Yet More Liberal Federalism

This time from Stanford law prof Richard Ford Thompson.

Comments

[thoreau]

Those who want to can find much to argue with in that article. But the basic premise is still good: Let's try different things in different states and see what happens.

[Twba]

Now the D team supports a limited federal government and the R team wants to centralize more power. What's the point of voting for any of these clowns? Kill 'em all and let god sort 'em out.

[SR]

His characterization of the invalidation of VAWA as an example of liberal federalism is so laughably absurd that I believe it's already a top contender for "Memory Hole of the Year". VAWA was passed with overwhelming Democratic support in response to testimony by feminist groups and was defended at every step of the way by the Clinton administration. When it was struck down, liberal pundits squealed like stuck pigs that this was evidence of the reactionary nature of the Rehnquist court.

[thoreau]

SR-

I completely agree. I do, however, wonder if some of the opponents of VAWA were only motivated by concern for federalism. Which is not to say that unsavory motives should overshadow the core federalist issues, but it does affect which factions I want to be associated with.

[joe]

I think you misread that, SR. The sentence set up a parallel between the fight waged by Virginia Republicans against VAWA, and the fight waged by California Democrats against the application of the Controlled Substances Act.

[joe]

Anyway, the author theorizes that conservative federal judges will feel compelled to rule in favor of liberal federalism arguments, because of a genuine commitment to principle, a respect for recent precedent, and a desire to avoid hypocrisy and the appearance thereof. To which I have one reply: Bush vs. Gore decision.

Perhaps there are a significant number of Republican district and circuit court judges to whom the author's generous description applies, but it clearly does not apply the most conservative third of the Supreme Court.

[Thomas Paine's Goiter]

I can't see this happening. On a national leve, neither side will ever be for federalism again. Think about it...it means forfeiting power. Neither side would forfeit power, even if it means the long-term destruction of their power.

Politicans aren't bright, just powerful.

[joe]

TPG, a number of prominent Democratic Congressmen have stated publically that they are considering stepping down to run gubenatorial campaigns in their home states.

[Captain Awesome]

It's just now sinking in for me just how impossible the ideal of federalism is.

1) For it to come into fruition congress must pass mor federalist laws.

2) Passing laws requires majority votes.

3) federalism is only attractive to the minority party.

Conclusion: federalism is impossible withing a democratic federal government.

It's a damn catch 22!

[PintofStout]

I thought the "Red State, Blue State" bunk was put to bed a long time ago? It seems as if he is trying to polarize people more than is justified, which makes me quite skeptical of his opinion.

Once I *pft* the guy once, it's a long road back to taking him serious. I didn't take seriously the majority of his piece, although he had a few decent analogies or jokes or something.

[Thomas Paine's Goiter]

TPG, a number of prominent Democratic Congressmen have stated publically that they are considering stepping down to run gubenatorial campaigns in their home states.

"Considering". Considering. This is more of a "I'm taking my ball and going home" pouting episode. When it comes down to it, none of them will do it.

[PintofStout]

Cap'n Awesome,
You didn't expect the government to pass a law granting you more freedom did you?

You may be insane enough to keep flying!

[joe]

'This is more of a "I'm taking my ball and going home" pouting episode.'

Federalism is a "taking my ball and going home" pouting episode.

If they actually do it, would you change your mind?

[Thomas Paine's Goiter]

http://www.postgazette.com/pg/05007/438364.stm

Must we stay on the road to ruin until we feel the pain?

In his best-selling book "His Excellency: George Washington," Joseph Ellis captures Washington's frustration with the fact that the citizens of the emerging nation did not see a need for a strong central government to facilitate the growth of that nation, preferring that the states pursue their own individual interests.

Washington observed, "We shall run riot until we have brought ourselves to the brink of ruin" and that the people must "feel before they will see." We need to take Washington's observations to heart as we put our international reputation on the line for a war of our own choosing that is killing thousands; as we pursue an irresponsible fiscal policy that is plunging the nation further into debt; as one of the most successful social programs any government has ever devised (Social Security) is being attacked under the guise of saving it; as higher education assistance to a substantial and very vulnerable part of the population is being cut at the same time that we fall further behind internationally in math and science; and as health-care costs continue to escalate without a coherent national attempt to manage them.

It appears that a large portion of the population will need to feel the effects of all this before they can see the impact on their lives.

The father of our country would understand!

WILLIAM D. PRESUTTI JR.
Bridgeville

[PintofStout]

Who ever said we had to play ball with anybody? What ever happened to free agency?

[madpad]

I think the term 'activist judge' is going to have a brand new meaning in the coming years...as in "Who's the activist judge NOW!"

My chief complaint about conservatives has been their eagerness to rationalize around the mainstays that got them elected - like federalism, smaller government, anti-nation building - as soon as they become inconvenient for their social or military agendas.

As I recall, the Republican Party was established - in part - to oppose slavery as morally wrong and to politically motivate those who wished to overturn the early decisions that would have allowed slavery to make its way westward.

100 years later, the Republican party is courting a south now feeling disenfranchised by the Democrats for supporting civil rights.

My point is this is not the first time or the only set of issues that parties have staked new claims over.

Damn if it's not interesting to watch.

[Thomas Paine's Goiter]

If they actually do it, would you change your mind?

Leave the senate or move towards a federalist platform?

[SR]

joe,

Going back and re-reading the article, I do see your point, although I think you can see why I read it the way I did.

[Ruthless]

Twba said,
"Now the D team supports a limited federal government and the R team wants to centralize more power. What's the point of voting for any of these clowns? Kill 'em all and let god sort 'em out."

We've come full circle. It was a Republican who started the Civil War.

[Kate]

When will people wake up and realize that "federalism" is not "states' rights"? "States' rights" was the Articles of Confederation. And a fully national government would be just that. The Constitutional balance is somewhere in between, and federalism is supposed to be the mechanism that reins in both the feds AND the states (for example, when they try to attack each other or exploit each other's citizens). Until this is understood, federalism from either party would be a menace.

And that's truly too bad. Combined with enumerated powers, it should allow for the kind of experimentation and freedom that many of us would like to see. Sadly, federal behemoth plus states' rights is an equation with an altogether different outcome.

[Ruthless]

Capn Awesome,
I'd like to see a thread here of nothing but Catch 22's.
It would be like the Prairie Home Companion joke show.
There are a zillion of 'em!

[Gilbert Martin]

It seems to me that the gist of Thompson's piece was to approve of liberals generically using the principal of "federalism" to oppose Republican iniatives such as tort reform while at the same time giving them a pass on most of the past violations of federalism initiated by liberals as being "reasonable" and "necessary".

Presumably federalism isn't a good enough reason to undo any of nanny-state federal intrusions that weve already got that were engineered by liberals.

Yeah right.

Also on the gay marriage issue, he mentions the gay marriage iniatives in CA and MA and also the conservatives efforts for a federal gay marriage ban but fails to acknowledge they one of the main reasons why the conservatives wanted the ban was because they feared the federal courts would then force other states to legally recognize those marriages as valid in their own states as is done with regular marriages. Indeed that's exactly what the liberal activists were trying to accomplish. That's hardly "federalism"
He also didn't mention the voting results of all those state referendums on gay marriage that indicate the majority in all those states don't want to allow gay marriages there.

Indeed it would be interesting to see how the mechanics of that would play out under a federalism concept - all the possible intersections state to state and state to federal. If California legalizes gay marriange, does that compel the IRS to allow gay couples to use a tax filing status of married filing jointly? It is not a given that it does. What if the couple owns property in another state? Does CA legalization mean that the other state is compelled to reflect that status in their inheritance laws, etc? It is not a given that it does. And what if the gay couple that got married in CA moves to another state. Are they then legally unmarried since their legal residence changed?

[Ruthless]

federalism equals states' rights.
states' rights equals the right to seccede.

Is there a problem?

[Ayn_Randian]

Please, are any of us fooling ourselves when we support "federalism" and "states' rights"? How many of us would rightly be outraged if one state upped the penalty for drug offenses to death? Me, I'd rather have one large dictatorship we can eventually starve than 50 small ones.

[Ruthless]

Ayn Randian,
Planning to take in a show at the Ford Theatre any time soon?

[Twba]

I'd rather have one large dictatorship we can eventually starve than 50 small ones.

Would it not be easier to starve a small one and show the others how it's done?

[Mark Bahner]

Richard Ford Thompson (liberal law professor) writes, "Thankfully, few modern lawyers wish to argue that federal antidiscrimination law exceeds congressional authority."

Y'all will get no thanks from me! Follow the $#@% document! Is that really so hard?!

There is absolutely nothing in the constitution that gives the federal government the power to prevent one private individual (or one group of private citizens) from discriminating against other private citizens.

If you want the federal government to have that power, Richard Thompson, get a $#@& constitutioanal amendment. It should NOT be asking too much to ask that lawyers follow the law!

[thoreau]

Some people hear a liberal law professor argue in favor of develoving a few more powers back to the states and think "Step in the right direction!"

Others hear him and think "Not far enough! You're nothing but a filthy statist!"

[Mark Bahner]

"Others hear him and think 'Not far enough! You're nothing but a filthy statist!'"

I don't care whether he's liberal or conservative (or libertarian). A LAW professor making a statement like:

"Thankfully, few modern lawyers wish to argue that federal antidiscrimination law exceeds congressional authority"

...is utterly reprehensible. This isn't even an issue worthy of debate: the Constitution gives the federal government absolutely NO power to regulate discrimination between private individuals (or groups). It's disgusting when a professor of LAW is so happy that the LAW is being ignored.

P.S. And yes, the Supreme Court's "Heart of Atlanta" decision WAS an abomination.

http://www.landmarkcases.org/gibbons/motel.html

[kevrob]

My Libertarian Field Guide To Political Taxonomy tells me that an American "conservative" is one who reads the Tenth Amendment as a grant of plenary power to the States, with the Ninth Amendment a Borkean "inkblot." An American "liberal" sees the Commerce Clause as a grant of plenary power to the Federal government, unburdened by any restraint created by the Tenth.

I do prefer that our judiciary read the whole swutting document, myself, including the Ninth, the Tenth, the "Republican Government" clause, etc. BTW, there is nothing new about "liberal" lawyers mining the state constitutions for stronger protections than the Federal charter provides. We libertarians are happy to rely on the often stronger RKBA clauses in the state documents, not to mention privacy provisions. It is often a "whose ox is gored" situation. Statists use stricter anti-establishment of religion clauses to fight school choice.

Kevin

[Brendan Perez]

"Google the phrase "red state welfare queens" and read for yourself.)"

A supposed liberal feigning upset that money is being redistributed by the governement to those who supposedly need it more? Wow.
This is more interesting then the concept of federalism coming from the left.

Maybe I'm being simplistic, but isn't it usually "liberals" or persons on the left who consistently argue that "the rich" should be taxed to help "the poor", that those with more should help those with less (and be forced by the govt. to do so), etc.?

Unless the main concern is that they don't need it and it's largely pork driven, in which case I have to laugh at the whining now that the dems are experiencing the effects of "what goes around comes around" from their republican counterparts.

As soon as the dems stop supporting government forced redistribution in the form of welfare, SS, and medicare/aid, etc., I'll listen to their gripes about uneven redistribution of monies.

I'll be glad to join them in their fight for federalism as soon as they learn what it really means and then teach it to their brethren on the right. As is always the case today, federalism is only important when it gets you what you want.

You don't hear dems pushing federalism when it comes to gun control, not yet anyway--if their sacred gun control laws were to disappear at the federal level or, even worse, be replaced with true affirmative gun right laws, the dems would howl states' rights on every corner.

I love the dichotomy in gun control groups (dominated almost entirely by the left) constant clamoring for federal gun control laws while at the same time whining that state level preemption takes away local control of firearms.

Claiming Federalism/"states rights" or extraconstitutional/unconstitutional federal power, whichever is more convenient at the time, does not make someone a federalist.

[atomicsoda]

Still can't get over the fact that you have to treat blacks like human beings Mark Bahner. Its been 40 years. Why does this issue bother you so much? Hmmm.

[Dana Powers]

So his name is actually Richard Thompson Ford, aka Professor Ford. Not a big deal - looks like the original poster switched his name around a bit.