Can't we all get along? The problem of Empires.
The primary problem of the Constitutional Convention in 1787 was how to make a single country out of 13 colonies that had different sizes, economic interests, and values. The solution was federalism. It is the same system used by hotels: segregation of smokers from non-smokers with smoking floors or wings.
Amy Chua, the Yale Law professor who became famous for her writing about Tiger Moms, wrote an earlier book about how great empires survived for centuries: they allowed diversity in matters of religion and culture. Diverse polities are tricky and fragile. The glue that holds a system together is not always stronger than the frictions that pull it apart. Successful empires allowed local customs, language, and especially religions to continue unmolested, and sometimes to be integrated and absorbed into the customs of the state.
Two days ago this blog listed nine areas where Democrats and Republicans are in opposition to one another on what out to be a single national policy and what ought to be handled locally. Each side argues its point with certainty and moral outrage that would be more credible if one party or the other were consistently on the side of "states rights."
They are not.
Democrats want a national standard on abortion (constitutionally legal per Roe vs. Wade), gay marriage (constitutionally legal as an equal protection per Obergefell vs. Hodges), and voting protection for blacks (per Voting Rights Act), but they assert states rights on Sanctuary Cities and state and local laws regarding gun control. I called the inconsistency hypocrisy, but said it was bi-partisan since Republicans oppose Sanctuary Cities but want states to control rules on abortion, marriage, and voting access.
Retired professor and current peace activist Herb Rothschild put this list of contradictions into a different context. The real story here is not one of hypocrisy. Instead, it is the growing power of economic integration and the national security state pulling toward national integration. Meanwhile, the individual rights protected in the Bill of Rights have constrained and shaped state power by having been applied to the states via the 14th Amendment. The differences between the parties is that Democrats are pushing for social justice and equality; Republicans are resisting the push.
But I will let Herb speak for himself:
Guest Comment: Herb Rothschild
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| Herb Rothschild, in Ashland July 4 Parade |
I cannot agree that advocating that some matters should be left to the states and some imposed uniformly by the federal government is an indication of hypocrisy, Peter. This tension was embedded in the 1787 Constitution, which originally was weighted in favor of the states, in part to protect the slavery interest. You're a more learned historian than I, but I'll take a shot at four generalizations about what has happened since then.
1. The gradually-increasing reach of economic activity required a shift of commercial jurisdiction to the federal government. The Interstate Commerce clause has been the main lever of shifting rule-making authority from the states to the feds.
2. The national commitment to end slavery and the adoption after the Civil War of the 13th, 14th, and 15th Amendments laid the foundation for regarding the federal government as the protector of individual rights from state abuse. Most people don't know that the Bill of Rights didn't apply to the states, only the federal government. Beginning in the early 20th century, the Supreme Court used the 14th amendment guarantee of universal due process and equal protection of the laws to "incorporate" the Bill of Rights amendments and apply them to the states. I consider this historical development the best advance beyond the Founding Fathers' understanding of how personal liberties are to be protected from official abuse.
3. In contrast, I regard the rise of the National Security State after WWII as the worst historical development, because it has given the executive branch of the federal government enormous discretion to curtail the open society. External threats have usually been effective excuses by government to trespass on liberty (as Orwell portrayed so effectively in Animal Farm). The National Security State has allowed national administrations to claim that we are always under such threats. The intensity of such claims and the abuses of liberties that they supposedly warrant wax and wane--particularly intense in the 50s and post 9/11, not so much so in the 90s--but as Obama's maintenance of the NSA's domestic surveillance program indicates, it's always with us.
4. In relatively recent years the federal government has used the threat of withdrawal of federal funds to states and municipalities to enforce its will. That happened with the adoption of 21 as the uniform legal drinking age. New York and Louisiana, along with a few other states, had 18 and didn't want to change. A threat of withdrawal of federal highway funds successfully forced them to go to 21. I find the use of this lever unjustifiable--it's an end run around legal processes.
What do I conclude from this? That it is reasonable to make distinctions among actions the federal government should take and what should be left to the states. To cite a few things from the list in your blog, I think it proper that:
---The federal government override state actions, like gender-based marriage laws and bathroom rules, that violate individual rights. This is a logical and justified extension of the historical process I discussed in #2 above.
---State and local law enforcement resist demands that they enforce federal immigration laws by, say, asking the status of everyone with whom they come into contact and imprisoning undocumented persons until the feds come get them. My position here isn't based on opposition to Trump's ratcheting up enforcement of federal immigration laws, unhappy though I be about our immigration policies and the damage they cause. Rather, it's that I see no Constitutional requirement that states and municipalities enforce them, plus it's an "unfunded mandate." Note that Trump has threatened to withhold federal funds from sanctuary cities--that end run around legal processes I condemned in #4 above.
I'll now give you what I think is a good instance of hypocrisy: For decades Republicans were highly protective of local control over education. Many even condemned Carter's creation of a US Department of Education separate from the former Department of HEW. But when George W. Bush imposed national testing standards, using the threat of withholding federal education funds as his lever, they went along. Personally, I think it wrong for the federal government to interfere with the running of our schools except to protect individual rights (which it has done, I'm pleased to say, by maintaining that every child has the right to an education appropriate to his/her condition, including severe handicaps).
2. The national commitment to end slavery and the adoption after the Civil War of the 13th, 14th, and 15th Amendments laid the foundation for regarding the federal government as the protector of individual rights from state abuse. Most people don't know that the Bill of Rights didn't apply to the states, only the federal government. Beginning in the early 20th century, the Supreme Court used the 14th amendment guarantee of universal due process and equal protection of the laws to "incorporate" the Bill of Rights amendments and apply them to the states. I consider this historical development the best advance beyond the Founding Fathers' understanding of how personal liberties are to be protected from official abuse.
3. In contrast, I regard the rise of the National Security State after WWII as the worst historical development, because it has given the executive branch of the federal government enormous discretion to curtail the open society. External threats have usually been effective excuses by government to trespass on liberty (as Orwell portrayed so effectively in Animal Farm). The National Security State has allowed national administrations to claim that we are always under such threats. The intensity of such claims and the abuses of liberties that they supposedly warrant wax and wane--particularly intense in the 50s and post 9/11, not so much so in the 90s--but as Obama's maintenance of the NSA's domestic surveillance program indicates, it's always with us.
4. In relatively recent years the federal government has used the threat of withdrawal of federal funds to states and municipalities to enforce its will. That happened with the adoption of 21 as the uniform legal drinking age. New York and Louisiana, along with a few other states, had 18 and didn't want to change. A threat of withdrawal of federal highway funds successfully forced them to go to 21. I find the use of this lever unjustifiable--it's an end run around legal processes.
What do I conclude from this? That it is reasonable to make distinctions among actions the federal government should take and what should be left to the states. To cite a few things from the list in your blog, I think it proper that:
---The federal government override state actions, like gender-based marriage laws and bathroom rules, that violate individual rights. This is a logical and justified extension of the historical process I discussed in #2 above.
---State and local law enforcement resist demands that they enforce federal immigration laws by, say, asking the status of everyone with whom they come into contact and imprisoning undocumented persons until the feds come get them. My position here isn't based on opposition to Trump's ratcheting up enforcement of federal immigration laws, unhappy though I be about our immigration policies and the damage they cause. Rather, it's that I see no Constitutional requirement that states and municipalities enforce them, plus it's an "unfunded mandate." Note that Trump has threatened to withhold federal funds from sanctuary cities--that end run around legal processes I condemned in #4 above.
I'll now give you what I think is a good instance of hypocrisy: For decades Republicans were highly protective of local control over education. Many even condemned Carter's creation of a US Department of Education separate from the former Department of HEW. But when George W. Bush imposed national testing standards, using the threat of withholding federal education funds as his lever, they went along. Personally, I think it wrong for the federal government to interfere with the running of our schools except to protect individual rights (which it has done, I'm pleased to say, by maintaining that every child has the right to an education appropriate to his/her condition, including severe handicaps).
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