Thursday, April 27, 2006

 

Needed: A Lesson In Federalism

Rather than bashing the liberal left or the NYT, this title is more of a help wanted ad than a warning. Insights will be appreciated.

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“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” –Article X, U.S. Constitution

Where the Constitution is silent, the states should speak. That has always been my understanding of federalism: that states are best suited to handle their own affairs than bureaucrats in Washington.

I’ve always believed that lawmaking is best left to democratic majorities than to men in robes, so I did not expect that in undertaking a reading of a book by one of the most brilliant legal minds of our generation, I would come to doubt or misunderstand my own convictions.

For the past however-many weeks, I’ve been engrossed by Robert H. Bork’s “The Tempting of America.” It has challenged my ideas and has put my understanding of the Constitution to the test, but what it’s done that I did not expect was confuse my understanding of federalism, which has always been rooted in the same principles it contains.

A hypothetical came to mind – and I realize that this is a far-fetched outcome on the slipperiest of slopes, but I hoped that conservative reasoning would help me find a solution to the potential, albeit hypothetical, problem.

First, I must add a disclaimer. I disagree that the 14th Amendment’s equal protection clause was intended to take the power from the states to vary in their lawmaking. I believe that it had everything to do with slavery and nothing to do with limiting the 10th Amendment. That said, here is the potential problem which I hope might inspire some feedback from those of you better versed in Constitutional Law and federalism than me.

[Now remember, I did say this would be far-fetched, but I believe it must be in order to illustrate my confusion.]

Imagine that a group of deviants were to move to a state and form a majority with the sole purpose of forming state laws that allowed them to live their deviant lifestyles legally. Under the concept of federalism which I explained earlier, so long as these laws do not go against anything specific in the Constitution, they should be allowed to express their morals as a democratic majority in the state. But what if this group of deviants had a perverse agenda and wished to enact laws that seriously damaged society?

My initial argument against this was that the hypothetical couldn’t work because we are assuming that people are unreasonable and irrational, but surely, there are a good number of people in this country who could be classified as such. So what check would there be to their power? Surely, anyone in the state who feels threatened by the newly expressed morality would vote with their feet and go elsewhere, if only to protect themselves. What recourse would there be for the minority who stays? Who would protect them?

Now, I’m not for a moment saying that I prefer rule by Judges to rule by democratic majorities, but what about this hypothetical? Should rule of a majority be preferred even if it is oppressive? Am I beginning to sound like a liberal? (gasp.)

I do not believe that Supreme Court Justices or federal judges should be able to undo state laws that do not raise constitutional questions. I do believe that a state should be able to have it’s own interests as expressed by the people. But who protects the minority? Would the people in the country have to vote a constitutional amendment to outlaw whatever the people of State X enact in order to preserve morality? Is there a solution consistent with conservative principles? Does federalism solve the problem or must we really advocate that a judge has a better sense of morality than a democratic majority? In this sense, one would hope a judge would, but I'm not sure I'm ready to jump to that conclusion. I don't think the Founders did.

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