Rick Perry’s Retreat From Federalism

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Patrick Semansky / AP

Texas Gov. Rick Perry speaks at the Republican Leadership Conference in New Orleans, June 18, 2011.

Texas Governor Rick Perry is not just any federalist. He is the grand poobah of federalists, an alpha-dog federalist, a federalist other federalists dare not challenge. His call for state sovereignty and a limited federal encroachment on “liberty” has been a central plank of his political rise. There is an entire section on his official website paying homage to the 10th Amendment to the U.S. Constitution, where he lays out his “Governing Principle”: “States are best positioned to deal with state issues.”

So Perry did not hesitate when he was asked on July 23 what he thought about New York state legalizing gay marriage. “That is their call,” he said. “If you believe in the 10th Amendment, stay out of their business.” A few days later, there was no quaver in his voice when asked if states should be able to allow abortion. “You either have to believe in the 10th Amendment or you don’t,” Perry 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.’”

Crystal clear. Principled. Uncompromising. Except, not really.

The problem is that Perry is courting social conservatives in his bid for President of the United States. So in a matter of days, he backtracked on both statements. He now says he supports a federal constitutional amendment that would effectively nullify the New York legislature’s ability to enact same-sex marriage. A spokeswoman for Perry also now says he supports “amending the U.S. Constitution, with the backing of Congress and the states, to protect innocent life.”

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Running for President is hard. And one of the first big tests for state-level politicians is deftly recalibrating their positions for the national stage. For Perry, so far, not so good.

In his most recent book, Fed Up!, Perry makes clear that his focus on a limited federal government is about more than policy. “The preservation of liberty requires a government located closest to the people,” he writes, before quoting from James Madison in Federalist 45. “The powers reserved for the several states,” Madison wrote, “will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people.”

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Historically, marriage is an issue dealt with wholly by the states; different states have different laws on age of consent, different rules for divorce and different laws barring the marriage of close relatives. The issue of abortion is somewhat more complicated since the Supreme Court’s 1973 decision Roe v. Wade. Though states have the power to restrict and condition abortion, as Perry has in Texas, they do not have the power to outlaw it altogether.

In an interview with Tony Perkins, the Washington beltway’s resident social conservative enforcer, Perry argued that his support for a federal marriage amendment was consistent with his federalist view, because the amendment would prevent courts from imposing recognition of same sex marriage onto unwilling states. “Indeed to not pass the federal marriage amendment would impinge on Texas,” Perry argued. He added that the amendment would block “a small group of activist judges, and frankly a small handful, if you will, of states, and liberal special interests groups that intend on a redefinition of, if you will, marriage on the nation, for all of us, which I adamantly oppose.”

The problem with this line argument is that the federal marriage amendment, first proposed in 2004, would go further than simply stopping state or federal courts from imposing gay marriage in a state. “Marriage in the United States shall consist solely of the union of a man and a woman,” reads the first sentence. Dale Carpenter, an associate professor at the University of Minnesota, has explained that the effect of this language would be “foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships.” In other words, the people of the state of New York would no longer be able to define liberty  in their own lives.

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This runs contrary, in spirit, to Perry’s stated views. “The Constitution does not empower Congress to make decisions about morality for the American people,” he writes in his book. Perry finds a way, however, by arguing that amending the U.S. Constitution is, in fact, an act driven by the states, since 38 of the 50 states must act to ratify any amendment for it to be adopted. “Our Constitution was designed to respect states including the amendment process,” Perry told Perkins. “The overall constitutional protection, if you will, by and how we amend our United States Constitution to reflect the values of the nation as whole is very important.”

Indeed, Perry has liberally supported amendments to the U.S. Constitution in the past. He supports a balanced budget amendment, a repeal of the 16th Amendment, which provides the federal government with the power to levy income taxes, and a revision of the 14th Amendment, which Perry believes has been “abused by the Court to carry out whatever policy choices it wants to make in the form of judicial activism.”

It is not yet clear what exactly Perry’s support for a constitutional amendment to “protect human life” means. Politicians have proposed anti-abortion amendments that would effectively nullify Roe v. Wade, allowing states to choose whether or not to outlaw abortion. Amendments have also been proposed that would effectively outlaw abortion in all states. His office did not return a request for clarification.

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But clarification will be demanded if Perry moves forward with a presidential bid. It’s one thing to speak in broad terms about “liberty” and the Federalist Papers. It’s quite another to apply those principles in the heated battle of a presidential campaign.

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