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Monday, May 14, 2012

Progressive Federalism

by digby

I guess since I'm name checked in this article and the Atlantic went out of its way to tweet my name specifically in association with it, I am required to respond, so here goes.

E.J. Graff writes:
I'm getting cranky about how many people have been criticizing President Obama's breakthrough position on marriage equality without knowing what they are talking about...

[T]oo many people whose marriages are not up for debate have been griping that his announcement was too little, too late. He's endorsing federalism, argued Adam Serwer in Mother Jones. He's championing state's rights, complained left-of-center blogger Digby: "This is the essence of retrograde, reactionary politics and there's a long history of these 'sovereign' states exercising their 'rights' to deny minorities their freedom." Even House Assistant Minority Leader Jim Clyburn was upset with the president's approach. "I depart from the president on the state-by-state approach. If you consider this to be a civil right, and I do, I don't think civil rights ought to be left up to a state-by-state approach," he said Monday.
It goes on from there. I urge you to click over and read the whole article. It's very informative about the strategy being employed by gay marriage activists and lawyers and you'll find it very interesting I'm sure.

Let me just say this first. I have no problem whatsoever with the activist strategy described in the article. You work with what you have and in America if you can make strides in some places, you have an obligation to do it even if it means that rights are distributed unequally in the nation for a time. I don't think anyone's arguing --- at least I'm not --- that people on the ground should not try employ a state by state strategy to legalize gay marriage while working on hearts and minds in various ways.

But that's very different than openly extolling "states' rights" and federalism as a positive American value. The states may be the "laboratories of democracy" but all too often those democracies have been unkind to minorities and far too responsive to the needs of business and big money. Graff is highly optimistic that gay marriage will be nationally accepted in ten years, and I sincerely hope she's right, but I am skeptical that conservative states will come around that quickly and I still believe it will take a Supreme Court decision to make gay marriage a nationally recognized right.

It has has been pointed out by others that it's not my battle and I have no stake in the outcome, so perhaps I should stifle my opinions on this matter. Of course, I have no personal stake in the outcome of many battles but I speak about them anyway, because when it comes to human rights I think we all have a stake in the outcome. Certainly, I have many gay people in my life whom I love dearly, so I'd certainly like to see them be able to marry and be able to live anywhere in their own country as a family with all the rights conferred by marriage. In any event, I don't presume to lead the charge on this, merely observe and share my thoughts as to how this all pertains to liberal values and our system of government. I suppose that might be seen as whining, but it's really not meant in that spirit at all.

So again, just to be very clear, I'm not second guessing the gay marriage strategy. I'm second guessing the rhetoric of the president of the United States when he said publicly that he believes the states should decide. I think he could have left that out and put it on the level of individual conscience or something vague like "progress" and he wouldn't have upset the gay marriage strategy one bit. But then, I guess the truth is that we are really dealing with a profound disagreement among liberals over federalism itself. Graff wrote this in her first piece on the subject:
Marriage is a state issue. It always has been, under the Tenth Amendment. Each state writes its own laws of marriage and divorce—who can marry and divorce, and on what terms. Fourteen-year-olds, with parental permission? First cousins? Waiting period, either to tie or untie the knot? Divorcing because of irreconcilable differences or mental cruelty? Depends where you live, and in what decade. You may think that's appalling, and that your idea of appropriate marriage should be imposed on every American, but well, so does the conservative American Family Association. That's the system. And I like this system. We're not really one country, folks. The people in Jones Hollow, Kentucky, where my stepmother is from, have one marriage culture; the Satmars in Williamsburg, Brooklyn, have another; and none of those would approve of the marriage culture in Marin County, California.
She likes the federalist system as do many others. And it's entirely possible that the president himself believes in states' rights. After all, going back to when he first took office it was discussed that he believed in the "progressive federalism" that Graff promotes, a concept that is currently in vogue in certain academic circles, as explained in this piece by Heather Gerken:

It is a mistake to equate federalism's past with its future. State and local governments have become sites of empowerment for racial minorities and dissenters, the groups that progressives believe have the most to fear from decentralization. In fact, racial minorities and dissenters can wield more electoral power at the local level than they do at the national. And while minorities cannot dictate policy outcomes at the national level, they can rule at the state and local level. Racial minorities and dissenters are using that electoral muscle to protect themselves from marginalization and promote their own agendas.
She goes on to talk about empowerment and free speech and dialog and how minorities are making their own way in certain localities and regions. It is, to me, unconvincing, both as a reading of the way state governments actually behave as well as human nature, especially considering the evidence being compiled every day that state governments are actually becoming more repressive --- all under the rubric of "states' rights.

I, on the other hand, agree with Corey Robin that federalism, in general, impedes progress in America:
Federalism has a long and problematic history in this country—it lies at the core of the maintenance of slavery and white supremacy; it was consistently invoked as the basis for opposition to the welfare state; it has been, contrary to many of its defenders, one of the cornerstones of some of the most repressive moments in our nation’s history[pdf] —and though liberals used to be clear about its regressive tendencies, they’ve grown soft on it in recent years. As the liberal Yale constitutional law scholar Akhil Reed Amar put it not so long ago:

Once again, populism and federalism—liberty and localism—work together; We the People conquer government power by dividing it between the two rival governments, state and federal.
As I’ve argued repeatedly on this blog and elsewhere, the path forward for the left lies in the alliance between active social movements on the ground and a strong national state. There is simply no other way, at least not that I am aware of, to break the back of the private autocracies that oppress us all.
To expand on that a bit, he wrote in one of those posts linked above:
In the United States, activists have often wanted but seldom had those levers and instruments. Not for lack of trying: as I’ve argued elsewhere, the entire history of American social movements has been about trying to bring the power of a—often sadly non-existent—centralized state apparatus to bear on private regimes of power (on the plantation, in the family, and in the workplace), to use a decentralized, federated national state to break the back of private autocracies. In the process, these activists have managed, on occasion, to centralize the national state, but only rarely and often imperfectly.

The overwhelming trend has been one of resistance to those attempts. And the reason that trend has been so successful is that the American state is not nearly as unified or centralized—not by accident or because of the vagaries of history but by constitutional design—as other states. This kind of programmatic decentralization gives local elites, with all their ideological legitimacy, economic power, and coercive power, an automatic and tremendous advantage.

It's true that sometimes that works in favor of the good guys. It's to be hoped that gay marriage is one of those times. But as a rule, it doesn't.

As for the politics, here's how the conservative Human Events sees "progressive federalism":
If Obama has endorsed federalism and believes that states have the right to define marriage, then why doesn't he support the ability of states to extricate themselves from Obamacare? Why don't states have the right to dictate their immigration laws? And does he “personally” believe that states should be able decide the issue of abortion? Roe v. Wade exists, but so does the Defense of Marriage Act.
That's the perennial question, and I don't think Graff's arguments about marriage being traditionally the legitimate purview of the states (as opposed to other issues, perhaps) really answers that.

Regardless of the history, we know that what states give they can also take away, as we are seeing with rights for workers, women and immigrants coming under assault from conservative state legislatures all over the country in the past couple of years. These laboratories of democracy have shown themselves to be easily influenced by wealthy special interests backed by people with an ideological agenda that goes way beyond money. If you worry that Washington is corrupt, see how cheaply a state legislator under term limits can be bought off.

And then, of course, there's this:
In the 50 states combined, legislators introduced more than 1,100 reproductive health and rights-related provisions, a sharp increase from the 950 introduced in 2010. By year’s end, 135 of these provisions had been enacted in 36 states, an increase from the 89 enacted in 2010 and the 77 enacted in 2009. (Note: This analysis refers to reproductive health and rights-related “provisions,” rather than bills or laws, since bills introduced and eventually enacted in the states contain multiple relevant provisions.)

Fully 68% of these new provisions—92 in 24 states—-restrict access to abortion services, a striking increase from last year, when 26% of new provisions restricted abortion. The 92 new abortion restrictions enacted in 2011 shattered the previous record of 34 adopted in 2005.
Even if you think the strategy and court decision were poorly crafted, this is a constitutional right which has been in place for 40 years. And the polls have always shown majority support for it. Yet, it's being assaulted at the state level with a fervor we've never seen before. There is simply no guarantee that time and generational change heals all wounds or that established rights cannot be rolled back. It's not obvious to me that giving 50 individual states further ammunition to do this, validating their "sovereign statehood" and articulating a "progressive federalism" which cheeky conservatives can then turn back on you is a good idea.

So, use the states as a strategy for expanding civil rights? Sure. Take every chance to promote equality that you can find. But endorse the states' "sovereign right" to discriminate? I think it's a mistake to ever do that, mainly because this isn't an abstract concept. We are watching them find new ways to do it every single day.