(See post immediately below.)
In short, the FMA would be almost unique in that, for almost the first time, the federal government would say not only that federal law overrides or supersedes state law, but that the former could define the latter.
The miscegenation statutes were (rightly, of course) held to violate the Fourteenth Amendment. Federal courts never declared that such statutes also ran afoul of the southern state constitutions. And they never ordered the southern state courts to read their own constitutions as if the express miscegenation provisions in them didn’t mean what they said. They simply held that, whatever the state law on the matter was, federal law took precedence, and the Constitution is a source of binding federal law.
In the American understanding of federalism, states have their own legal systems, their own legal traditions, and their own constitutions. Even when a state constitution uses the same words as the federal constitution (e.g. in a free speech or equal protection clause), the words may mean something legally different in the state context– because of a different body of precedent, a different overall constitutional structure in whose light the clause must be interpreted, and so on. The state legal systems have boundaries set by the Constitution, federal law, and the supremacy clause that they may not transgress. But their internal meaning and development is not set federally– save only that, when the southern states were readmitted to the Union, Congress insisted that they join with state constitutions that did not sanction slavery; and it did much the same to Utah regarding polygamy.
Even those cases, it seems to me, were a bit less radical because more direct. Congress did dictate what the state constitutions could or could not say. But it set a side constraint, a boundary, and then let the state legal and constitutional systems develop normally within that boundary. Dictating a rule of construction– “Even a state constitution, amended by a democratic majority to read that ‘No one shall be denied access to civil marriage on the grounds that the partners are of the same sex’ shall not be construed, as a matter of state law, to permit permit marriage between persons of the same sex”– seems to me more invasive. It’s an attempt to avoid the Supremacy Clause moment, an attempt to avoid having to say “State law permits gay marriage but federal law overrides it.” It instead says, “No matter what you might think your state constitution says, no matter how you write it, your own state law never permits gay marriage; we never have to have federal law override it.”
Relatedly, the Utah and postbellum rules were adopted on an ad hoc basis. That is, it was clear Congress wouldn’t accept the petitions for statehood unless the state constitutions were written in particular ways. Congress didn’t, however, presume to legislate what could be in all state constitutions for all time. As one correspondent pointed out to me in response to the post below, it’s not at all clear that non-Utah states couldn’t, even now, amend their state constitutions to recognize polygamy. They don’t have to petition for admission to the union, so Congress doesn’t have a moment to approve their constitutions. (The federal law making polygamy a felony applies within territories, not generally, since in the nineteenth century they quaintly believed that the federal government doesn’t have a general power to pass marriage laws or to criminalize just any old intrastate conduct.) If a state now amended its constitution to permit slavery, it would have no legal force because the Thirteenth Amendment would override it; but Congress couldn’t, I take it, insist that the amendment not take place.
The FMA would mark a point of departure: the federal government, not overriding state constitutional law, but dictating the latter’s own internal content.
See also Matthew Yglesias, who has for some time been making points related to this and to Eugene’s parsing below.
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