Republican presidential candidate and federalist extraordinaire Rick Perry, after initially stating same sex marriage and abortion were states’ rights issues, came out for a federal marriage amendment and a human life amendment. USA Today’s Catalina Camia quipped, “Texas Gov. Rick Perry says he’s a big believer in states’ rights, but apparently the potential GOP presidential candidate believes there should be exceptions.”
Indeed, most conservatives would agree that the Constitution leaves abortion and same sex marriage up to the states. Some of these same social conservatives also favor deciding abortion and same sex marriage on the national level. What is the difference between them and social liberals who want those issues decided at the national level?
For many advocates of federalism such as columnist Steven Chapman, there is none. True support of federalism requires that the rights of states be upheld “even when it yields unpalatable outcomes.”
Yet this argument ignores Article V of the Constitution, in which the Founding Fathers laid out the process for amending the Constitution. They knew they could not anticipate every issue that might come up and they were also aware of their own flaws. For example, many of the Founders who were concerned over slavery thought they’d made a mistake in capitulating to slaver owners in order to get the constitution ratified, and the process was left open for the Constitution to be amended.
Social conservatives who seek to amend the Constitution are respecting the Constitution’s legal amending process to address unforeseen issues. This goal requires a commitment to obtaining the support of two thirds of Congress. Any attempt to set national policy on these issues through the Constitution also requires the assent of the legislatures of thirty-eight states. This is an arduous task. Some would say it is even impossible.
Meanwhile, the left has chosen the easier path. They treat the Supreme Court like it’s an oligarchy, forcing national solutions by judicial fiat. Liberals read the U.S. Constitution the way they do religious texts, reinterpreting it to suit their ideology. In the Goodridge ruling, the Massachusetts Supreme Court declared that the Commonwealth’s 200 year old Constitution required the recognition of same sex marriages. Harry Blackmun asserted in Roe v. Wade that not only could a right of a woman to have an abortion be found in the Fourteenth Amendment, but that trimester-by-trimester rules and restrictions could also be divined and enforced upon the states.