John Eastman is all of the following:
- Chairman of the Board for the National Organization for Marriage
- Current professor and former Dean at Chapman University School of Law
- A specialist in constitutional law and legal history
And…wait, there was one more. Oh, yeah:
- Another conservative happy to chuck his principles so he can be anti-gay
Eastman has a commentary about Prop 8 in USA Today: “Federal government can define marriage too.” I found it pointless and disjointed, but one paragraph leapt out at me, apparently in defense of DOMA:
And if states have the right to define marriage, doesn’t the federal government have that same right? It’s the constitutional duty of our elected officials to decide what burden taxpayers bear in dealing with same-sex couples. Federal laws encourage men and women to marry and have children because society has a profound interest in ensuring that children are born (to continue society) and then raised by their parents to become responsible adults.
That surprised me. Conservative legal scholars are usually federalists who believe in limiting the federal government’s power to what’s enumerated in the Constitution, leaving everything else to the people or to the states. It would be hypocritical, even bizarre, for a federalist to throw all that out the window with a simple, “And if states have the right to define marriage, doesn’t the federal government have that same right?” Because a federalist would answer that with a firm, “No.” Perhaps even a lifting of the chest, an intake of the breath, a scowl on the brow, and a stern, “Absolutely not!”
So I figured, John Eastman must not be a federalist.
[I]t became and remains one of the most fundamental tenets of our constitutional system of government that the sovereign people delegated to the national government only certain, enumerated powers, leaving the residuum of power to be exercised by the state governments or by the people themselves.
This division of sovereign powers between the two great levels of government was not simply a constitutional add-on, by way of the Tenth Amendment. Rather, it is inherent in the doctrine of enumerated powers embodied in the main body of the Constitution itself. Article I of the Constitution provides, for example, that “All legislative Powers herein granted shall be vested in a Congress of the United States.” And the specific enumeration of powers, found principally in Article I, section 8, was likewise limited.
Of course, when he wrote that he was trying to place limits on federal business regulation. But if that’s his principle, then surely he would apply it consistently. He wouldn’t abandon it just so the federal government could actively limit the rights of gay people. He’d never casually argue a non sequitur like, “And if states have the right to define marriage, doesn’t the federal government have that same right?”
But — ha! — I’m just kidding. John Eastman isn’t a principled conservative. He’s just a professional anti-gay at NOM.