Fair-Weather Federalists
Why conservatives and progressives should unite against an overweening national government.
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One-Way Federalism
Not coincidentally, Thomas, who has repeatedly criticized the “substantial effects” doctrine, was considered the surest vote against the health insurance mandate. (Despite Wydra’s gratitude for Thomas’ consistent federalism, she did not return the favor in the ObamaCare case, arguing that the Court should uphold the mandate.) Thomas also was one of three dissenters in Raich, the medical marijuana decision. “If Congress can regulate this under the Commerce Clause,” he declared, “then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”
Despite that setback, left-leaning drug policy reformers continue to use federalist arguments, demanding that Washington let states experiment with more tolerant approaches. Last year Americans for Safe Access filed a federal lawsuit arguing that the Obama administration’s crackdown on medical marijuana in California violates the 10th Amendment. The group says the Justice Department is not simply enforcing the federal ban on marijuana (as permitted by Raich) but doing so in a way intended to undermine state and local policy choices. “While the government is entitled to enforce its criminal laws against marijuana…in an even-handed manner,” the complaint says, “the Tenth Amendment forbids it from selectively employing such coercive tactics to commandeer the law-making functions of the State.”
Federalism also can serve the cause of gay rights. In 2010 U.S. District Judge Joseph Tauro ruled that the Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing state-approved gay marriages, violates the 10th Amendment. When it comes to joint federal-state projects such as Medicaid and military cemeteries, Tauro said, DOMA forces states like Massachusetts to pretend that marriages they recognize do not exist, a requirement that impermissibly intrudes on family law, “a quintessential area of state concern.”
Bob Barr, who came to regret his role in writing DOMA as a Republican congressman from Georgia, originally viewed the 1996 law as a way to prevent one state from imposing its marriage policies on others. But as he explained in a 2009 Los Angeles Times op-ed piece, “DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws—including immigration, Social Security survivor rights and veteran’s benefits—has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.”
In this context, Josh Harkinson’s concern that Ron Paul’s federalism would “enable extremism” by letting states set their own marriage policies is puzzling. As Yale law professor Heather K. Gerken observes in the Spring 2012 issue of the journal Democracy, local and state decisions to recognize gay marriage have helped shape public opinion by disproving social conservatives’ predictions of disaster and showing the nation “happy families that looked utterly conventional save for the presence of two tuxedos or two wedding dresses.” Gerken advocates “a new progressive federalism,” arguing that “state and local governments have become sites of empowerment for racial minorities and dissenters” in areas such as marriage, education, affirmative action, immigration, and environmental regulation. “Decentralization will produce policies that progressives adore,” Gerken writes, “and it will produce policies that they loathe.” But she argues that the risks for progressives are outweighed by the benefits, including not only instructive policy experiments but a stronger democracy that integrates outsiders into the political system.
Just as federalism will not always produce policies that progressives like, it will not always produce policies that libertarians like. Federalism, like representative democracy or the federal government’s “checks and balances,” is a means to an end: By keeping most political decisions at the state and local levels, it promotes responsiveness, diversity, innovation, and competition among jurisdictions. “When political power is decentralized,” notes George Mason law professor Ilya Somin in a 2011 Library of Law and Liberty essay, “individuals can ‘vote with their feet’ against jurisdictions whose policies are oppressive or heavy-handed.” People who are unhappy with the policies of one city or state can move to another, much more readily than they can immigrate to a different country.
Federalism therefore is no mere formality, and it is not simply about “states’ rights.” As Justice Kennedy observed in Bond v. U.S., a unanimous 2011 decision allowing criminal defendants to challenge federal charges on 10th Amendment grounds, “The federal system rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’…The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.”
For this system to work, however, the distinction between state and federal powers must be determined by the Constitution, not by personal policy preferences. A consistent application of federalism is not just a matter of principle or intellectual honesty. It is a matter of pragmatism, since the same understanding of congressional power that allows the federal government to pursue universal health care also allows it to yank medical marijuana from the hands of cancer patients.
Senior Editor Jacob Sullum is a nationally syndicated columnist.
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They don't want diversity, federalism. etc. They everyone everywhere doing what they tell them to do.
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Exactly. Statists aren't interested in state experiments in democracy discovering what works best. They want you to do what they tell you to do, and they want you to do it right fucking now.
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They're simply interested in whichever method gets them what they want. Things like consistency and precedent mean nothing to them unless it gets them what they want.
You don't have to go any further then the gun control movement to see this.
They oppose state preemption (state law that says that only the state may set rules on gun purchase, possession, etc.)
Then they turn around and push for federal laws which override state laws.
So state preemption over its cities is bad, federal preemption over the states is OK.Cities that wish to ban guns in their borders should be allowed to. Those symbolic ordinances by cities that seek to mandate firearm ownership run afoul of state preemption laws and are wrong.
You don't have to be a genius to figure out how favorably they would look on state preemption if a city decided to legalize concealed carry without a permit.State laws that wish to allow intrastate purchase, manufacture of firearms are wrong because federal law supercedes state law. BUT, the Lawful Commerce in Arms act and various proposed federal laws that force concealed carry permit reciprocity are wrong becase they infringe upon "state's rights" (one of the few times you'll see gun control supporters use the term.)
State's rights AND preemption would also fly right out the window the moment a state wanted to preemptively and affirmatively legalize possession of handguns by people under 18..
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x 1,000,0000
Federalism is nothing more than a means to an end. For the statist, control must be absolute so that identical outcomes can be assured. That's not possible with federalism.
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This article is funded by the Kochs, so it doesn't count.
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Blah blah blah tl;dr
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Progressives by definition believe society is inevitably evolving to a total state that plans the economy...which just so happens to encompass the totality of human life. Not seeing how they could make common cause with anyone who wants to limit the power of the state in ANY way. At least conservatives can typically identify three or four things they don't think should be socialized.
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Commerce, Education and ... um.. uh.. heh...
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[The senator brags about writing the Partial-Birth Abortion Ban Act, a 2003 law that makes it a federal crime to use a specified abortion technique “in or affecting interstate or foreign commerce.”]
True. He should have stated it had nothing at all to do with commerce but rather infanticide.
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It's already been established by SCOTUS that fetuses are not humans and the federal government is not obligated to protect them. So he knows the infanticide argument will only win on the stump, not on the floor of Congress or in a courtroom.
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Got a cite for that? I'm not aware of any case where the court has actually ruled on the rights of a fetus or its status as a person. Seems like that would kinda conflict with the Unborn Victims of Violence Act.
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You know, there are videos of late term abortions for your viewing pleasure, you might avail yourself of a few. Suggestion, hold the popcorn.
The term "partial" birth indicates, correctly, that gestation has run it's course, labor has begun, birth is at hand, child is killed.
The abortion lobby wants no part of a SCOTUS defining a late term abortion as the termination of a fetus that is not a person. -
The reason progressives and conservative can't agree on federalism is because progressives want free shit, and conservatives want to win the culture war. If both sides embrace federalism, then how will they "win"?
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When progressives and conservatives find common ground, it's typically to fight against that common enemy known as individual liberty. Both sides hate being reminded of their alliance against pornography, but they didn't mind actually entering into that alliance.
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Bingo. Look at any nearly every law aimed at teenagers for an example of this.
They both get to score points with their respective bases, don't have to work too hard in carefully tailoring or narrowly applying the law, and they only affect the one group of people who don't have the political and economic power to fight them. It's win-win-win for both sides.
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Also drugs and "tyranny". They love to team up on stoners and randomly selected regimes.
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"individuals can 'vote with their feet' against jurisdictions whose policies are oppressive or heavy-handed."
It's also a lot easier to petition a smaller state or local government for redress of grievences than it is to try to get the federal leviathan to change its policies. More often then not the latter seems to be a nearly impossible task.
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Lemme guess: the entire article can be boiled down to:
Everyone would support limited government if they only recognized the Iron Law:
Me today, you tomorrow.
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Yeah, that's about it.
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"because progressives want free shit,"
But when it comes to health care, all they profess to care about is eliminating the "free riders."
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The problem is, they want to eliminate "free riders" by taking away our ability to choose: the ability to choose health insurance (more specifically, the ability to not choose it at all), serving sizes, foods with varying amounts of nutrition, etc. If I want a 32 oz soda in New York, there shouldn't be a law against it. If I want a hot dog with bacon on it, screw the government telling me otherwise.
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They can eliminate the free rider problem by repealing EMTALA, but mention that to them and you get a vampire/crucifix-type reaction.
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Conservatives and liberals, maybe. Progressives are as close to pure statists as you can get outside of fascism. Actually, I'm not even sure they're different.
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It's the sandals. Fascists wear jackboots.
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Fair-Weather Federalists
I'm not sure that I've ever come across any other kind.
Anyone here have an example of something they think should be a state matter where they agree with the federal law and would disagree with their state's?
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As Independence Institute Research Director David Kopel and University of Tennessee law professor Glenn Reynolds noted in a 1997 Connecticut Law Review article, “it is not really possible to perform an abortion ‘in or affecting interstate or foreign commerce’…unless a physician is operating a mobile abortion clinic on the Metroliner.” Such language, they argued, can only baffle “any person not familiar with the Commerce Clause http://www.lunettesporto.com/l.....-3_23.html sophistries of twentieth century jurisprudence.” Those are precisely the sophistries that Coburn claims to resist but is happy to deploy when they advance his purposes.
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Il ya principalement deux avantages principaux de l'achat de t-shirts en ligne. Le principal avantage de l'achat des vêtements en ligne, c'est qu'ils sont moins chers que les magasins du détaillant. Les magasins en ligne économiser de l'argent sur les laissez-passer loyer, personnel, la sécurité et l'inventaire.
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Linque?
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The senator brags about writing the Partial-Birth Abortion Ban Act, a 2003 law that makes it a federal crime to use a specified abortion technique http://www.riemeninnl.com/riem.....-c-12.html in or affecting interstate or foreign commerce.”
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The fact is that federalism is almost always secondary to ideology. Both left and right are willing to mandate government activity if it furthers their agenda. This extends beyond just politicians into the general population. Check out my take on federalism and public opinion: http://t.co/SjwJdn3i
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I appreciate your comments and would love to have anything that you write
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