Rick Santorum Doesn't Understand States Rights

By Jonathan H. Adler

The WSJ Law Blog reports on comments by former Senator Rick Santorum (unearthed at RedState) on federalism and the authority of different states to adopt different policies on moral questions.

I’m a very strong supporter of the 10th amendment . . . but the idea that the only things that the states are prevented from doing are only things specifically established in the Constitution is wrong.

Our country is based on a moral enterprise. Gay marriage is wrong. As Abraham Lincoln said, states do not have the right to do wrong. And so there are folks, here who said states can do this and I won’t get involved in that.

I will get involved in that because the states, as a president I will get involved because the states don’t have a right to undermine the basic fundamental values that hold this country together. America is an ideal. It’s not just a constitution, it is an ideal. It’s a set of morals and principles that were established in that declaration, and states don’t have the right, just like they didn’t have the right to do slavery.

If Senator Santorum is a “strong supporter of the 10th amendment,” he might want to read it, as it seems to say precisely what he denies.

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.

The Constitution only prohibits states from doing those things the Constitution prohibits, and the federal government may only constrain state autonomy pursuant to those powers delegated to the federal government.  Santorum may think same-sex marriage is wrong, but nothing in the Constitution prevents states from recognizing same-sex marriage nor does anything in the Constitution authorize the federal government to stop states from doing so.

The reference to Lincoln is also interesting, and does not exactly support Santorum’s claim that “states don’t have a right to undermine the basic fundamental values” of the nation. Contrary to Santorum’s suggestion, states did have the legal authority to permit slavery prior to adoption of the Thirteenth Amendment (which was adopted, incidentally, well after Lincoln’s death). The Emancipation Proclamation, issued pursuant to the President’s War Powers, only applied in those states that had seceded.  The federal government had the authority to limit slavery, such as by ending the slave trade or (prior to Dred Scott) prohibiting slavery in federal territories, but states retained the authority to “do wrong.”

A more charitable interpretation of Santorum’s remarks would be that there is nothing in the 10th Amendment that would prevent a constitutional amendment to prohibit gay marriage.  That would be true, but trivially so.  There is nothing in the Constitution that prevents the adoption of additional amendments on anything (with one exception still relevant today).  But this only makes the point.  Were a constitutional amendment  adopted prohibiting same-sex marriage, then states would be specifically prohibited from recognizing such marriages  by the Constitution, not by some conception of America’s “moral enterprise” or the “basic fundamental values” of the nation.