Box Turtle Bulletin

The Perry approach to the Constitution

Texas Governor and Republican gubernatorial candidate Rick Perry supports the Constitution. But his support appears to be based not on principle or conceptual idea but on legality. He endorses what it says, but seems at a loss as to what it means.

Perry invokes the Tenth Amendment when he says that he supports the right of New York to define marriage as they wish. This fits well with the ‘don’t mess with Texas’ independent streak that has been a part of that state since it gave up its separate nation status. This individualist desire for self-determination, though bipartisan, fits nicely with Republican rhetoric about smaller more localized government.

But Texas, Perry, and the Republican Party are also very socially conservative. And this combination results in policy and positions that often could best be paraphrased as “give me the freedom to chart my own destiny, but you must do as I say”. And it is the second half that Perry invokes when he endorses a constitutional amendment to overrule New York’s right to its own marriage criteria.

His thinking is revealed in an interview with Family Research Council’s Tony Perkins. Gov. Perry leaped at a peculiar notion that allowed him to support Texas’ individuality while denying New York’s self determination (FRC Blog):

TONY PERKINS: Governor, we are about out of time but I don’t want to put words in your mouth, but I think I hear what you are saying. The support given what’s happening across the nation, the fear of the courts, the administration’s failure to defend the defense of marriage act.

The only and thin line of protection for those states that have defined marriage, that have been historically been defined between a man and a woman. The support of a marriage amendment is a pro-state’s rights position, because it will defend the rights of states to define marriage as it has been.

GOV. PERRY: Yes sir, and I have long supported the appointment of judges who respect the constitution and the passage of a federal marriage amendment. That amendment defines marriage between one man and one woman, and it protects the states from being told otherwise. It respects the rights of the state by requiring three quarters of a states vote to ratify. It’s really strong medicine but is again our founding fathers had such great wisdom and their wisdom is just as clear and profound today as it was back in the late eighteenth century.

Perry has some small connection with principle in this statement, but it is based on false premises, perverted self interest, and results-driven thinking.

There are marriage-related issues which, one could argue, threaten a state’s right to self government. Divorce is a prime example. There is a pretty decent argument that having united two people for life, a state’s authority is challenged when another state undoes this act. But states have long since come to all provide for divorce and Perry is not challenging divorce laws.

And, using a real-case example, should Virginia refuse to recognize the custody decisions of Vermont, one could find a threat to the underlying function of federalism. But Perry is not coming down on the side of recognition.

And it must be noted that Perry is not predicating his support for a Federal Marriage Amendment on the repeal of DOMA, nor does his support extend only to protecting Texas’ autonomy. While I would oppose a constitutional amendment that was limited to giving states the right to refuse to recognize marriages conducted in other states as being deliberately discriminatory and a nightmare to negotiate or administer, I could respect those who supported such a “solution” as having some measure of consistency and logic to their position. But this is not Perry’s goal.

And it also must be clarified that Perkin’s assertions about the Defense of Marriage Act, upon which Perry leaped, are flat out distortions. The legal challenges and the government’s determinations have been limited in all instances to “Section Three: Definition of Marriage” of DOMA – that which deals with the Federal Government’s recognition of a state’s laws – and does not challenge “Section 2. Powers reserved to the states”.

Should Governor Perry truly respect a state’s right to define marriage within its borders (even over another state’s right to expect recognition of its acts by other states) then he would not be troubled by challenges to DOMA3 at all. Rather, he would support efforts to throw out this federal disrespect of states’ autonomy.

But Perry has a results-driven agenda. He wants marriage to be restricted according to his religion’s doctrines and is willing to impose those restrictions on others with no regard to self determination or personal freedoms. But to do so without contradicting his admiration for the Tenth Amendment, he spills out a justification that lacks any basis in principle.

The Tenth Amendment was not handed to Moses on Mount Sinai. It is, rather, language written to formalize and give structure to a principle. The notion underlying the words is that individuals should be governed according to shared community values and that such restrictions as are imposed on the individual should not be the result of some other community’s goals or dreams.

Interestingly, this notion is also seen in the provisions laid out for constitutional amendment. Recognizing that states would seek advantage, the authors set the rules of change to be so strict as to make imposition of unfair local or regional values on the entire nation very difficult.

And it is to these provisions that Perry appeals when he says that the rights of New York and its citizens are respected “by requiring three quarters of a states vote to ratify.” Perry argues that New York has the ability to convince just a quarter of other states to protect their autonomy. And yes, is just such an attack that the founders sought to avoid.

However, while Perry praises the language of the Constitution, he fails to see his role.

Yes, New York can appeal; but to whom? And with what argument? When the state of New York comes calling, asking for those who champion a state’s autonomy, what will Perry say?

And that is where Gov. Perry reveals his support for states’ rights to be a sham. He doesn’t really support the rights of a community of individuals to self-determination. Rather, he supports such rights such rights for him and his state, but others have this right only so long as they determine what he want them to determine.