Republicans Face a Fork in the Road: To Remain Credible, the Party Must Be Consistent on the Crucial Issues of Federalism, Gay Marriage, and Roe v. Wade

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Sep. 08, 2005

For many - especially, many Republicans -- it has been a relief to see President Bush appoint Judge John Roberts to the Supreme Court, and now the Chief Justice seat, because his record on federalism is quite good. If confirmed, he will, it seems, be a worthy successor to Chief Justice Rehnquist.

And that's a good thing - since the Republican Party lately seems to be forgetting the federalism that once was one of the key planks in its platform. Now that Republicans control both the Congress and the Presidency, they've become a bit drunk with their power - just as the Framers of our Constitution would have predicted. We sometimes forget their essential wisdom: Every entity holding power both can - and likely, will -- abuse that power.

With gay marriage and Roe v. Wade high on their agendas, Republicans face a crucial fork in the federalism road. They need to remember their roots, and wake up from their power-filled reverie, because they will not always control Washington. History proves that fact beyond any debate. If Republicans do not remain true to their federalism heritage now, they may lose both constituents, and the power that federalism reserves for the party not in control in Washington

In Federal/State Conflicts, the Bush Administration Has Argued for Federal Power

Until very recently, the Republican Party's credo was to favor small government (in order to achieve accountable government) and federalism - often referred to as "states' rights." In the modern era, Republicans swept into power with President Reagan on a small government message. Even now, millions who belong to the party are there precisely because they believe in limited government.

For these Republicans, President Bush has at times been a disappointment -- as his administration has forcefully asserted federal power against state power.

For example, in Gonzales v. Raich, it argued that federal drug laws pre-empted California's medical marijuana law, claiming federal power to regulate a wholly intrastate health measure. Justice O'Connor, in dissent, rightly chastised the Court for upholding federal power against state power in the Raich case - federal power was being improperly employed for conservative political, policy ends.

The Administration has also taken a stand against states' decisions to allow assisted suicide - a local matter if there ever was one. The issue will be addressed by the Court this Term.

Gay Marriage and Federalism: The Tension Between Republicans' Positions

The immediate response by conservatives to Massachusetts' Goodridge decision, requiring gay marriage, was to explore every federal means of regulating marriage that exists.

Why? Because they held federal political power. In truth, the issue more properly belongs to the states: It is a family law issue, and before this Administration, Republicans consistently argued that in matters of family, it is the states - not the federal government - who are the relevant, proper sovereigns.

Republicans should be careful before enshrining an anti-state-power stance into the Constitution, by pursuing a Federal Marriage Amendment. It did not go very far when proposed before, to be sure. But that was - and will be, if the Amendment is revived - a very foolish route.

By transforming marriage law into a federal issue, the Republicans would take over one of the very last arenas where the states have had primary control since the Republic's founding. A constitutional amendment making this a federal government issue, would be a poison pill for federalism. If the Republicans pursue such an amendment, they will forfeit the right to argue against federal control of other issues involving health and welfare - or, if they still do make such arguments, the arguments will be fatally weakened by their obvious hypocrisy.

If Republicans are going to be consistent, they will have to embrace states' rights generally - and that means embracing them in the context of the marriage debate, and permitting the fifty states to engage in what may possibly be fifty state experiments in marriage.

That means, of course, that there will be states that do not follow the Republican policy agenda, but that is what federalism is all about.

Of course, it is more convenient to lobby in one city (Washington) than in all fifty states, but convenience is hardly a reason to destroy one of the Constitution's bedrock principles - as well as a bedrock principle of, and major draw of constituents to, the Republican Party.

Giving Up On Federalism Means Giving Up One of the Strongest Anti-Roe Arguments

Giving up on the principle of federalism will have other costs for the Republican party, too. For instance, one of the stronger constitutional arguments against Roe v. Wade is that the states - not the federal judiciary -- are the proper entities to regulate health and welfare.

There is no question that even the strongest nationalists among the Framers, like Alexander Hamilton, assumed that the states would continue to control health and welfare issues. Moreover, the Fourteenth Amendment certainly did not change that aspect of federalism. Thus, the stance of originalists and textualists ought to be clear: The Framers' intent was to leave health and welfare issues to the states, and the text of the Constitution reflects that intent. There is no enumerated power over family law, to state the obvious.

Interestingly, Justice O'Connor's reading of Roe v. Wade - as explicated in Planned Parenthood v. Casey -- is largely a federalist reading. Given her deep-seated belief in the values of states' rights, this should not be surprising. While she recognizes a right for a woman to choose whether to have an abortion, she is also willing to permit the states to regulate abortion in many ways -- unless the state's regulation places an "undue" or substantial burden on the right to choose. The right persists, but the state's power to care for its citizens' health and welfare is quite broad - except at the point where it begins to seriously infringe on the exercise of the right.

After the Casey decision reaffirmed Roe in 1992 - but only with the help of Justices Kennedy and O'Connor's crucial swing votes - the undue burden standard has left room for the states to heavily regulate - if not eliminate - abortion.

The result is that there is a wide variety of abortion regulation in the United States, even with Roe v. Wade on the books. The truth (the politicians don't want you to know) is that overturning Roe, as it now stands, will not result in a large shift in abortion policy, largely because Justice O'Connor's swing vote left a great deal of discretion to the states (as evidenced in her votes in cases like Akron to uphold state regulation).

Justice O'Connor's Position Both Honors Federalism, and Accords with Public Opinion

Justice O'Connor's is in accord with what most Americans think. Most favor the basic right to choose: Polls persistently show that a sizable majority of Americans, even among Republicans, believe a woman should have such a right. But at the same time, there is little opposition to significant regulation. Though most people wouldn't put it this way, I think they share Justice O'Connor's position that unless a state is placing an "undue burden" on the right - perhaps because it wants to bar it altogether - it is acceptable for the state to regulate its exercise with an eye toward health and welfare, and the interests of both the mother and the developing fetus.

Thus, were Roe to be overruled outright, some conservative states, like Alabama, might outlaw abortion altogether, but they will be in the small minority.

Granted, the overruling would move the political debate out of the courts and into the state legislatures, a further step for federalism. But if one were to look at a national "right to choose" map, Roe's overruling might not change that map very much: It might be very similar to the current map, which is based on Roe v. Wade as interpreted by Justice O'Connor - one of the great defenders of states' rights. This is not to defend Roe v. Wade, but rather to point out that it has been interpreted in light of federalism concerns and that is all to the good.

More important, Roe did not finally federalize state power over health and safety, and the power the states have retained in that arena should be understood as part of the power they rightly retain over matters of family law.

To Be Consistent, Republicans Must Choose - and Should Choose Federalism

Here, then, is the key trade-off: If Republicans are going to push the conservative marriage agenda into the federal arena, they will immediately lose an important argument in the abortion debate -- whether or not Roe stands.

They will contravene the traditional state prerogative of making family law, and push (or entice) the federal government into an arena where it does not belong, an arena largely, properly, and constitutionally controlled by the states. And we all know that once the federal government exerts power, it does not return it willingly to the states. By carving yet a new path to transform bedrock local and state issues into federal issues, they will further cement Congress's seemingly ever-increasing power. .

When the Democrats come back into power--whenever that is -- the Republicans will doubtless return to their small government message. But Americans are not stupid: They will understand - if Republicans persist now in making marriage law a federal issue, the real message is that federalism is just another word for politics - a bid to grab power where it is to be had. But that is the opposite of the principled federalism that President Reagan and Chief Justice Rehnquist's Court re-introduced. The Republicans need to return to that principle, and fast. One way to do so is to ensure that any nominee to the Supreme Court exhibits a strong belief in federalism.

As liberals have learned in the Bush era, federalism in fact preserves policy-making power for the party that lacks federal power, by keeping the fifty state legislatures open to them. Those in power need to be reminded that -- in the United States -- they do not hold it permanently.

Federalism, in the end, means that either party's policy preferences in many areas, like family law, will not be nationwide, unless the fifty-state experiment reveals the best way for all. . If one believes in a small government philosophy, that is just fine.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Hamilton02@aol.com. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

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