I sought for the greatness and genius of America in her commodious harbors and her ample rivers - and it was not there . . . in her fertile fields and boundless forests and it was not there . . . in her rich mines and her vast world commerc - and it was not there . . . in her democratic Congress and her matchless Constitution - and it was not there. Not until I went into the churches of America and heard her pulpits flame with righteousness did I understand the secret of her genius and power. America is great because she is good, and if America ever ceases to be good, she will cease to be great.Today is Good Friday. The majority of this country celebrates today as the day that the Son of Man allowed himself to suffer and die for humanity's sins, so that Death would no longer prevail.
--Attributed, probably erroneously, to Alexis de Tocqueville
Today, a woman lies in a bed, dying fastest from dehydration (though starvation is doubtless carrying a toll). Her body is unable to flush wastes from her system, slowly poisoning her. Her skin is flaking. Her tissue is starting to lose consistency. She is dying a death of which any sane man would be terrified.
She dies because courts in one of the Several States ordered her feeding and hydration tubes removed, following one law passed by a legislature, ignoring another. When given the opportunity to intervene, the government of the United States did so only slightly, and hesitatingly.
She will die.
And so I now want to talk to you about federalism.
I have seen the word "federalism" much bandied about the last several weeks, largely as a proxy for the ideas that either (1) states have rights; (2) the Federal government lacks certain powers; (3) the Federal government should not intervene in certain areas of "personal concern"; and/or (4) it is "illegal" for the Federal government to attempt to overturn or interfere with the decision of a judge sitting in one of the several States, preferably but not exclusively with the State's legislature on his side.
This is completely and utterly wrong.
It was the peculiar genius of the Founders of this nation that they conceived of one of the most paradoxically brilliant ideas in the history of political philosophy: That more government would preserve the rights and lives of men than would less; or, more accurately, that more governments would produce this result.
To effect this, the Founders built on the strength of the States existing at the time of the Founding, and added a Federal government of enumerated powers supreme in certain areas of the law. But the idea of federalism would not be if it had been left at that; rather, the Ninth and Tenth Amendments notwithstanding, necessarily, the Federal government had to be a competing, coequal sovereign, actively trying to legislate where the States did.
This was not hard to conceive. It was an essential element of the Founders' conception of the world that the sovereign's duties at the very least reached into life, liberty, and the protection of property. The Founders also knew that men would never be angels, and so the Federal government would invariably try to expand its power into the realms of the States. They counted on muscular states asserting their powers in that conflict, and as a result, we the people wouldn't be terribly bothered. This is why they wrote:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.(Emphasis added.)
Of course, much of this no longer matters. We, the people, gutted the strength of the several States when we ratified the Seventeenth Amendment and, consequently, let the Federal Government decide that the Fourteenth Amendment gave it a crowbar into the states' affairs. Blame the progressives. I do.
The point of all this, however, is that federalism is a mere means to an end. A cleverly crafted means, to be sure, but it is not an end in itself.
It is not a religious faith to be invoked when difficult questions are presented. It is not an aspirational goal. It does not answer the big questions; it provides the framework in which one answers them.
It assuredly does not mean that the states may make decisions without expecting the Federal government to poke its eye in.
In one of the few intelligent points I've ever made, I once asked this: Suppose the Thirteenth Amendment (and, for the sake of argument, the Fourteenth and Fifteenth) were revoked tomorrow. This would return the question of slavery to status quo ante, which is to say, it would be a matter in the province of the several States. Suppose Iowa reinstituted chattel slavery. I'm a citizen of the State of Florida, which does not, in this analysis, legalize slavery. Would it then be ok for me to oppose slavery? To try to Federalize the question again, and have it outlawed? Because I'd really like to.
I was a Federalist in 1994. I was in the Federalist Society in law school. I'd be in it again if I could remember to pay my dues. Federalism has few bigger fans than I. But it is, as I said, merely a means to an end. And it is not, no matter what you might say, an absolute bar on the Federal government's attempts to save the lives of her citizens; rather, it encourages it.
For the idea that one of our governments should no longer try with all its might to meet its duty to protect the life of one of its citizens means that we are no longer living in the shadow of our ancestors. It means we've forgotten why Federalism exists, and instead that we worship its misbegotten child, the descendant of all the strife of the hundred years following the Civil War, the shadow called states' rights.
It means we are no longer great.