Friday, June 02, 2006

Selective federalism

Currently the federalism mantra enjoys popularity in some consertive and libertarian circles. As one supporter puts it, this principle holds that "many policy decisions are best left to state and local government." The devilish detail is that little word "many." How many and which ones?

Those who support limited government sometimes seem to think that shifting responsibility from Washington to the states will serve this end. In reality, of course, many states are now out of control, appropriating and spending vast sums, and imposing all sorts of unnecessary regulations. Since state legislators are less experienced than federal ones, lobbyists have a field day with them. So federalization cannot itself serve the goal of limited government.

At the age of 71 I can remember how "states rights" served to preserve the odious institutions of Jim Crow in the South. It took the intervention of the US Supreme Court and subsequently the Congress to put a stop to these evils. Apparently racial segregation is not one of the "many policy decisions that are best left to state and local government."

Today gay-marriage advocates are discouraged. And they should be, because their efforts, in part owing to their own hubris, have stalled. While the marriage amendment to the Constitution will probably not pass, the mere discussion of it in Congress is unnerving. So what is the answer? Jonathan Rauch and Dale Carpenter say that it is federalization. Under this principle other states would be free to follow the example of Massachusetts. That doesn't seem to be happening, though. Moreover, in key respects Massachusetts does not have same-sex marriage, at least not one that is truly equivalent to heterosexual marriage in that state. It has been calculated that over 1000 federal benefits are lacking. Some of these are probably trivial, but not being able to file a joint tax return and to carry one's married status to another state are significant limitations. So if the states are laboratories of new solutions, Massachusetts is not much of a laboratory in this instance.

At the beginning of the millennium homosexual behavior was illegal in thirteen American states. It seems that these states were simply making use of their prerogatives under federalism. It took the Lawrence decision of the US Supreme Court to right this wrong. Where were the gay conservatives and libertarins then? Shouln't they have opposed Lawrence as an unfortunate infringement of the federalism principle?

Welcome to the brave new world of selective federalism.


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