|
Article Excerpt
IN his recently released book The Implosion of American Federalism, law professor Robert Nagel openly states what many conservatives have long suspected: American federalism is dead, or at least doomed to irrelevance. The era of small government is over, he writes, and the nanny state in full swing. Ours is a politics of nationalized intimacy, demagogic celebrity, and vapid policy prescriptions. Unlike many conservatives, however, Nagel does not look to the Supreme Court to salvage the situation. The Rehnquist Court's occasional states' rights rulings will not save the day. Indeed, the current justices are far more concerned with their institutional prestige than they are with local prerogatives.
Nagel's book-like much of his writing-is a condemnation of the hubris of the American legal community. He debunks the popular notion that judges, lawyers, and law professors deserve a starring role in the political process or pride of place among the nation's intellectual elite. He notes the damage "lawyerthink" has done to deliberative democracy, cultural norms, and above all, federalism. This critique, no doubt, will offend the legal cognoscenti, but there is another, more damning indictment in Implosion: Federalism is doomed from within. According to Nagel, Americans today lack the intellect, fortitude, and character to sustain a dual-sovereign system. As he explains, Americans "see their president as an intimate father figure, their Congress as a bottomless guarantor of material welfare, and their Supreme Court as a church-like arbiter of moral truths." The result? "Political dialogue at the state level tends to be bland, insubstantial, derivative, and unserious."
Nagel's indictment of Americans is persuasive. His recapitulation of our now-familiar character flaws is depressing but hard to dispute: We are rights-obsessed, atomistic, and intellectually indolent--despite signs of improvement since September 11. But his lament neglects a countervailing trend. What he underestimates, and what many discouraged friends of federalism have yet to discover, is a resilient strain in local politics that remains alive and kicking.
Moral federalism
When fundamental questions of right and wrong are thought to be at stake, as in issues such as abortion, euthanasia, affirmative action, and homosexual marriage, local voters are highly engaged. Plebiscitary democracy is on the rise across the nation, fueled, in no small way, by the growing use of initiatives, which bring measures directly to the voters, and referenda, which challenge legislative enactments. In the past decade, Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon, and Washington have all passed medical-marijuana laws thanks to citizen initiatives. Likewise, citizens in Maine, California, Oregon, Washington, and Michigan have voted on assisted-suicide measures. Initiatives defining marriage in traditional terms have been passed in 33 states, and gay-rights measures have been voted on in six. While many of these initiatives reflect something other than grassroots activism (such as strategic legislative sponsorship or the encouragement of wealthy advocates), this activity, taken as a who le, debunks the notion of a lethargic, unmotivated citizenry lulled to sleep by parens patriae.
Voters, furthermore, are not the only actors energized by moral questions. State politicians are active, aggressive, and even defiant of federal standards when it comes to morals regulation. Nagel himself refers to the Pennsylvania legislature's late 1980s rebellion on the topic of abortion regulation. It might be noted that approximately 40 other states have chipped away at the Supreme Court-mandated abortion right through parental notification laws and bans on partial-birth abortion procedures. The Supreme Court has taken a liberal view of criminal-defendant rights as protected by the Fourth, Fifth, Sixth, and Eighth Amendments, while state legislators have devised victims-rights and mandatory-sentencing laws to counteract these requirements. Even racial preferences--that most national of moral issues--has prompted rebellion at the state house. Florida governor Jeb Bush and his elected cabinet voted to end affirmative action in college admissions in February 2000; similar rollbacks in California and Washing ton were also the products of citizen and legislative frustration.
Political scientist Christopher Mooney confirms this trend and provides an explanation. Gaps between federal moral norms and local community norms--however small--fire local politicians into corrective action. It is easy to understand why: The media enthusiastically covers stories about morally provocative rules; politicians, in turn, are loath to ignore incongruities between law and community opinion. State judges, too, are a part of this reactive process. Visitors to the Alabama Supreme Court...
|
