The right can be expected to have a hissy fit over the decisions that came out of the federal court in Massachusetts yesterday that rejected parts of DOMA. And, as always, their complaints will be about judicial activism, since a decision can't just be wrong or something they disagree with, it has to be completely illegitimate. The identity politics mongers they are, they believe that the right people in the right positions following the right rules will always come to the right decision, with the right impact, so if they don't agree then obviously the Rube Goldberg broke down somewhere, most likely because some cheats got in and just pissed all over their parade.
Of course, as the rest of us know, they have no problem with judicial activism, as long as it's judicial activism that works out well for them. And in the Commonwealth decision, if there's one part that sounds shaky to me as a lay person, it's the Tenth Amendment stuff, saying that the federal government has no power to determine who gets the benefits of marriage.
Jillian Weiss explained why relying on the limitations set forth in the Tenth Amendment isn't a clear-cut issue, and the short version is that so much has been allowed by federal judges to get by the Tenth Amendment in the last century that saying that there is a brightline that can deem a law unconstitutional is, as she put it, "unintentionally funny."
Be that as it may, the American right loves a conservative reading of the Tenth Amendment, where the federal government's powers are limited to allow the states to do what they want. At least they've been saying that since forever:
Tentherism, in a nutshell, proclaims that New Deal-era reformers led an unlawful coup against the "True Constitution," exploiting Depression-born desperation to expand the federal government's powers beyond recognition. Under the tenther constitution, Barack Obama's health-care reform is forbidden, as is Medicare, Medicaid, and Social Security. The federal minimum wage is a crime against state sovereignty; the federal ban on workplace discrimination and whites-only lunch counters is an unlawful encroachment on local businesses.
Tenthers divine all this from the brief language of the 10th Amendment, which provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In layman's terms, this simply means that the Constitution contains an itemized list of federal powers -- such as the power to regulate interstate commerce or establish post offices or make war on foreign nations -- and anything not contained in that list is beyond Congress' authority.
The tenther constitution, however, reads each of these powers very narrowly -- too narrowly, it turns out, to permit much of the progress of the last century. As the nation emerges from the worst economic downturn in three generations, the tenthers would strip away the very reforms and economic regulations that beat back the Great Depression, and they would hamstring any attempt to enact new progressive legislation.
Such retreat to fringe constitutional theories is one of the right's favorite tactics during times of historic upheaval. The right-wing South justified both secession and the Civil War on the theory that the Constitution is nothing more than a pact between sovereigns that each state is free to leave at will. In the immediate wake of Brown v. Board of Education, 19 senators and 77 representatives endorsed a "Southern Manifesto," proclaiming -- in words echoed by modern-day tenthers -- that Brown "encroach[es] on the rights reserved to the States" because the "Constitution does not mention education." President Franklin Delano Roosevelt spent much of his first term combating a tenther majority on the Supreme Court, which routinely struck down substantial portions of the New Deal.
It's not just the rightwing fringe of yesteryear promoting tentherism, but US Representatives a few months ago:
Bachmann: "A lot of members of Congress may have forgotten what the Constitution says. But, again, it is not within our power as members of Congress, not within the enumerated powers of the Constitution, for us to design and create a national takeover of health care, nor is it within our ability to be able to delegate that responsibility to the executive."
DeMint said he would love to see states go to court to invoke the Tenth Amendment: "If we had some states come together and say the only way to save this country is to push back." He also added: "I think you'll see some states say no more, we're not going down with the federal government."
And our BFFs:
Oklahoma State Rep. Sally Kern has introduced a resolution calling on Congress to oppose the Freedom of Choice Act, saying it would be "an infringement on states' rights. Abortion is not a right guaranteed by the U.S. Constitution but states' rights are guaranteed by the Tenth Amendment."
And yet, here's one of the first statements on the decisions from yesterday, from Andrea Lafferty of the TVC:
Andrea Lafferty, executive director of the Traditional Values Coalition, called Tauro's ruling "judicial activism" and said Tauro was a "rogue judge." Gay marriage advocates will keep pushing their agenda in the courts, she said, but noted voters often reject gay marriage at the ballot box, including in a recent California vote.
"We can't allow the lowest common denominator states, like Massachusetts, to set standards for the country," Lafferty said.
Well, someone more suspicious than I would think that their entire theory around the Tenth Amendment has nothing to do with upholding that part of the Constitution, even their own particular reading of it, or advancing state sovereignty (because then the wrong states are sovereign), but is instead about obtaining certain policy objectives out of the judiciary.
I don't really get the theory where the federal government has the power to define who's married but doesn't have the power to pass a health care bill. Then again, I don't have the right's telepathic power to know what the Founding Fathers were thinking.