Conservative NC legislators made headlines this week by introducing HB780, the “Uphold Historical Marriage Act.” The bill, filed in response to Obergefell v. Hodges, clarifies that North Carolina’s marriage amendment is still valid, despite the Supreme Court’s opinion to the contrary. The bill has three primary sponsors: Larry Pittman, Michael Speciale, and Carl Ford.
There are strong constitutional concerns with this legislation given that the U.S. Supreme Court has firmly ruled on the issue, therefore House Bill 780 will be referred to the House Rules Committee and will not be heard.
While it doesn’t look like this particular bill is going to make it anywhere, it does bring to the surface a very significant disagreement about federal supremacy. By federal supremacy, I mean the Federal Government’s authority to override state law. And while it may not seem like it at first glance, both sides in this debate hold to a form of federal supremacy.
The more popular of the two positions is the one apparently held by Speaker Tim Moore, which I shall label Unlimited Federal Supremacy. Under this view, federal laws and court opinions are supreme over state laws in all things whatsoever. Essentially, there is no domain of state power which lies beyond the control of the Federal Government. A state may certainly object to abusive federal laws, but in the end, resistance is not an option.
The other position, that held by Rep. Pittman and his colleagues, is represented well by a statement that Pittman released to NBC Charlotte:
HB 780 is about the need for the States to reassert their rights. As the bill states, marriage is not a federal matter. For too long, the federal government and federal courts have been allowed to overstep their bounds because the States have not had the courage to say no. Upholding the US and NC Constitutions means demanding that laws and court rulings do not contradict the very Constitutions we are obligated to uphold. I appreciate Rep. Speciale and Rep. Ford for having the courage to stand with me and say so.
This view, which I shall label Limited Federal Supremacy, holds that federal laws are supreme over state laws only if they are made in pursuance of the Constitution. There is a domain of power reserved to the states, which the Federal Government has no authority to take away. If the Federal Government at any time supersedes the authority given to it by the Constitution, the states should not only object, but resist. I subscribe to this view myself, because it is, I believe, the view supported by a natural and honest reading of the U.S. Constitution.
In order to get to the bottom of this issue, we need to realize that the Federal Government was initially established by the states via the Constitution. Once upon a time, before there was any Federal Government, thirteen “free and independent states” were already in operation (see The Declaration of Independence). These states ratified the U.S. Constitution in 1788, establishing a Federal Government of limited and enumerated powers. The laws of this government would indeed be supreme over state law, but only in those areas specifically delegated to it by the U.S. Constitution:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [Article IV, Clause 2; emphasis added]
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. [Amendment X; emphasis added]
This makes things problematic for those who hold to Unlimited Federal Supremacy. If the un-delegated powers are left to the states, then on what basis could someone say that federal laws always override state laws? Is there not, as the Constitution itself would lead us to believe, a large number of powers over which the Federal Government has no authority? If the Federal Government oversteps its Constitutional bounds (as I believe it has done in redefining marriage), and usurps the sovereignty of the states, then on what basis should it be obeyed?
Of course, some will say that the Federal Government’s power has been expanded by Supreme Court rulings. But this simply begs the question. Someone could rightfully ask, Where does the Supreme Court get the authority to expand federal power? Certainly not from the Constitution. And if it doesn’t come from the Constitution, is it even valid?
It’s for these reasons that I’m a strong proponent of Limited Federal Supremacy. Federal law is supreme insofar as it pursues the intent of the Constitution, but no further. Intrusions by the Federal Government into state matters are nothing but usurpations, and should be treated as such by the states.
The power to regulate marriage policy is a power not delegated to the federal government by the Constitution. Therefore, according to the Tenth Amendment, it is a power reserved to the states. Reps. Pittman, Speciale, and Ford have pointed that out in their bill, and I’m very thankful to them for doing so.