Reconciling Federalism with Progressive Political Beliefs…

October 30, 2008 | | Comments Off on Reconciling Federalism with Progressive Political Beliefs…

… is tough to do in this day and age, but it’s exactly what I’ve been trying to do the last week or so, in my head. When I’m in classes and hear issues that pertain to constitutional law, I find myself appalled whenever courts circumvent the Constitution.  I then wonder things to myself like, “Am I a Federalist?” and “Am I a strict constructionist?”  It’s a tough intellectual debate and I flip-flop (with all apologies to John Kerry) from day to day.  I came to the realization, though, that the biggest reason why I don’t identify as a federalist is not because I disagree with the fundamentals of a republican (little r) government based on principles of federalism.  No, my biggest qualm with federalism is the way in which it has been used (and abused) in the past to justify appalling and disgusting policies like slavery and Jim Crow laws.  People masquerading as federalists during that time period shouting, “States’ rights!” were really just racists that were attempting to ratify their immoral code of keeping African-Americans down.  (For interesting discussions of the taint on federalism caused by these atrocities see: herehere, here, here, here, and here.) But, one of the things I’ve wrestled with throughout this thought experiment is whether I should throw out a perfectly good idea just because of the awful historical baggage attached to that idea.

On the other hand, many of the people who are holding themselves out as federalists now use the same shouts of “States’ rights!” to justify rolling back Roe v. Wade and banning gay marriage through the use of states’ legislatures.  The basis of Roe v. Wade is a reading into the 14th amendment of a right to privacy.  Therefore, states passing a law to the contrary would be unconstitutional.  The federalist counter-argument is that Roe v. Wade should never have been decided by SCOTUS and that the right to privacy doesn’t exist in the 14th Amendment and therefore, should be overturned and the issue returned to the states.  I happen to disagree with that; I believe that there IS a right to privacy.

That’s one reason why I, despite my belief that federalism is a perfectly legitimate form of government and the government we happen to have on ink and parchment in our constitution, wouldn’t identify myself as a federalist, because of the baggage that comes with it.   Further, and to my mind more appallingly, today’s federalists (I hate to paint with broad strokes because not all of them believe this way, but enough of them do for the point to be valid) would use federalism to block the ability of gay and lesbian Americans from being able to have the right to marry.

The argument is that it should be a state’s right to decide who can and can’t get married in their state. To me that is a fundamental violation of the equal protection clause in the 14th Amendment.  The solution to all this is to simply have the courts, particularly SCOTUS, uphold the 14th Amendment and ban all such state laws as unconstitutional.  The practicality of that, however, is not so palatable, being that SCOTUS is currently socially conservative.  This is the biggest problem with federalism in my view.  It is a great theory for governance, especially for the time in which the Constitution was drafted, but not as well suited to the United States that it is meant to govern nowadays.  Slavery was still legal and women couldn’t vote and no one talked about being gay or was really out for that matter.  The 14th Amendment didn’t exist either.  So there was really much less of a likelihood that “States’ rights” would be invoked to discriminate against people or disenfranchise them.  They hadn’t even been granted the franchise and discrimination against African-Americans was institutionalized in the form of slavery.  Therefore, I tend to conclude (don’t pin me down on this, like I said, I’m a flip flopper), that being a federalist, as a practical matter, can not be reconciled with progressive political beliefs.  In theory, I’d love for the states and local governments to have more power to direct policy and I’d just push for progressive policies on that level.  But it just doesn’t work in practice.

Photo courtesy of Flickr user krooooop.

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