By Alan W. Cohen
The one thing I learned while I was in college was that scholars are pretty much set in their ways, and are rarely open to new ideas, especially if those new ideas challenge their entire way of thinking. At 57, I was pretty set in my ways. I had attended a top journalism and law school, had practiced in my field for more than 25 years, writing and teaching seminars. I thought I knew it all, or at least had a firm grasp. I had just published my book, America Solved, my attempt to reverse the destructive federal child support policies of the past fifty years.
That was almost a year ago. I had been a converted Democrat, and time had transformed me into a Libertarian, with Reason Magazine as my bible. That is where I learned about Randy Barnett and his new book, Our Republican Constitution, and it was in that book that I learned the three important lessons that would lead me to my book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce.
Lesson One: When in law school, I was taught that the source of fundamental rights was the Constitution. It made sense. We have First Amendment rights to free speech, etc. Yet, as are most Americans, I didn’t quite understand the source of those rights not specifically mentioned, especially the Right to Privacy. Practicing in family law, I relied on two of those rights not enumerated, the Right to Parent and the Right to Marry. I accepted those rights because the Supreme Court recognized them as fundamental, although I held on to the view of Mr. Justice Goldberg that those rights exist in the Ninth Amendment. Randy Barnett taught me, however, that the source of these rights lay not in the Constitution, but what was written in the Declaration of Independence. The People have inalienable rights. They transfer some authority to state government, where their elected servants administer their appointed duties for the public good. The People also transfer some to the federal government, i.e., the Constitution, to protect them from foreign intrusion. But since those rights are inalienable, the People lack the ability to transfer, or give up those rights, and thus any act of state or federal legislatures that violate those fundamental rights is void at is inception. Suddenly, it all made sense. The Bill of Rights does not confer rights. It defends them. Congress shall make no law …
Lesson Two: Elections are based on majority rule, and it has been drilled into us that the view of that majority that should prevail. We are constantly bombarded from the left and the right, each claiming that their view is correct because they represent the majority. What I learned from Randy Barnett, however, is it that the Constitution is not We the People as the majority, but We the People as a collection of individuals. As an amateur historian, I recall the folly of the Kansas-Nebraska Act, based on a theory that one group of people could vote to enslave another. The same question applies to those majority who would restrict the Right to Marry. In 2015, in Obergefell v. Hodges, the Supreme Court made a finding that marriage in America began as a purely private affair, and then evolved. My book, Private Vows, answers the question of how that happened. But I could not have accomplished that goal without this lesson that I learned from Randy Barnett. Since We the People is a collection of individuals endowed with inalienable rights, and since one of those rights is the Right to Marry, the People could not transfer to their elected representatives the authority to restrict that right. Therefore, state regulation of marriage and divorce is unconstitutional, as are federal laws that impact the Right to Parent.
Lesson Three: Whether it be the current state action to void the Trump Travel Ban or during the Civil Rights Era, where George Wallace and his fellow segregationists so argued, the idea of State’s Rights always intrigued me. Yet, Randy Barnett taught me that State’s Rights is a fiction. States don’t have rights. The Tenth Amendment recognizes that the people did not give complete authority to the federal government. Elected state officials have authority, and that authority is limited to what is specifically conferred. For Private Vows, Barnett made me fully appreciate that the Tenth Amendment is not a source of authority for what the Supreme Court as recently as 2013 declared, that domestic relations was traditionally left to the states to regulate. Barnett taught me that tradition is not a Constitutional argument. We have to look to our Founding Documents. Rather, the Declaration of Independence instructs us that the People have the inalienable right to marry, to parent, and to the Pursuit of Happiness. States do not have the authority to regulate marriage and divorce because the Constitution gives the the People’s elected servants no such authority, and any act to interfere in purely private acts is void at its inception.
Thank you Randy Barnett for teaching this old dog a new trick, and I will be forever grateful. You have given me a greater appreciation of the wisdom of our Founders than I thought possible. My personal goal is to share what I learned from you, and to broadcast it for the better of the people of the United States of America.
Alan W. Cohen is a graduate of the University of Missouri-Columbia School of Journalism and the Washington University (St. Louis) School of Law. Now a full-time author and blogger, he practiced Family Law in the St. Louis area for more than 25 years. His books are available on Amazon.