Take It Down From the Inside

Everyone is so focused on Texas Gov. Rick Perry (R) complaining about the "eight unelected and, frankly, unaccountable judges" on the Supreme Court, that they overlooked his proposal to abolish the federal government. To wit: That the Supreme Court prohibited mandatory, state-sponsored prayer in school is "one of the reasons I’ve called for doing away with the federal government."

Well, that's proportionate.

Where's Your Federalism Now?

A federal court has just struck down Section III of the Defense of Marriage Act as unconstitutional. There are actually two decisions here: the first holding that DOMA violates the equal protection and due process clauses of the constitution, and the second claiming it violates the 10th Amendment.

I don't have time to give these cases my full attention right now, but obviously this is very exciting. And of course, it is particularly exciting to see the 10th Amendment angle, as I greatly look forward to conservatives dropping their commitment to state's rights like a bad habit in the coming, well, minutes.

It's a Bird! It's a Plane! It's Superfederalist!

The compromise the Senate finally hammered out on Stupak's language was that states can impose the Stupak rules on their own exchanges, but the rules will not be imposed by the federal legislation (apparently, somehow, there will be at least one plan per state guaranteed to have abortion coverage).

But David Waldman says that isn't far enough: "I think states should leave the abortion question up to the counties. Then I think counties should leave the abortion question up to municipalities. Then the neighborhoods should leave the abortion question up to each block." And then each block, to the household, and household member.

Where Did All The Nationalism Go?

Scott at LGM provides a quote from the first Justice Harlan's dissent in the Civil Rights Cases:

With all respect for the opinion of others, I insist that the national legislature may, without transcending the limits of the Constitution, do for human liberty and the fundamental rights of American citizenship what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. If fugitive slave laws, providing modes and prescribing penalties whereby the master could seize and recover his fugitive slave, were legitimate exercises of an implied power to protect and enforce a right recognized by the Constitution, why shall the hands of Congress be tied so that -- under an express power, by appropriate legislation, to enforce a constitutional provision granting citizenship -- it may not, by means of direct legislation, bring the whole power of this nation to bear upon States and their officers and upon such individuals and corporations exercising public functions as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land?

Scott goes on to point out that "federalism" claims, outside a narrow swath of academics, have always been mere facades for substantive state interests and are thrown away at the drop of a hat when the national government is doing something the "federalists" like. Fugitive Slave Act on the table? National power! Civil Rights Act? But what about states rights? Oh boo hoo.

Incidentally, while I give Harlan credit for his dissent here, he's still no hero.

The Unbearable Lightness of Federalism

Scott Lemieux puts up a a good discussion on federalism, specifically how little work it seems to do in most arguments. Rare is the public figure--I don't mean academics here, I mean mainstream politicians and columnists--who can really tell you what and why a particular issue should be devolved to the states. Nor is there particularly strong evidence that states do a better job of dealing with the issues that tend to be at the center of federalism, or that we should care about the structural issues above and over the substantive issues in the first place. I've made similar remarks with regards to the last point myself. But in Lemieux's post, I particularly liked the point about how Federalist #10's argument in favor of large, diverse polities has been far more prescient than the pro-federalism arguments in The Federalist Papers.