Okay, time to get theoretical on his ass. I was saving this one for FLOG™ but Mr. Austin’s given me a convenient hook and forced my hand, long block quotes and all.

I want to deal directly with this passage:

[T]his is an issue that must in the end be decided, one way or the other, and I assure you all that the first time that gay couple married in Massachusetts can compel the State of Kansas to recognize its marriage, the conflict will indeed spill into the political battlefield, and the war will be an ugly one.

(We’ll take as moot the fact that Congress, acting on Constitutional authority, empowered the State of Kansas to refuse to recognize a Massachusetts marriage if it cares to, making the battle Austin suggests a non-event. The Defense of Marriage Act* may one day be challenged on constitutional grounds, but it should prove sturdy enough to not even leave the circuits.)

The problem I have with this passage is its implicit presumption that “the political battlefield” can only mean the national political battlefield—that compelling social issues can only be resolved by Congress or by an amendment to the Constitution. Apparently, in the wake of the 13th, 14th, and 15th amendments, Mr. Austin has resigned himself to a system of government in which the States have no traditional spheres of power, no right to innovate, experiment, or govern themselves as they see fit.

Austin is not alone. As power has aggregated to the national government over the past century, his attitude seems to have become increasingly common. Many people assume, as Austin does, that Congress and the Executive ought to solve every problem the nation faces, and that the Supreme Court ought to answer every question.

Don’t like what your neighbor’s up to? Call your congressman. He’ll find some clever way to slip in another law through the commerce power.

The 9th Circuit won’t overturn California’s ferret ban? Request certiorari! Ferret ownership deserves equal protection under the law!

If enough people come to think like Austin, federalism becomes the sham he says it is, and we find ourselves ruled entirely by the least accountable government—Todd. Fortunately, not everyone has given up on the idea. Federalism still has some friends on the Supreme Court. I believe this long block quote is well on point:

The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States. If, as Madison expected, the Federal and State Governments are to control each other, see The Federalist No. 51, and hold each other in check by competing for the affections of the people, see The Federalist No. 46, those citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function. Federalism serves to assign political responsibility, not to obscure it. Were the Federal Government to take over the regulation of entire areas of traditional state concern…the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory. The resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power.

United States v. Lopez, 514 U.S. 549, 576-77 (1995). Kennedy, J, concurring in the judgment. (Emphasis added.)

We need federalism to work in order to keep all of our governments in check. Federalism does not mean unfettered States’ rights, as Austin suggests when he insinuates that the College Republicans are closet Confederates. It allows for assertions of power by the central government (see, e.g., Articles I, II, III, and IV of the Constitution, as well as the 13th, 14th, and 15th amendments). But federalism also calls for certain areas of law to be reserved to the states. And in order for federalism to work, as Justice Kennedy notes, these areas of “traditional state concern” must be clearly delineated so that the people can hold States accountable.

The Defense of Marriage Act, one more time again, was an acceptable exercise of Title IV power. A Federal Marriage Amendment, on the other hand, would:

(1) permanently aggregate more power to the central government and away from the states;

(2) intrude into an area of traditional state concern and further blur already half-erased lines between the central and state spheres of influence; and

(3) for the foregoing reasons, further decay the principles of federalism until we all become blithering ninnies like Scott Austin, governed more and more by an unaccountable and disinterested central government.

Oh, crap. It appears I’ve made my point without using the long block quote I most wanted to use. This wouldn’t have happened if I was just dealing with theory and not attacking Scott Austin. Damn him! Rather than revise, I’ll just set it off separately for your consideration, because I like it a great deal.

FEDERALISM: PARETO EFFICIENT?

I’m certain that is a sloppy use of the terms pareto superior and pareto efficient, and I’m even more certain Tim will finger me for it before the sun sets, but just read this economic argument for federalism and tell me it ain’t beautiful:

[A]ssume that there are only two states, with equal populations of 100 each. Assume further that 70 percent of State A, and only 40 percent of State B, wish to outlaw smoking in public buildings. The others are opposed. If the decision is made on a national basis by a majority rule, 110 people will be pleased, and 90 displeased. If a separate decision is made by majorities in each state, 130 will be pleased, and only 70 displeased. The level of satisfaction will be still greater if some smokers in State A decide to move to State B, and some anti-smokers in State B decide to move to State A. In the absence of economies of scale in government services, significant externalities, or compelling arguments from justice, this is a powerful reason to prefer decentralized government.

Michael W. McConnell, Federalism: Evaluating the Founders’ Design, 54 U. Chi. L. Rev. 1484, 1494 (1987).

Apply this to our problem. If you want to be married and gay, and not run into trouble with your state government, move to a state that grants or gives faith and credit to gay marriages. If you can’t stand gays being married, move to Oklahoma. If, like me, you don’t care all that much who marries whom, stay put. No harm, no foul. It’s fair, it’s diverse, it’s politically expedient. That’s what federalism is all about.

______________________________

*“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

28 USC s. 1738C.

This entry was posted on Friday, February 13th, 2004 at 15:25 by danimal and is filed under Miscellaneous. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.