I must confess I do not buy the “federalism argument” against DOMA that has received a lot of attention at The Volokh Conspiracy. I don’t like DOMA any more than other libertarians, and I think it violates the equal protection component of the Fifth Amendment’s Due Process Clause. But it does not intrude on state sovereignty, as far as I understand.
Prof. Barnett thinks it’s “crazy” that one might be married under state law but not federal law. This perplexes me, because that proposition is no more surprising than the proposition that federal and state citizenship are separate concepts—a proposition that the anti-slavery constitutional thinkers Barnett admires were quite familiar with. One of the biggest constitutional problems in the era before the Civil War was the ambiguity about federal and state authority to define citizenship. Spokesmen for the Slave Power insisted that the federal government had no independent authority to define citizenship, and that citizenship for federal purposes could only be defined by the states; they insisted it was absurd to suggest that one could be a citizen for federal purposes, and not for state purposes. Antislavery thinkers like Lysander Spooner rejected this argument, insisting that the federal government had power—including under the Necessary and Proper Clause—to define federal citizenship. These arguments culminated in the adoption of the Fourteenth Amendment, which deprived states entirely of the power to define citizenship.
Justice Kennedy wrote in Term Limits v. Thornton that
The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it. It is appropriate to recall these origins, which instruct us as to the nature of the two different governments created and confirmed by the Constitution.
True, the federal government’s authority to define terms can “undermine” institutions which have traditionally fallen within state authority. But so what? That does not make it unconstitutional. Barnett says it’s “crazy” to think that “you ‘own’ your home under the property law of California, but you don’t ‘own’ your home ‘for purposes of federal law.’” But this does not seem crazy at all to me. (Property is an awkward example to use, since the Supreme Court has “traditional[ly] resort[ed]” to state law definitions of property for purposes of compensation under the Takings Clause. But this is a special case; typically the federal government has full power to define ownership. In Hughes v. Washington, for example, the Court found that federal property law controlled rather than contrary state property law.)
Barnett seems to say that the difference between the feds defining citizenship and the feds defining marriage is that the former falls within the Necessary and Proper power, while the latter does not. This is because marriage is a traditional state concern that falls within the Tenth Amendment. I agree with those premises, but not the conclusion, because the federal government still has authority to define terms that traditionally fall within state authority when doing so is necessary to the effectuation of some other constitutionally authorized power. For example, the crime of murder is a traditional state concern. But the federal government can still define murder when doing so is necessary to regulate commerce among the several states, or punish crimes on the high seas—and, of course, it has done just this. If that’s constitutional, then DOMA must also be constitutional, at least as a federalism matter.
One can argue that the statutes for which DOMA supplies the definition of marriage are not constitutionally authorized powers, which then renders DOMA unconstitutional under the Necessary and Proper Clause—but that’s an argument against those other statutes, not against DOMA; DOMA’s unconstitutionality is then pendent on the constitutionality of that other statute, which would properly be the target of the lawsuit. That’s fine with me, but it’s not an argument against DOMA. One can also argue that Congress’ power to define terms for federal purposes can’t be exploited as a pretext for exceeding Congress’ constitutional powers, and that’s true—but, again, that’s an argument against the operative element of whatever statute’s under consideration, and not an argument against the definitional statute. Either that, or it’s an argument that DOMA’s definition of marriage is irrational…but then that’s an argument under the Fifth Amendment’s Due Process Clause, which is what I’ve said is really the argument here.
Federalism just doesn’t work as a challenge to DOMA. The federal government’s power to define terms for purposes of federal law is clear; it’s certainly necessary and proper to the effectuation of enumerated powers. And if the statute for which the definition is being provided is outside the enumerated powers, then that should be the argument.
Update: I’ve been asked, “Aren’t your examples drawn from commerce and navigation, which are enumerated federal powers, unlike family law?” But this is what I mean by saying that the federalism argument has to be targeted to something other than DOMA to work. The general power to define terms is Necessary and Proper (and thus falls within the enumerated powers). The only way this is not true is if the operative statute to which that definition is applied is outside the enumerated powers—but then the argument is that that statute, not the definition alone, is unconstitutional. DOMA defines the term “marriage” for purposes of navigation, commerce, taxes, and various other things that are within the enumerated powers. It is therefore constitutional as a federalism matter (meaning that its unconstitutionality must be a matter of Due Process).
If the feds were trying to regulate family law generally, in a manner unrelated to an enumerated power, then that would be unconstitutional—but then, that would be an argument against that operative statute, not against the definitional statute. If the feds were to try to just prohibit rape, for example, that’s outside Congress’ authority. So the definition of “rape” would then also be unconstitutional as a function of the prohibition’s unconstitutionality. But if the feds prohibit rape on the high seas or on planes flying across state lines, which it certainly has power to do (i.e., interstate commerce), then that would be constitutional, and the definition of “rape” would then also be constitutional, regardless of whether it differs from state law definitions. The proper target of federalism objections is the operative element of the statute, not the definition. The only exception to this would be if the definition is being used to override states’ law—to say “from now on, marriage for purposes of state law shall be defined as so-and-so.” That would certainly be unconstitutional on federalism grounds*—but that’s not what DOMA does. It purports to define the term solely for federal purposes, which is constitutional.
*--Um, unless it falls within Section Five of the Fourteenth Amendment.
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