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sometime in the future, the Framers believed

The nation's commitment to federalism is

the amendment process should be reserved "for

enshrined in the Constitution's enumeration

certain great and extraordinary occasions."49

of congressional powers in Article I and in the

reservation of other powers to the states or the

The Constitution should not be tampered

people in the Tenth Amendment. Specifically,

with to deal with hypothetical questions as if

states have traditionally controlled the con-

it were part of a national law school class-

tent of family law, including the definition of

room. It should be altered only to deal with

marriage, in their own jurisdictions. Though

some clear and present problem that cannot

federal law has recognized marriages validly

be addressed in any other way. We are

performed in the states, there has never been a

nowhere near that point on the subject of

national definition of marriage independently

same-sex marriage. The "problem" of nation-

imposed on all the states by Congress or fed-

wide same-sex marriage is neither clear nor

eral courts.

present. At the very least, we should wait

Concern over preserving the traditional

until an issue calling for a national solution

authority of the states has been a central theme

actually arises before we address it by chang-

of the Supreme Court's recent jurisprudence.

ing the Constitution.

In its recent Commerce Clause cases, the Court

has emphasized the need for limits on federal

A Federal Amendment

power in the interest of preserving states'

Intrudes on Federalism

domain over areas like criminal law and family

law.51 Those decisions upholding the role of

the states were supported by the Court's most

A constitutional amendment would be a

conservative justices: Chief Justice William

radical intrusion on federalism. From the

Rehnquist and Justices Clarence Thomas and

founding of the nation, our federal system has

Antonin Scalia.

been designed such that the federal govern-

Federalism is not valuable simply as an

ment has limited and enumerated powers and

abstract or dusty tradition. It has a couple of

the state governments have residual powers.

practical benefits especially relevant to the

The states have been free to legislate on all

debate over a federal marriage amendment.

matters not reserved for federal authority

First, it allows incremental innovation in pub-

(such as interstate commerce) or for the peo-

lic policy. Second, it maximizes individual

ple. State power has been limited only insofar

choice and liberty by allowing citizens to live

as necessary to protect nationhood, the

in states that most closely suit their prefer-

national economy, and individual rights. The

ences. Let's examine each of these benefits in

basic constitutional design was best explained

more detail.

by James Madison in Federalist no. 45:

First, federalism has served the country

well insofar as it has allowed the states to

The powers delegated by the proposed

There has never

experiment with public policies, to determine

Constitution are few and defined. Those

whether those policies work or need to be

which are to remain to the State govern-

been a national

amended, and then to follow or to decline to

ments are numerous and indefinite. The

definition

follow the example of other states. Acting as

former will be exercised principally on

of marriage

laboratories of social change, the states have

external objects, as war, peace, negotia-

been responsible for some of the most impor-

tion, and foreign commerce. . . . The

independently

tant innovations in American law. Those

powers reserved to the several States will

imposed on all

innovations have included allowing women

extend to all objects which, in the ordi-

to vote, setting maximum hours for working,

nary course of affairs, concern the lives,

the states by

adopting minimum wage requirements, and

liberties, and properties of the people,

Congress or

prohibiting child labor. To some observers,

and in the internal order, improvement

and prosperity of the State.50

federal courts.

those state-initiated policies undoubtedly

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