Misunderstanding the nature of the U.S. Constitution

Hillary Rosen has a post at HuffPo that I think illuminates how poorly people understand the Constitution these days. Here is the pertinent portion of her post:

The President, Karl Rove and their friends on the right claim they need an amendment to the United States Constitution to stop same sex marriage. They failed in the Senate last year but they will renew their push again sometime soon. Doesn't that mean that these people believe that the Constitution currently protects the equal rights of same sex couples? Why else would they have to pass a new amendment? If President Bush nominates a jurist who will "strictly interpret the constitution" and not make new law, it is clear that any Bush nominee will determine that such Constitutional protection for gay and lesbian families exists today.

No, it doesn't mean that they think Constitution currently protects the equal rights of same sex couples. What it means is that they recognize that the Constitution gives domain to the states on any issue not enumerated as a Federal power. Marriage is an institution that traditionally has been left up to the states to regulate. Any Federal legislation prohibiting gay marriage would probably be struck down by the courts as unconstitutional because marriage falls within state jurisdictions, not Federal ones. It does not mean that the Constitution currently says, yes, gays can marry, because the constitution does not address that issue in any way, shape, or form. By amending the Constitution, it moves a portion of marriage regulation from the states to the Feds. It is this faulty thinking, that the Feds have control over every law and regulation in this country via the Constitution, that leads to the Supreme Court legislating from the bench by finding that the constitution says things it really doesn't.