Commentary of the Tenth Amendment

A Critical Commentary on the Tenth Amendment of the U.S. Constitution

Introduction

         Thomas Jeferson wrote in the Declaration of Independence, "[w]e have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us" ("Declaration of Independence"). The Tenth Amendment states, "[the powers not delegated to the United States by the Constitution, nor prohibited by it to states, are reserved to the states respectively, or to the people" ("U.S. Constitution- Tenth Amendment"). The founding fathers ratified the Tenth Amendment to prevent a centralized government from taking away individual rights. One of the purposes of the Tenth Amendment is to prevent the federal government from directing the states or using states as federal government's assets (Ehighalua 12). The Supreme Court confirmed this purpose in a significant case (Vile 159-60). Another purpose of the Tenth Amendment is to prevent "'. . . . . federal government legislation that goes too far into areas of traditional state concern, areas like family laws, criminal law . . . . ." (Ehighalua 12). The last purpose of the Tenth Amendment is to protect individual rights (Vile 159). The United States should repeal the Tenth Amendment due to the States' misuse to prevent federal intervention in their unconstitutional actions.

Point 1

         The main reason the united states should revoke the Tenth Amendment is the States' misuse of the Tenth Amendment to prevent federal intervention into their discriminatory laws that deny people their rights. Those discriminatory laws then causes harm. One example is States denying same-sex couples the right to marriage. The States defended their marriage ban using the Tenth Amendment to argue that the Supreme Court should not intervene (Denniston, "Argument"; Denniston, "Same-Sex"; Dorf; Duncan). The states use federalism to prevent the federal government from intervening in their unlawful denial of the right to marriage. The founding fathers intended for the Tenth Amendment to protect individuals rights; however it failed. The Supreme Court eventually held it was unconstitutional for States to deny same-sex couples the right to marriage (United States Supreme Court, "Obergefell v. Hodges, 681). However, the States' misuse of the Tenth Amendment to defend it unconstitutional acts is blatant, and those acts will have negative consequences.

Point 2

         Many States do not have laws protecting sexual minorities against discrimination (Bynum and Kastanis). Sexual minority continues to suffer discrimination. Those discrimination will lead to adverse outcome, as seen in Bobby Griffith's story. Bobby Griffth wrote around his sixteenth birthday,

I can't ever let anyone find out that I'm not straight. It would be humiliating. My friends would hate me. They might even want to beat me up. And my family? I've overheard them. They've said they hate gays, and even God hates gays too. Gay are bad, and God sends bad people to hell. it really scares me when they talk that way because now they are talking about me" (Aarons 57).

Bobby committed suicide two months after his twentieth birthday (Meyer 38). The cause of his deathis an environment that refuses to accept him (Meyer 38). Unfortunately, there have been many stories similar to Bobby Griffith.

         A 2008 meta-analysis found that "LGB people are at higher risk of suicidal behavior, mental disorder, substance misuse, and dependence than heterosexual people" (King et al. 83). This finding have been replicated numerous times (Hottes et al. 1; Liu and Mustanski 221; Miranda-Mendizábal et al. 77; Plöderl and Tremblay 367). Researchers currently explain the differences using the minority stress model (Meyer 38-39). Dr. Illan Meyer, a researcher with impressive credentials, is credited with creating the model (Trial Transcript 807-17). Dr. Meyer identified the processes of minority stress,

"So the first one is called 'prejudice events,' which encompasses a bunch of concepts. The second one is called 'expecations of rejection and discrimination.' The third one is 'concealing,' which refers to hiding your sexual orientation, . . . . . [a]nd the fourth one is "internalized homophobia," which refers to the internalized of social attitude by a gay person or a lesbian (Trial Transcript 835).

Dr. Meyer defined prejudice events as "stressors that are related to prejudice" (Trial Transcript 86). Dr. Meyer defined "expectations of rejection and discrimination" as what the phrase sounds, "expecting rejection and discrimination" (Trial Transcript 851). Dr. Meyer found the negative effects of minority stress on health in a 1995 study (Meyer 38). Researchers have been able to replicate Dr. Meyer's findings (Doan Van et al. 159; Dürrbaum and Sattler 298; Flentje et al. 673).The minority stress model is also confirmed through personal stories (Turban 1306).

         Dr. Meyer linked laws banning same-sex marriage to the minority stress model, he testified,

". . . . . the Proposition 8, in its social meaning, sends a message that gay relationships are not to be respected; that they are of secondary value, if of any value at all; that they are certainly not equal to those of heterosexuals. And, to me that's - - in addition to achieving the literal aims of not allowing gay people to marry, it also sends a strong message about the values of the state; in this case, the constitution itself. And it sends a message that would, in my mind, encourage or at least is consistent with holding prejudical attitudes. It sends the opposite message, in my mind, and therefore, would - - I would think, add to that pressure, to that social environment that encourage people, some people, to conceal" (Trial Transcript 854, 862).

Dr. Meyer explained that laws that ban same-sex marriage will lead to negative outcomes under the minority stress model. Dr. Meyer's testimony shows that when states deny same-sex couples the right to marry, the States harm same-sex couples' health. The United States Supreme Court stated in Obergfell v. Hodges,

Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civillization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right” (681).

Furthermore, studies have shown that allowing same-sex couples to marry help their mental health (Boertien and Vignoli 2109; Carpenter et al. 376; Chen and van Ours 42; Drabble et al. 1; Wight et al. 339). In summary, when States denies the right to marriage to same-sex couples, it harms them.


Point 3

         One counterargument to my example of same-sex marriage would be that sexual orientation can be changed (United States Supreme Court, Brief of Amicus Curiae 20-21). The argument is often wrong (Beckstead 121; Diamond and Rosky 363). Efforts to change sexual orientation have not proven effective (Dehlin et al. 95; Przeworski et al. 1; Serovich et al. 1). Efforts to change sexual orientation might even be harmful (Blosnich et al. 1024; Przeworski et al. 1; Ryan et al. 159). Also, the argument is a non-sequitur, as it does not follow that States should be able to ban same-sex marriage because sexual orientation can be changed. Therefore, the counterargument is both logically and factually flawed.

Conclusion

         In summary, the United States should revoke the Tenth Amendment because States used it to deny people their constitutional rights. This paper has shown that states misuse the Tenth Amendment to deny constitutional rights, and those actions have caused harm.


Works Cited

Aarons, L. Prayers for Bobby: A Mother’s Coming to Terms with the Suicide of Her Gay Son. HarperCollins, 1995, https://books.google.com/books?id=rP_ZAAAAMAAJ.

Beckstead, A. Lee. “Can We Change Sexual Orientation?” Archives of Sexual Behavior, vol. 41, no. 1, 2012, pp. 121–34, https://link.springer.com/article/10.1007/s10508-012-9922-x.

Blosnich, John R., et al. “Sexual Orientation Change Efforts, Adverse Childhood Experiences, and Suicide Ideation and Attempt among Sexual Minority Adults, United States, 2016–2018.” American Journal of Public Health, vol. 110, no. 7, 2020, pp. 1024–30, https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2020.305637.

Boertien, Diederik, and Daniele Vignoli. “Legalizing Same-Sex Marriage Matters for the Subjective Well-Being of Individuals in Same-Sex Unions.” Demography, vol. 56, no. 6, 2019, pp. 2109–21, https://doi.org/10.1007/s13524-019-00822-1.

Bynum, Russ, and Angeliki Kastanis. “AP Analysis: Most States Lack Laws Protecting LGBT Workers | AP News.” AP News, 15 Oct. 2019, https://apnews.com/article/tn-state-wire-nc-state-wire-us-news-ap-top-news-sc-st...

Carpenter, Christopher S., et al. “Effects of Access to Legal Same‐sex Marriage on Marriage and Health.” Journal of Policy Analysis and Management, vol. 40, no. 2, 2021, pp. 376–411, https://doi.org/10.1002/pam.22286.

Chen, Shuai, and Jan C. van Ours. “Mental Health Effects of Same-Sex Marriage Legalization.” Health Economics, vol. 31, no. 1, Jan. 2022, pp. 42–56, https://doi.org/10.1002/hec.4441.

“Declaration of Independence: A Transcription.” National Archives, 1 Nov. 2015, https://www.archives.gov/founding-docs/declaration-transcript.

Dehlin, John P., et al. “Sexual Orientation Change Efforts among Current or Former LDS Church Members.” Journal of Counseling Psychology, vol. 62, no. 2, 2015, pp. 95–105, https://doi.org/10.1037/cou0000011.

Denniston, Lyle. “Argument Preview: Marriage and the Court’s ‘Friends’ - Part I.” SCOTUSblog, 24 Mar. 2013, https://www.scotusblog.com/2013/03/argument-preview-marriage-and-the-courts-frie...

---. “Preview on Same-Sex Marriage - Part II, The States’ Views.” SCOTUSblog, 14 Apr. 2015, https://www.scotusblog.com/2015/04/preview-on-same-sex-marriage-part-ii-the-stat...

Diamond, Lisa M., and Clifford J. Rosky. “Scrutinizing Immutability: Research on Sexual Orientation and US Legal Advocacy for Sexual Minorities.” The Journal of Sex Research, vol. 53, no. 4–5, 2016, pp. 363–91, https://www.tandfonline.com/doi/abs/10.1080/00224499.2016.1139665.

Doan Van, Emilie E., et al. “Perceived Discrimination, Coping Mechanisms, and Effects on Health in Bisexual and Other Non-Monosexual Adults.” Archives of Sexual Behavior, vol. 48, no. 1, 2019, pp. 159–74, https://link.springer.com/article/10.1007/s10508-018-1254-z.

Dorf, Michael. “Symposium: In Defense of Justice Kennedy’s Soaring Language.” SCOTUSblog, 27 June 2015, https://www.scotusblog.com/2015/06/symposium-in-defense-of-justice-kennedys-soar...

Drabble, Laurie A., et al. “Perceived Psychosocial Impacts of Legalized Same-Sex Marriage: A Scoping Review of Sexual Minority Adults’ Experiences.” PloS One, vol. 16, no. 5, 2021, pp. 1–22, https://doi.org/10.1371/journal.pone.0249125.

Duncan, Kyle. “Symposium: Overruling Windsor.” SCOTUSblog, 27 June 2015, https://www.scotusblog.com/2015/06/symposium-overruling-windsor/.

Dürrbaum, Tina, and Frank A. Sattler. “Minority Stress and Mental Health in Lesbian, Gay Male, and Bisexual Youths: A Meta-Analysis.” Journal of LGBT Youth, vol. 17, no. 3, 2020, pp. 298–314, https://www.tandfonline.com/doi/abs/10.1080/19361653.2019.1586615
.
Ehighalua, Iseghohime. “The Tenth Amendment: A Reflection.” Available at SSRN 3514444, 2020, pp. 1–21. SSRN, http://dx.doi.org/10.2139/ssrn.3514444.

Flentje, Annesa, et al. “The Relationship between Minority Stress and Biological Outcomes: A Systematic Review.” Journal of Behavioral Medicine, vol. 43, no. 5, 2020, pp. 673–94, https://link.springer.com/article/10.1007/s10865-019-00120-6.

Hottes, Travis Salway, et al. “Lifetime Prevalence of Suicide Attempts among Sexual Minority Adults by Study Sampling Strategies: A Systematic Review and Meta-Analysis.” American Journal of Public Health, vol. 106, no. 5, 2016, pp. 1–12, https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2016.303088.

King, Michael, et al. “A Systematic Review of Mental Disorder, Suicide, and Deliberate Self Harm in Lesbian, Gay and Bisexual People.” BMC Psychiatry, vol. 8, no. 1, 2008, pp. 70–89, https://link.springer.com/article/10.1186/1471-244X-8-70.

Liu, Richard T., and Brian Mustanski. “Suicidal Ideation and Self-Harm in Lesbian, Gay, Bisexual, and Transgender Youth.” American Journal of Preventive Medicine, vol. 42, no. 3, 2012, pp. 221–28, https://www.sciencedirect.com/science/article/abs/pii/S0749379711009172.

Meyer, Ilan H. “Minority Stress and Mental Health in Gay Men.” Journal of Health and Social Behavior, 1995, pp. 38–56, https://doi.org/10.2307/2137286.

Miranda-Mendizábal, A., et al. “Sexual Orientation and Suicidal Behaviour in Adolescents and Young Adults: Systematic Review and Meta-Analysis.” The British Journal of Psychiatry, vol. 211, no. 2, 2017, pp. 77–87, https://doi.org/10.1192/bjp.bp.116.196345.

Plöderl, Martin, and Pierre Tremblay. “Mental Health of Sexual Minorities. A Systematic Review.” International Review of Psychiatry, vol. 27, no. 5, 2015, pp. 367–85, https://www.tandfonline.com/doi/abs/10.3109/09540261.2015.1083949?cookieSet=1.

Przeworski, Amy, et al. “A Systematic Review of the Efficacy, Harmful Effects, and Ethical Issues Related to Sexual Orientation Change Efforts.” Clinical Psychology: Science and Practice, vol. 28, no. 1, 2021, pp. 1–23, https://doi.org/10.1111/cpsp.12377.

Ross, Lori E., et al. “Prevalence of Depression and Anxiety among Bisexual People Compared to Gay, Lesbian, and Heterosexual Individuals: A Systematic Review and Meta-Analysis.” The Journal of Sex Research, vol. 55, no. 4–5, 2018, pp. 435–56, https://www.tandfonline.com/doi/full/10.1080/00224499.2017.1387755.

Ryan, Caitlin, et al. “Parent-Initiated Sexual Orientation Change Efforts with LGBT Adolescents: Implications for Young Adult Mental Health and Adjustment.” Journal of Homosexuality, vol. 67, no. 2, 2020, pp. 159–73, https://www.tandfonline.com/doi/abs/10.1080/00918369.2018.1538407.

Salway, Travis, et al. “A Systematic Review and Meta-Analysis of Disparities in the Prevalence of Suicide Ideation and Attempt among Bisexual Populations.” Archives of Sexual Behavior, vol. 48, no. 1, 2019, pp. 89–111, https://link.springer.com/article/10.1007/s10508-018-1150-6.

Serovich, Julianne M., et al. “A Systematic Review of the Research Base on Sexual Reorientation Therapies.” Journal of Marital and Family Therapy, vol. 34, no. 2, 2008, pp. 227–38, https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1752-0606.2008.00065.x.

Trial Transcript in Perry et al. v. Schwarzenegger et Al. American Foundation for Equal Rights, pp. 1–3115, http://afer.org/our-work/legal-filings/page/8/?category1=84&category2=all. Accessed 30 Nov. 2022.

Turban, Jack L. “Medical Training in the Closet.” The New England Journal of Medicine, vol. 381, no. 14, 2019, pp. 1305–07, https://doi.org/10.1056/NEJMp1905829.

United States Supreme Court. Brief of Amicus Curiae Of Dr. Paul McHugh In Support Of Respondents in Obergefell et al. v. Hodges et Al. SCOTUSblog, 3 Apr. 2015. SCOTUSblog, http://sblog.s3.amazonaws.com/wp-content/uploads/2015/03/14-556-14-562-14-571-14...

---. “OBERGEFELL v. Hodges.” United States Report, vol. 576, no. No. 14-556, 14-556, 2015, pp. 644–81, https://www.supremecourt.gov/opinions/boundvolumes/576BV.pdf.

“U.S. Constitution - Tenth Amendment | Resources | Constitution Annotated | Congress.Gov | Library of Congress.” Constitution Annotated, https://constitution.congress.gov/constitution/amendment-10/. Accessed 30 Nov. 2022.

Wight, Richard G., et al. “Same-Sex Legal Marriage and Psychological Well-Being: Findings from the California Health Interview Survey.” American Journal of Public Health, vol. 103, no. 2, 2013, pp. 339–46, https://doi.org/10.2105/AJPH.2012.301113.