On Federalism

I occasionally stop by Ann Althouse's blog. She claims to be a liberal but clearly she means it in the Mickey Kaus tradition of a self-hating, liberal-bashing liberal, and her link affair with Instapundit annoys me greatly for some reason that I can't name (I actually thought she was conservative by her writing until she declared herself a liberal - go figure). But, even though I find her writing to be generally insipid, she is a fellow Midwesterner (Madison, not Chicago!) and I am therefore compelled to read her.

Apparently -- I don't know how I missed this -- there was some kind of brouhaha at the libertarian Liberty Fund Conference she was invited to attend earlier this month. Fellow attendee (and true believer) Ronald Bailey of Reason documents the atrocity here. The whole thing seems to stem from a structured discussion of the defense of Federalism, the gist being that Federalism lost credibility with its support of segregation. Althouse was apparently fixated on the pragmatic consequences of Federalism while the rest of the conference wanted to engage in a more lofty, scholarly approach.

In my lesser educated, more pedestrian mind they should have include women's suffrage in the discussion since that seems another blemish on the face Federalism, but I digress.

I can't say I blame Althouse's preoccupation with pragmatism. Many concepts are more attractive in the abstract than they are in reality. For example, communism is good in theory; if we left the discussion of communism in the abstract it would seem a moral thing. In practice, however, communism creates many evils. Like it or not, Federalism has allowed certain evils. To allow them as exceptions only reserves the likelihood that there will be more exceptions to follow. I'm not saying Federalism isn't worthy but let's understand its failings.

I am not passionate about states rights, probably due to my observation of the failings of Federalism and the way religious conservatives want to manipulate Federalism to achieve their vision of national morality. This is not to say I don't support individual freedoms under certain state initiatives: medical marijuana, assisted suicide, gay marriage. But to allow that the state guarantees those privileges is to allow that the state can also take them away.

I guess my belief regarding the purpose of the constitution is that it guarantees a broad spectrum of individual rights (and not just the laundry list of rights named). The states can't 'give' you what you already have and they can't take from you what is already yours under the constitution. Under the constitution, the government is allocated just enough power to function, to protect its people, and to protect the rights of its people. The government does not have the power to grant rights you were already born with, nor does it have the power to take them away. People screaming about activist judges have been hoodwinked into believing liberty is only to be dished out by the state. Or by the majority. And to that I say... WTF?

Our Federal government has a duty to see that personal liberty is not restricted, even when it's the will of the majority. It was the duty of the Federal government to step on the states for women's suffrage, women's reproductive rights, segregation, and civil rights. It is also the duty of the Federal government to defend legally recognized civil unions (or marriage, without the religious support) between gays. You don't have to like sharing lawful rights with someone to concede that they're entitled to them.

But all of this is not to say that the Federal government is without its own failings, prohibition being one that comes to mind. Constitutionally, prohibition was an aberration -- a limit of rights instead of a clarificaton. It should have raised all kind of red flags at the time, and it's one of the problems I have with the ridiculous knee-jerk proposal to create a constitutional ban against gay marriage.

Ultimately, I would have no problem with Federalism if we could reach some kind of consensus that individual liberty, already provided for by the constitution, is not open for reinterpretation by the states.