In the nation’s capital, many of us are eagerly awaiting tonight’s Republican presidential debate. There’s no question that it will be entertaining, but will we learn where the candidates really stand on anything? Will we get real answers about the principles they truly hold dear and the ones that are just political talking points?
Personally, I’m hoping that one of the three moderators (Bret Baier, Chris Wallace, and Megyn Kelly) will ask the potential commanders-in-chief how committed they really are to the principles ingrained in the Constitution. It’s particularly important that the candidates clarify their position on the Tenth Amendment. Traditionally, Republicans have been the party that upholds—at least in their rhetoric—the principle that powers not enumerated to the federal government belong to the states and individuals. But in practice, most of the candidates seem to have an ambivalent relationship with this part of the Constitution and often only appeal to the Tenth Amendment as a justification for their position on certain issues.
When it comes to same-sex marriage: To my knowledge, all of the candidates appearing in tonight’s GOP debate have made their position on same-sex marriage—at least the Supreme Court’s decision on same-sex marriage—very clear. Most railed against SCOTUS’s ruling striking down state bans on same-sex marriage.
As one justification for their position, most appealed to the idea of federalism, simply stating that it’s not an issue of marriage, but an issue of “state’s rights.” However, there are limits to federalism. The states may not pass laws that violate individual rights and when they do it is appropriate for the federal government to interfere. It can certainly be argued that discriminatory marriage laws are a violation of Fourteenth Amendment rights—the right to equal protection of the law. Some candidates have, at least in the past, indicated that they would even support a federal ban on same-sex marriage.
On marijuana: On the one extreme there are a couple of candidates that have indicated they’d use the federal government to “crack down” on the states that have chosen to legalize marijuana—recreational and medical. Seemingly, they do not believe the Tenth Amendment applies here. On the other end of the spectrum there are GOP candidates who adhere to the principle of federalism even when they seemingly don’t like the outcome. A handful have made it clear that even though they do not want to legalize weed, the states ought to have the power to decide for themselves.
Online gambling: While there’s a smattering of other issues on which Republican candidates have used the “federalism” argument (see guns, education, health care), almost none of them have answered the question of whether or not the federal government should have the right to prevent states from legalizing intrastate online gambling. This is a significant question because it gets at how these possible presidents feel about federalism when it comes to the Internet.
In 2011 after the U.S. Department of Justice clarified that there was no federal law preventing states from authorizing intrastate online gambling (as long as it’s not sports-related) many states began the process of legalization with three successfully implementing regulation and licensing. However, Congress is currently considering a bill that would re-write a law from 1961 creating a de facto ban on online gambling—even in those states that already legalized it. This proposal is particularly dangerous because of how it defines “interstate.” If a transaction is initiated and terminated in the same state it would still be considered “in interstate commerce” if the data incidentally crossed state lines—that is, if the data was sent to an out-of-state server before reaching its ultimate destination. Since virtually all online data is sent to out-of-state servers, the law would view all online commerce as interstate commerce, leaving it open for federal interference.
How do the candidates feel about this? Unfortunately, only two of the candidates have directly addressed this question, with the rest remaining painfully quite. Their silence may have something to do with the fact that the largest GOP donor, casino-magnate Sheldon Adelson, has made banning online gambling one of his top issues.
One would assume that a candidate claiming to adhere to the principle of federalism would be duty-bound to oppose a federal proposal that would overturn state laws on an matter—intrastate online gambling—for which the Constitution doesn’t give the federal government the power to regulate. But, as has been demonstrated these GOP candidates (not that the Democrats are any better) have a wavering commitment to the Constitution and particularly the Tenth Amendment. Hopefully, after tonight’s debate their stance on this important issue will be a little clearer.