Tag Archives: federalism

Parens Patriae

I’m more sanguine about Massachusetts v. EPA (the “global warming case”) than Ed Whelan. While the court’s four liberal justices got the result they wanted (pushing the EPA closer to regulating CO2 emissions), they had to dig pretty deep into paleoconservatism for a justification how to do it. To get states-righters Anthony Kennedy’s fifth and decisive vote, the court resurrected a rather hard-edged “Father of the People” interpretation of Amendment X.

In the case, the Court decided that because States are the Fathers of their People, but are unable to resort to armed invasion to protect their people, their pleas must be listened to more readily by the Court than if the States were just land-owning persons or societies.

Amendment X, the states rights amendment, maintains the United States as an open society. It allows the sort of local experimentation and resilient networking that makes the United States an exceptionally agile country.

Amendment X is also despised by tyrants of all stripes. Both Leftist and Rightist factions happily trample on the freedom of states and citizens in order to push their through own agendas . That the court’s liberals are now retreating to Amendment X to defend their agendas is a good sign for freedom, liberty, and decentralized government.

Buchanan Right on Federalism

Fighting and Winning the Judges War,” by Patrick Buchanan, World Net Daily, 13 April 2005, http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=43772 (from Free Republic).

Buchanan’s clique may be economist leftists with fascist tendencies, but on rolling back the actvist courts he is right — and the Republican leadership is mostly wrong

He correctly analyzes the problem

Is America a democratic republic, where the laws are made by elected legislators? Are we a federal republic, where social questions are decided by the states?

Or has America become a judicial dictatorship, where Supreme Court justices render final judgment on all social and moral issues – from the death penalty to abortion to homosexual rights to religious displays to the Pledge of Allegiance. This question of power lies behind the “Judges War” that has broken out in this capital.

He correctly notes the willingness of socialist Leftists to fight

Tom DeLay, R-Texas, ignited the fuse. When Terri Schiavo died after a Florida judge starved her for two weeks, the enraged House majority leader roared, “The time will come for the men responsible for this to answer for their behavior.” Declared Sen. John Cornyn of Texas, judicial seizures of power could lead people to “engage in violence.” At a conference on “Remedies to Judicial Tyranny,” Phyllis Schlafly, first lady of American conservatism, declared, “Tom DeLay and Sen. Cornyn need to be backed up.”

These are “scary times for the judiciary,” warned the Washington Post. Things could “turn ugly.”

He correctly notes that the “solutions” won’t do anything

Among the remedies proposed on Friday was the impeachment of Justice Anthony Kennedy, who authored the five-to-four decision to outlaw the death penalty for under-18 killers like John Lee Malvo, the Beltway Sniper. Kennedy thus personally reprieved 70 murderers on death row. Another idea, backed by President Bush, is for a constitutional amendment defining marriage as solely between a man and a woman.

Both proposals have one thing in common: Neither is going anywhere. The Senate is not going to impeach Kennedy for voting with four other justices, nor is a constitutional amendment to ban gay marriage going to get the necessary two-thirds of the Senate.

Buchanan’s solution? Preventing the inferior courts from considering cultural cases — starting with the pledge of allegiance and abortion

Is the cause of reining in a renegade court hopeless? Are we fated to live under a judicial dictatorship? No. And the remedy is right there in the GOP platform and the Constitution. Under Article III, Section 2, Congress, with President Bush’s signature, can almost wholly restrict the jurisdiction of the Supreme Court.

In 2004, the House voted 233 to 192 to take gay marriage off the Supreme Court docket and by 247 to 173 to remove the Pledge of Allegiance. If the Senate will go forth and do likewise, the Supreme Court’s right of review of laws in both areas would be ended.

On Jan. 1, Chief Justice Rehnquist in his State of the Judiciary Address noted with alarm that Congress had begun to use its power under Article III. He did not deny that Congress had that power.

Buchanan is refering to this

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Supreme Court still has inalienable judicial power

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

But the move still is substantial. It prevents sealth judging, where the Supreme Court lets stand lower-level social Leftist decisions. It means opposition to cultural judicial tyranny would have one focus — the Supreme Court itself — rather than the diffuse anger at the entire third branch. It also shows a willingness on the part of Congress to fight.

Three cheers for Buchanan’s proposal!

Federalism on Homosexualism

House OKs citizen vote on gay marriage,” by Jean Hopfensperger and Conrad Defiebre, Star Tribune, 1 April 2005, http://www.startribune.com/stories/587/5323674.html (from Democratic Underground).

Governor of Maine Signs Gay Rights Bill,” by Glenn Adams, Associated Press, 1 April 2005, http://www.guardian.co.uk/worldlatest/story/0,1280,-4906031,00.html (from Democratic Underground).

Different states, different policies. The beauty of federalism.

Minnesota is pondering upping its legislative institution on heterosexual marraigesto a constitutional one.

A controversial bill to let voters decide whether to put a ban on same-sex marriages in the state Constitution was approved by the Minnesota House on Thursday on a vote of 77 to 56.

If the bill passes the Senate, voters in the 2006 election would consider a constitutional amendment to limit marriage or “its legal equivalent” to “only a union of one man and one woman.”

Although Minnesota law already bans same-sex marriage, the amendment is needed to thwart potential court challenges, proponents argued during a heated floor debate.

While Maine decides individuals have too muh freedom. Here come the state controls:

Gov. John Baldacci on Thursday signed legislation that protects gays and lesbians from discrimination. Within hours, a religious group launched a campaign to overturn the new law.

“This act not only offers essential civil rights, but serves as a welcome,” the Democratic governor told supporters who packed the State House Cabinet Room. “Our doors are open to all people. This is a proud day for Maine.”

The law, which received final House and Senate passage Wednesday night, takes effect in late June.

The measure amends the Maine Human Rights Act by making discrimination illegal in employment, housing, credit, public accommodations and education based on sexual orientation or gender. Maine law now prohibits discrimination based on race, color, sex, disability, religion, ancestry and national origin.

The new law will exempt religious organizations that do not receive public funds. It also makes clear the law does not condone or authorize gay marriages.

Of course, the news from Minnesota is happier than the news from Maine. Minnesota is defending the status quo, while Maine is sweepign away horizontal bonds with vertical controls. Maine’s unease with private property and freedom of association is obvious (though Augusta has yet to legalize homosexualist marriages).

But on another level, this is good news. Federalism gives voters more power because decisions are made closer to them. Minnesotans may have one future worth creating, Mainites another. This is preferable to nation-wide laws, which the left pushed a few decades ago and the right pushes now.