Southern Slant | Importance of federalism to further liberalism

Graydon Gordion Columnist

Traditionally, “federalism” has been most strongly associated with the legal thinking of the American right. Federalism is the constitutional principle which separates power between the state and federal governments and limits those powers exercisable by the federal government by specifically enumerating them in the constitution. As a foundational aspect of our constitution, it is something both sides of the spectrum claim to believe in, but conservatives have historically championed it more aggressively than liberals. For the most part, this makes sense. A more orthodox understanding of federalism makes many progressive goals such as abortion rights, environmental legislation and federal gun control legislation harder to achieve, while the failure of federalism to preserve political decentralization in the face of social progress has led to everything from the New Deal to Civil Rights legislation.

Recently, however, the relationship between the left and federalism has begun to change. With the almost tectonic political shift that was ushered in during the Reagan years, the social and economic policies of the federal government have been looking more and more conservative. And despite the fact that President Bush still champions the concept of federalism, power has a way of overshadowing principle. In several instances in which the decision should be left to the states, the Bush administration is choosing to abandon the foundational conservative belief in decentralized government, and instead is giving answers to questions which should never have been asked at the federal level in the first place.

Take two recent cases that the Department of Justice has pursued, Gonzalez v. Raich and Gonzalez v. Oregon. In the former, Attorney General Alberto Gonzalez took on state legislation from around the country which allowed marijuana to be used for medical purposes. Gonzalez won, basing his arguement on a case that helped usher in the New Deal (in it the Supreme Court decided that Congress’ power to “regulate interstate commerce” applied to a man who was growing his own corn in his backyard and eating it all himself). In the pre-New Deal period, in which the courts were a huge roadblock to pro-labor legislation, the decision on which Gonzalez made his case helped finally free the federal government to pursue a progressive agenda that would span decades. Now it has helped free the federal government to pursue a regressive anti-drug agenda, which will, in all likelihood, span decades.

The latter case, Gonzalez v. Oregon, pits the Attorney General against the state of Oregon and their law that legalizes physician assisted- suicide. The court has heard arguments on this case, but has yet to rule, and the Raich decision has left most people assuming the Court will side with Gonzalez. Once again, Gonzalez is likely to have successfully used liberal legal thought in the service of conservative political goals. Liberals must respond by embracing federalism in order to utilize conservative legal thought in the defense of liberal political goals.

All of this is leading somewhere you aren’t going to expect. The shift in the power of the federal government, and consequently the perspective of the two political parties on the usefulness of federalism, is why you should support the confirmation of Samuel Alito, President Bush’s Supreme Court nominee. Wait, if the conservatives already have so much power in the federal government, and as I have just shown, are prone to use it in ways which are abusive and lack principle, then why should we put another conservative on the court? Because on the court, it is the conservatives who are your friend. Somewhat detached from the Machiavellain tendencies of conservatives in the elected branches, the conservatives on the Supreme Court have remained true to their principles, particularly in the instance of federalism.

Take again for instance the Gonzalez v. Raich decision. When telling a friend this summer about the decision, he replied “those damn conservatives.” But when I told him the dissenting votes came from William Rehnquist, Clarence Thomas, and Sandra Day O’Connor, and that liberal icons such as Ruth Bader Ginsburg and Stephen Breyer voted in the majority, he was shocked. What he didn’t realize is that the justices, to their credit, actually have a tendency to vote based on principle and not politics. Samuel Alito is just this type of individual. If you look at his record on everything from religious liberty to the commerce clause to abortion rights, he has proven himself to be a fair minded and non-ideological intepreter of the law. In the words of Jonathan Adler, he is “not pro-life or pro-choice, but pro-law”. In order to ensure that progressive social policy be allowed to thrive in the states where it still has a chance, it is essential that people realize that the appointment of individuals who aggressively believe in the principle of federalism, like Sam Alito, is not about conservative governance or liberal governance, but good governance.