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The conservative case against a single federal code
By Robert S. Sargent, Jr.
On December 23, 2002, ESR senior writer Bruce Walker wrote: " even after leftism is recognized as dead, there are many issues upon which conservatives can engage in serious debate. Perhaps one of the most intriguing areas in which conservatives could have an honest intellectual debate with other conservatives is federalism." He went on to make a case for a centralized government, " provided the process worked to simplify the law." OK, I'm going to join the debate, and start out with saying that I have problems with Mr. Walker's position.
Last week, ESR senior editor, W. James Antle III, covered many arguments against a "single code" in his take on the debate. I would like to address two questions: Is "leftism dead?" and, if it is, should we embrace a centralized government?
Why would conservatives embrace a centralized system? If we truly thought that leftism was dead, we could impose conservative policy on the whole country. But is it dead? As I read it, the history of this country is a history of public changes in perception of policy: sometimes left, sometimes right, always near the center, but never completely predictable.
Surely the Democrats had no idea of the Republican takeover of Congress in 1994. I'm sure they thought the liberal view would predominate in Congress forever. They arrogantly created an Office of Independent Council to go after Republican Presidents and their staffs, never dreaming that it could be used against them. Surprise! When Ken Starr proved to be as tenacious as Lawrence Walsh, they admitted it was a bad idea. I'm sure when Democrats went after Bork and Tower and Thomas and the rest, they never figured that there would be a Republican majority in the Senate opposite a Democratic President. Again, they were surprised and outraged when Republicans used some of the same tactics against Clinton nominees. I think Mr. Walker's assumption that "leftism is dead" is an illusion. Basing public policy on the assumption that your party will always be in power will always backfire.
For conservatives to think that leftism is dead, and to institutionalize a centralized federal government, is to invite a future of centralized liberal causes at the expense of, possibly, short-term centralized conservative causes.
Even if we lived in a world of long-term conservative power in the three branches of Federal government, is this the kind of government we would want? True, we could have conservative policies applied to the whole country: whatever policies we approved of concerning education, abortion, race, and anything else would be applied throughout the country, regardless of local interests. The conservative agenda would be complete! I submit that this is a bad way to rule.
The problem is that laws in a centralized government apply to everyone. Any group, who doesn't agree with the laws, feels helpless to do much about it. This makes for a very unhappy segment of the populace. Abortion is an obvious example. For over 150 years, the matter of abortion was settled in the states, as the Ninth Amendment guarantees. In those states that outlawed abortion, pro-choice advocates participated and worked in the system to change things. The same scenario was true for states that legalized abortion. The opponents didn't like it, but they accepted it, working within the system for change in the next election. It is only now since 1972's Roe v Wade, that we see outrage and violence in this matter. Pro-choice advocates may be happy that they, through the Supreme Court, have been able to set the agenda for the whole country, but they have to live with a very large unhappy percentage of the population.
I believe that the Framers of our Constitution realized that there are and, always will be, people who have different ideas about the practical and moral issues that affect their daily lives. By limiting the powers of the Federal Government, they guaranteed that each person (through his state legislature) could play a role in deciding what kind of life he would lead. Also, if one becomes so frustrated with his life in this situation, he doesn't have to resort to violence, or leave the country. There's another choice: as W. James Antle III wrote last week, "It is easier for people to move between states than to leave the country." In the centralized scenario envisioned by Mr. Walker, this option would be irrelevant.
I think the process is more important than the results. While the concept of federalism means we will always have to live with liberal views in some states, it guarantees that the conservative view will always have a voice. If you believe as I do, that we will always live with an opposition, what is the best form of government to deal with a diversity of beliefs? I believe people can accept that their views aren't policy as long as they feel they can participate in the process to change policy. If we want the whole country to be at least reasonably contented, then opposition voices should have a chance to voice and work for their agenda. A federal system provides the best way.
Robert S. Sargent, Jr. can be reached at email@example.com.
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