Reply To: Political Statements
there is nothing in the Constitution that gives the federal government the right to regulate [something], so the decision should be left to the states.
If the question can be defined in terms of life, liberty, or property, then the 14th amendment gives the federal government that right, or at least demands due process on the part of the states. The biggest ambiguity is whether “liberty” should be defined narrowly (in prison, in bondage) or broadly.
ETA:
that good things have happened because of overstepping the bounds of the originally written Constitution does not mean that such overstepping is good or permissible.
I’ll use the Massachusetts gay marriage example again. If the courts decide something, and the legislature backs them up, then in hindsight, I’d say the courts did nothing wrong. If the courts decide something (striking down a law as unconstitutionally vague, for example), and the legislature fixes the problem in line with the courts feedback, then the court did nothing wrong. If, on the other hand, the courts decide something, and the legislature changes the law (by constitutional amendment, if necessary) to get around what the court decided, then the court erred. Again, though, this is the clarity of hindsight.
When the law as written is internally inconsistent, the courts have a responsibility to reconcile that inconsistency. Much of the problem lies in disagreements over what qualifies as an inconsistency; the rest lies in the manner in which the apparent inconsistency is to be reconciled.