Thursday, June 27, 2013

Federalism On the March

We can summarize the holdings of Shelby County and Windsor v. United States with the same sentence -

A federal law that imposed itself on the decisions of States was overturned on the basis of State sovereignty.

The Roberts Court is far from setting its identity, but Justice Kennedy, a swing vote on both 5-4 decisions and predicted to be the swing vote into the future, has continued to make his temptation clear - make it about the States and he's on board.  "Federalism", as a construct, has staked out ground as the ideological center of the Court. 

While yesterday's rulings were encouraging for those of us who believe in marriage equality for all Americans, it was not a ruling that helped all Americans.  If anything, the Windsor decision further foreclosed the possibility of marriage for hundreds of thousands of couples in the six States that prohibit same-sex marriage and the 29 States that prohibit it in their Constitution.  A future Court would essentially need to overrule Windsor in order to find that civil marriage is a civil right under the Constitution.  So while there are grounds for celebration, we would do well to remember that decisions of the Supreme Court are rarely as straight-forward as Brown v. Board of Education

Let's take another step back - what can we expect from a Court with an ideological center in federalism?  To start, put every right, privilege, or freedom not formally declared by the Court on the left side of the < and put "State sovereignty" to the right.  Consider the looming threats to our Country, such as Climate Change, and impose the "laboratory of democracy" on every solution.  Think of Ron Paul's platform for President.

There are absolutely merits to federalism - education policy being the best example.  Most of the innovations we've seen in education over the last thirty years have come from the States and local jurisdictions.  The War on Drugs is being put into armistice State by State across the Midwest.  Energy policy, left unaddressed at the federal level, has found greatest traction in State legislatures. 

The Court corrects.  Whether by mechanism or intention, the Court pushes back on the "movements" of government to create a healthy tension.  Decisions relating to States rights and civil rights are worth our attention, but are rarely as concerning as those that affect the underlying democratic process, such as Citizens United

There's a reason why Paul Ryan and other Republican leaders have set their focus on State governments.  That's where the future of America is at play.  And if the decisions of the last two days tell us anything, it is that the wins and losses experienced at that level are permanent; not to be disturbed by nine unelected jurists in robes.

That's all for today.  Have a great Thursday doing what you love!  Rock on.