Federalism Undermined by Ideology – Are Fundamentalist Values Overriding States Rights?

Like the attack on the federal judiciary, our basic federalist form of government is under threat from ideologues and their impact on the Supreme Court, the Congress, and our two party system.

Before getting into details of the attack, here are the basics on federalism.  “In politics, federalism is the political philosophy that underlines a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces)…”  Albert Dicey says there are two conditions required:

• The existence of a body of countries “so closely connected by locality, by history, by race, or the like, as to be capable to bearing, in the eyes of their inhabitants, an impress of common nationality.”
• “The desire for national unity and the determination to maintain the independence of each man’s separate State”.

In A Survey of America, The Economist reported,  “… the structure of American politics (though not its ideology) is getting more ‘European’.  Political parties are becoming more coherent in their beliefs, and the system of government is more centralised[sic].”   The article went on to say, “For a while, things seemed to be looking up for states’ rights.   …  But the impression of decentralisation[sic] was misleading. The court’s majorities were often narrow and could be reversed in the future.”  

The Economist reported that the Supreme Court has “not always given precedence to state law” and gave the following examples:

It rejected state claims to immunity under the Family and Medical Leave Act,

It struck down an attempt by California to limit welfare benefits for new residents,

It upheld Congress’ power to overrule state laws relative to medical use of marijuana.

In a more  recent Supreme Court decision concerning doctor-assisted suicide, the court ruled 6 to 3 in favor of Oregon and against Attorney General Alberto Gonzales.  What is of concern about this decision is the three Supreme Court members who dissented.   As stated in an editorial by Froma Harrop, they were Antonin Scalia, Clarence Thomas, and the new Chief Justice, John Roberts.   One can imagine that if this case had been delayed until after nominee Alito had been seated, the decision would have been 5 to 4.  Ms. Harrop concludes her article with, “The impulse to remake everyone else in one’s own image may be human nature, but Supreme Court justices are supposed to look for higher principle.”

Relative to Congressional laws that centralize power, The Economist referred to the following examples:

• No Child Left Behind – Education has been a state and local responsibility, until this law required states to start administering nationally mandated tests.
• Matrimony – Marriage has been a matter for each state as it suits the local standards, but recently President Bush and others have suggested a Federal Marriage Amendment.
• Life and Death – Living and dying have always been ruled on by state and local courts.  Then fundamentalists in the U.S. Congress thought they knew better and asked the federal courts to get involved in the Terri Shivo case. They refused (Those damn “activist judges.” 😉 ).
• Tort reform – Now certain (medical) class-action lawsuits must be heard in federal courts, not state courts.
• Real ID Act – Starting three years from now, if you live and/or work in the United States, you’ll need a federally approved ID card to travel on an airplane, open a bank account, collect Social Security payments, or take advantage of nearly any government service. Practically speaking, your state driver’s license will have to be reissued to meet federal standards.

On the other hand, when it came to the Welfare Reform Act of 1996, Congress went the other way and delegated more power to the states by handing over a fixed annual grant and allowing them to spend the money as they wished. Why?

The Economist points out that this moral, fundamentalist approach to centralizing, “… suggests something depressing: that when politicians really care about something, as Republicans do with moral issues, they want to control and centralise[sic] it. They let control of an issue go to the states only if they are not all that interested in it.  …  If parties are going to centralise[sic] those things they care about most, regardless of whether there is a consensus, it does not bode well for American federalism.”

Our two party system is “an even more egregious example of ideology fostering centralisation[sic] and rigidity,” according to The Economist.  As I discussed in Power and Absolute Power – What Concerns Me Most, the ideologies of both parties have become clearly divided with the fundamentalists taking control of the Republican party.  The Economist put it this way, “When George Wallace was governor of Alabama, he used to say that there wasn’t a dime’s worth of difference between the parties. You could not say that now.” This growing ideological coherence has enabled national leaders to increase their control over the members of Congress, marginalize the political center, and minimize Congress’s responsiveness to voters and local issues.

Examples of partisan control over Congress include; minimizing compromise during the conference stage of a bill by either mandating votes along party/ideological lines or omitting the stage outright, appointing committee chairmanships based on who’s in power and not seniority, and minimizing the power of the minority by threatening the abolition of the only tool of the minority, filibuster.

The center is marginalized as political discord aligns with the extremes of either party. The Economist put it this way, “Ideologically driven partisanship forces people whose opinions are not sharply divided to separate themselves into hostile blocks.”

Congress is less responsive to local voters and issues and more responsive to party activists who have gained power at the local level and have control over who is nominated during the primaries. One of the reasons this is possible is gerrymandering. Those controlling Congress assure their dominance by redrawing there district boundaries to suit the party activists and thus marginalize the average voter and their issues. The Economist: “Less often noticed, redistricting embodies the triumph of national priorities over local ones. It was Mr DeLay, for instance, who rammed a controversial 2002 redistricting plan through the Texas state legislature. Because of geographical mobility, redistricting is much more important in America than in any other democracy. Redrawing the map is the only way to reflect the demographic changes in a district. In practice, the new map almost always reflects the national calculations of partisan ideologues.”

In summary, membership changes in the Supreme Court, an uncompromising and partisan Congress, and the fundamentalist control of the Republican Party are abrogating states’ rights over moral issues that do not have the support of the majority of the voters.