The Death of Federalism
The majority’s opinion in Obergefell v. Hodges represents an unacknowledged quantum shift in the country’s structure and institutions. One of the most illuminating elements of the majority’s opinion is what isn’t mentioned: Not a single reference to federalism.
While this case was nominally on the topic of marriage, the substance of the questions came down to fundamental issues of federalism. To wit, in the absence of an explicit Constitutional grant of federal power to define marriage, on what basis should the states’ traditional power under concepts of federalism (to be the sole arbiter of who can be issued a marriage license) be upended?
The majority ignored the question in the same way it ignored the will of a supermajority of states that had put the question of same sex marriage to a vote and had chosen to not recognize such a right. Rather, scraping the hoary residue of penumbras and emanations, the majority cobbled together a new fundamental right for same sex couples to receive marriage licenses.
While the majority was less than forthright in explaining what this new fundamental right consists of and where the right begins and ends, it was quite unabashed in acknowledging where its power to create this right came from. The majority brushed aside the fact that the people of the states have consistently and overwhelmingly voted to reject appeals for a right to same sex marriage and with unprecedented disdain for the foundational structure of the nation’s institutions, set the Court up to be the sole and omnipotent voice on what constitutes liberty interests in this nation. In so doing, the Court has done the equivalent of poking the people in their collective chests, as if to say “Federal power grab? Do something about it.”
To be sure, it is within the power of the Supreme Court to recognize fundamental rights. However, in this case the Court openly defied the considered decisions of the people to arrive at this new right. As the dissenting justices made clear, the Court cannot substitute the desires of five judges for the expressed will of hundreds of millions of citizens. Had the majority been respectful of the people and the limitations on the powers of the Judiciary, they would have respected the process of putting the matter to a vote in the states and we truly would have known over the next few years whether this country has a collective desire to recognize a right to same sex marriage (and gay rights generally). Instead, the stratification of the nation into an omniscient ruling class on the one hand and powerless subjects on the other hand has accelerated dramatically.
As in nature, birth and death are interrelated, and in this case, the birth of a new and amorphous right to same sex marriage was possible only as a consequence of the Court thrusting a judicial dagger into the heart of federalism. If an unenumerated and previously unrecognized right can be used to suppress traditional rights of the states, how can any conflicting state regulation of existing rights be allowed to stand? For example, the Second Amendment guarantees a right to keep and bear arms; in the wake of Obergefell, will all existing state laws that limit that right (such as concealed carry license laws) be declared unconstitutional? They must, since federalism has been eliminated under Obergefell.
The Chief Justice, in his dissent, adopted a point made in my amicus brief. The Supreme Court is empowered only to say what the law is, not what the law should be. With this decision, however, the majority abandoned all pretense of being a legal tribunal with limited powers and burst out of the closet, self-robed and becrowned with a new, unenumerated power to supersede all political institutions.
Federalism is dead; the republic is not far behind.