No Federalism on the Right

Fox News ^ | May 12, 2005 | David Boaz

[Irontank]

From the Medicare expansion, to the partial birth abortion bill, to NCLB, to the federally-funded faith-based initiatives, to the USA PATRIOT Act, to the gun-grabbing "Project Safe" to the push for federal tort reform...what happened to the US Constitution and the defined, limited powers of the federal government? When they hold the power of the federal governmnet, the GOP seems no more interested in adhering to the Constitution than the Democrats did all those years.

By the same token....is there anything more hypocritical than leftist Democrats like Barney Frank crying about state's rights? Shut up you hypocrite

[untrained skeptic]

Bush is definately not a federalist. There are many other Republican politicians that do not believe in federalism either, but Bush is leading the charge for solving problems through more federal control.

I think that is a bad thing, and we should look for someone who respects States rights more to represent us in 2008.

[BlackElk]

As a former state chairman of Young Americans for Freedom in an era when Boaz served on the YAF National Board of Directors, I am ashamed of the fact that we harbored such libertarian airheads in YAF as Boaz who would come to fear a federal constitutional amendment to define lavender "marriage" as non-existent as a matter of federal CONSTITUTIONAL law.

When the US Constitution was originally enacted, we did not have armies of lavender and pro-abortion social revolutionaries sweeping through our courts to be in your face to normal Americans and thwarting the intentions of normal elected officials, nor did we have a relentless mainstream media committed to every perversion known to man or beast as public policy. A mistake of the Founding Fathers was to have one provision of the US Constitution require each state to give full faith and credit to the acts of other states without express restraints on moral policies.

If Massachusetts' unelected State Supreme Court declares as law the moral outrage that lavenders can play make-believe "marriage" and derive the benefits of actual marriage therefrom, that should not be crammed down the throat of Alabama when Massachusetts Lance and Brucie move to Montgomery and start filing lawsuits.

In case Boaz and his sympathizers missed the point, states' rights are written into the Constitution but ignored by any court with total impunity while abortion and lavender "marriage" "rights" are created out of whole cloth by a judiciary drunk on its own ability to cram these abominations down the throats of normal Americans without fear of long overdue punishment of such judges. The Constitution also fails to provide a punishment mechanism for judges who invent the law as they please rather than applying the law as it is written.

The remedy for constitutional deficiencies is constitutional amendment and not apathy or still more impudent judicial invention of elitist opinions as "law." It is long past time to geld the SCOTUS and its obedient little social revolutionary servants in black robes. We can START by using the Republican Senate majority and President Bush to really reform the judiciary by the controversial pending appointments and hundreds more like them and ramming them through NOW (including a thorough public humiliation of the Demonrat obstructionists)----BY ANY MEANS NECESSARY AND EFFECTIVE. We WILL have our country back!

[BlackElk]

Also, after 45 million innocent unborn babies have been sliced, diced and hamburgerized by the unconstitutional policies imposed by SCOTUS on the subject, I promise to worry about federalism right after the last baby has been "legally" slaughtered as a purported "constitutional right" of the killers and SCOTUS has surrendered unconditionally on the subject or has a rabid pro-life majority and has overturned Roe and its progeny.

45 million slaughtered is a LOT more important than whether we have federal testing standards to see how effectively federal money is being spent on the survivors.

[Irontank]

A mistake of the Founding Fathers was to have one provision of the US Constitution require each state to give full faith and credit to the acts of other states without express restraints on moral policies

The FF&C clause would not require state A from recognizing state B's gay marriage because (1) I don't believe that marriage has ever been held to be an "act" under the FF&C clause, (2) there is an exception that has been carved out of the FF&C clause so that a state need not recognize an act of another state if doing so would violate that state's public policy (and most states have already passed legislation precluding recognition of out-of-state gay marriages) and (3)the FF&C clause also provides that Congress provides for the manner in which FF&C is given effect...and Congress has already passed DOMA which provides that no state need recognize an out-of-state gay marriage.

All of this is in accord with the text of the Constitution and provides each state with the ability to deal with, in Madison's words when describing the powers the Constitution left with the states, "all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people."

In case Boaz and his sympathizers missed the point, states' rights are written into the Constitution but ignored by any court with total impunity while abortion and lavender "marriage" "rights" are created out of whole cloth by a judiciary drunk on its own ability to cram these abominations down the throats of normal Americans without fear of long overdue punishment of such judges

I can't argue you with you there...but that proves Boaz' point...nationalizing the issue of abortion, for example, has led to millions of abortions since 1973...indeed, its led to your income being confiscated by the IRS and used, in part, to fund these abortions.

The Constitution also fails to provide a punishment mechanism for judges who invent the law as they please rather than applying the law as it is written

We don't need to punish judges...we just need to demand that the other (elected) branches understand that they are not subordinate branches of government...that the Judiciary is established in Article III of the Constitution and Congress is established in Article I...that when the federal courts pretend that the US Constitution dictates that the sovereign state of Texas must permit gay sex...that the state of Texas need not passively obey...and that neither the Congress nor the Executive branches of the federal government should enforce such fictitous, illegitimate court rulings.

But the elected branches won't do that because most people still believe that we must simply obey whatever the federal courts tell us to do....that the federal government is superior to the state governments (in some areas it is...in most it is not) and the courts are superior to the elected branches...and most elected officials don't have the courage to do the right thing if they believe it is risky politically.

The solution is to educate the American public which is most woefully ignorant of the US Constitution and the very limited powers of the federal government (not surprisingly, thanks to the government-run and increasingly federally controlled public education system). Once enough of the public understands the Constitution, realizes that its not some complex legal douments only understandable to lawyers and demands strict adherance to the Constitution...then we can force the federal government to return power to the states and local government.

While our federalist system is not a perfect form of government...its the least imperfect form of government possible...and its the one most likely to make the largest number of Americans happy with the laws under which they live...some states might be socialist, some might be libertarian, some might be as Biblically-based as the Plymouth colony

[BlackElk]

I admire your idealism. I used to share it when I was a lot younger (until Roe vs. Wade) and before practicing law for 25 years. The last three + decades have taught me that NOTHING is more important than ending the American Holocaust. When we have done that, we can talk about restoring the Constitution. When we do, I don't want libertarian states and I do not want Biblically-based states. I want states that have and enforce laws consistent with the normal standards of Western Civilization such as those that prevailed when I was growing up in Connecticut in the 1950s. Less than libertarian is fine. Less than Biblical is fine.

We have federal court decisions banning street preaching on PUBLIC SIDEWALKS near abortion mills lest we might make the killers uncomfortable. Police brutality perpetrated against pro-lifers is law enforcement but a crime when perpetrated against the left.

You underestimate the evil that lurks in our Court system. I might not "need" a Corvette, but if I can afford one, I can buy one. I may not "need" a gun but likewise. Etc. Punishing judges is the greatest enjoyment I can imagine at tyhe expense of the enemies of our civilization. Whether I need it or not, I want it sooooooo much that I cannot put it in words adequately.

I will take, as a TEMPORARY expedient, the complete return of the abortion question to the political process of state legislation. Beyond that, nothing less than the end of legal abortion with the sole exception of situations of genuine IMMINENT PHYSICAL AND HIGHLY LIKELY threat to the life of the mother will do.

Colorado repealed by a legally authorized referendum a gay "rights" law that had been passed by legislative leftists. The Fedcourt slime intervened and overturned the referendum and restored rumprangers' "rights" on the claim that the FedConstitution required restoration. What would be next? Will some pair of Lavender Larries file suit against a state whose legislature has failed to enact such laws? Will some FedJudge then discover the federal "constitutional" "right" to have the legislation of their dreams enacted whether the legislators want to or not?

If you think that scenario unlikely, decades ago in Boston one FedJudge Garrity took control of the Boston School Sysytem to see to it that the system be wrecked by racial bussing schemes. When the School Board objected to his tactics (in Boston no less!), Garrity ordered each School Board Member to vote as he personally dictated in favor of his bussing scheme under penalty of individual contept of court findings and individual punishment. This was not overturned on appeal. Similar scenario in Kansas City when a FedJudicial tyrant ordered the appropriation of massive amounts of new funding (and specific luxuries previously undreamed of) for the gummint skewel system abandoned by whites after His Majesty ordered a massive bussing scheme.

Think as we will in any direction on those old bussing schemes or the racial attitudes involved, those judges ignored all boundaries and there is no reason whatsoever to believe that they will not be models for future judicial tyranny on other subjects. The Federal Judiciary and many state judiciaries are running amok.

In the real world, you are wrong on the F, F & Credit Clause. No one is following Madison on this in today's judiciary. DOMA will not suffice. The exception will disappear as soon as the elitist judges are asked to apply it to packer "rights".

[Rockingham]

The problem with this criticism is that it ignores the long term institutional damage done to federalism over the course of decades. Liberal advocacy for federalism today is a matter of convenience, not principle, and would soon evaporate if they were back in power and found federalism an obstacle to their desires and plans. Conservative disinclination now to accept the constraints of a restorationist view of federalism stem not from disagreement with the principle but from an unwillingness to accepts its burdens in a brutally competitive political environment.

[Irontank]

Liberal advocacy for federalism today is a matter of convenience, not principle, and would soon evaporate if they were back in power and found federalism an obstacle to their desires and plans

I agree with you completely...unfortunately, now that the GOP is in power at the federal level, it appears that the advocacy of federalism in past decades by those on the right was more out of convenience (being that the left usually controlled the federal government and the federal judiciary) than principled commitment to the Constitution. Someone once said to me that federalism is just the battle cry of the side out of power at any one time...its probably so

[Tatze]

The problem with this piece is that the author is confusing the word Conservative with Republican. Conservatives do still believe in Federalism. Many Republicans do not. Conservatism is an idealogy that includes federalism. Republicanism is a party that espouses convervative ideas, but legislates moderate or liberal ones.

[Irontank]

We have federal court decisions banning street preaching on PUBLIC SIDEWALKS near abortion mills lest we might make the killers uncomfortable. Police brutality perpetrated against pro-lifers is law enforcement but a crime when perpetrated against the left

On what grounds...1st Amendment of the US Constitution? The simple reponse to that is that the 1st Amendment (and all of the Bill of Rights) applies only to the federal government...and the 14th Amendment did not change that fact. I know...the SCOTUS has said, since 1925, that the 14th Amendment did incorporate (some of) the Bill of Rights...well, as you probably know, its a simple matter of historical fact that the due process clause of the 14th Amendment did not, and was never intended to, incorporate the BOR against the states. We have to continue to make that fact known to people, the states have to assert their proper authority and we need judges like Clarence Thomas on the Supreme Court (as far as I know, he is the only Justice who notes that the incorporation doctrine is a fraiud and should be revisited

You underestimate the evil that lurks in our Court system

I really don't. But what I advocate is that the other branches and the states start to assert their authority. We know the judicial branch assigned itself the task of reviewing the constitutionality of state and federal laws. When the Supreme Court handed down its directive in the Lawrence case (the homosexuality case) in Texas a few years ago...deciding that, contrary to its ruling in 1986, the 14th Amendment to the US Constitution does, in fact, prohibit states from passing laws that violate some undefined (and undefinable except by the Court I guess) "right to privacy", the authorities in the state of Texas should have declared (1) that they would not enforce such a fictitous ruling (2) the US Constitution leaves the issue of the criminality of homosexuality in Texas to the government of the state of Texas and the state does not appreciate meddling by the federal government in such internal matters.

And then, the President should have declared that he also recognizes a patently bogus, illegitimate ruling and would not send the US Marshals or the Army or National Guard to compel Texas to obey. That would take real guts.

I don't want libertarian states and I do not want Biblically-based states. I want states that have and enforce laws consistent with the normal standards of Western Civilization such as those that prevailed when I was growing up in Connecticut in the 1950s

Why do you care? If you live in Illinois...why do you care whether or not Massachusetts recognizes gay marriage? If neither the governor nor the legislature of Massachusetts wants to rein in their courts...that's their issue

you are wrong on the F, F & Credit Clause

I don't think I'm wrong about the FF&C clause never having been applied to marriages...I know that different states have different age requirements, different standards on what constitutes incest-based prohibitions on marriage and states have, to my knowledge, never been required to recognize out-of-state marriages that did not meet their standards. Your state would be no more compelled to recognize a gay marriage license from Massachusetts than it is to recognize a concealed carry permit from Virginia. You may be right that DOMA will be undermined by a judge who won't restrain himself or herself...but, short of a Constitutional amendment on marriage, abortion and any other policy issue, what do you advocate?....so long as the states and other branches of the federal government passively just follow orders from the federal government, we will always be subject to some federal judge deciding he wants to see a "right" enacted or a law struck down

[Rockingham]

Yet one ought not let nostalgia for the federalism that has been lost become a basis for criticism of the GOP in Congress today. There is simply not enough of a political constituency for old-style federalism to make it possible to roll back the federal government to a pre-New Deal reading of the Constitution. Even advocacy of that from the GOP would be politically suicidal, and whatever else one may want to say about the defects of the GOP, one cannot fairly demand that they destroy themselves for the sake of a lost cause.

[Irontank]

True...I do have the luxury of pontificating from my chair in front of a computer rather than the campaign trail

[LibertarianInExile]

"There is simply not enough of a political constituency for old-style federalism to make it possible to roll back the federal government to a pre-New Deal reading of the Constitution."

Let me know when someone tries it so I can see if you're right. When's the last time the federal government actually devolved something to the states entirely? When's the last time it was proposed by a president?

No, it MIGHT be a third rail if someone on the national scene even pretended it was a possibility, but they simply don't. Instead, we get federal money given back to the states under federal constraints, for highways, education, all sorts of crap the federal government ought not to be regulating.

[ninenot]

"Project Safe" (and its Virginia counterpart) were promoted heavily by the NRA. Reason?

The FedGuv has much stricter laws against felons-in-possession than do many States--and the Feds are willing to prosecute, unlike many DA's who plead down.

Thus, NRA made the calculated decision to support the project with the idea that taking criminals OFF the streets was better than the alternative.

In addition, it flat-out reduces the amount of gun-crime, taking away another "talking point" from the grabbers.

You also will note that Newtie Gingrich has now contracted a serious disease--by appearing on the same platform with the Hildebeeste, yapping flaps about Federal healthcare.

Why?

Because Big Business wants it Federalized. About two years ago, the Silicon Valley types started the drumbeat--and it was happily picked up by GM, FoMoCo, and Daimler, along with their parts-supplier subsidiaries/spinoffs.

Newt, of course, has been bought and paid for by the Biz Lobby--at least when he jammed NAFTA and PNTR/Red China through, perhaps before then.

This is not a puzzlement. It's a matter of bribery, that's all.

[ninenot]

It is long past time to geld the SCOTUS

Yet, inexplicably, Jim Sensenbrenner will support passage of a simple LAW keeping the Blackrobes OUT of 'queer marriage' cases.

[Rockingham]

Consider the political problem in concrete terms.

Suppose that next Monday, Bush and the Republican Congressional leaders announced and swiftly enacted a revised federal budget based on pre-New Deal federalism -- a reduction in the federal budget of more than seventy per cent. What do you think the Democrats, the unions, the Left, and the news media will do?

(A) Not oppose the drastic budget cut because it will be wildly popular with the public, who secretly hunger for such a program despite polls and election results to the contrary. Or,

(B) Denounce the drastic budget cut in the fiercest terms as being an example of "Republican extremists" trying to "turn the clock back" with dire consequences for "women, the poor, and minorities," and a "betrayal of the American workingman and middle class."

How do you think that the millions of dependents of the federal welfare state will react? When the crunch comes at election time, who do you think will have won? I submit that there will have been a liberal Democratic landslide -- and not a ghost of a chance of any other result.

In politics as in most everything, major changes are usually accomplished in incremental steps and radical proposals fare well only under extreme conditions. Rather than staking everything on a wild, impossible odds gamble, the far better course is to take the modern welfare state apart brink by brick over decades -- just as it was built.

[LibertarianInExile]

We agree that, were I to win the lottery, lightning to repeatedly strike Michael Moore, and Bush and the Republican Congressional leaders announced and swiftly enacted a revised federal budget based on pre-New Deal federalism, that the Democrats, the unions, the Left, and the news media will denounce the drastic budget cut in the fiercest terms as being an example of "Republican extremists" trying to "turn the clock back" with dire consequences for "women, the poor, and minorities," and a "betrayal of the American workingman and middle class."

As to how the millions of dependents of the federal welfare state will react, gosh, you pose a huge question to a huge hypothetical and the answer you have is so curt. You think there will have been a liberal Democratic landslide in the next election.

I disagree, especially if the Congress did it at the beginning of a two-year term (say, at the first meeting of Congress in 2006), gave all the misbegotten funds back to the States from which they came, and didn't budge on the budget or government in general's job for two years.

But that's not the issue here. We agree that incrementalism is necessary and reality. The problem is that conservatism doesn't even get that. I repeat the statement I made before, in response to your comment "There is simply not enough of a political constituency for old-style federalism to make it possible to roll back the federal government to a pre-New Deal reading of the Constitution."

Let me know when someone tries it so I can see if you're right. When's the last time the federal government actually devolved something to the states entirely? When's the last time it was proposed by a president?

If it ever happens again that a state gets back federally-grabbed powers without the feds ensuring they've always got supervisory roles and Congressional oversight, or the President even proposes that, fire up the air-raid sirens, okay? I'll pay any fines you get for it.

[Rockingham]

You still hunger for a long shot roll of the dice by the national GOP against the federal welfare state. But no governor and group of legislators, GOP or otherwise, have ever made or seriously contemplated an equivalent gamble at the state level. Among workaday politicians and strategists, anyone who suggested that soon find his colleagues edging away from him as not just suicidal but wanting to take the room with him. Given the mechanism and fig leaf of rationalization offered by socialism, a consistent political majority of people can eventually be fashioned to relish cream and fruit taken from their neighbors. That is what sustains the Left and the Democratic party nationally, not the unwillingness of the GOP to gamble otherwise.

Yet do not despair. The impending demographic and generational bankruptcy of the modern welfare state will provide the spur of crisis and acute need.

We are beginning to enter an era of danger and opportunity that will make enduring conservative and libertarian reforms possible and necessary -- but not inevitable. Against that prospect, why should the national GOP make a hopeless and premature cavalry charge into the enemy's fortified position?

[LibertarianInExile]

Sorry, but you might as well ask why the President tried to overhaul Social Security. Or tell me that because no President ever suggested we defend Korea or preemptively strike our enemies that it is a bad idea.

The fears of politicians about or the lack of prior implementation of a good idea doesn't make it a bad idea. It just makes it a tough one to implement.

And I'd rather we take that tough road now and save the country than not take the tough road and probably lose what little is left in a few years. I do not want to live through a depression in the U.S. like the ones in Germany of the last few years and Great Britain in the 70s--or in all likelihood, worse. You ask why we should do it? Because it's better for America if we do. It is not better to wait for the collapse in hopes you'll be the party picking up the pieces left, as you seem to suggest. Picking up the pieces of the Desert Inn is not the same thing as picking up the pieces of the World Trade Center, especially when one was done on a timetable where everyone knew what the result would be, and the other was a surprise to the world in its outcome.

[Rockingham]

Now you are thinking of the matter as a longterm fight and not a single throw of the political dice for the sake of the lost cause of original intent federalism. Take heart, for in the coming years, the welfare state will be shown to be unsustainable. That will create the need and opportunity for major reforms along conservative and libertarian lines -- and who knows, but a revival of federalist restrictions on Washington may be part of it.