15. Restrict federal-level influence in social issues
The federal government has no role in social issues, such as marriage and abortion rights, that are authorized by the U.S. Constitution. These issues are rightly considered to be societal matters that are best left for local or regional consideration – or simply left alone. In fact the creation of any law that tries to establish finality to these types of questions is futile. Such cultural/social questions and debates will be with us forever.
Historically, Congress generally avoided legislating any kind of criminal statute, except as delineated in the Constitution (counterfeit currency, treason, smuggling, and piracy), until the 20th century. Since then, regulatory functions, such as food control, drug control, environmental and safety laws, and immigration have given rise to volumes of essentially criminal laws. Other than regulatory laws, the exceptions have to do with: 1) federal tax regulations and 2) civil rights law. Clearly, federal-level taxes are discussed in the Constitution (and the XVI Amendment), and the federal government is the logical authority to police this item. Civil rights law is derived from the authority of Amendments XIII, XIV, and XV.
However, criminal penalties under federal regulatory statutes are highly suspect from the viewpoint of a strict interpretation of the Constitution. Constitutional law per se only allows for the creation of the federal courts; although an extensive body of civil law has been built up by now that relates to interpretation of our Constitution.
Beyond these matters, there is no justification for interference in the laws or the customs of U.S. citizens by the legislative or the administrative branches of the federal government. In fact, “powers not delegated by the Constitution … are reserved to the states, or to the people” (Amendment X).
The history of various movements in this country, though, is to try to use national power to curb or channel social or political tendencies. The obvious recent developments of this type are the anti-gay and anti-abortion movements. In the face of all of our recent disasters – the war in Iraq, corruption in Congress and in the administration, hyper-partisan machinations of the administration, incompetence in the administration, various economic concerns, environmental issues – these two movements seem to have lost some of their front-page-news cogency – but they are not going away.
In my opinion a logical and legal stance by both the legislative and administrative branches of the federal government is to proclaim without caveat that there is no justification for federal action on these types of social issues. It should require no more than that, because the stipulations of the U.S. Constitution, plus amendments, are clear.
However, since advocates for social-issue movements like to propose constitutional amendments or federal statutes that contain or imply criminality clauses, we need to create a barrier to this unconstitutional approach. What kind of barrier can it be? Various sections of the Constitution are often called “vague”. Do we need another amendment to explicitly define the issues that are excluded from federal control? I think that this already exists in Amendment X, as cited above, so the answer should be that we do not need to revise the Constitution in this case.
The problem, ultimately, is the current political identity of the majority of the judges on the U.S. Supreme Court. The solution in the short (and in the intermediate) run is to change this identity as quickly as possible. Realistically, unless Justices Thomas and Scalia eat and drink themselves to death, the bad guys will probably outlive the good guys by decades. So – a logical solution will be to “pack” the Court, as Franklin Roosevelt threatened to do in the mid-30s and as Andrew Jackson actually accomplished over 100 years before Roosevelt. (The number of justices has actually been changed several more times in our history to either deny or allow appointments by several other presidents.)
I know of no obstacle to doing this, other than the Congress’ will to do so. If the 2008 elections tend to boost the percentage of liberal and progressive Congresspeople, I think that this can be accomplished. The politics of the SCOTUS’ majority are well known, and the majority of U.S. citizens oppose the viewpoints of Roberts, Alito, Thomas, and Scalia. We should be able to bring public pressure to bear on this issue. (As far as who would be the best candidates for the new Supreme Court judgeships, I cannot say at this point. I can say that I would solicit the opinions of organizations such as the ACLU, the American Bar Association, and the Democratic Party, plus individuals such as Jonathan Turley, Morris Dees, and SCOTUS Justices Breyer, Ginsburg, Souter, and Stevens.)
The current administration – whether due to principle or political expediency – has no compunction against the promotion of certain positions in these social issues at the federal level. An administration that is true to the U.S. Constitution, however, will “proclaim without caveat that there is no justification for federal action on these types of social issues”, as stated above. If elected, this statement will be the mantra of my administration, every time that such a discussion arises. The relevant category will include all topics related to homosexuality, abortion, prayer and religious memorials in public places, or obscenity.
Can it be said by either side of each respective debate that these are serious matters for large portions of our citizenry? Yes. Is it the case that such debates create conflict that disturbs “domestic Tranquility”? Yes. Is there any specific provision of the Constitution that allows federal involvement or interference in these questions? No! Simply put, these subjects are all “reserved to the states, or to the people”. To safeguard this position, we need to change the political outlook of the U.S. Supreme Court.
Paul Spencer
