“No, the Constituion is the Supreme Law of the Land. It does not run on top of colonial law, the Articles of Confederation, or anything else.”
It runs on ‘plenty of other stuff’. Not all of American Jurisprudence is contained within the constitution. There are plenty of American laws which exist that have their origins in the colonial period, and others even earlier. Just looking at the constitution and reading through - this is readily apparent.
“If you are a non-constructionist”.
I am a constructionist. what is contrary to constructionist by obtaining information on the origin of the opinions of the founding fathers and similarities between the US constitutions and other legal systems at the time? In order to properly understand the constitution and the motivation behind it requires this background.
Your thesis that ‘gay marriage is not contrary to the constitution requires evidence that the founders rejected the Common Law definition of marriage. I have plenty of information that shows this is just not true.
“Even DOMA did not forbid states from setting their own terms, but only establishing the standard that states are required to acknowledge with respect to the FedGov and between the states.”
DOMA explicitly cites the FF+C clause as the requirement for a uniform standard across the US with respect to the definition of marriage. States are permitted to set things like age laws, etc, but they cannot change the definition.
“The top down approach won’t accomplish your goals.”
The law is the law. Ignorance of the law doesn’t change anything. I am arguing that, in accordance to the constitution - the power to enforce the definition of marriage across the US rests with the federal government at present. I have provided substantial evidence in favour of this argument whereas you’ve provided nothing.
“They will simply be circumvented”
Then no marriage exists in contravention to the federal laws in the United States.
“Central planning at that level fails.”
On the contrary - having a uniform requirement on marriage is the only system that works. If every state has different marriage laws, and each state fails to recognise marriage in every other state - then there really is no marriage whatsoever. There can be only one. States can try to defy this but again - it has no standing in court, nor force of law backing it up. People are free to call their relationships whatever they want, even ‘marriage’, but it doesn’t change the legal requirements.
This is a fascinating argument. I have to give you points for creativity. Can you give me another example of a law that I am legally required to abide by that predates the Constitution, but is not contained therein?
Your thesis that ‘gay marriage is not contrary to the constitution requires evidence that the founders rejected the Common Law definition of marriage. I have plenty of information that shows this is just not true.
It's likely they did accept the definition, however since they left it out of the Constitution entirely, it looks like it falls under many of the vast powers under the 9th and 10th Amendment.
DOMA explicitly cites the FF+C clause as the requirement for a uniform standard across the US with respect to the definition of marriage. States are permitted to set things like age laws, etc, but they cannot change the definition.
Bingo. It sets the standard by which the FedGov itself will recognize marriage, and what definition the various states will be required to recognize with respect to each other. It DOES NOT make requirements on the individual states on how they recognize a marital contract within. So yes, they can change the definition, it just may not be recognized by other states or the federal government itself (which really only applies to tax and immigration purposes, since, as I stated before, it is largely a state matter). But those can change with the power balance, so even if you get your standards in place, they will likely change election to election. Once again, federal control gets you next to nothing.
If every state has different marriage laws, and each state fails to recognise marriage in every other state - then there really is no marriage whatsoever.
Oh really? So we need state permission and endorsement for marriage? Wow, this is conservatism?
There's no marriage unless Daddy Government says so?
People are free to call their relationships whatever they want, even ‘marriage’, but it doesn't change the legal requirements.
There you go. Now you're onto something.
I couldn't give a rat's ass what the Federal Government says about marriage, or any other politician or bureaucrat. If we had a true Constitutional Republic, it wouldn't matter whether you were married or not as the laws, regulations, and statutes in this country would be limited; exemptions, tax credits, subsidies, and other marriage benefits wouldn't be needed since the laws that they exempt people from wouldn't exist.
The best idea is to keep the government as far away from marriage as possible. The ideal role would extend to honoring a contract and setting terms for dissolving it, and that's it.