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Today’s lesson on the Constitution will focus on the fourth Article.  This article specifically looks at the states  and what protections the federal government provides for them in the Constitution.  In this article I will also deal with the contentious topic of homosexual marriage as it relates to this Article.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

This section of the article is to provide that each of the states honor the legal agreements made in other states such as their laws, record  and court rulings.  Congress is also given the authority to establish standards to validate these acts.  The biggest example I most often provide is that my marriage certificate and birth certificate are still valid forms of identification if I move to another state.  This is where the issue of same sex marriage becomes tricky and while I may not support the idea or practice of same sex marriage, my view of it light of the Constitution is different.  First some history about same sex marriages in federal law.

In the 1996, Congress passed the Defense of Marriage Act (DOMA).  This law defined marriage under federal law, as that between a man and woman.  It also gave the states the authority to refuse to recognize same-sex marriages from other states.  So far this law has not been challenged and is still the law of the land.  Their are several ways though this law is unconstitutional.

First, their is no authority in the Constitution for the federal government to define marriage or any other relationship.  This would mean that this authority belongs to the states via the 10th Amendment.  The states therefore can define marriage any way they see fit.  Some states have elected to validate same-sex marriages.  Others, like my present state of Nevada, have chosen to define marriage as a relationship between one man and one woman.  This is the joy of federalism.  Each state can do as it sees fit within the bounds of its authority and sovereignty.  But there is another part to this law that must be dealt with and discussed.

The second part of this law defends the principle that the states may refuse to acknowledge same-sex marriages from other states.  This also is a clear violation of this part of the Constitution and allows the states to ignore this first part of the Constitution.  If the states can ignore these marriages, why can’t they ignore the others?  This law must be struck down as unconstitutional since it clearly violates the Constitution.  In a perfect world, this is how I would see it working in the Supreme Court.

The court would reaffirm the ideas of federalism, that each state may allow or disallow same-sex marriages as they see fit.  The crux of the argument would be that if a state does not allow gay marriages they still have to recognize same-sex marriages from other states as valid.  Meaning they have to be granted the same, rights, responsibilities and privileges granted to other married couples in that state.

There is one way this law could be seen as valid and constitutional.  The clause states that Congress can prescribe by law the manner in which the acts shall be proved.  Under this language a good lawyer could argue that Congress has the authority to set limitations or restrictions, like the ones in DOMA, on the states.  The only problem with that argument is that it does not provide equal justice under the law as required by the 14th Amendment since how other states treat same-sex married couples would be different depending in which state they live.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

This clause does not allow the state to unfairly discriminate against citizens of other states.  Though state can make reasonable distinction between citizens and visitors.  We mostly see this in place as differences between in-state and out-of-state tuition costs of public universities.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

This clause deals with the the power of extradition that is generally granted to the state executives (governors).  The Supreme Court held, in 1861, that it could not compel a governor to extradite a prisoner, but that was reversed by a Supreme Court case in 1987 (Monk 107).

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

This clause is no longer valid due to the ratification of the 13th Amendment, ending slavery.  This clause was inserted at the behest of the southern states during the Constitutional Convention.  It is known as the Fugitive Slave clause.  Several states tried to get around this clause by enacting laws meant to protect free blacks from slave catches; most of them were unsuccessful.

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

This clause provides for the creation of new states and protects those already formed under the Constitution.  Though as a matter of history, the creation of West Virginia was a clear violation of this clause.  In 1863 the citizen of the western counties formed a legislature that approved of the split and Congress gave its seal of approval too.  After the Civil War Virginia gave its support to, though the acceptance of that split was probably a condition of its re-admittance into the Union. 

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

This is a repeat of the authority given to Congress in Article I, Section 8, Clause 17.  The Congress has all authority over disposing the territory of the U.S. If you read the history of how Nevada was created you would see this in action.  Nevada was part of the Utah territory for a long time.  Eventually, the Congress split it into two territories for the purpose of making a unique states.  The influence of the Mormons was the largest reason for the split.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

The first guarantee in this clause provides each state with a Republican form of government.  This has been read by most scholars and by the founding fathers as meaning a representative government where the power is derived from the people.

The second guarantee is the protection of invasion.  This was written in the Constitution as a direct result of Shay’s Rebellion which had just occurred months before the Convention.  What most people don’t realize is that the slow movement of the federal government after Hurricane Katrina was because of this clause.  President Bush could not just send in the Coast Guard and other parts of the government, like FEMA.  He had to wait until he had authorization from the state governor or its legislature.  This was meant to protect the states from a military take over by the federal government. So Kayne, Bush does not hate black people, he just choose to follow the Constitution, for once.

That is all we have for today.  Next week I will address the Article V of the Constitution that deals with the amendment process in the United States.  Until then enjoy my other postings.  If you have not noticed I am scheduling my posts for Tuesday, Thursday and Saturday. Once they are posted on the site, usually around midnight of those days, they will be posted to Facebook as soon as that site decides to check my feed and update it.  To stay up to date on my postings it is safer to just go to my site (http://ajbulava.blogspot.com) and sign up to be a follower.  When you do that you will emailed any time I post.  I hope you have a wonderful weekend.

Questions? Comments?  Concerns?  In that case, class dismissed!