Federalism and National Peace

How to agree to disagree.

Hardly a day goes by without our being dumbstruck by another story of a government authority doing something so mind-bogglingly stupid as to call into question the entire theory of human evolution.  Of course, the TSA is a perennial font of such tales; we've also reported on children being snatched from their parents after a beverage serving mistake and historical preservation regulations that prevent old sewers from being fixed.

Today brings us a story that has everything: a young orphan, a struggling family, an intractable zoning bureaucracy.  Pathos, hazard, uncertainty - it's all here!

A parenting blog brings us this report, based on local TV news broadcasts:

A retirement community is working hard to evict its youngest resident - a six-year-old girl who lives with her grandparents. If they're successful, the child could be placed in foster care.

Jimmy and Judy Stottler have been legal guardians of their granddaughter Kimberly for about four years, after her mother lost custody due to a chronic drug problem.  But their Home Owners Association bylaws clearly state that all residents of the community must be 55 years or older.  Bringing Kimberly home created a stir among their neighbors.

Eventually, the Stottlers decided to move.  But despite lowering the price on their home from $250K to $129K, it just won't sell.  Now it's up to a judge to decide whether Kimberly can stay until her family sells their home, or whether she alone will be evicted.  If  that happens, she could be placed into state custody until her grandparents can find another place to live.  [emphasis added]

This story is a perfect illustration, not of heartlessly cruel tyrants whose cold hearts are warmed by throwing starving orphans into the frigid street, but of exactly why our Founders' national model of Federalism was a work of such genius.

Federalism Makes Everyone Happy

The fact is, the would-be evicters in the HOA have a point.  It's simple fact that many elderly people would prefer not to contend with rampaging rugrats during their morning constitutionals.  Is there any reason why a given community should not mutually agree to allow only old folks in?

That's just what happened here and the Stottlers voluntarily agreed to the terms of the contract when they moved in.  Circumstances have changed and now they have a small child to care for.  The appropriate course of action is for them to move elsewhere, which is what they are attempting to do.

Compassion would dictate that the HOA at least put up with little Kimberly until the Stottlers move - they are doing their best to do so.  The point is that they can move: there are other communities, apartments, and jurisdictions which welcome kids.  Unlucky and slow it may be, but there is a solution that makes everybody happy, and they will get there eventually.

The interesting aspect to HOAs is that, while not being governments exactly, their contractual agreements have the force of law.  This allows them to be more intrusive than normal governments.  Some people like this and seek out homes with an HOA; others don't, and avoid them.

In a nation that believes in freedom, there is no other way for everyone to be happy and free than by allowing local jurisdictions to do things their way, according to the local will of the majority.  Don't like it?  Move out!

Obviously, there are limits even to this principle: slavery could never be tolerable precisely because slaves had not the liberty to leave.  Jim Crow was wrong, too, because there was no equal justice or due legal process if you were of the wrong color, but affirmative action is no better.

Aside from the most basic fundamental rights enumerated in the Constitution, what possible good is there for an overweening Federal government to set all the rules?

Abortion and Anti-Federalism

Consider abortion.  Fundamentally, there is very little ground for compromise.  A fetus is either a human being or it is not.  If it is, then killing a fetus is murder; if not, then it's no big deal and nobody's business.

There are a certain number of people who believe one way and a certain number of people who believe the other.  The precise numbers can and do shift over time, but the consensus will never be unanimous.

We on the pro-life side can hope that, one day, abortion follows the path of slavery: supported by only a handful of recalcitrant reprobates who dare not show their faces in polite society.  Until that day, though, we have to live together.

By enforcing one single standard on the entire country, Roe v Wade made peaceful coexistence impossible.  In South Dakota as in Manhattan, abortions rights were made the law of the land by fiat.

How much wiser it would have been if the Supreme Court had stated the obvious fact that abortion is not a Constitutional right and that the several states can handle it as they please!  New York, Massachusetts, and California would have become anything-goes; South Dakota would have banned it entirely (except for life-of-the-mother); and the rest would have fallen somewhere in between.

Virtually the entire population of the country would be living under laws that they themselves supported - and literally the entire population would be living under laws that they could tolerate.  Because if they couldn't, the solution would be ready at hand: move one state over.

Instead, we have a suppurating, pustulent, decades-long civil war that has poisoned our politics and undermined national unity.  And you still can't get an abortion in South Dakota.

Federalism At Work

Compare the disaster of abortion jurisprudence with the current status of the homosexual-marriage debate.  Several years ago, it became clear that the far left was trying to do with homosexual marriage what it accomplished with abortion: ordain at as a national right by judicial fiat.  This succeeded in Massachusetts despite the opposition of the voters and it looked like they'd be doing the same thing in other states.

However, Bill Clinton had wisely placed a brick wall in the way: the Defense of Marriage Act.  This law is loudly condemned by the usual leftist suspects as discriminatory and evil, but in fact its only purpose is to permit diversity of opinion.

Nowhere does it forbid homosexual marriage; quite the contrary.  It simply states that no state can be required to acknowledge a valid homosexual marriage from another state if it doesn't wish to, nor will the federal government without a further act of Congress.  In effect, it removed the question from the courts entirely, and placed it in the hands of the people's representatives where it belongs.

As a result, we now have several states where homosexual marriage has been duly passed into law by the legislature (New Hampshire, Vermont); quite a few where it has been banned by constitutional referendum (California most famously); and even one jurisdiction, Washington DC, where marriage licenses are not issued to same-sex couples but homosexual marriages legally contracted in another state are recognized as valid.

What we don't have is a constant, near-violent protests, except as parts of ordinary political campaigns for and against referenda or candidates advocating one side or another.  The issue is being handled by normal political processes, mostly peacefully.  The different states and regions are reaching different conclusions and most people are content with the laws that prevail where they live.  Problem solved!

Tax, Regulate, Destroy, Repeat

As we wrestle with a vast number of complex problems, the Obama administration would do well to learn this lesson and devolve more decision-making ability to the states.  Alas, it's doing just the opposite: the same anti-federalist pattern which the Supreme Court established for abortion is the Obama administration's model for everything else.

Allowing different states to handle health care differently so we can see what works?  No, we must have one single national monolith imposed on all of us, like it or lump it.

Let the states decide how lavish their welfare systems, and thus how high their taxes, ought to be?  Nope, not that either.

The vast majority of what the Federal government does today not only has no Constitutional justification, it has no logical justification either.

What is there about health care that only the Federal government can do, and the states can't?  How about education?  Energy?  Only regarding international trade and tariffs, national defense, and possibly the environment is there any logical reason why we need one national rule - and it's just those areas (environment excepted) which our Founders assigned to Federal jurisdiction.

There is only one reason to have the Feds decide everything, and that's if you believe that for every question and for everybody, there is One Right Answer.  If that's so, then we should all do the same exact thing the One Right Way, and there's really no reason for local governments at all.

If everyone does the One Right Thing the One Right Way, by force of law... we are living in a totalitarian dictatorship, and not in America.

And that's even if the One Right Decision actually was the right decision - but when was the last time the Federal government made a right decision about anything at all?  As the saying goes, do you really want to give your health care to the guys who brought you the Postal Service, DMV, TSA, Amtrak, and $400 hammers?

A federalist model, where the maximum possible authority is given to state and local jurisdictions, is the only way that most people can be mostly happy wherever they choose to live.  It's the only way we as a country can move forward, determining the best way to do things by allowing different places to do them differently and observing what works.  There is enough unhappiness with Washington that the governor of Texas can talk about leaving the Union and receive cheers!

The way things are going with all power being centralized in Washington with more and more unworkable ideas being imposed on the entire country, the time may soon come when a return to thoroughgoing federalism might be the only way we can remain as one nation at all.

Petrarch is a contributing editor for Scragged.  Read other Scragged.com articles by Petrarch or other articles on Politics.
Reader Comments
The comments also apply to drunk driving laws, K-12 education, and opening a bank account.. and don't get me started on this TSA, jack-booted thugs in the airports playing Gestapo....
and no, I don't feel any safer~!
October 27, 2009 9:40 AM
http://www.usa.gov/Agencies/Federal/All_Agencies/index.shtml if you want a complete list of what ought not to be...
October 27, 2009 5:40 PM
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