June 7th, 2006

coyote Phil

Same sex marriage and states rights

Today, the Senate voted against voting on a Constitutional amendment banning same-sex marriages. The only relevant question in this debate is the one question that nobody on either side of the debate has raised - Does the federal government have jurisdiction over marriage?

Americans have become so accustomed to the expanded power of the federal government that they don't even bother to ask this question anymore. Furthermore, we are so polarized that everyone thinks in terms of total victory or total loss. No one remembers that questions can be decided differently in different states.

I remember a conversation I had about a year ago with a woman about Roe vs. Wade. I said I was in favor of repealing it, because abortion laws should be decided at the state level. She yelled her indignance over my wanting to place control of her body in the hands of old men on state courts. I tried to explain that she wasn't any better off with the control of her body in the hands of old men on the Supreme Court, and that setting the precedent that the Supreme Court can declare abortion legal means that it can also declare it illegal. But she had already turned off her brain. Maybe our new Supreme Court lineup will help her understand.

In 1972, George McGovern, the archetypal American liberal, took the same position on abortion. He didn't know Roe vs. Wade was in his future, and if he had, he wouldn't have known which way it would come down.

Deciding issues at the state level has two great advantages. First, it allows experimentation with different ideas. If no one really knows what the effects of legalizing marijuana would be, it would be best to let California go ahead and try it out, and see what happens. Second, if something is really important to someone - say, having an abortion or a same-sex marriage - they can go to a state where that's legal.

I have three general principles for determining whether something falls under the jurisdiction of the government, or under the states. The first is constitutional. The second and third are my own.

1. Anything not explicitly mentioned in the Constitution is outside federal jurisdiction. This is a foundational principle of Constitutional law. It has also been completely ignored since about 1800. Ironically, this came about because, at the Constitutional convention, people were afraid of a strong central government, and gave it such a limited scope that it proved unable to operate without overstepping its Constitutional bounds - for instance, when threatened with war by France, the government found it had no Constitutional right to an army. It quickly became accepted that this Constitutional principle could be ignored. Had the delegates to the Constitutional convention given the federal government the powers it needed, it would not now have the ability to grab any power it wanted, as it does nowadays. Those expanding the power of the government still observe some formality about it, making arguments based on Alexander Hamilton's interpretation that the federal government must possess any power that would be most efficacious in carrying out its specified duties. For instance, the federal agents who arrested Californians who were taking medical marijuana as allowed by state law, claimed that they could pass federal laws banning marijuana because marijuana could be transported across state lines, and thus could impact trade, which the federal government has jurisdiction over.

It is difficult to imagine anything the federal government might not have jurisdiction over under that interpretation. But I can think of one: Marriage. There is simply no reason why the federal government should have anything to say about marriage, unless, say, there were a large interstate traffic in wives.

2. Any time that the vast majority of the proponents for a measure cite religious reasons for some proposed law, the federal court should, in theory, ban all such laws. This is because religious freedom is guaranteed by the Constitution, and is thus a federal issue. Also, over thousands of years of history, the Christian church has been morally and factually in the wrong every single time they took a stand on an issue - the outlawing of loans with interest; removing all rights of women in the 12th century; the burning of witches in the 16th century; the judicial superiority of tradition over empirical fact, and the Ptolemaic system, in the 17th century; the divine right of kings and the age of the earth in the 18th century; slavery and evolution in the 19th century; and civil rights, gay rights, abortion, and birth control in the 20th century. The church also failed to take a stand on the Holocaust until after it was over.

The only possible exceptions I can think of is if you consider the Crusades to have been a series of just wars, since they were reclaiming land which the Muslims had conquered; and abortion, if you consider it to be murder. However, the Crusades were popular enough that the Church can't really be said to have taken a stand on the issue; and since I have never met a non-Christian who considered abortion to be murder, I am keeping it on my list.

This is not because Christianity is an evil religion. It's because people are generally able to figure out what is right and wrong on their own, except when religious beliefs forbid them from doing so. Any time a religious group takes a stand against popular sentiment, it is because religious dogma has prevented them from adopting the new beliefs that everyone else now sees are sensible. Christians have no need to take a stand against murder, theft, or telemarketing, because most people agree that they are immoral.

3. In practice, rule 2 almost never applies, because it is trumped by rule 3: If the population of the US is evenly split on a moral issues, or if a moral issue has no real impact on the nation no matter which way it is decided, it should be decided by the states. Abortion, gay rights, slavery, drug laws, and gun laws fall under this rule.

You may have noticed I listed slavery. It is a moral issue, and the nation was once evenly divided on it. I'm glad that the federal government outlawed it. Now that we've seen the outcome of history, it's easy to say that it is right for slavery to fall under federal jurisprudence, so that it could be abolished.

Easy, but wrong. It could just have well come out the other way - the federal government could have ruled that slavery would be legal in all states. The federal government is no more moral than the state government.

Once there is a clear majority on a moral issue, it becomes eligible for federal jurisdiction. When no majority is clear, however, it's better not to fight about it. Why? Here's the math: The benefit to the nation of some policy is the sum of its benefit to the citizens. Each citizen is the best judge of the benefit of some policy to themselves. We will also assume that a bad outcome is as bad as a good outcome is good (as it will be, on average). Thus, the total net benefit of a policy that a fraction k of the population favors can be estimated as k*good + (1-k)*(-good) - (cost of implementation).

If the country is evenly divided on an issue, this evaluates to the negative of the cost of implementation. In other words, there is no estimated net benefit, but there is a guaranteed cost. The cost of implementation is not limited to government costs in implementing a law, but also include the cost of political battles to settle the issue, the cost of Congress not having gotten around to things that they should have dealt with, and the expected cost of possibly having to go to war with the other half of the country. This is why issues with no real impact on society, like gay marriage, should not be federal issues unless there is a very large majority for or against them.

Once the country starts making up its mind either way, the net estimated benefit of either implementing or rejecting the policy becomes greater than the cost of implementation, and it is then prudent to decide it at a federal level.