Fair-Weather Federalism
Patterico beat me to the punch. Glenn Reynolds, who proudly coined the phrase “fair-weather federalism,” now lives up to it.
UPDATE: Reynolds dismisses the charge as “silly,” citing the Fourteenth Amendment proscription against depriving citizens of life, liberty and property without due process of law. O-kay. In the column in which he originally coined the term (linked above), Reynolds disingenuously decried the federal government’s practice of “regulating science,” which is really just a cute way of saying “funding science, but making such funding contingent on adherence to certain restrictions Glenn Reynolds doesn’t like.” So what exactly is Reynolds’s position now? That any Congress that fully exercises its tax and spend power runs afoul of the spirit (albeit not the letter) of federalism, while a Congress that fully exercises its enforcement power under the Fourteenth Amendment does not? That would be an odd combination of views, but possibly defensible on some level if Reynolds applied it with any consitency. He doesn’t, though. When Terri Schiavo activists, a.k.a. “pro-tubists,” made precisely the same argument under the Fourteenth Amendment concerning the impending starvation death of Ms. Schiavo, Reynolds lobbed the f-word (phrase?) at them, too:
There’s also a lot of contradiction lately. After talking about small government and the rule of law, Republicans overwhelmingly supported a piece of legislation intended to influence a single case, that of Terri Schiavo. As former Solicitor General Charles Fried observes:
“In their intervention in the Terri Schiavo matter, Republicans in Congress and President Bush have, in a few brief legislative clauses, embraced the kind of free-floating judicial activism, disregard for orderly procedure and contempt for the integrity of state processes that they quite rightly have denounced and sought to discipline for decades.”
I think he’s right. As with Bill Hobbs, quoted below, I don’t have an opinion on what should happen to Terry Schiavo — though given the rather large numbers of judges who have looked at this case over the years I’d be especially reluctant to interfere. Can they all be deranged advocates of a “culture of death?” But regardless of the merits, Congress’s involvement in this case seems quite “unconservative” to me, at least if one believes in rules of general application. Florida has a general law, and it’s been followed. That people don’t like the result isn’t a reason for unprecedented Congressional action, unless results are all that matter.
Apparently, using the Fourteenth Amendment narrowly to prevent an intentionally killing that Reynolds supports is “fair-weather federalism,” but using it broadly to prevent a few accidental killings Reynolds opposes is not. The cynic in me says Reynolds is just another “what I like is constitutional, and what I don’t like is unconstitutional” kind a guy. But maybe not. Maybe it’s just a question of which Congress does your dirty work. If a Republican Congress in 2002 limited research spending and another Republican Congress attempts to federalize Michael Schiavo’s God-given right to starve his wife to death, that’s fair-weather federalism. But if the incoming, Democratic Congress passes Reynolds’s power-grab, no one can accuse them of fair-weather federalism. They never claimed to be federalist at all.
November 29th, 2006 at 11:36 pm
I believe on case involved government regulation of government, while the other case involved government regulation of a non-governmental facility. I can see a libertarian having no issue with the limitation of a local government, whoever’s doing it, and that might seem more realistic a cause.
But I’m not really familiar (nor do I really care about) the Schiavo case.
November 29th, 2006 at 11:41 pm
True, but Democrats aren’t above screaming about the federal government sticking its nose into state issues… as long as the state in question is doing something liberals like (for example, the banking cases now before the courts, where liberals are arguing that the states ought to be free to regulate and the federal government should stay out).
It’s not just the good professor who can be said to have inconsistent positions. I would think, that with the notable exception of moi, pretty much everybody will have taken a position on one issue that runs counter to some principle they’ve advocated in other issues.
And all will have some rationale why they are in fact not doing what they so clearly are.
November 30th, 2006 at 6:43 am
When Reynolds criticised the pro-Terri-Schiavo Republicans for being fair-weather federalists, he was really stretching because most non-libertarian Republicans are have never really embraced federalism as a goal in itself, only as a way to solve certain particular problems. It’s like saying, “You thought this issue should be solved through war, why not that issue as well? What are you, a fair-weather hawk?”
What was especially laughable in Reynolds’s arguments was him acting like conservatives were being inconsistent because those law-and-order types weren’t willing to let a judge have the last word. Since when have Republicans said that judges ought to have the last word in social issues? I think he was confusing Republicans with Democrats for a moment.
November 30th, 2006 at 9:14 am
Steve, I agree that most people have broad views on general issues, but also take positions on specific issues that are inconsistent with their general views. I’m not sure that’s a bad thing, though. Particularly on a concept as mushy as federalism, which seems to have at least five discrete definitions:
The first definition is really the anti-federalist view, similar to the one that predominated under Articles of Confederation. However, it seems to be the knee-jerk, fall-back position of many self-proclaimed federalists today, and the easiest (albeit laziest) one to lob at anyone who calls for any federal action one does not like. The second definition appears to be the one Glenn is working under when he accuses others of fair-weather federalism; clearly Congress can fund science selectively or expand court jurisdiction to ensure no state is starving anyone to death without due process, but just because it can does not mean it should. The third definition seems to be the one he’s using now in defending federal legislation to rein in no-knock warrants: I want this result, the existing Constitution gives the feds power to act, so why not? [The fourth definition appears to be the view taken by the prohibitionists of yesteryear, or of conservatives who support a federal marriage amendment today. The fifth definition is basically the view of Hamilton's Federalist Party, and basically seems to be the Democrat party line today although they usually don't call it federalism.]
My own position, like Glenn’s, falls somewhere between 2 and 3. I supported Terri’s law, my only objection being that it didn’t go nearly far enough, and that the trial judge was not disciplined for refusing to seriously review the case. I think both views are compatible with federalism as we know it. The problem is when Type 2 federalists choose to be dicks toward Type 3 federalists - a problem compounded further when the right hot-button issue exposes the putative Type 2 federalist as another Type 3 federalist afeter all. IOW, my beef with Glenn is not over his own “fair-weather federalism,” but over his hypocrisy in blasting others for doing exactly the same thing (only on issues he opposes for reasons unrelated to federalism).
December 1st, 2006 at 1:35 am
This is not an issue of regulation under commerce clause powers. This is an issue of life and liberty. How much more clear can it be?
…nor shall any State deprive any person of life, liberty, or property, without due process of law
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Not only does the Congress have the power, it has an obligation. There is no reasonable construction of “due process of law” that permits non-uniformed state police officers to invade the homes of innocent citizens and kill them without criminal and/or civil penalty.
To do otherwise is to open the door to an American, who would be justified in writing and acting upon something like this, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government”
The essential point so eloquently stated in our founding documents is that killing innocent citizens is wrong, and like it or not, under the authority of a state government, the police set in motion a chain of events that caused the loss of life without any reasonable due process.
December 1st, 2006 at 9:20 am
For starters, Congress has no obligation to do anything under the enforcement clause of the Fourteenth Amendment. Having the power to do something is not the same as having any obligation to do so. That said, the real question is whether the enforcement clause implies any power to interpret the phrase “due process,” or whether it merely gives Congress the power to enforce legislation aimed at protecting due process as defined by the courts. If Congress can redefine due process, then of course it can determine that no-knock warrants are so inherently dangerous that they will inevitably result in X number of innocent lives lost, and therefore should only be allowed under whatever criteria it deems appropriate (e.g., it may decide that it’s OK to risk another Amadou Diallo to catch a serial killer who will murder dozens more people if he gets away, but it’s not OK to risk another Amadou Diallo to catch a nonviolent drug offender). But if due process only means what the courts say it means, then I don’t see how Congress can have a Fourteenth Amendment power to prohibit what the courts have expressly allowed.
December 1st, 2006 at 11:02 am
I agree with Xrlq, #6. Congress can waive its own sovereign immunity in a Bivens type case but not the States’. A more fruitful approach might be its powers of preemption and supercession under the Commerce Clause but, more likely, it would use the Spending Power since local law enforcement relies a great deal on federal assistance directly (LEAA and other direct grants) and indirectly (e.g. FBI fingerprint base, Secret Service IT expertise).
December 1st, 2006 at 9:50 pm
The obligation to act is not a legal one, but a political one: to make the Constitutional declaration of rights meaningful in Law.
Due Process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action.
(http://www.lectlaw.com/files/lws63.htm)
Where did this now dead woman have the opportunity to object? She was deprived of her right to due process as well as her life.
December 1st, 2006 at 10:46 pm
If that were the the law, all warrants would be unconstitutional.