My own thinking is that I am for state’s rights and small government above all else. This means that the federal govt. should not decide things like gay marriage (or abortion).

Some questions for Kashei:

If a state voted to legalize polygamy, do you think that should be up to the state?

If a state voted to institute slavery, do you think that should be up to the state?

If a state voted to hand all its government powers to a king, do you think that should be up to the state?

The Supreme Court has used certain issues, for better or for worse, to destroy Federalism. These include Segregation, contraception, miscegenation, abortion — and this is not to mention the Incorporation Doctrine that started things moving in this direction.

The one problem lurking in the background of Kashei’s comment as it applies to homosexual ‘marriage’ is the Full Faith and Credit Clause, as Mr. Auster has pointed out. I haven’t studied that clause closely enough to know whether it could be used — legimately _in the legal sense_ — to compel one State to recognize a homosexual union sanctioned in another. But all ‘legitimacy’ aside, I have no doubt that some liberal judges will gladly construe it that way, and homosexual activists have made loud and clear their intentions in this regard.

I’m not sure if Mr. Auster’s examples clarify this dilemma.

In the case of a state monarchy, the Constitutional provisions taken together require each state to have a government that is republican in character, and Art. IV, Sect. 4 does so explicitly. So this is already settled.

Slavery is forbidden by the 13th Amendment. (An amendment proposed in 1861, which President Lincoln endorsed, would have allowed the slaveholding States to continue the institution permanently but was fortunately never ratified.)

The polygamy example is probably relevent, but the history of the federal involvement in polygamy laws is somewhat complicated. Some States — Arizona, New Mexico, Oklahoma, and Utah — were only admitted to the Union on condition that they ban it forever in the State Constitutions. Moreover, their terms of admission required the ban to be “irrevocable without the consent of the United States and the people of said State.”

Certainly in those cases the matter is out of the States’ hands. Whether this would be true in other cases is not clear, but the way things are going I wonder if we won’t be facing that question before too long.

Mr. LeFevre is correct, but I was not asking about what is. I was asking what the poster—given his views on small government and state’s rights—thought OUGHT to be. After all, many paleocons and paleo-libertarians oppose the Civil War and all its works, including presumably the 13th Amendment. Not only that, but some of them oppose the 1787 Constituttion, on anti-Federalist grounds. Some paleos may very well believe in a state’s right to have slavery or monarchy or polygamy. So I was trying to find out what the poster’s principles were, and test them against his opposition to a federal marriage amendment.

Point taken. I forget at times just how far out some folks really are.

Quite right. So, if Kashei answered that he supports states’ rights to monarchy, polygamy, and slavery, I would answer that his anti-federalism is so extreme that it would preclude any common country, and so it is irrelevant to our concerns. If he answered that he is against states’ rights to monarchy, polygamy, and slavery, I would say that since he accepts the need for national commonality on these things, what are his grounds for opposing national commonality on something so basic as the 10,000 year old definition of marriage?

Slavery and monarchy were handled by Mr LeFevre above. I personally believe that if a state legislature legalized polygamy the feds shouldn’t get involved, as long as a Defense of Marriage Act allowed other states not to recognize such unions. At issue in Massachusetts and Vermont, however, are state courts imposing their will upon their states without constitutional warrant. Federal action in such circumstances is possibly warranted under the republican guarantee clause; in any case this is something very different from what state’s rights traditionally means.

Agricola is drawing an analogy between Mass. in this case and Florida in the 2000 post-election crisis. In both cases, the state’s highest court re-wrote state law in an improper manner that violated some provision in the federal constitution and justified federal interference. In Florida, it was the provision that state legislatures determine the manner of the election of presidential electors. In Massachusetts, it is (and this is really getting novel but I like it) the Constitutution’s guarantee of a republican form of government to each state. The Massachusetts Supreme Judicial Court usurping legislative power is an act of tyranny depriving the people of that state of a republican form of government (whether defined as representative government or as separation of powers and checks and balances).