The Federal Dilemma

A reader pushes back at Sullivan on his states' rights stance:

Yes, I have heard the whole "laboratories of democracy" spiel, but can you please explain why you and (other?) conservatives in this country are so enamoured with states' rights? Why is the "state" the political subdivision you think should be able to decide such things as gay marriage, abortion, segregation, etc., etc., etc.? Frankly, I have never understood why states rights have anything to do with complex political issues - particularly when it comes to issues, like civil rights, where there is a clear wrong answer and a clear right answer).

I happen to agree with this one wholeheartedly, at least the part about civil rights issues. We know from past experience -- especially the recent past -- that putting civil rights before the people of a state is going to get you mixed results, and that state legislators are even more negligent than Congress at tailoring laws to conform to Constitutional principles. (One need only look at laws passed in Missouri and Alabama mandating the teaching of creationism in public schools for a good take on that one. Local governments are even worse, as witness Kitzmiller -- the Dover school board case in which the pro-creationists admitted that creationism is not science.)


Sullivan responds:

Because these are areas of deep and principled disagreement and this is a vast and diverse country. Getting Massachusetts and Alabama to agree on a deep moral issue is almost impossible. And I remain a conservative who wants to see necessary change occur as far as possible with as broad a consensus as possible and who believes that decisions made closest to the ground are the least worst ways of avoiding massive errors or hideous unintended consequences. This means that injustice will remain longer than it should in an ideal world. But we live in a real world. And that distinction between theory and practice matters to an Oakeshottian like myself. But it also means that justice when it arrives is real, more durable and can more easily become part of the fabric of a society.

I won't remark on the irony of Sullivan's comment that "we live in a real world," except to note that the irony exists.

To me, this whole comment is wrong-headed. I think that Sullivan's reader is correct in that certain areas, such as civil rights, are national in scope and must be dealt with on a national level. The mere fact of the Fourteenth Amendment should make it plain that states cannot be relied on to come to correct conclusions in those areas.

The great example, of course, is racial discrimination. It was not the states, nor any single state, that provided an example for the others to follow. (Well, one can take the position, I guess, that some did -- but the problem is, the rest didn't necessarily follow.) Sullivan's reader is quite right -- this is not a matter of "good, better, best," but of moral and legal absolutes. (And one of the few examples I can think of in which morality [in its commonly accepted sense, at least] and legality occupy the same universe.) Yes, as we can see from the reaction in some quarters to the election of our first black president, racial prejudice is alive and kicking in this country -- but it's no longer legal and it has to be expressed in code, which I think undercuts Sullivan's argument quite effectively. The point is that legal racial discrimination was outlawed through the federal courts and the federal legislature, not by building consensus in the states. And I think my statement about speaking in code is vastly important here: to the country at large, it is no longer acceptable to express those prejudices openly -- those groups who do accept that are outliers and not groups that represent a majority or even something that the majority wants to be associated with. Attitudes will follow the law, even if it takes time. Sullivan is quite willing to spend the time before taking action -- why not after the fact? After all, one thing that people do need is an indicator of what's acceptable, and the law provides that. (The recent case of a private swim club in Pennsylvania, I believe, that barred minority children from the pool after agreeing to a visit should indicate just how thoroughly we as a nation have adopted a stance against racial discrimination -- the club has now gone bankrupt after the fallout from that incident.)

(Granted, race is a tricky one, simply because, as I'm firmly convinced, "we" and "them" is a basic human viewpoint, intimately tied up with not only group identity but personal identity, and race is a handy and, I think, fundamental, identifier. But for the issues under examination here, it serves admirably.)

As for Sullivan's reliance on "deep moral issues," let me state quite clearly that I don't believe that is an appropriate area for government involvement. I'm not going to discuss here those aspects of morality that we can call "secular" and that are the foundation of any workable society -- things like "thou shalt not kill the neighbors" and the like. Actually, now that I've written that, I will, because it's germane. In that aspect of morality, the government must be the final arbiter, and I don't think leaving it up to fifty more local governments is going to help matters. The government must remain neutral in those areas involving personal morality, however, and attempt to reach solutions when those areas become subject to the law (I'm thinking of things such as rape and child molestation, and yes, abortion and contraception) that are both pragmatic and that serve the needs of as many as possible.

One of those fundamental liberties that we cherish in this country is freedom of conscience, and that, I think, is where Sullivan has real problems. He falls into a trap that I've seen over and over again in these sorts of discussions, the assumption that there is one overriding moral code that everyone subscribes to and that applies across the board. This is patent nonsense -- if it were the case, we wouldn't be having these debates to begin with. The Christianist right says that human life begins at conception and that gays are "intrinsically disordered." The first is a matter of debate in this country, while the second is simply ridiculous. Yet these are both presented as fundamental moral questions requiring the action of legislatures and courts. In the terms in which they are presented, however, they are matters of personal morality, not civic morality (although I'll grant abortion does move into that realm) and that the government, in the eyes of "conservatives," must enforce this "universal" moral code -- which has its basis purely in religious doctrine. You'll pardon me if I'm not impressed, particularly with the idea that states are better equipped to deal with these issues than the feds. (In the case of gay civil rights, particularly, I haven't seen anywhere in the Bill of Rights that says "except for gays and lesbians," and believe me, I've looked. Antonin Scalia, please take note.)

What Sullivan fails to acknowledge is that, as in the codification of racial prejudice, it is the federal government that, to put it bluntly, lays down the law. Yes, the feds' actions are responsive to public opinion (unless it concerns the profits of major industries), but they are also based on constitutional considerations that states don't always adhere to, as noted above, and the grace of federal jurisdiction is that it is that one step farther removed from the people's will, which, let me remind you, is not the final arbiter here. (The idea that because a legislature passed a law it must be constitutional is ludicrous -- we know better.) One need only look at the history of civil rights issues in this country to realize that the states made a mess of things and the federal courts and Congress had to step in and fix it. Why don't we just cut out the middle man?

I think anyone looking at it objectively must admit that there are certain areas in which the states are not competent as authority, and civil rights is the major one. Yes, states are more likely to be responsive to constituents' opinions and attitudes, but that's not necessarily a good thing. On the abortion question, the debate is already at the federal level and has been for decades. On gay marriage, the feds have already interfered with states' rights -- on the wrong side -- and need to backtrack and get out of it, with the proviso that there is a fundamental right at issue here and ultimately the federal courts are going to have to decide it because the states can't do it.

Like the sovereignty of the people, it would appear that states' rights are subject to certain limitations as not only a theoretical matter but a practical one as well. Maybe conservatives should take that into consideration.