I was much more offended by the alacrity with which Perry, who is expected to announce his candidacy for the Republican presidential nomination next Saturday, abandoned his avowed federalist principles to embrace the legislative agenda of the Christian right. It took less than a week.
"Our friends in New York," Perry told GOP donors in Aspen on July 22, "passed a statute that said marriage can be between two people of the same sex. And you know what? That's New York, and that's their business, and that's fine with me. That is their call. If you believe in the 10th Amendment, stay out of their business."
It soon became clear that Perry, who wrote a book championing federalism, does not really believe in the 10th Amendment. In a July 28 interview, he assured Tony Perkins, president of the Family Research Council, that he supports amending the Constitution to declare that "marriage in the United States shall consist only of the union of a man and a woman." So much for letting states define marriage as they see fit.
Perry did a similar about-face on abortion. On July 27 he told reporters in Houston he favors overturning Roe v. Wade, which would leave states free to set their own policies in this area. "You either have to believe in the 10th Amendment or you don't," he said. "You can't believe in the 10th Amendment for a few issues and then [for] something that doesn't suit you say, 'We'd rather not have states decide that.'"
Two days later, Perry's spokeswoman told The Houston Chronicle he "would support amending the U.S. Constitution…to protect innocent life." Most versions of the Human Life Amendment would ban abortion throughout the country, even in states that want to keep it legal.
On its face, this seems like an anti-federalist about face, but really, it's federalism at its core. How can mandating this or that at the federal level be federalist, you ask? The answer is simple. Amendments to the constitution are not fly-by-night mandates on the people a-la Obamacare's mandate that we all buy health insurance or face stiff fines. Amendments to the Constitution represent one of the most federalist processes we have to govern ourselves.
First, an amendment must be introduced in Congress, go through the rigorous process of debate and revision and whatnot, and then be passed by a 2/3 majority in both the House and the Senate. After this happens, the amendment is then sent to the states to be voted on, where it must be approved by 3/4 of all of the states to be added in as part of the Constitution.
This is not some top-down, anti-federalist ignoring of the 10th amendment to further ones agenda. This is the process by which a massive, massive majority of the country decide that we are going to fundamentally change the laws under which we live.
In supporting amendments to the constitution, Perry is indeed supporting the federalist process. While his support of an amendment like the Human Life Amendment, which limits the freedom of people anywhere to have an abortion, even in states that wish to keep it legal, would appear to be anti 10th amendment, it's not really anti 10th amendment if the massive majority of all the states, and thereby the people, voted to change our laws in this manner. The point of federalism is for states to decide what is best for themselves. Amending the constitution would be a case of all of the states deciding for themselves.
I take Sullum's point to heart, even though his argument is technically incorrect. I like Rick Perry for his economics. I don't particularly like Rick Perry's social politics. I don't think it's any government's place, local, state or federal, to have any place in deciding who can marry whom. Nor is it any government's place to decide whether or not a woman should be able to decide whether or not to have a baby, or whether or not we should be mandated to pay for birth control or abortions for that matter. These are places where no matter the opinion on the issue, government just needs to take its nose out of our personal business and let us live as we will.
However I see this for what it actually is: Rick Perry playing to his evangelical base during the primaries. A candidate needs the base in the primaries. Neither of those amendments will ever see the floor of Congress, much less be passed by 2/3 majorities in both houses, and you can forget 3/4 of the states ever ratifying. Come the general election, Perry will be dancing on the head of a pin to articulate the reasons why his positions are indeed not anti-federalist, but if he speaks the plain truth, that amendments are a federalist process, he should get through to the likes of Jacob Sullum.
We don't have to enjoy or even agree with Perry's social politics. But let's not intimate the man is a power-hungry emperor-in-waiting when that is clearly not the case.