Introduction
Following the 1995 United States v. Lopez Supreme Court decision, some scholars began to suggest that the high court was making a substantial change in its understanding of federalism, one that could undermine the last century of precedent. At the very least, from the era of the new deal up until U.S. v. Lopez, a slow but steady legal precedent of growing national power has accumulated from the ever broadening interpretation of the commerce and elastic clause. National regulations on everything from minimum wages to how local farms can use insecticides have been passed and legitimatized in a way the founding generation could never have imagined. As early as 1950, scholars began to take notice of growing national power arguing that federalism, as it had once been understood, no longer existed. This growing national power appeared to have little boundaries left to slow it down until United States v. Lopez, which struck down a national gun law as an unconstitutional use of the commerce clause. Was this the first step towards a return to a more rigorous federalism by which the national government would be limited in its sphere of power in relation to the states? Was this a sign that the tenth amendment had been miraculously revived from a mere truism to a substantive constitutional guideline? So far, little has changed since the ruling in Lopez to suggest such a transformation change to federalism has taken place, and instead, new rulings have come down which further undermines federalism and the tenth amendment.
During the summer of 2015, the Supreme Court handed down its ruling for Obergefell v. Hodges, essentially nationalizing same sex marriage. Apart from its expansion of liberties, so defined by the court, the reasoning behind the ruling provides new jurisprudence for the court which may further work to undermine the tenth amendment and substantive federalism. Quite to the contrary of those who argued that a new era of substantive dual federalism would arise out of United States v. Lopez, the recent ruling in Obergefell v. Hodges not only points towards a further undermining of the tenth amendment and federalism, it may be the largest undermining of the Lopez decision made yet.
Defining Federalism
Before we can investigate the Obergefell v. Hodges ruling in detail, we first must develop a better understanding of what is meant by federalism in order to understand how the case relates to it. In their investigation of federalism, Feeley and Rubin systematically consider all the different ways federalism can be defined, slowly removing all concepts from the term which do not necessarily belong to it. Feeley and Rubin distinguish federalism from other institutional forms of governance such as consociation, decentralization, and local democracy, arguing that federalism is a wholly unique institutional set-up. Federalism gets defined by these authors as the holding of partial autonomy by a definitive geographical subdivision within the greater polity. This definition leaves out the ideas of consociation which gives partially autonomy to certain groups (christians, racial minorities, i.e.) and decentralization which is a managerial strategy by which the central government allows more local units to share in power to more effectively govern. While consociation is uniquely different in its absence of distinct geographical boundaries, a larger chasm exists between federalism and decentralization than even what Feeley and Rubin seem to understand. What makes federalism unique to decentralization is the clear demarcation between the central power and its subunits which cannot be modified without the consent of both. The subunits hold some powers which are unique to itself and cannot be overridden by the central power and vice versa for the central power. This demarcation is all but missing from the concept of decentralization, where all power rests with the central government and can be handed down to the subunits in a unitary fashion. Where central governments govern a vast area or, whose citizens are not ideologically homogenous, it is sometimes suggested that handing down power to localities to make decisions themselves might allow for enough differentiation to accommodate the heterogeneity of that polity. This in turn may look very similar to federalism where power is spread out among a central government and its subunits. But unlike federalism, this power distribution can be changed at will by the central power without the consent of the subunits. What makes federalism unique, and therefore acts as its definitional grounding, is the clear demarcations of power made between its subunits and central governments; a demarcation that cannot be revised unilaterally.
Feeley and Rubin argue that a better understanding of federalism will change how we understand federalism’s role in a polity. It is not necessarily the case that federalism, as it has been defined, will better be able to protect liberties and rights, since there is little reason to think subunits will be any more inclined to protect liberties and rights than a central government. In fact, many scholars have pointed towards the United States during the civil rights era and argued that here, the tendency was for the central government to promote individual liberties while many of the subunits actively tried to limit them. Feeley and Rubin also argue that there is no reason to think federalism is a superior form of governance because of its ability to bring some aspects of governance closer to the people, because decentralization can similarly do this.
So if federalism isn’t helpful on these two fronts, why do we have it? John Kincaid indirectly takes on this question in his article Values and Value Tradeoff’s in Federalism, suggesting that federalism might act as tool to protect communitarian liberty. In contrast to individual liberty, communitarian liberty is the right of smaller communities to govern themselves in all matters of local relevance in order to maintain their way of life. This way of life may not necessarily accord with the more national way of life, and may be considered a morally dubious setup for a community, but communitarian liberty protects their actions nonetheless. Federalism, by demarcating power from a centralized power, allows communities to run themselves in ways they deem best without worry that a central power can override them. Even in areas of law where one’s “individual rights” were being violated by a subunit, if the power to override this violation did not legitimately exist within the central governments domain, federalism protects the communitarian right to enforce it. Examples of this can be found littered throughout the first century of American governance, where despite the national recognition of a right to free speech, separation of church and state, and due process, many states successfully passed and enforced their own constitutionally legitimate restrictions on these rights.
The 10th Amendment: Federalism and Demarcation
Federalism is about the clear geographical demarcation of power among the central authority and its subunits. In the United States, federalism relates to the relationship between the states and the national government. Following the American revolution and the instituting of the Articles of Confederation, a new constitution was drafted and ratified by the 13 original states replacing the Articles of Confederation with a new institutional setup. The Constitution created three branches whose members were directly and indirectly elected by both individuals and the states, listing out the powers each branch was to hold. Within three years of its ratification, ten amendments to the Constitution had already been added, including the 10th which states:
“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.”
This amendment, Thomas Jefferson would later remark was the cornerstone of the Constitution, setting up a national government with limited and explicit powers. The tenth amendment sits as the point of demarcation that gives the United States its federalist structure. It states that while the national government does have power implicitly over the states because of the Supremacy clause, these powers are limited to those specifically “delegated” to it, whereas all other powers are reserved to the states. The wording “reserve” is interesting in that it implies a refrain from use. This, shouldn’t be thought to mean the states should refrain from use of the powers, but that the states reserve these powers by refraining the national government from use. Within the context of what has been said about federalism, it is interesting to note that the 10th amendment specifically mentions states, which are their own distinct geographical regions.
It was the 10th amendment at center stage in the Supreme Court’s hearing and subsequent decision in U.S. v. Lopez in 1995. Following the arrest and conviction of Alfonso Lopez Jr. for bringing an unloaded handgun onto school grounds in violation of the federal Gun-Free School Zones Act of 1990, Lopez appealed to the Fifth Circuit Appellate Court, arguing that the regulation of guns on school grounds was an unjustifiable use of the commerce power granted to Congress in Article 1 Section 8 of the Constitution. The Fifth Circuit agreed, arguing that the connection between guns on school grounds and interstate commerce was “insignificant”. The court overturned Lopez’ conviction and declared the law an unconstitutional action of Congress.
The decision was subsequently appealed to the Supreme Court where it was granted certiorari. As had been done so many times in the past, the court was asked to decide on the limitations of Congressional power. What limitations, if any, did the 10th amendment put upon Congressional authority to act under the commerce clause? During the first 150 years of the countries history, the court was active in limiting the power of Congress to encroach upon powers traditionally thought to belong to the states. Even into the early 20th century, the court continued to strike down populist national laws including child labor protections and many parts of the New Deal. But, by the end of the the 1930’s, the court had made a dramatic switch in its interpretation of national power and the 10th amendment which would set precedent for decades to come. Decisions such as U.S. v Darby began to change the interpretational landscape, extending what it meant to regulate interstate commerce. By 1942, the court had extended Congressional authority to regulate commerce to an extent never before imagined. The court ruled in Wickard v. Filburn, that even the personal growth and consumption of wheat on one’s own property impacted interstate commerce to a sufficient degree to legitimatize Congressional regulation. Because Mr. Filburn was growing wheat on his own property, the court reasoned, he was thereby not going to purchase as much wheat on the open market which lowered the aggregate demand for wheat further diminishing its price. Because national regulations were being put into place to stabilize and raise the price of wheat, Mr. Filburn’s actions were indirectly influencing the interstate wheat market and could therefore be regulated on the commerce clause. This case further extended congressional power by weakening how direct of an influence something must have upon interstate commerce to be regulated at the national level. The following decades only increased Congressional authority over the ability to regulate commerce, essentially relegating the 10th amendment to a “truism”. While the court did continue to use the 10th amendment to limit national power, these cases became the exception to an ever growing precedent of expansive national authority. But this growing of national power, by way of diminishing the importance of the 10th amendment, did not go unnoticed by scholars, nor by the Supreme Court in its decision in U.S. v. Lopez. To the surprise of many, in a 5-4 decision, the court ruled in favor of Lopez, arguing that the Gun-Free School Zones Act of 1990 was an unconstitutional use of the commerce clause. In the opinion given by Chief Justice Rehnquist, the court laid out a history of the purpose of the 10th amendment and the precedent of its diminished importance since the late 1930’s. But despite the lack of credence given to the 10th amendment by the court in its recent history, Rehnquist still argued that it held relevance.
In his decision, Rehnquist provides three general categories into which the court believes Congress is authorized to regulate commerce. The first is that Congress can regulate the use of the channels of interstate commerce. The second, that Congress can regulate the “instrumentalities” of interstate commerce, including things such as airplanes, ships, and those operating these instrumentalities. The third category states that Congress can regulate those activities that have a substantial relation to interstate commerce. And on this third criteria, the court found little evidence to support the belief that regulating guns in public schools substantially influenced interstate commerce. During oral arguments, the government argued that by allowing guns into public schools, we should expect to see an increase in the amount of violent crimes in these schools. This would affect interstate commerce in two ways, the first by raising insurance costs nationwide to cover these types of crimes, and the second, by creating a learning environment which made students feel uncomfortable and unable to learn. This, the government argued, would diminish national education standards thereby harming an economy that relies upon an educated workforce.
Rehnquist considers these arguments, concluding they are insufficient to rule in the governments favor. Rehnquist does suggest, that in part, he is inclined to rule against Congress simply because they failed to provide any sort of empirical evidence to support their claim. But perhaps more importantly, Rehnquist argues that: “Under the theories that the Government presents in support of 922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign.”
The precedent that would be set here, if ruled in favor of the government, would be one of unlimited national power, which sits in contradiction to the 10th amendment. Rehnquist concedes that Congressional authority to regulate commerce is very broad and very extensive, but he is unwilling to concede that it is unlimited. Where the exact limitations of Congressional authority exist, Rehnquist is less than certain, suggesting that the precedent set here will continue to produce “legal uncertainty”. But he also suggests that this legal uncertainty is a natural product of the 10th amendments limitations on Congressional authority and must be respected and dealt with responsibly in the future.
The Supreme Court’s decision in U.S. v Lopez was important for a few reasons. The first, that it reaffirmed the notion that the national government has limited powers, and that this demarcation of powers reaffirms a system of federalism. But perhaps more importantly, the courts reasoning for this was not justified upon what policy makes for good governance. The legal reasoning was not explicitly supported by the potential benefits of allowing guns in public schools or in devolving the authority to decide on this issue to the states. Instead, Rehnquist focused upon the 10th amendment and the existence of a demarcation of power. Because a demarcation is legally said to exist, the court felt Congressional justification that could be used in an unlimited fashion could not be upheld. It allowed for communitarian liberty (the defining feature of federalism) by allowing states to regulate this area for themselves, regardless of its consequences.
Obergefell v. Hodges
Following the courts ruling in U.S.v. Lopez, many scholars thought a new era of federalism might be approaching by which the courts would begin to incrementally reign in federal power. But not only has the Lopez decision been followed by few other cases that expand upon it, but a recent case may have fundamentally undermined it in a rather indirect fashion.
During the summer of 2013, James Obergefell and John Arthur married in the state of Maryland, where same-sex marriage was legal. Following the death of his partner, Obergefell filed suit against the state of Ohio, where they resided, because of the states refusal to include Obergefell as the surviving spouse on the death certificate in congruence with Ohio’s ban on same-sex marriage. The case made its way up through the district and appeals court before being combined with other same-sex marriage cases by the Supreme Court upon granting certiorari. The court listened to oral arguments in April of 2015, and subsequently ruled 5-4 in favor of Obergefell in June of 2015. Writing the opinion for the majority was Justice Kennedy, who framed the ruling in the format of answering two questions. The first question was, does the 14th amendment require states to license marriages for same sex couples? The second questioned asked if the 14th amendment requires states to recognize same sex marriages that were licensed in other states? On both questions, the court argued in the affirmative. Kennedy declared that the 14th amendment requires all states to not only recognize same sex marriages from other states, but that they must also allow for same sex marriage in their own state. The decision was an impactful one, negating the laws of 14 states which still refused to recognize same sex marriage. But it was not the ruling or the outcome of the ruling itself which creates problems for the precedent set by U.S. v. Lopez, but instead the legal reasoning behind the decision.
Kennedy begins his opinion by delving into the history of marriage, not just within the context of U.S. jurisprudence, but a history of marriage over the span of recorded civilization. Although it is typical for opinions to include some of the historical aspects of the case they are considering, unlike Kennedy’s opinion, they usually do not extend so far back in time. But for Kennedy, a lengthy historical investigation into the institution of marriage is important to understanding the justificatory underpinnings of his decision.
Kennedy first argues that marriage has always been a fundamental part of human society, citing Cicero’s claim that marriage is the first and most important bond in society. But despite ancient verification of marriage’s fundamental importance, the institution has experienced changes over the course of human history. While these changes have very succinctly changed what the institution of marriage looks and operates like, the institution has remained a fundamentally important one. Kennedy states that while at one time marriage was arranged by parents, family members, and socio-political class structures, it has overtime evolved into a voluntary association made only by the two engaging in the act. Similarly, marriage used to be a male dominated institution where women were considered to be under the dominion of the husband. But overtime, the institution has changed to an institution where both men and women hold equal say and power with each other. In both accounts, fundamentally large changes have occurred without dissolving the aspect of the marriage which makes it fundamental.
In a parallel manner to the institution of marriage, our understanding of homosexuality has also seen large changes over time. According to Kennedy, homosexuality was once considered a mental disease among medical professionals, but this belief has changed over time. Where during recent times in American history, sexual relations between two consensual adults of the same sex was deemed illegal, over time homosexuality has been assimilated into acceptable societal norms.
Kennedy claims that both the historical changes seen in marriage and homosexuality have culminated into a growing acceptance of same sex marriage among the states. At the time of Kennedy’s ruling, 34 states had made same sex marriage legal, and it appeared this growing trend was not yet at an end. Considering all of this within a larger context, Kennedy suggests that what this historical investigation demonstrates is that incremental change to our understanding of things is not necessarily bad. The social construct of things such as marriage and homosexuality is fluid and will change over time, and it is important for us to consider these changes in our jurisprudence. The importance of a shift in our understanding of marriage, homosexuality, and same sex marriage becomes more prominent when we look into Kennedy’s legal argument in the opinion. While many court watchers thought that Kennedy would make a ruling grounded in the equal protection clause, Kennedy instead uses the 14th amendments due process clause. Instead of arguing that a ban on same sex marriage is a violation of an individuals equal protection under the law (since all states acknowledge opposite sex marriage), Kennedy argues that marriage is a fundamental liberty that cannot be denied to same sex couples.
The 14th amendment states that: “…nor shall any state deprive any person of life, liberty, or property, without due process of law”. Kennedy focuses upon the word liberty in this clause, arguing that this liberty includes the right to marry and cannot therefore be denied by a state. Of course, this liberty could just apply to the right to marry partners of the opposite sex, as the court had previously recognized, but Kennedy does not believe there is sufficient justification to restrict same sex couples from this liberty. Kennedy provides four reasons why marriage is seen as a fundamental liberty. The first, that marriage is inherent in individual autonomy. That, to deny marriage is to deny autonomy. The second, that marriage is a unique two person union unlike any other union. It is a contractual agreement intended to bring two people together as one for a life long relationship. Thirdly, marriage safeguards children by giving them security and stability. Finally, marriage is a keystone to social order. Citing Tocqueville, Kennedy argues that marriage brings with it a sense of order and peace, which individuals take out of it into public affairs, helping to promote a better social order. For all four of these reasons, Kennedy suggests that there is no good argument why they do not equally apply for same sex couples as they do for opposite sex couples. Homosexuals require individual autonomy, can actively take part in a marriage, raise children, and participate in public life. Just as the historical understanding of marriage and homosexuality have changed over time, so must our understanding of what liberty means. Kennedy argues that marriage has changed dramatically over time without ruining the institution and will likewise not be fundamentally ruined by its change to accept same sex couples into the institution. Kennedy’s decision is fundamentally based upon his understanding of the role of the judiciary. He states that:“The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” It is the courts role to look for and clarify on what liberties individuals actually have. How is the court to do this? Kennedy elaborates further saying that finding liberties in the Constitution cannot be “reduced to any formula”. Instead, “it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” What Kennedy implies here is that the court has a duty, as well as a license, to investigate what liberties individuals have at their own discretion. Of course, this discretion is informed by “history and tradition”, but it remains up to the court to interpret history and tradition as they see relevant to the construction of rights. For Kennedy, the changes in our understanding of marriage and homosexuality over time had informed him that same sex marriage was in fact a liberty that same sex couples possessed.
Of course the 14th amendment never states that same sex couples have a right to get married, but Kennedy argues this is a fundamentally inappropriate way to look at the 14th amendment. Kennedy argues that those who ratified the 14th amendment were wise enough to understand that they couldn’t anticipate all the dimensions of freedom, so instead only listed liberty as a vague fundamental right, thereby entrusting future generations to appropriately construct what it would mean over time. According to Kennedy, the nature of injustice is that we may not see it right away. But when new insights reveal the injustice, a claim to liberty must be addressed. And in the case of Obergefell, Kennedy argues that the growing normalization of same sex marriage, as demonstrated by the majority of states legalizing it, provided the insight needed to extend liberty.
Tensions Between Obergefell and Lopez
In the opinion of the court in U.S. v. Lopez, the court affirmed that the national government was a limited one, with a real demarcation of power existing between the states and central government. Where this demarcation specifically exists was not settled, and it certainly appears that wherever this demarcation is, it still grants an incredible amount of power to the central government. But nevertheless, a demarcation was confirmed which accords with our understanding of what it means to have a system of federalism. But the underlying reasoning behind the Obergefell v. Hodges ruling produces some serious concern in relation to this demarcation of power. Kennedy argues that the court has an obligation to discover and elaborate upon liberties that individuals have, sometimes using this power to negate state law or force states to act in ways they do not wish to act. What it means to be a liberty though, seems to be a moving target. Although contingent upon socio-political norms, these norms change over time, giving the court discretion to decipher what liberties we have and do not have over time. This appears problematic though, as it is difficult to comprehend the limits that could be placed upon such a doctrine. Liberty ends up being whatever the court declares it to be, contingent only upon history and tradition, which again is interpreted by the court themselves. Does this not give the courts open reign to nullify any law they wish by declaration that the law is in violation of liberty? Does this not also give the court the capacity to compel states to do things, if their inaction is similarly a violation of one’s liberty? What about state speed limits? Could the court step in and declare that a 70 mile an hour speed limit set by a state is in violation of one’s freedom to drive as fast as they want? Or similarly, could the courts rule that setting up speed limits over 30 miles an hour violates one’s liberty to feel ‘safe on the roads? Could not the courts use this power to implement speed limit policy?
The examples provided above seem a little over the top and hyperbolic, a point in which I am willing to concede. There is little chance the courts would ever make such an attempt to control state regulated speed limits. But it is the underlying logic and legal precedent behind these examples that should be considered here. What is it about a court decision declaring speed limits a violation of one’s liberty that is any different from the claim that same sex couples have a liberty to marry? Certainly, Kennedy had to create an historical, as well as a reasoned account, for why same sex marriage is a liberty. But these types of arguments are not all that difficult to construct, regardless of the topic being argued over. A study of previous Supreme Court opinions alone demonstrates the courts capacity to stretch a line of reasoning as far as need be to make a point. And despite Kennedy’s attempt to justify his decision in the changing historical understanding of marriage and homosexuality, his historical interpretation remains arbitrary. At what point does changing historical tides reach critical mass and demand new constructions of liberty? Could this liberty be removed in the future if cultural changes begin to re-consider homosexuality as a disease and marriage an institution limited to opposite sex couples? There exists no answer to these questions for Kennedy because his method for tackling them is arbitrarily grounded in his own psychological construction of the world. The courts capacity to decide what our liberties are lacks any objective limit and appears to give the court an unlimited amount of power by way of judicial interpretation. Unlike the equal protection clause, which only allows the courts to compel states to do for everyone what it has already decided to do for some, the utilization of the term liberty in the due process clause allows the courts to compel states to act in accord with the courts understanding of this vague term. The underlying logic behind Kennedy’s ruling appears to sit in clear contradiction with the Lopez ruling and its emphasis upon a limit to national power. Rehnquist stresses in Lopez that there are at least some areas in which states remain sovereign and cannot be compelled by the national government to act. But Kennedy’s interpretation of liberty appears to deconstruct any demarcation of powers left to the states by giving the court the power to define and enforce their definition of liberty against the state. Kennedy does not argue that the court is restricted in its ability to protect liberty in those areas in which states maintain sovereignty, but that the liberty clause in the 14th amendment is an unconditional one placed upon the states. His use of the liberty clause allows the national court to theoretically direct states as they see fit, with no clear demarcation left to protect the states. This precedent appears to not only negate the central point of U.S. v. Lopez, but also federalism itself.
When we consider the 10th amendment and the limitations it places upon the national government, we generally think along the lines of the limitations it places upon Congress and the executive branch. But why must it not also apply to the Supreme Court, the third branch of the national government? Surely the 10th amendment was not meant to only limit the power of two of the three branches of the national government, but instead to protect certain spheres of sovereignty that the states held from the imposition by anyone else, whether it be another state or a part of the national government. There is little difference whether it is Congress or the Supreme Court which negates state law in areas the states felt they held sovereign control over. In Obergefell, Kennedy gives the court the ability to act on the state in an unlimited fashion, in a way seemingly contradictory to what the 10th amendment states. As a practical matter, the courts legal ability to act outside the demarcated confines of U.S. federalism may not be something to be all that concerned about. As constrained court theorists such as Robert Dahl and Gerald Rosenberg have been arguing for over the past 50 years, the courts have a very poor record of acting unilaterally. Rosenberg argues that the court relies upon the executive and legislative branch, as well as sometimes the states themselves, in order to have its decisions enforced. This usually means that the court must make decisions that have a high consensus among the public and which can be enforced in a politically viable manner. Furthermore, because members of the court are picked by both the President and Congress, it seems unlikely that those members will act in a way contrary to the desires of these branches. The court lacks the power to effectively enforce its decisions upon states, which means we should not expect them to regularly encroach upon powers that states traditionally have held. This helps explain why the courts decision to extend the liberty of marriage to same sex couples had only come about after a impressive majority of the states had themselves legalized the practice. But the consequential impact of Obergefell v. Hodges is not of primary importance or consideration here. Federalism was defined as the demarcation between state and central power, reaffirmed by U.S. v. Lopez. What Obergefell v. Hodges has done is to deconstruct this demarcation, giving the national court the theoretical ability to compel the states to act on any issue they see fit. Despite the possibility of it happening, a precedent contrary to federalism has been set by this case which diminishes substantive federalism and communitarian liberty. There exists no area that the states can make a claim to sovereign protection from national encroachment, since Kennedy’s own understanding of liberty can always override it.
Conclusion
The courts have long struggled to figure out what exactly is meant by the 9th amendment in the Constitution. It is clear that this amendment states that we have more liberties than those explicitly listed in the first 8 amendments, but what might these liberties be? A compelling case has been made by Michael McConnell that the 9th amendment reflects a Lockean social contract understanding of the Constitution, essentially elaborating that individuals have a right to do anything which they did not consensually give up to the national government to do on their behalf. Working in tandem with the 10th amendment, the 9th amendment clarifies that the national government is a government with limited powers. It cannot do as it pleases so long as it does not violate the rights of citizens as listed out in the first 8 amendments because individuals posses many more rights than those eight. Instead, the national government can only act within the confines of those powers expressly given to it, otherwise it violates those liberties that remain with the people. This interpretation helps to bring clarity to what those who ratified the amendment might have meant. It works as the best of three possible interpretations. The first, that the amendment is so vague that we must relegate it a useless truism. This interpretation brings us to question why those who ratified the amendment would go through the trouble if they thought it was only meant to be a truism? It also sets a worrisome precedent whereas the court can make use of calling parts of the Constitution a truism when it deems fit to do so. The second interpretation would be, similar to Kennedy’s ruling in Obergefell v. Hodges, the court can use its discretion to determine what liberties they believe we should have. Aspects of this interpretation can be found in cases such as Griswold v. Connecticut where the court found a right to privacy within the “prenumbra” of the 9th amendment. It is worth noting though that, even here, the court seemed compelled to utilize many other amendments to help justify this right, not relying entirely upon the 9th amendment. But as we have discussed, this approach appears to give the national court an authority which the 10th amendment has no ability to control. It provides a tool to create a national government with a theoretically unlimited amount of power over the states, which sits in contradiction to the 10th amendment and a system of federalism. McConnell’s interpretation avoids both these interpretational issues by defining these extra liberties within the context of those powers explicitly given to government in question. Not only is it more clear, but this interpretation appears to avoid the contention that exists between a courts ability to interpret liberty and the 10th amendments demand for a federalist system of demarcated power.
Similar to the 9th amendment’s declaration that the national government must avoid violating individual liberty, the 14th amendment declares that states cannot violate individual liberty with just as little clarity as to what this liberty might be. Kennedy’s use of the liberty clause in the 14th amendment remains just a problematic in relation to the 10th amendment, as this method is when used to interpret the 9th amendment. Obergefell v. Hodges sets precedent that removes any possible protective demarcation for state power. A little over 20 years after scholars began to suggest that U.S. v. Lopez would enlarge the Constitutional authority of the states, Obergefell v. Hodges has done much to overcome this suggestion and expand national power over the states. What the consequences coming from Kennedy’s precedent will be, is still unknown. For those who cheer on the national expansion of liberty, this case may be a welcome sight (depending on which liberties are believed to exist). But for those who value communitarian liberty, Obergefell v. Hodges provides future weapons for the encroachment of state power and the possible loss of more localized diversity.