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Examining "Cultural Federalism"
Posted by: McQ on Thursday, June 01, 2006

As you can imagine, given the term, I'm not at all a big fan of what Ryan Sager describes in his article:
Next week, in what is fast becoming an election-time ritual, the Senate will take up debate of a constitutional amendment to define marriage in the United States as between one man and one woman (no dogs allowed). And, just as predictably, the amendment will fail by a wide margin to garner the necessary two-thirds vote in both houses of Congress.

Thus will Americans continue a great experiment in what has been called "cultural federalism."

Neither party has much in the way of a genuine commitment to the principle of federalism - the idea that many policy decisions are best left to state and local governments - in either economic or social affairs. But in a nation increasingly polarized by hot-button cultural questions, both parties would do well to recognize that in our democracy, living together is often a matter of learning to live apart.
Despite the fact that a majority of Americans think that government is the answer to many things in life (and some think the more government the better), Sager points out that doesn't carry over to cultural matters. I agree.

I also like his line about "living together is often a matter of learning to live apart".

Remember desegregation. I certainly do. And forced bussing. The end result is that overt discrimination has been outlawed, but that hasn't resulted in desegregation for the most part. Different races and ethnic groups still self-segregate and always will. Whether for rational or irrational reasons, people naturally gravitate towards those they find to be most like them.

The gay marriage issue is not something which should be of concern to the federal government, and certainly not as a Constitutional amendment.

Remember the purpose of the Constitution? It is to limit the power of government, not expand it. And its purpose is certainly not to let the federal government limit the power of the states and people.

The majority of Americans seem to understand this is a misuse of Constitutional power. That somewhat explains why, as Sagar points out, even with the majority of Americans clearly opposing same-sex marriages (51-39 percent, according to a recent Pew survey) they're evenly split (50-50) on the question of whether this is something which should be delt with at the federal level by Consitutional amendment.

In fact, most prefer the issue be left to the states.

Why? Well consider two well known attempts at "cultural federalism":
We've tried it before in America, he points out. The Eighteenth Amendment set a policy on sin for the entire nation; the Twenty-First Amendment was needed to reverse Prohibition, but it didn't legalize alcohol everywhere, it simply sent the matter back to the states. Likewise, Roe vs. Wade has served as a de facto amendment to the Constitution, creating a right to abortion without the consultation of the public, leading to a 30-plus-year standoff with two sides armed to the teeth, waiting - literally - for judgment day.
Prohibition was a disaster and the abortion question hasn't been much better. Both are and were questions best left to the states. Gay marriage isn't any different. As Sager concludes:
Cultural federalism is harder than federalism in other areas of life. This isn't interstate trucking regulation; it's not even gun control. Some issues just don't have middle grounds. Abortion is legal, or it's not. Gay couples can marry, or they can't.

But by avoiding all-out cultural conflagrations at the national level - by letting smaller, more homogenous states make certain decisions for their own citizens - we can all save ourselves a good amount of hair-pulling and eye-gouging. It can only be healthy for our democracy.
Not only that, cultural questions such as this simply aren't within the purview of the Constitution or the federal government. Again, review the purpose of the Constitution and it becomes clear that settling cultural questions through Constitutional amendment is a perversion of that purpose.

Let the states and people decide, and reject cultural federalism in all its forms and guises.
 
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There is at least one attempt at cultural federalism that has not had much trouble being accepted, or at least tolerated - the criminalization of drugs.

Perhaps because it was done piecemeal rather honestly via a Constitutional process, the drug war has managed to become generally accepted despite the fact that probably a majority of the population violates drug laws at some point in their lives, and a significant minority do so routinely. The feds have drawn a line in the sand, and defend to the hilt their complete right to determine the drug laws, even to the point of voiding state laws on medical marihuana (which looks obviously unconstitutional to me, but then I was never able to read the Constitution with the pliability of politician or bureaucrat).

I suppose the implication is that if you want to be a successful cultural federalist, you first need to generate some hysteria around your issue. Then take over the territory bit by bit, and routinely violate the spirit of the Constitution. Don’t depend on a Constitutional amendment (didn’t work for alcohol), or on a single Supreme Court decision that is contra to a large part of the population’s sensibilities (which looks vulnerable for abortion).
 
Written By: Billy Hollis
URL: http://
Prohibition was a disaster and the abortion question hasn’t been much better. Both are and were questions best left to the states. Gay marriage isn’t any different.
Article IV.
Section 1
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.
Gay marriage cannot be handled state by state. Under the constitution if your married in one state your married in all states. So while one state may prohibit a gay marriage ceremony they cannot prohibit a gay marriage (and all of it’s legal ramifications) if the ceremony took place in another state where it would be legal. No different than crossing a state border to avoid an age limit, blood test or 3 day wait.
 
Written By: Jay Evans
URL: http://
Gee, it’s an election year and the government is considering a gay marriage amendment AND a flag desecration amendment. I get the strange feeling I’ve lived through this before..
 
Written By: davebo
URL: http://
So why, then, does this exist?
Twenty-three states recognize a concealed carry permit from Alaska. Montana recognizes a concealed carry permit from Georgia; however, Georgia doesn’t recognize a CCW from Montana. Eighteen of the 44 states that offer some form of concealed carry permit don’t recognize permits from any states but their own.
Per your cite, or at least your implication, such things shouldn’t exist, given it is the state which issues the license. Yet we’re told that keeping and bearing arms is a Constitutional right.

And, of course, you leave out the most imporatant part of Article IV Section 1:
And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
So there is a Congressional role ... it is just not the one it is trying to take.

You might enjoy this summary of the intent of that clause.
 
Written By: McQ
URL: http://www.qando.net/blog
The distinction between the gay marriage issue and the abortion issue is an important one. It exposes the difference between the authoritarian right and the libertarian left.

Again, notice that the proponents of the gay marriage amendment want to increase the power of the government vs. the individual by denying individuals the ability to marry someone of their same gender. The proponents of Roe v. Wade seek to decrease the power of government vs. the individual by denying the government the ability to interfere with a person’s choice to seek an abortion.

Now, I suppose one could try to make the argument that the civil rights laws were an effort by the left to increase the power of the government vs. individuals by limiting the ability of individuals to discriminate on the basis of race.

However, the distinction between the civil rights laws and a gay marriage amendment is that discrimination on the basis of race necessarily limits the liberty and freedom of other individuals, i.e., those persons of color. Contrast this situation with the gay marriage issue. No one’s liberty is limited by gay marriage. If a man decides to marry another man, that does not in any way limit the freedom or liberty of the person who doesn’t make such a choice. Likewise, no other individual citizen’s liberty or freedom is limited if a woman decides to have an abortion.

And that is why prohibition and the gay marriage amendment share so much in common. They are both amendments that seek to limit the power of the individual vs. the government. It is no coincidence, of course, that the gay marriage amendment is the darling of the right.

The "cultural federalism" analysis is nothing more than an effort to blur the distinction between actions by the federal government that seek to increase individual liberty, and those that seek to decrease it.

The real solution should be to allow the federal government to increase individual liberty when it comes to cultural questions, but to not allow the federal government to decrease it.
 
Written By: mkultra
URL: http://
Remember the purpose of the Constitution? It is to limit the power of government, not expand it. And its purpose is certainly not to let the federal government limit the power of the states and people.
The ORIGINAL purpose of the Constitution is to define what the government CAN do, not what the federal government CANNOT do. Unfortunately, the anti-federalists got their way and got the Bill of Rights as a compromise. Since that time, we have had to worry about what the federal government CANNOT do all the time. What a mess.

Anyway, the the Articles of the U.S. Constitution delineate the power of the 3 branches of the federal government. Adding amendments would/should do the same. Thus, an amendment to define another power of the federal government (e.g. define marriage) would be totally acceptable to the Founding Fathers...even Madison.
 
Written By: Nuclear
URL: http://
Mkultra is thinking about the Constitution in the wrong way:
The real solution should be to allow the federal government to increase individual liberty when it comes to cultural questions, but to not allow the federal government to decrease it.
We already have the liberty over which the federal government has no power/authority. We GIVE power to the government for certain things...like security, transfer of wealth to the least profitable, allowing the destruction of innocent human life, etc. (sarcastism there in case you didn’t catch that)
 
Written By: Nuclear
URL: http://
We already have the liberty over which the federal government has no power/authority. We GIVE power to the government for certain things...like security, transfer of wealth to the least profitable, allowing the destruction of innocent human life, etc. (sarcastism there in case you didn’t catch that)
Semantics. Okay, it is proper that the federal government should guarantee our rights to do certain things. Stated another way, it is not proper that it should limit our rights to do certain things. That should be the resolution of the cultural federalism issue. But this kind of thinking poses a challenge for conservatives. They profess to be for states’ rights. But unlike liberals, they have no problem using the power of the federal government to limit the rights or abilities of individuals to make choices when it comes to cultural issues, gay marriage being merely the latest example.
 
Written By: mkultra
URL: http://
But unlike liberals, they have no problem using the power of the federal government to limit the rights or abilities of individuals to make choices when it comes to cultural issues, gay marriage being merely the latest example
With "activist" (I know, it’s a loaded term) judges redefining marriage despite the voice of the people through democratic processes, it is the most democratic thing to take the decision out of a handful of judges and put it to the vote of the Congress and the state legislatures. If Congress and the state legislatures are in tune with those who elected them, it would be a piece of cake. However, something tells me Congress is very much unresponsive to the voice of the people, and very responsive to the vioce of money. ("Money talks...but it don’t sing and dance and it don’t walk..." - Neil Diamond)
 
Written By: Nuclear
URL: http://
Jay Evans errs:
Gay marriage cannot be handled state by state. Under the constitution if your married in one state your married in all states. So while one state may prohibit a gay marriage ceremony they cannot prohibit a gay marriage (and all of it’s legal ramifications) if the ceremony took place in another state where it would be legal.


Not likely. AsAtty Dahlia Lithwick has correctly observed:
...there is an established trapdoor to the full faith and credit clause: The courts have long held that no state should be forced to recognize a marriage sanctioned by another state if that marriage offends a deeply held public policy of the second state. States have been permitted to refuse to recognize marriages from states with different policies toward polygamy, miscegenation, or consanguinity for decades. At this point, 39 states have passed mini-state-sized DOMAs that proscribe marriage for gay couples, often elaborately saying that it violates their public policy. This strongly suggests that the public policy exemption would be triggered, and states would be free to choose for themselves whether to sanction gay marriages. At the very least it would make sense for the courts to rule on the constitutionality of DOMA and full faith and credit before amending the Constitution for only the 28th time in history.
 
Written By: Mona
URL: http://
Likewise, no other individual citizen’s liberty or freedom is limited if a woman decides to have an abortion.
No individual citizen’s liberty or freedom is limited if you decide to shoot a non-citizen.

Perhaps you have another yardstick about that.
 
Written By: Mark A. Flacy
URL: http://
Mcq, if you will indulge me, I’d like to shamelessly plug one of my guest posts over at Greenwald’s from last March, because it directly addresses how the current GOP has abandoned federalism for its social agenda.
 
Written By: Mona
URL: http://
Mona, we’ll gratefully indulge you any time you wish.
 
Written By: McQ
URL: http://www.qando.net/blog
With "activist" (I know, it’s a loaded term) judges redefining marriage despite the voice of the people through democratic processes, it is the most democratic thing to take the decision out of a handful of judges and put it to the vote of the Congress and the state legislatures.
Again, you ignore the most basic question: What possible harm is there to others or to society generally if two guys get married?

And of course, it is inherently and equally anti-democratic to write an independent judiciary - whose job it is to interpret law - out of the equation. On the other hand, if the constition is amended through the proper course, I am fine with that too. Not much I can do about it.

But on the third hand, I don’t think the proponents of the gay marriage amendment give a rat’s a** whether a state’s endorsement of gay marriage came through a judicial decision or legislative action. Indeed, just look at how the right has approached two states’ rights issues: medical marijuana and assisted suicide. Both came about thru legislative action. And the right has nevertheless gone after each.
No individual citizen’s liberty or freedom is limited if you decide to shoot a non-citizen.

Perhaps you have another yardstick about that.
Or permanent resident, visa holder, temporary visitor, or illegal alien. If you have an abortion, it doesn’t bother me.

 
Written By: mkultra
URL: http://
it is the most democratic thing to take the decision out of a handful of judges and put it to the vote of the Congress and the state legislatures

The most democratic thing to do isn’t necessarily the best thing to do. Why not get government out of marriage altogether? Let the government treat my relationship with my wife as legally the same as it was before we stood before a minister and made religious vows.

Then, if two men wed and move to your state, it wouldn’t matter, except in that cultural I-don’t-like-it, Jesus-hates-fags kind of way.
 
Written By: Wulf
URL: http://www.atlasblogged.com
The proponents of Roe v. Wade seek to decrease the power of government vs. the individual by denying the government the ability to interfere with a person’s choice to seek an abortion.

The most basic difficulty with the abortion debate is that the left and right are not only arguing different points, but completely different dichotomies.

The left is arguing that it is a matter of the state vs the pregnant woman. The right is wholly of the belief that it is a matter of the state and the unborn child vs the pregnant woman.

So long as the right believes the unborn is an individual with rights the state must uphold, and the left believes it is not, the abortion discussion cannot go anywhere. This cannot be reasoned - it is belief vs belief.

Therefore, I don’t think it relates appropriately to the rest of this discussion.
 
Written By: Wulf
URL: http://www.atlasblogged.com
Wulf and mkultra,

One of the purposes of government is not to get out of the way (then, hey, why have government?) but to uphold certain moral virtues: life, liberty, pursuit of happiness. One way to do that is not let society destroy itself.

Gay-marriage advocates rejected the idea that marriage is intrinsically connected to parenthood, and the Dutch public bought that argument. Once marriage stops being about binding mothers and fathers together for the sake of the children they create, the need to get married gradually disappears.

Now to the Dutch - the Dutch out-of-wedlock birthrate has done it again, shooting up a striking 2.5 percentage points. That makes nine consecutive years of average two-percentage-point increases in the Dutch out-of-wedlock birthrate, a rise unmatched by any country in Western Europe during the same period. Ever since the Dutch passed registered partnerships in 1997, followed by formal same-sex marriage in 2000, their out-of-wedlock birthrate has been moving up at a striking clip. That fact has created a serious problem for advocates of same-sex marriage.

And we know what being born out-of-wedlock does. A very high percentage of those kids are going nowhere. They become a leach on society, especially a socialist one.
 
Written By: Nuclear
URL: http://
Gay-marriage advocates rejected the idea that marriage is intrinsically connected to parenthood,

That’s a non-sequitur.

I am not saying that there is no historical or social connection between the two concepts, but I am saying they are not inseparable. To imply that they are is to deny the realities of how we live. A couple need not be capable of having children in order to wed. Nor need a couple be wed to have children.

You may note that there is a correlation between unwed parents and childrearing difficulties, but correlation is not causation. More importantly, it is none of your business what I do in my bedroom. It’s authoritarianism - it’s unjustified and ignorant.
 
Written By: Wulf
URL: http://www.atlasblogged.com
You may note that there is a correlation between unwed parents and childrearing difficulties, but correlation is not causation. More importantly, it is none of your business what I do in my bedroom. It’s authoritarianism - it’s unjustified and ignorant
If you don’t believe that the break-up of the family causes much of the moral decay in society, then you cannot be reasoned with. The evidence is very conclusive. The government (in the form of the States and recently in the form of the Feds) have made your bedroom their business since the founding. I guess you would say we were living under authoritarianism-lite. To say that what you do behind closed doors does not affect others is the product of a dissillusioned social-libertarian mind or a liar. This is probably one reason libertarians don’t have a chance in significantly influencing modern politics. They don’t get the fact that we are a community as well as a set of individuals.

What about the slippery slope, you say? That doesn’t hold too much water because everything is a slippery slope to something else. We can have a dictatorship or a democracy and with a democracy the people decide their course and if they decide a bad course then so goes society. That is why only a moral people can live under and sustain a democracy without it collapsing on itself. Sure, it may take some time but the signs of society breaking down are all around us.
 
Written By: Nuclear
URL: http://
...but correlation is not causation.
Interesting. Apparently that maxim is valid everywhere except the global warming debate.
 
Written By: McQ
URL: http://www.qando.net/blog
I think you might be surprised, McQ, at how many climatologists have been unhappy to see correlation hijacked by politicians into an argument of causation. They are especially unhappy with people who ignore what Jon has actually gone to great lengths to point out in that ongoing debate - the level of causation is certainly open for debate.
Perhaps it would be constructive to seek a better explanation of cause for the correlations, instead of the two of you continuing to go around in circles and get ugly. Just a thought.
 
Written By: Wulf
URL: http://www.atlasblogged.com
Perhaps it would be constructive to seek a better explanation of cause for the correlations, instead of the two of you continuing to go around in circles and get ugly. Just a thought.
Ugly?

There has been nothing ugly about this between Jon and I except what people have imagined. We disagree. It isn’t the first time, nor is it the last. And throwing a few barbs and zingers at each other doesn’t count for ’ugly’ in my book. More "business as usual". I don’t know about Jon, but I’ve certainly not taken that part of the discussion seriously and I don’t think he has either.

As for the correlation argument, I think much of it is found in the "confounding effect" often mistaken for causation: The effect of X on Y is hopelessly mixed up with the effects of other explanatory variables on Y to the point that we really don’t have a value for X (nor can we calculate one).

And because of that I have no interest in discussing costs.
 
Written By: McQ
URL: http://www.qando.net/blog
If you don’t believe that the break-up of the family causes much of the moral decay in society, then you cannot be reasoned with.

That’s a fascinating proof. Very persuasive. [/sarcasm]

All of your Chicken Little prognostications sound familiar - they’ve been written by every generation since writing began. Thankfully, no matter how upset you get about it, people will continue to do what they think is best for themselves, finding ways around authoritarian proclamations... even if that means having children out of wedlock or having (gasp) homosexual relations.

Oh, and let me make this very clear... I did not assert one way or the other about what causation may exist. I simply noted that Nuclear has not shown any causation - he asserted a correlation, and is drawing causal conclusions from it. But that is not any flavor of compelling argument toward limiting the freedoms of individuals. Thankfully, I believe you to be in a shrinking minority.
 
Written By: Wulf
URL: http://www.atlasblogged.com

 
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