11
May
12

Dragging the feds, kicking and screaming…

…into the present age.  Yesterday I quoted and wrote:

To be clear, this is a defense of our culture, not the guy who gave the speech.

One of the hypotheses I’ve drawn out of following politics for the past few years is that the politicians and party elites are at least a decade behind We The People.  Rather than praise Obama’s courage, we should be praising the electoral masses for dragging him kicking and screaming into the present decade.

Today, Scott Shackford has an insightful article over at Reason’s Hit & Run blog on a similar topic:

Even though pretty much every gain in recognition of gay marriage has taken place on the state level, the Tenth Amendment is still frequently seen on the left as an excuse for cranky right-wing secessionists to try to force schools to teach creationism.

I suspect, rather, that progressives see “States’ Rights” as a racist dog-whistle, pricking up the ears of the sorts of folks who talk about the “War of Northern Aggression”.  This frustrates the hell out of me, because instead of being associated with fire-hoses in Alabama, it could just as easily be associated with gay marriage in Iowa and New York, or medical marijuana in Oregon and Colorado, or hell, even strict automobile emissions standards in California.  Shackford points out that these things are happening at the state level because the feds move too slowly:

Fighting on the state level for gay marriage recognition is mandatory because of how slow and conservative (in temperament, not necessarily political philosophy) the federal government often is. By the time the Supreme Court actually struck down anti-miscegenation laws in 1967, they had already been repealed in all but 17 states. Many states had already struck down sodomy laws by the time the Supreme Court ruled them unconstitutional in 2003. Even though four out of five Americans had decided by 2010 that prohibiting gays from serving openly in the military was stupid, it took a tremendous amount of political maneuvering to actually end the Don’t Ask, Don’t Tell policy, and some Republican presidential candidates swore they would bring it back if elected in 2012. Federal government is slow.

Of course, the problem is that if some states are going to be New York and Oregon, others are going to be North Carolina:

The fear of embracing the Tenth Amendment resides in the acknowledgment that if a state has the authority to recognize gay marriage, then it also has the authority to deny it. And thus gay marriage is an equality issue, a Fifth Amendment and Fourteenth Amendment issue. It’s not about states’ rights.

But a blanket federal decision on civil rights depends upon precedent, and that precedent happens at the state level:

While ultimately true (just at it was ultimately true with interracial marriage bans), the actions on the state level help inform and sharpen the debate before the federal government. Anti-miscegenation came before the Supreme Court first in 1883 and the laws were upheld. Most states had these laws, but they started falling after World War II. The states led the way to the Supreme Court decision.

Consider the arguments that will likely be used to defend California’s Proposition 8 or the Defense of Marriage Act before the Supreme Court. How many of those arguments regarding the “compelling state interest” in denying marriage recognition to gays and lesbians can be countered by virtue of the gains made on the state level in the past five years? How much harder would it be to attempt to argue for the federal recognition of gay marriage if no state had taken the plunge yet?

The gay and lesbian community should not fear states’ rights or the Tenth Amendment. History has shown that these smaller political battles are the building bricks that will lead to the national consensus, and thus the desirable federal outcome.

Come to think of it, that’s more or less exactly how it worked out in Canada.

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5 Responses to “Dragging the feds, kicking and screaming…”


  1. 1 perlhaqr
    May 11, 2012 at 16:33

    Of course, the problem is that if some states are going to be New York and Oregon, others are going to be North Carolina:

    Well, and in the case of Medical Marijuana in Colorado and Oregon, the feds might just ignore the 10th amendment anyway.

    • May 11, 2012 at 17:13

      Well, and in the case of Medical Marijuana in Colorado and Oregon, the feds might just ignore the 10th amendment anyway.

      FTFY.

      • 3 perlhaqr
        May 12, 2012 at 05:48

        Well, yes, but then that counters the thrust of your entire post, does it not?

        Or perhaps I misunderstood. Are you simply saying that more people, even on the left should push the Feds to not ignore the 10th?

        • May 12, 2012 at 11:17

          My point, to the extent that I have one, is that state and local activism is more important than federal-level activism, because it’s more likely to get things done in a reasonable amount of time. When the feds do act, it tends to be later than what could be achieved more locally — and of course federal laws and regulations tend to stifle state and local progress (as in your medical marijuana example, or DOMA). I think the time, money, and effort spent lobbying the federal government could be spent to better effect at the state level; the feds will come along eventually when they realize that history is leaving them behind.

          • 5 perlhaqr
            May 12, 2012 at 13:38

            I can see that. On the other hand, of course, the appeal of the “one shot stop” is pretty overwhelming. Who wants to slog for years if you can just skip to the end?


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