Wednesday, March 27, 2013

Federalism Is A Messy Business, But The Best Way To Govern The United States


Texas Republican Sen. Ted Cruz makes the case to leave the issue of same-sex marriage to the states. Maybe the supreme court will split the difference and uphold Prop 8 and strike down the Defense of Marriage Act based on federalism grounds? Hmm.

Yes, the United States of America is not a democracy but it is a federal republic and while that seems to be lost more and more every day, it bears a little bit of understanding.
Today, the supreme court finally heard the arguments in regards to Proposition 8, the 2012 measure passed by the California voters that the state recognizes marriage as between one man and one woman.
Understand that Prop. 8 did not take away any rights that same-sex couples. It simply affirmed that in the state of California, traditional marriage would be recognized.
But, the same-sex marriage advocates could not win at the ballot box, albeit it was close, so they took their case through the courts. And today is where a decision will be made as the nine-member supreme court decided yeah, we would like to figure all this out.
California voted as it did in 2012. If the advocates of same-sex marriage really wanted to, it could have taken the case to the voters again in 2010. Or 2012. Remember, the vote against Prop 8 was 48%. Which means that it is very possible if put to the voters once again, as it was written, it could lose.
But you see, this is what federalism is all about.
State by state the voters and or legislatures are deciding this issue. At this point, the reality is that in the just concluded election, three states either rejected traditional marriage amendments or supported same-sex marriage.And  this year, New York state and Maryland's legislatures voted for same-sex marriage and it is the law of those states.
Either the tide is turning or they are winning in parts of the United States that are more willing  to be supportive of same-sex marriage.
But what I do not think is good is when courts, as the case in Massachusetts, get involved and become super-legislatures and divine rights rather than let the process work in the court of public opinion or through the legislative process.
Especially when these kind of matters can very well be decided by only five people in black robes.
So many issues have been usurped by the federal government or the federal courts.
Abortion is a prime example.
In many ways, some states were already liberalizing their abortion laws. California had some of the most liberal ones and that credit, or black mark, goes to one Ronald Reagan as governor who signed then the most sweeping law that all but legalized abortion. Of course it turned out to be the largest regret of his two-terms as governor. But the point is that the debate was more than likely going the way of liberalizing abortion in a great swath of the nation. And some states would have toughened their laws.
But the supreme court took that away from the states, nationalized legal abortion across the land in the infamous Roe v. Wade decision of 1973. And believe me, that did nothing to end the debate only it began the resurgence of, for lack of a better term the religious right.
And as history shows, courts do not always get big decisions right. The most grievous being the horrible Dred Scott decision of 1857. That is one of the catalysts of the Civil War. So courts are not always saviors.
And one other thing that I wrote on my Facebook page today is that one of the most significant civil rights gains was not at the mercy of a court but in the hallowed halls of congress.
It was there that the Civil Rights Act of 1964 was passed. And with significant Republican support and strident opposition of Southern Democrats. And the courts, well they were nowhere to be found.
The most sweeping act was by the people through their representatives.
That is the way a federal republic works.
Some opposition by Republicans such as Sen. Barry Goldwater was not to preserve the evils of segregation but to not see the over reach of the federal government. The Southern Dems, not so much. They wanted to preserve their seats and a terrible way of life for Southern Black Americans.
The fact is that change does happen. Sometimes not fast enough for some. That is what is happening now in the whole same-sex marriage debate. Proponents keep using the courts when they can't win over the public and legislatures. And when they win it creates a backlash because the people do not like that courts make these important decisions over the people and their representatives.
To me, that is what the real debate is in all of this.
Federalism. And the continuing erosion thereof.

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