Letting states resolve thorny moral issues

By Bruce Walker
web posted October 23, 2000

Texas Governor George W. Bush has touched several times the best way to handle some of the thorniest political issues: Let states decide. Our Founding Fathers understood our nation would run into issues that deeply divided people. How could a nation be kept together when its citizens so strongly disagreed on what, if anything, government should do about these issues?

Economics, geography, and demographics make many federal dictates silly. Why, for example, do we need a "national" minimum wage? Is the reasonable cost of labor and is the cost of living the same in Mississippi as it is in Connecticut? Should motorists in Nevada be required to drive at the same maximum speed as motorists in Delaware? Should air emission standards be the identical in New Jersey and New Mexico? No.

The structure of federal power and the balance of partisan power makes even the most rational changes in federal mandates tough. When was the last time that a political party held the presidency, the House of Representatives, and that sixty percent majority in the Senate necessary to stop debate and vote on legislation? The Democrats have not had that much power since the first two years of Jimmy Carter's presidency, and the Republicans have not had that much power since the early decades of the Twentieth Century.

This makes change tough, and leaves voters cynical. Gradually Congress and the regulatory agencies of the executive branch have let states handle many of these practical policy issues. Speed limits and welfare reform are two examples of how well that works. These types of issues, however, have solutions akin to business management, and arguments against them are based upon practicality. There are other sorts of federal dictates, however, that involve cultural, social, or moral issues.

The Supreme Court and its lower federal courts have assumed much of what is really legislative power by decisions that use the non-existence plasticity of our Constitution to shape what feels best to those judges. The conduct of the Clinton presidency has exposed the grave dangers of an unscrupulous chief executive who effectively legislates and adjudicates matters without consent of Congress or court.

For reasons based upon a gross misunderstanding of American history, we have been taught that the Supreme Court and its lower federal courts are the best judge of these cultural, social, and moral issues. In the early history of our Republic, the fiercest foes of federal power did not dread an imperial Congress or rogue president, but untouchable federal courts. The Eleventh Amendment, enacted soon after the Bill of Rights, limited the power to sue state governments in federal courts. Even the Ninth Amendment, that "forgotten amendment" in the Bill of Rights speaks to the courts, not Congress or the president: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Courts construe language, and the Founding Fathers understood that.

Congress gives federal courts power, and it can strip that power away. In fact, Congress could simply abolish all federal courts except the Supreme Court, and it has exercised a measure of that power. Most people are not even aware that allowing federal courts to hear cases involving federal matters is relatively new. Until Congress at the end of the Nineteenth Century affirmatively gave federal district courts that power, those courts and judges were limited to hearing cases involving citizens of different states (diversity cases), and not cases involving federal law or constitutional rights (federal questions).

Once Congress conferred this authority on federal courts, a creeping and undemocratic process of power accumulation on these cultural, social, and moral issues began. The separation between church and state, for example, has always been a question of state government; the First Amendment says nothing about state governments and religion, and many states had established churches and state supported religion well into the Nineteenth Century. This favoritism ended not because of any federal court action, but because the voters of these states decided to end established churches.

The constitution likewise does not protect citizens or newspapers from state government regulation. How, without our Great Defender, the Supreme Court, did our freedom of expression survive? State governments protected these rights. In fact, the Supreme Court not only supported the worst measure Congress passed - the Alien & Sedition Acts - but justices of that court prosecuted and jailed congressmen for violating them! State governments, notably the Virginia and Kentucky state assemblies, passed resolutions declaring the actions of Congress and the Supreme Court unconstitutional. The people, in national elections, voted in Thomas Jefferson and other like-minded men committed to freedom of expression.

What about slavery? Didn't we need the federal government to end that pestilence? Hardly. When the Constitution was adopted, almost every state had slavery. During the following decades, the states themselves abolished slavery, and by the time of Fort Sumpter slave states like Delaware and Missouri were on the verge of following suit. Stephen Douglass proposed that the people of a territory vote decide the issue of slavery or freedom, and the decision was always the same: freedom. The Supreme Court's odious Dred Scott Decision, which declared as a matter of Constitutional law that former slaves could never be legally free in the United States, ended the prospect of a peaceful end of slavery and caused a bloody civil war.

These same sort of cultural and moral problems would be solved by the people of the states if federal courts were not involved. Consider abortion. What did Roe v. Wade actually say? Did it create a right to abortion? Would its reversal remove that right to abortion? No The Supreme Court's decision in Roe v. Wade simply said that an issue which had previously been a matter of state criminal law would not longer be decided by the states and their peoples. Several states had legal abortions at the time of the Roe v. Wade decision. The Supreme Court, however, decided that states could not be trusted with this question.

The absurdity of this reasoning is obvious when we consider that state government define what constitutes murder and rape, and how those offenses should be punished. States can prohibit killing certain animals and states can outlaw cruelty to animals, but only if those animals are not homo sapiens.

Should gays be allowed to marry? I don't think so, but if the people of Vermont do, that does not trouble me. Should bigamy be legal? If the people of Utah, for religious reasons, feel so then why should that trouble the rest of us? Yet how much blood and venom was spent on the abortion issue? The Mormons of Utah, hounded out of every part of America, were willing to defend their right to practice their religion by force, if necessary.

The beauty of using federal states to address questions like abortion, gay rights, school prayer, gun laws, and health care is that people have two votes, not just one. They can politically support a policy within their state, or they can move to a state that has policy they want. As Milton Friedman has pointed out, the second choice - the market choice - always produces winners.

States, like other markets, tend over time to weaken and impoverish bad policies just as it strengthens and enriches good policies. States, recall, not federal judges decided slavery was both wicked and wasteful. States ended government support for particular religions and churches, and replaced that with a more general policy towards religion. States also balance taxation and regulation so that business and industry invest, but citizens are safe and healthy.

So what can Congress and our next president do to resolve issues, like abortion, gay rights, and school prayer, that seems to tear us apart as a people? Our federal elected officials can use their power under the constitution to remove jurisdiction over those issues from the remote legislators of federal courts and return that power to those people who will live with the social, moral, and economic consequences of those policies.

Bruce Walker is a frequent contributor to The Pragmatist and The Common Conservative.

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