Federalism And States’ Rights: In Principle And Against Principle

David Potter, one of most eminent American historians of his generation (although less widely known than the only two who I believe were his peers, C.Vann Woodward and Richard Hofstadter), always remarked that if you showed him a states righter he would show you someone in the minority nationally. I wonder what Potter would make of our current politics, where politicians and often their entire parties change into and out of states rights costumes as often and as quickly as if they were the only two actors in a five character play. There is an old if not uniformly honorable tradition of “pragmatic” politicians giving short shrift to principle, but in my opinion the shrift has never been as short as it is today.

It is quite common to accuse both parties equally of jettisoning principle for temporary partisan advantage, and of course there is much good reason to do so. Certainly on the issue of creating “majority-minority districts,” i.e., racial gerrymandering, the Republicans have been every bit as bad as the Democrats, although not lately. There’s not much moral difference, moreover, on the appointment of judges, although again the Democrats lately have escalated this battle to heights not seen before (but which will probably be seen again once control of the Senate changes hands).

Although neither party is pure by any means, I do believe the weight of unprincipled, or perhaps anti-principled, behavior regarding federalism and states’ rights is beginning to favor (or more accurately, disfavor) the Democrats. Let’s look at a few examples.

Here’s a bit of conventional wisdom from an article in the Outlook section of Sunday’s Washington Post by Emily Bazelon, a senior editor at Legal Affairs magazine:

It took conservatives about two minutes to call for Congress to outlaw gay marriage across the land after the Massachusetts high court’s decision last week making way for same-sex unions. Liberals, on the other hand, congratulated the state court for boldly doing its own thing. In other words, the right and the left quickly swapped sides in the debate over when federal power should give way to state sovereignty.

Since the nation’s founding, the right of the states to govern their internal affairs has been a point of disagreement. Conservatives defended the states’ rights to regulate slavery and then to pass Jim Crow laws. Progressives encouraged the national government to intrude on the states’ turf. Lately, however, both Democrats and Republicans have invoked concerns about the proper balance between federal and state authority — or federalism, in constitutional parlance — in unexpected ways to suit their own convenience. Howard Dean, for example, has reached out to centrist voters by opposing a national gun-control law, saying, as a former governor, that states should be able to make their own rules. But since it was conservatives who made curbing national authority a battle cry, it’s their fair-weather federalism that smacks most of expediency. And this week’s vow by congressional Republicans to undo the Massachusetts court’s gay marriage ruling is both aggressive and opportunistic.

First, let’s consider the Democratic front-runner, Dr. Dean. Governor Dean opposed gun control. Candidate Dean, now running on a national stage, has seen the virtue in federalism. He now believes the Second Amendment is a matter of local option; states can honor it if they want, or not if they don’t. It would be tempting to say that he would not leave other individual rights up to individual state majorities to decide, but that would no doubt be wrong: Candidate Dean (and indeed all of his Democratic opponents) no doubt support “Massachusetts” in its recent recognition of the right of gay marriage. (You’re wondering why I put “Massachusetts” in quotes, since it really does exist. I’ll come to that in a moment.) Other states, according to Dean and the Democrats, are free to disregard this “right,” just as Dr. Dean thinks they can recognize Second Amendment rights or not, as they see fit — which is similar to the way an earlier Democrat, Stephen Douglas, thought about slavery.

But Ms. Bazelon and other communicants in the Church of Conventional Wisdom think the Republicans are the principal principle violator these days, running roughshod over states from Massachusetts to Florida as it suits them. Florida? You remember Florida, from the unpleasantness surround the 2000 election, don’t you? As it happens, I think the partisan disputes over the proper role of states’ rights in Florida and Massachusetts — and as we shall see, Colorado — do indeed have something significant in common, but it is not, as Conventional Wisdom would have it, conservatives hypocritically abandoning federalism when it suits them. Nor were the liberals as inconsistent in siding with the states in these examples as is often charged.

In both Florida and Massachusetts liberals viewed themselves, and were viewed by most commentators, as ironically (since they are usually on the other side) upholding the principles of federalism and states’ rights. But is that really what they were doing? I think we need to answer with a Clintonian question: it depends on what the meaning of “state” is. Notice: in both cases what they meant by “state” was the highest court in the state. This identifying a state with its courts is not dictated by anything in the Constitution, and in fact in Florida it was particularly inappropriate, As I argued here, the Constitution, in Article I, Section 4, specifically

authorized state legislatures to set rules and regulations governing elections. The Florida Supreme Court did not interpret those rules; it set them aside and substituted new rules, extending some deadlines, ignoring others, etc. The intervention of the Supreme Court, on this view, was necessary to rein in a runaway, clearly partisan lower court.

If a state’s governor and its Constitutionally empowered legislature set one set of rules governing elections and the state’s Supreme Court attempts to rewrite those rules, it is not self-evidently clear that all believers in states’ rights should recognize the state court alone as embodying the state.

True, at the moment there is no legislative enactment in Massachusetts that conflicts with what the Supreme Judicial Court has done re a right to gay marriage. Well, almost none: Mickey Kaus points out that

Massachusetts had made a democratic decision–it had decided to do nothing. The court is forcing the state’s democracy to make a different decision, under the threat of having its action declared unconstitutional if its not the action the court likes.

Still, it is clear that when liberals now celebrate what the state of Massachusetts has done regarding gay rights what they are really celebrating is what the state’s highest court has done.

The same pattern can be seen in the recent dispute over gay rights in Colorado, where the citizens of that state actually added by referendum an amendment to their constitution limiting the ability of gays to enact gay rights legislation. That amendment, Amendment 2, was overturned by the Colorado Supreme Court, whose decision was upheld by the U.S. Supreme Court in Romer v. Evans See a thorough summary of that issue, with links to the opinions, etc., here.

In short, what Ms. Bazelon conveniently leaves out of her skewering of conservative inconsistency is that conservatives often turn to a remedy of national legislation on social issues only because of what they see as unrepresentative, illegitimate, and overreaching decisions of liberal state courts. In this liberals are being perfectly consistent, since most of their “cultural conflict” agenda (gay rights and racial preferences being two leading examples) would not fare very well in most legislatures or, as we have seen in Colorado with gay rights and California and Washington with racial preferences, referenda over constitutional amendments.

So I have a corollary to propose to David Potter’s comment about states’ rights and national minorities: when liberals attempt to fly the flag of states’ rights, look closely to determine whether what they are really defending is the opinion of a state court. And when conservatives appear to be flaunting states’ rights, look with equal closeness to determine whether they might be attempting to remove a court-imposed obstacle to majority opinion in that state.

Having said all that, I should add that I believe in rights, and so I don’t believe majorities, even statewide majorities, have an inalienable right to do whatever they want. Thus nothing I have said here should be read to mean that I think the Massachusetts and Colorado courts were wrong (although you are more than welcome to conclude that I believe the Florida court was wrong in 2000).