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Why liberals should embrace federalism
By Robert S. Sargent
Liberals had been brought up to believe that whatever happened to the other branches of government, the Supreme Court belonged to "us." -- Alan Dershowitz, in Supreme Injustice
Before 1995, for decades, liberals, except for a few exceptions, also "owned" Congress. It is easy to see why liberals favor policy that comes from the Federal government rather than the more conservative state governments. But they are making a mistake.
The conservative view, and, I'm convinced, the Founder's view of the Constitution, is one which embraces a "vertical" separation of powers described in the 10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people, so that issues such as abortion, which is not protected in the Constitution, had always been decided by the states. Frustrated by the refusal of state legislatures to pass pro-abortion laws, the liberal Supreme Court decided in 1972, that, even if it's not enumerated in the Constitution, abortion is a protected "right." This ruling in Roe v. Wade, was, and is, applauded by liberals as great law. The ruling, of course, applies to the whole country.
One of the things that the Democrats ask judicial nominees is: Do you believe in the doctrine of stare decisis (fidelity to precedent)? This is to try to make sure that past liberal rulings, such as Roe v. Wade are not overturned. But precedent could be used for a lot more than just not overturning opinions.
Let's imagine a future Supreme Court ruling. "We agree with the precedent set in Hugo Black's dissent in Adamson v. California that the Bill of Rights applies to the States. We agree with the precedents set in Griswold v. Connecticut where Justices found 'rights' in the 'penumbras' of the Bill of Rights. We agree with the precedents of Reynolds v. Sims, Roe v. Wade, et al. where the issues are so morally important, where the "outrage" is so compelling, that Justices have no choice but to make the law. We agree with the teachings of Lawrence Tribe that '...the judicial role in insisting upon rationality serves to reinforce a major constitutional aspiration. (quoted from Tribe, American Constitutional Law)' And we agree with the Constitutional expert, Brian Koukoutchos when he said that the issue of "abortion is not merely a policy choice; it lies at the intersection of powerful conflicting rights. (And) fundamental rights, unlike liquor regulations or traffic laws, should not vary from state to state (also quoted from Tribe).'
"In this (hypothetical) case," the future Court continues, "even though it is a state law, we adhere to precedent in reviewing it. Even though there are no 'rights' of a fetus enumerated in the Bill of Rights, we have found them in the 'penumbras' of the various Articles. And even though the Constitution only gives the power to make law to the legislature, we take our guidance from the Warren and Burger Courts. The dismissal of the rights of a fetus is so outrageous, so irrational, that we feel compelled to overturn this (hypothetical) ruling. We find that a fetus is a living person, a citizen, if you will, who is protected by our Constitution, just as all citizens are. Therefore the taking of the life of a fetus is murder, just as the taking of any life is, and anyone involved, be it a doctor, or a mother is guilty of such. This ruling, of course, applies to all of The United States. Reversed".
It is naïve for liberals to think this can't happen. Just as the Democratic invention of the Independent Prosecutor was used against President Clinton, and just as the Democratic precedent of going after judicial nominees during the Reagan and first Bush administrations was used against Clinton, the techniques of the liberal Supreme Courts of the last 60 years can be used by future conservative courts.
Liberals should embrace "states rights" as a shield against Federal intrusion. Such liberal ideas as doctor assisted suicide, legalized, or even doctor prescribed use of marijuana, now clash against federal laws, laws that the federal government is not given the power to legislate. The Gingrich revolution, and Bush v. Gore prove that neither Congress nor the Courts "belong" to liberals. The only way to protect diverse agendas, liberal and conservative alike, is for the Senate, regardless of which party is in power, to insist that judicial nominees believe in the vision of a limited federal government, of not only "horizontal" (within the federal government) but the "vertical" separation of powers between the federal and state governments, just as our Constitution was framed.
Robert S. Sargent, Jr. can be reached at firstname.lastname@example.org.
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