As a libertarian, it is generally taken for granted that federalism leads to better outcomes than national solutions. Criminal justice reform, marijuana legalization, and gay marriage recognition, are all playing the long game of federalism--winning victory after victory for civil liberties and human rights. As powerful as federal forces can be for marginalized groups in overcoming or obviating systemic barriers to social change on a national scale, when you play in the social justice/social equity space, federalism is a four letter word. Contrary to most libertarians, I don't see this as (necessarily) a symptom of the knee-jerk centralization tendency of progressive thought. The poor reputation of federalism among those who care about issues of race and gender is well-earned. Moreover, the lack of recognition of these problems by libertarians serves to support the perception of libertarians as blind to the historical oppression of minority groups.
It should not come as a surprise to any student of history that federalism can act (though certainly does not always act) as the last bastion of the bigot. The obvious examples of slavery, Jim Crow, and interracial marriage should provide important examples of how state governments acted to oppress an entire class of already marginalized people. Not as often mentioned by libertarians are issues such as marital rape, divorce law liberalization, or "man in the house" rules for AFDC, and other state impositions into the lives of women. Probably the most salient federalist oppressive structure at present is access to abortion, and the conservative movement to probe, control, and manage women's bodies and reproduction. Libertarians will often be quite vocal in their understanding of the oppressive tendency of state government. However, they remain largely silent on the utility of using the federal courts to guarantee those rights.
Let's take the example of recognition of gay marriage. Presently, federal courts in conservative states are overturning prohibitions on gay marriage. Looking past the particular legal arguments used in these cases, let's examine the philosophical issues at stake. Libertarian-conservatives like Rand Paul are opposed to federal courts imposing their will on state courts. They say that the proper role for the federal government is to allow states to experiment with legal regimes and the most robust protections for gay rights will come when they convince the members of each state to allow full participation in society for gay partners.
A libertarian with a more nuanced view of federalism and human rights, informed by an understanding of historical oppression of marginalized groups, should have a different take. I, for one, support these interventions by federal courts because they provide protection for basic human rights and their recognition in the legal framework of society. The Fourteenth Amendment was enacted for a reason. State governments were not providing equal rights to African-Americans and the existing constitutional order was not strong enough to countermand state oppression. Marriage (gay, straight, plural) is a "privilege or immunity" guaranteed by the Fourteenth Amendment and granted to all people in the United States simply based on their value as human beings. Basic rights and access to social institutions, particularly those as powerful as marriage, should not be left up to the states.
It may be, as Reason TV's video of CPAC attendees shows, that conservatives are growing to embrace change on social issues on the state level. But this is merely a bare minimum of toleration. State governments have a very long tradition of oppressing groups of people and the correction of this systemic oppression by federal courts is necessary and proper. Basic human rights are best granted by a federal constitution, not state governments. There is certainly a role for states in liberalizing laws and raising awareness about civil rights issues, think of the assisted suicide or right-to-die legislation. But human rights are best granted by a federal court system beholden to the constitution, not state governments.
This is not to deny, as many social equity scholars do, that federalism has some benefits. In addition to highlighting social justice or human rights issues, state experimentation in social policy has brought innumerable benefits to oppressed groups. In my area of interest, Medicaid experimentation has brought far better, more individualized, and responsive care to people experiencing poverty--a disproportionate number of whom are of minority status. Same thing with education reform, charter schools, and vouchers. Federalism in policy has enormous benefits and some important drawbacks. As the Bloomington school of public choice will tell you, there is a justification for every level of government. It is the interlacing of those systems that makes the American experiment so unique.
No comments:
Post a Comment