to same-sex couples. (11) Some officials who will not go as far as to marry same-sex couples have decided to recognize same-sex marriage licenses obtained out of state. (12) There is little doubt that same-sex partners married in Massachusetts will soon seek recognition in other states under the Full Faith and Credit Clause of the United States Constitution.

   At the federal level, the conservative response to this mounting storm has been to propose the Musgrave Amendment. Constitutionally, this approach is sound. It is through the Article V amendment process--and not the unchecked power of judges to rewrite the law in accord with what they perceive as shifts in social mores--that new rights and duties should be incorporated into the Constitution. The Musgrave Amendment, however, is not the most principled way to address the problem. Removing from the states' jurisdiction an issue as fundamental to the domestic sphere as the definition of marriage does not comport with ideals of federalism that conservatives treasure. While not confronting the morality or desirability of the legalization of same-sex marriage, this note will argue that the Musgrave Amendment fails to coincide with the fundamental tenets of federalism. Part II explicates the underlying rationales for the Founders' model of federalism and explains why these principles continue to be relevant today. Part III argues that the Musgrave amendment is inimical to the core federalist model. Part IV addresses and refutes the strongest argument for the Musgrave Amendment: that the Full Faith and Credit Clause of the Constitution could allow one state's legalization to effectively force same-sex marriage on the other forty-nine. Finally, Part V proposes an alternative amendment that, if checks on judicial activism currently in place fail, (13) would ensure that states retain the power to decide this vital issue for themselves.

2. THE CONTINUING RELEVANCE OF FEDERALISM

   The fundamental characteristic of American federalism, as articulated by the Founders, was a limited national government. (14) The Constitution set the loci of most governmental powers in the state governments. Madison stated succinctly that "the powers delegated ... to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. (15) The boundaries of national power were to be defined by the powers specifically enumerated in the Constitution. (16) These enumerated powers particularly concerned "external objects, as war, peace, negociation, and foreign commerce." (17) Reserved to the states were "the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State." (18) Tench Coxe, a constitutional advocate who became Assistant Secretary of the Treasury in 1789, argued in favor of the proposed Constitution by explaining that the federal government could not legislate on any "matter or thing appertaining to the internal affairs of any state, whether legislative, executive or judicial, civil or ecclesiastical." (19) It is thus clear that the fundamental model of government on which the Constitution was based entailed a narrow and precisely defined sphere of authority for the federal government.

   The methodology of the Founders was to reserve to the federal government only those necessary functions that states could not accomplish individually, eliminating the collective action problems that plagued the Articles of Confederation. Nicholas Collin, a supporter of ratification who wrote twenty-nine essays under the pen name "A Foreign Spectator," provided a lively illustration of this principle:

   Suppose thirteen families are settled upon an island in this river, that is liable to be overflowed.... They must erect a strong bank, and keep it at all times in good repair.... [A] sudden storm may destroy the hay, grain, provisions, household goods; drown the cattle and the people themselves. Will they not then naturally appoint overseers, to inspect this bank, and with the most scrupulous attention keep it in order.... [T]hose overseers must have greater powers. Suppose the case so bad, that one family keep loitering in their beds, while the water rises rapidly ... (22) the overseers must have power adequate to any eventual situation. In this model, the federal government is the "overseer" that solves those collective problems that states are unable to successfully address as individual actors. Justice James Wilson articulated how the enumerated powers could serve this purpose: "Whenever an object occurs to the direction of which no state is competent [e.g., war, treaties], the management of it must, of necessity, belong to the United States." (23) In discussing the Constitution specifically, he observed that "War, Commerce, & Revenue were the great objects of the Genl. Government. All of them are connected with money," (24) as opposed to "morals or social welfare." (25) John Dickinson described the United States as "a combination of republics, each retaining all the rights of supreme sovereignty, excepting such as ought to be contributed to the union." (26) The national government was to retain only those powers that the states were incapable of exercising. Hence, wartime powers, the production of a uniform currency, and regulation of interstate commerce were enumerated, while the organization of internal state affairs, including moral and familial law, was reserved to the states.

   Several justifications underlie the fundamental notion that federal power should be limited to failures of collective state action. The first is that federalism increases democratic choice by localizing the...