With one favorable Supreme Court decision, scores of libertarians joined establishment progressives and conservatives, picked up daggers and thrust them into the heart of the Constitution.
It was bizarre watching people who used to talk about the evils of centralized government and federal usurpation of power suddenly become cheerleaders for centralized government and federal usurpation of power.
I’m used to progressives disregarding the Constitution. It’s almost part of their creed. They’ve milked virtually unlimited federal power out of a hand-full of constitutional provisions. I’m used to establishment conservatives disregarding the Constitution. They talk the talk, but throw the document out the window when it interferes with their preferred policies like the “War on Drugs” or NSA spying.
But the libertarians – they’re supposed to be reliable friends of the Constitution. They’re supposed to be the ones to stand up against centralized power. They’re supposed to be the ones who reliably opposes expanding government authority.
All of that seemed to change when the Supreme Court ruled that every state must recognize gay marriage. Suddenly, many libertarians embraced unconstitutional federal authority because it gave them what they wanted.
Without a doubt, from a narrow, short-sighted perspective, Friday’s SCOTUS ruling was a “win” for “liberty.” And quite frankly, I think it a good thing that gay couples will enjoy the same legal status as straight couples. That needed to happen.
But it happened the wrong way.
The Constitution does not authorize the federal government to regulate marriage.
The constitutional issues are really quite simple. If the Constitution delegates the federal government authority over a given object, than it stands supreme. If not, then the states and the people retain authority over those objects. James Madison delineated the division of power in Federalist #45.
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce; with which the last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all 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.”
Clearly, defining and regulating marriage falls under the category of objects that concern the lives. liberties and properties of the people. Many people will point to the 14th Amendment. But marriage regulation also remains a province of the states under the original intent of the 14th. (More on that HERE.)
The proper way to truly advance liberty would have been to continue working to change marriage laws in each state. The majority of Americans no longer oppose same-sex marriage and the momentum was on the side of liberty. In the last few years, some 20 states have legalized same-sex marriages via legislative action or state court rulings. Liberty-minded activists certainly had a more difficult road ahead working state-by-state. But ultimately, they could have achieved the same ends without begging the federal government to take on undelegated powers to impose its will on reticent states.
In turning to the federal government, Americans gave up liberty to get liberty.
All of the libertarians cheering the Supreme Court’s decision have enthusiastically embraced unconstitutional power. As a result, these libertarian centralizers forever consent to future federal overreach. How can they ever appeal to constitutional limits on federal power again when they just acknowledged those limits don’t actually matter…as long as they get their way?
The position seems to be, “I’m OK with the SCOTUS exercising any power, as long as it suits my ends.”
That pretty much the sums up the position of every progressive in America
This all reminds me of how the U.S. armed and supported al Qaeda. The Mujahideen were fighting the Soviets at the time, and supporting them advanced the U.S. agenda. So, America unleashed the power of al Qaeda for its purposes.
That didn’t end well.
Americans make the same mistake when they unleash unconstitutional federal power to advance their narrow agendas.
The founding generation didn’t limit centralized power just for the sake of limiting centralized power. They wanted to limit it because centralized power ultimately poses the greatest threat to liberty. Without a doubt, state governments also trample our freedom. So do local governments. Governments, by their nature, violate individual rights. But the people can exercise some greater measure of control over smaller government units. The absolute worse thing we can do is empower some larger entity to control the smaller ones. If we follow that reasoning to its logical conclusion, shouldn’t the libertarian centralizers embrace a world government to “protect our freedoms?”
We should always consider the long-game. Ultimately, centralized power crushes individual liberty. You may possibly wield it to impose liberty for a time. The Supreme Court may occasionally serve as an ally in advancing a narrow libertarian cause. But at some point, the SCOTUS will yank the chain the libertarian centralizers hang around their necks.
That will hurt.
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