Back to Basics: Federalism revisited

Back to Federalism
The proper remedy for polarization.
by David Gelernter
04/10/2006, Volume 011, Issue 28
The Weekly Standard


FEBRUARY'S COMMENTARY has one of the most frightening essays of recent years, in which James Q. Wilson makes the case that Americans are polarized to an unprecedented extent; bitterly divided. Responsible conservatives should confront this problem and show the country how to solve it. Not to solve it is to invite catastrophe. Why does the burden fall on conservatives? Because they are running the federal government and it is their duty to lead.

Wilson lists several causes of today's profound polarization. He mentions the divided, politicized press, one-issue pressure groups, the polarizing effects of higher education, and the rise of ideological parties in place of the old-style sectional coalitions Americans are used to.

There is another cause too: the collapse of federalism. The Founders designed a vast garment for America that hugs where it should hug and stretches where it should stretch; each state creates its own society, and the Constitution stitches them all together into a comfortable, sensible union suit. "As this government is composed of small republics, it enjoys the internal happiness of each," writes Alexander Hamilton in Federalist 9, "and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies."

But the collapse of federalism has ruined this valuable arrangement. The collapse gathered momentum with the Supreme Court's 1973 decision in Roe v. Wade, which legalized abortion and was a tragedy for reasons beyond those that are usually discussed; a tragedy even for Americans who believe in completely unregulated abortion. Roe was a power grab in which uniformity was imposed on a facet of society that had been allowed to vary. "Diversity" is a big selling point on the left, but not among believers in an activist Supreme Court.

At the start of the 1960s, some states permitted abortion where the mother's life was in danger, or in rape or incest cases. Others banned it completely. (Of course illegal abortions were always available, sometimes under hideous conditions.) Then things started to change. In 1967, Colorado passed the first liberalized abortion law of modern times. In 1970, New York became the first state to allow abortion on demand, for the first 24 weeks of pregnancy. Several other states followed, but their laws included residency requirements to restrict eligibility. New York's did not. Accordingly, large numbers of people made their way to New York in the early '70s for legal abortions.

But unlike the 1973 Roe decision, the 1970 New York State law did not become the springboard for a nationwide antiabortion movement. Those who believe that some deed is a crime want it to be illegal, not inconvenient. And after 1970, legal abortion on demand was inconvenient--but available. So there is no reason in principle that the New York law shouldn't have been just as agitating and hateful to pro-lifers as the 1973 Court decision.

No reason except federalism. True federalism accommodates profound national disagreement by allowing each state to tailor the local climate to suit itself. Federalism is an escape-valve that lets polarizing bitterness blow off into the stratosphere. In 1971, conservative Texans (for instance) might have been unhappy about New York's abortion law. But at least their own state--their own society, which they had built for themselves and their children--wasn't implicated in the crime. Conservative Texans believed they had done the right thing even if New Yorkers hadn't.

Come 1973 this invaluable peace of mind was stolen from them. In 1973, the Supreme Court imposed a uniform view of abortion on every community in the nation. (Like the ancient Romans forcing images of their gods into every temple in the Empire.) Of course there are cases in which moral considerations require all states to do the same thing. But anyone could have seen that, in the case of abortion, there were serious arguments on both sides. And nowadays even (some) liberals admit that there is no "right to abortion" in the Constitution. Roe was a power grab pure and simple, an exercise in "raw judicial power" as Justice Byron White wrote in his Roe dissent, which seriously damaged federalism in America. A few weeks ago, South Dakota's Republican governor signed a highly restrictive new abortion law. That's what federalism is for: letting South Dakota's citizens do what they think is right in their own state, not what Vermont or the Harvard faculty thinks is right. But the law is a direct challenge to Roe, and its hold on life is tenuous.

HOW TO SAVE THE COUNTRY from poisonous polarization, or at least to take a first step? The Constitution's Framers were well aware of the dangers of "consolidation" versus federation. (Consolidation meant abolishing separate state societies in favor of one national society.) The authors of The Federalist knew that each state must be allowed to run its own show. How could this result be guaranteed? By the nature of Congress. Each house (the authors explain) will consist of legislators who represent particular constituencies. The members of such a legislature invariably speak up for their constituents first, the nation at large second. Delaware won't need to worry about the federal government's butting in where it doesn't belong, because Delaware's members of Congress will guard Delaware's interests. "Everyone knows that a great proportion of the errors committed by the State legislatures," writes James Madison in Federalist 46, "proceeds from the disposition of the members to sacrifice the comprehensive and permanent interests of the State, to the particular and separate views of the counties or districts in which they reside." Congress would work the same way; Delaware would have nothing to fear.

The House and Senate do indeed work this way. The Federalist authors were right. What they failed to foresee was the transformation of the Supreme Court into a third chamber, a U.S. version of Britain's House of Lords in its heyday, with unelected members who serve for life and do not represent constituencies.

We used to have a Supreme Court; today we have a House of Justices, not a Supreme Court but a Supreme Council, which dominates the two other branches. No wonder the nation goes temporarily haywire whenever a vacancy opens up.

While Britain has gradually reduced the Lords to impotence, America has gone the other way, allowing the Supreme Court to increase its power. And incidental details lend the analogy disturbing resonance. The architectural and ceremonial accouterments of the Supreme Court make it seem like an uppermost chamber--those tony robes, that fancy building that has never (unlike the Capitol and the White House) been trampled by a good old-fashioned American mob.

Yet the Court never used to be as important as it is today. Many educated people can't say who was chief justice under Lincoln or during the Second World War, or who wrote the Dred Scott decision, or when the Supremes moved into their gorgeous white temple. Previous generations rarely saw bitter, polarizing fights over Court nominations, not merely because the nation was less polarized; because the Court itself was less important. The nation has just got through a fight over Samuel Alito. He was confirmed, as he should have been. Conservatives worked furiously on his behalf to defeat frantic liberal efforts against him. But few on either side pointed out that the whole fight (as well as previous Democratic Borkings and attempted Borkings) was bizarrely off key: Supreme Court nominations were never supposed to matter this much.

Of course conservatives must fight to put the best possible conservative judges on the Court. But they have another and higher duty: to put the Court in its place; to abolish the self-created, all-powerful House of Justices.

Federalism has been losing ground ever since FDR hugely expanded the scope and power of the central government in the 1930s and '40s, and segregationists used states' rights as a weapon against integration in the 1950s and '60s. Modern conservatives are likely to complain about court-ordered damage to democracy, not to federalism. And of course it's true that, when unelected judges override elected legislatures, democracy loses.

But an era where deep and fundamental moral questions divide the nation is in need of a revival of federalism. Federalism supplies the expansion joints that make America supple rather than brittle; make it a bridge that can ride out hurricanes without falling to pieces, that can sustain enormous twisting, turning, and tearing forces without cracking.

HOW CAN THE NATION beat back the courts' attack on federalism? We could choose some issue the federal courts have appropriated, hand it back to the states, and forbid the federal courts ever to touch it again. That would be a first step. But what mechanisms to use, and what issue to choose?

There are two possible mechanisms: a constitutional amendment, and congressional legislation limiting the federal courts' jurisdiction. The Constitution gives Congress explicit power to limit the Supreme Court's jurisdiction (Article III, section 2) and plainly implies that Congress may also define and limit the jurisdiction of lower federal courts. In recent years several writers (Ramesh Ponnuru in National Review, for instance) have pointed out that congressional legislation is a legitimate, plausible approach to controlling out-of-control federal courts.

Both a constitutional amendment and jurisdiction-limiting legislation have their points. Amendments are hard to pass--which might be a kind of advantage; basic court reform must have wide public support if it is going to last. (If conservatives are serious about rolling back judicial power, and don't aim merely to confiscate the left's judicial blackjack and hand it over to the right, then broad public support is essential.) Jurisdiction-limiting legislation, on the other hand, offers fast relief.

Although abortion is an intensely controversial issue, it's also a logical one on which to base a campaign to restore federalism. Annulling Roe, returning control over abortion law to state legislatures, and forbidding federal courts to touch the issue offers advantages to liberals and conservatives both.

Liberals will go ballistic over this suggestion. Erase their beloved Roe? But many states would pass their own liberal abortion laws. Legal abortions would still be readily available. And liberals would no longer need to throw fits over each new Supreme Court nomination. Justices would no longer have the power to override the people's will on this topic.

Some conservatives, too, are likely to be outraged at the prospect of such a law, as it would end their daydream of a Court-decreed abolition of legal abortion. But they'd still have the power to restrict or even ban abortion in their own states, if they were persuasive enough to carry the local citizenry with them. Although voluntary abortion would still be legally available in America, conservatives would have the power in principle to change things all over the country, wherever they were able to convince a majority of a state's population to follow their lead.

And even if conservatives failed to pass significant restrictions on abortion, they'd know that abortions were legal because the people willed them to be, not because five justices did. Assuming that strong restrictions on abortion are morally imperative (I think they are), Supreme Court rulings are the wrong way to get them. Granted, Roe was a corrupt ruling that must still be overturned. But conservatives can't argue any more convincingly than liberals can that the Constitution addresses abortion.

Some states, of course, are just barely red or blue. Some states would see bitter fighting instead of relieved agreement over local abortion law. Yet many states do seem to be fairly decided and consistent in their liberalism or conservatism. In all events, federalism is no panacea, and can't possibly make all polarizing disputes disappear. It is merely a help. And we need all the help we can get.

There is no reason for conservatives to attack polarization by abandoning their agenda and moving to the center. Conservatives are on a roll. In broad terms (forget this week's headlines, and this month's, and this year's), conservatives have become (to the horror of the cultural establishment) the smart party, the high-IQ party, the party of ideas. Open-minded thinkers turn increasingly to the right. Conservatives can serve their country best by defending their ideas, not by dumbing them down to fit a centrist preconception of what Americans really want. Americans say they like centrist ideas but don't; they like exciting ideas that seem likely to move the country forward, and make it a closer approximation to the "shining city on a hill" it was always supposed to be.

A restoration of federalism is the best hope we have to help heal the bitterness that could otherwise tear this country apart. We've already had one civil war. Anyone want to try for two?



David Gelernter is a contributing editor to The Weekly Standard.



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