Federalism: The Solution to the Culture Wars?
NOTE: An updated version of this essay has been published on Stupid Evil Bastard.
Rick Brady at Stones Cry Out has recently hit on a topic* that I’ve been discussing amongst family and friends: the use of a states’ rights approach as a way to end the divisive national debate over gay marriage. Under such a philosophy of government — known as federalism — the states would each be permitted to make their own laws about moral issues such as gay marriage, and the federal government would stay out of it. By removing a few of the seemingly intractable wedge issues from the national discussion, we may be able to alleviate some of the partisan rancor that has plagued our country and focus on other important issues that are less emotional.
An American Tradition
Before diving into the possible pros and cons of federalism, it should be noted that federalism is the constitutionally-established governing philosophy of the United States. The Tenth Amendment clearly gives the states a great deal of leeway in how they conduct their internal affairs. It really could not have been done any other way. The original thirteen colonies were largely self-governing entities. Having just won their freedom from the British monarchy near the time when the Constitution was drafted, the colonies weren’t eager to surrender most of their autonomy to another powerful central government. Over the years, the federalist model has fallen out of favor in the U.S., and this country has begun to function more like a unitary state.
A Recipe for More Division?
In his post, Rick highlights the concern that a return to federalist principals will only make matters worse by leading to mass-relocations by both liberals and social conservatives to states with laws that are friendlier to their philosophies. The possibility for even greater division is a valid concern, but one that I believe could be overcome by state-level efforts to be competitive on other terms.
For example, to offset the effects of federalism-induced migration states could offer attractive tax incentives for businesses, encouraging relocation and boosting the state economy. They could entice families with an excellent public school system, or draw young adults with an inexpensive, high-quality state university system. The one-two punch of a quality university system and a strong state economy with steady hiring would be particularly effective. By allowing every state to pass its own laws consistent with regional moral standards, former wedge issues may well vanish into the background for most people. Let’s face it: only about 10% of the population is gay. If you’re straight, are you going to pass up a good-paying job in Alabama (which, hypothetically, has low in-state tuition costs for your college-bound daughter) just because gay people can’t get married there? It doesn’t effect you — the hypothetical straight person — so probably not. With about 90% of the population left to attract through other means, the “red” states wouldn’t be at that much risk of losing a healthy liberal and moderate population.
The Chaotic Potential of Federalism: A Constitutional Solution
Rick seems worried that a return to federalism in the U.S. might cause some states to move to extremes of the political spectrum — passing laws permitting prostitution, legalizing drugs, or establishing a state-sponsored religion. In addition to creating an even more polarized national environment, this would produce a chaotic interstate legal environment.
I understand Rick’s concerns here as well, but feel that they’re unwarranted. One major reason that “pure federalism,” as he calls it, wouldn’t work in this country is that the Constitution explicitly disallows it through the combined effects of the Tenth Amendment and the Equal Protection clause of the Fourteenth Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; …nor deny to any person within its [the State’s] jurisdiction the equal protection of the laws.
I’m not a lawyer, but it’s my understanding that the Equal Protection clause as historically interpreted is the reason that all state laws and constitutions are held to be subordinate to the Constitution of the United States. Thus, the Supreme Court can strike down state laws and parts of state constitutions.
These two constitutional protections strictly limit the scope of federalism. For example, Rick raises the specter of a state-established religion as one argument against federalism. This would be an impossibility, however, since any state-sponsored religion would violate citizens’ First Amendment right to religious freedom.
There’s a way out of the legal chaos problem, too. In the event that the exercise of states’ rights got so out of hand as to make a scrambled mess of interstate legal operations, the federal government would be well within its rights to pass laws directed at ironing the situation out. This is permitted by the Commerce Clause of the Constitution, which gives Congress the power to regulate interstate commerce.
Federalism at Work Today
Precedents exist for the successful use of federalist principles to resolve divisive or sensitive cultural issues. Obscenity, for example, has been defined based on community standards rather than national standards ever since the 1973 Miller v. California Supreme Court decision.
Medical marijuana has also benefited from a states’ rights approach — eleven states have passed laws allowing for medicinal use of the drug, with Montana becoming the most recent of the bunch last Tuesday. The federal government’s attempts to stamp out such laws have been unsuccessful, in large part because the state laws smartly invoke the Commerce Clause of the Constitution by stipulating that the pot be grown, sold, and used only within the state. Since the federal government is only empowered by the Constitution to regulate interstate commerce, the medical marijuana laws have fared well in court challenges thus far.
Other examples of federalism already at work include Oregon’s “Death with Dignity Act” permitting physician-assisted suicide, concealed carry laws in several states that allow residents to pack concealed firearms for self-defense, legal prostitution in Nevada, and the end of the national 55 mph speed limit that existed from 1973 to 1995. Many of these issues still crop up in the media from time to time as minor controversies, but nothing on the scale of the current gay marriage debate.
Yea or Nay? The Right’s Federalism Flip-Flop
I find it both telling and frustrating that conservative politicians have consistently come out in favor of states’ rights — when it’s in the best interests of their agenda. On issues such as school prayer and gun rights, the right has consistently favored letting the states set their own policies. When it comes to gay marriage, civil unions, or medical marijuana, however, their take on federalism is quite different.
I realize that conservatives could rightly argue that this accusation cuts both ways. The time has come for both parties to put aside the notion of federalism as a political expedient and to weigh its merit as a real governing philosophy for this nation. Carefully applied within its prescribed constitutional limits, federalism could offer a remedy for America’s deep partisan divides. It might just be an idea whose time has come again.
Updates:
- 11-9-2004, 1:32pm — Grammatical corrections and general tightening; added “meme lineage” citation.
- 11-12-2004, 12:20am — An edited version has been submited as a guest post for Stupid Evil Bastard.
- 11-14-2004, 4:05pm — It’s up at SEB now.
Adam, thanks for your thoughtful post.
Pesonally, I do think federalism has merits on issues like prostitution, gambling, drugs, etc., but only brought it up because I know some of my friends on the right think federal policy should control these things.
Second, when you talk about the 14th Amendment, you said something key: “as historically interpreted.” Part of the hypothetical (and at this point infeasible) deal would be to appoint federalist judges who would presumably change the historical interpretation of the 14th Amendment. This is exactly why the President is pushing a Constitutional Ban of Gay Marriage. Iterpretation of the 14th Amendment consistent with history would lead any precedent following Court to conclude that a “legally” obtained marriage certificate from MA must be recognized by another State. Bush’s actions are intended to send a signal to radical anti-federalist judges that they best stay out of the issue. This “historical interpretation” needs to be changed to a “constructivist interpretation” where “equal protection under the law” applies only in the context in which it is spoken of in the 14th Amendment. The Courts have taken the liberty to apply this clause to other arenas.
Third: “Rick raises the specter of a state-established religion as one argument against federalism. This would be an impossibility, however, since any state-sponsored religion would violate citizens’ First Amendment right to religious freedom.”
The Constitution says “Congress” shall make no law. At the time, each State in the Union had an established Church. Over time the desires of the people within those states got rid of those churches. It had nothing to do with the Constitution or the Supreme Court’s interpretation of the Constitution. This goes back to the 14th Amendment. Only now, because of “historical interpretation” of the 14th Amendment and “historical interpretation” of the 1st Amendment would the Court rule a State could not have its own government sanctioned church (if it so chose). My argument is - if we REALLY want to go to pure federalism, old-style federalism, then you have to be willing to accept that fact that UTAH could easily become officially a Mormon state. Otherwise, the federalism that I am talking about could not occur. Similarly, I think we as Christians must be willing to accept the fact that “blue” states will have the right under federalism to deny building permits for churches, deny parochial schools, etc. Again, under pure federalism, the 1st Amendment reads “Congress” shall make no law regarding the establishment of religion. It says nothing about local government law and it says nothing regarding “a strict wall of separation.”
I think my argument was that once people on both sides really start thinking about what “pure federalism” implies, they will start to realize they have reservations. We must ask ourselves what outcomes are acceptable. You rejected my concerns because you said my outcomes are “impossible”, but I say to you that you aren’t thinking about “pure federalism” - you are thinking about your idea of federalism.
I suppose then we should put all the issues on the table, igonore “historical interpretation” of the Constitution, and decide, what issues should be federal and what should be state.
I think we’ll find that many on both sides will then start backing away from their support of this new federalist ideal. (BTW - this argument is still secondary to my main argument that pure federalism will prove to be a faustian bargain.)
Great post, and I’m glad others are putting some more thought into this.
Comment by Rick Brady — November 9, 2004 @ 8:16 am
I guess no one liked this debate…too bad.
Comment by Rick Brady — November 11, 2004 @ 10:07 am
Cheer up, Rick. I’m going to stick it on SEB as a guest post. It ought to get some attention there.
I also have a reply to your comment stewing in the back of my head, but haven’t had the time or inclination for serious political discussion the last couple of days. I’ll try to get it posted tonight.
Comment by Adam M. — November 11, 2004 @ 6:18 pm
Thanks for your comment, Rick, and I’m sorry for the delayed follow-up. This week has been absurdly busy.
You’re right in saying that what I’m discussing here isn’t really “pure federalism.” I don’t think that federalism of the strength practiced in early post-Colonial America is practical or desirable today. This post was, I guess, equal parts critique, proposal, and call for moderation. I think that a kind of “federalism lite” would be very workable in today’s America, and could offer a real solution to the cultural division that is becoming so prominent.
I think you may have misunderstood my point regarding the historical interpretation of the Fourteenth Amendment. The primacy of the Constitution and its Bill of Rights must be maintained as stipulated in the Supremacy Clause of Article Six:
The Equal Protection Clause of the Fourteenth Amendment — mentioned in my post — reinforced the Supremacy Clause and clarified the scope of the federal government’s powers in enforcing it. We must not abandon the historical interpretation of these clauses in order to pursue some ideal of pure federalism. Instead, it is this very historical interpretation that protects us from the “Faustian bargain” that you mention.
You point out, correctly, that the historical interpretation of Supremacy and Equal Protection Clauses will probably lead to the eventual nullification of the Defense of Marriage Act for violating the Equal Protection Clause and possibly the Full Faith and Credit Clause, which stipulates that contracts made in one state be held valid in all states (this unlikely, since an exception to the Full Faith and Credit Clause has commonly been made for marriage). For this reason, I support a marriage amendment to the Constitution, just not one like the Bush administration has suggested.
I propose a marriage amendment that integrates the DOMA’s stipulations about the acknowledgement of same-sex marriages and civil unions into the constitution as an explicit exception to the Full Faith and Credit Clause. I would not support an amendment that included the DOMA definition of marriage as between a man and a woman, since I believe that is up to the people of the states or their elected representatives to decide. Passage of such an amendment would pave the way for federalist principles to govern gay marriage in America and would preserve the spirit of the DOMA. I imagine it would also face more favorable odds of passage and ratification than the marriage amendment proposed by the Bush administration.
Finally, in response to your further comments on local governments and freedom of religion, there are years of legal precedent holding that the Constitution applies as much to county and city governments as to state governments. After all, state governments are subordinate to the Constitution and local governments are further subordinate to the governments of their respective states. What we end up with is a “trickle down” effect that applies the principles and precepts of the Constitution to all levels of government in the United States. This does place strong limits on the extent to which federalism can be practiced in this country, but it also provides a consistency of justice, common guarantee of civil liberties, and unified national spirit and identity that very important.
I’m revising this post for submission to Stupid Evil Bastard as a guest contribution, and I’m addressing some of your critiques in the reworked version. Thanks for your comments, which have helped make this a stronger article with a clearer point of view.
Comment by Adam M. — November 13, 2004 @ 10:01 pm
I agree with you on most points (not the substance, but the logic).
I think that when Andrew Sullivan and Joe Carter of Evangelical Outpost were talking about “federalism” they were thinking about entirely different degrees of “federalism.” In a sense they were talking past each other.
Whereas Andrew Sullivan was probably thinking about federalism along the lines that you are, from Joe Carter’s post, I think he was thinking about a more “pure” federalism and therefore my post was to try to focus the debate and urge a definition of “federalism.” Once both sides tried to negotiate a definition of “federalism”, I think they would quickly find themselves in a stalemate.
My argument was that if for some reason both sides agreed on a pure federalist model, that would prove to be a Faustian Bargain. I think we both agree on that.
BTW - I’m not a great fan of federalism. I guess I’m not your typical conservative. In fact, I find it curious that my post today has generated two hate e-mails, but no comments. I don’t know, maybe you’d be interested. I really rail on conservatives and local government policy. see here
I enjoy this conversation. There’s a saying in the Bible that goes, “As iron sharpens iron, so a man sharpens the countenance of his friend.” You don’t have to be a Christian or a Jew to appreciate that wisdom.
Comment by Rick Brady — November 13, 2004 @ 10:40 pm
in an earlier form
Pingback by MI Blogs — November 15, 2004 @ 12:09 pm
NOTE: This post appeared in an earlier form on my own weblog. I’m submitting it to SEB as a guest post because I think the issues it addresses deserve attention and consideration from a larger audience—especially among thinking members of the political left
Pingback by Stupid Evil Bastard: Sacred cows make the tastiest hamburger. — November 17, 2004 @ 7:11 pm