Cherry-Picked Constitutionality

A federal judge ruled that only a state gets to define what "marriage" is in that state, and the federal government can't overrule it. That ruling might sound like a nice application of federalism according to the 10th Amendment.

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.

So reasons Jacob Sullum at Reason Magazine.

In determining Medicaid eligibility, for example, Massachusetts had to count married people of the same sex as separate individuals rather than a single household. In operating two state-owned military cemeteries, it had to turn away spouses of veterans if they happened to be of the same sex.

By requiring Massachusetts to pretend that gay marriages do not exist in cases like these, Judge Tauro concluded, the federal government was impermissibly intruding on family law, 'a quintessential area of state concern.' He noted that the definition of marriage has long been viewed as a power 'reserved to the states' by the 10th Amendment because it is 'not delegated to the United States by the Constitution, nor prohibited by it to the States.'"

At least two things about that line of reasoning are very bothersome, regardless of your opinion of gay marriage.

First, it was not quite the "state" of Massachusetts that redefined marriage in this instance; four justices on its supreme court did. The state legislature did not redefine marriage. There was no popular vote to redefine it. The governor never signed legislation to redefine it. Four justices on the state supreme court did this. And now we have a federal judge ruling that the federal government must honor that decision of state judges.

At this point, we have a total of five people redefining marriage as a legal institution for the remaining 310 million of us. That can be called many things, but federalism is not one of them.

Secondly, it does not sound like federalism to me when the state is spending federal money based on its own definitions of terms. If Massachusetts wants to define "personhood" to include dogs, that is fine and dandy as long as Massachusetts is the one who pays for dog welfare. But the rest of us are not obliged to pay for Fido's Medicaid.

As a less extreme example, does a state get to redefine the terms of, for example, Medicaid provisions? Can a state start calling hair weaves tonsillectomies and get reimbursed for providing them? Can it redefine the term "elective," as in "elective surgery" or "elective abortion"? Can it redefine "health," as in "health of the mother"?

Now let's go really far. That 10th Amendment ends with the phrase, "or to the people." So can't just anybody now define marriage, or any other term, any way we want? Why can only a state define a legal term under the 10th Amendment when that Amendment specifically includes "the people"? I, for example, think a "child" is anyone up through age 40, and I should get to deduct my "children" on taxes for quite a few more years. Why does the federal government get to define what a "child" is? Where is defining "child" enumerated in the Constitution? I think I'm a better of judge of the maturity of my children than any government at any level.

Words mean something.  And "marriage" has never meant anything but an institution between one man and one or more women in any society on earth since records began. (Please inform me if you know otherwise.)

But the real reason we find ourselves in such legal and logical conundrums is because the federal government left its constitutional bounds decades ago. Programs like Medicaid, Medicare, and Social Security, whose rules are infused with spousal relationships, should have been ruled unconstitutional decades ago because they do not fall under the enumerated powers of the federal government. The treatment of spouses on federal tax forms would be a non-issue if the 16th Amendment had not overturned the original constitutional prohibition against "direct taxes" by the federal government, or if the federal income tax were flat.

Also, I might welcome this decision if it meant we were getting back to true federalism and respect for the 10th Amendment (despite it not applying in this case anyway). But it doesn't, and you are a fool to think it does -- just like Roe v. Wade did not rule that we have dominion over our own bodies. It was just a one-off case to protect abortion, and only abortion. No principle. No application of a principle, even. Just a ruling to sanctify abortion.

If you think these guys have solid principles, evenly applied, read Justice Souter's Harvard commencement speech. Heck, read Blackmun's Roe v. Wade opinion. They know what they want the outcome to be, and then they apply whatever facts, logic, and laws will get them that outcome. Call it cherry-picked constitutionality.

Randall Hoven is the creator of Graph of the Day. He can be contacted at or via his website,