Is Federalism a Dodge? - The American Spectator | USA News and Politics
Is Federalism a Dodge?

Giuliani is drawing heat from Hotline and the NY Times for using a "states rights" defense to avoid taking a stand on divisive issues such as abortion funding, flying the confederate flag, and state apologies for slavery as he campaigns in the South. The NY Times calls it "pandering" while Marc Ambinder at Hotline calls it a "dodge." A desire to avoid controversy likely plays a role in Giuliani's thinking here, but I also think that Giuliani is absolutely right by saying these issues should be left to the states. For instance, I personally find the confederate flag to be offensive because I associate it with slavery, which will forever be the greatest stain on this nation's history. But I understand that that the flag has different meanings for different people, and in no way do I think that the president should have any role in determining whether or not individual states should fly the flag.

 I think Ambinder errs greatly when he writes:

By sanctioning a state's ability to decide something, Giuliani is extending the zone of what's morally permissible. One of Abraham Lincoln's chief arguments against the Kansas-Nebraska Act was that, in allowing states to decide on slavery expansion, the federal government was affirming the morality of the pro-expansion side." If slavery is morally permissible in Kansas, it's morally permissible in Nebraska, too. If not, someone had to explain why[.]

It's preposterous to even compare issues such as flying the confederate flag or apologizing for slavery 140 years later to the practice of slavery itself. One is a moral scourge, an offense to humanity, and a physical violation of individual rights, while the others are largely symbolic issues. While I can assume Ambinder understands this distinction and was only trying to make a theoretical point, it's irresponsible to take the most extreme example of the "states' rights" argument in American history to indict the concept of federalism–as if those of us who think that the federal government should butt out of the flag issue would be arguing for a "states rights" approach to slavery were we around seven score and seven years ago. Ambinder argues that "By sanctioning a state's ability to decide something, Giuliani is extending the zone of what's morally permissible." I don't think this really holds. Nevada allows some legal prostitution. If a presidential candidate in a swing through Nevada argues that the federal government should stay out of the issue, does that mean he or she is condoning prostitution?

Also, Ambinder argues that Giuliani is using the "let states decide" mantra to avoid taking a position on controversial issues. But controversial issues are precisely the ones that are best resolved on a state by state basis. If there is broad agreement on an issue, it's much easier to impose a federal, one size fits all solution, than if there's a big divergence of opinion on an issue.

I think Milton Friedman offered what may be the best argument for states' rights in Capitalism and Freedom, when he wrote:

"Government power must be dispersed. If government is to exercise power, better in the county than in the state, better in the state than in Washington. If I do not like what my local community does, be it in sewage disposal, or zoning, or schools, I can move to another local community, and though few may take this step, the mere possibility acts as a check. If I do not like what Washington imposes, I have few alternatives in this world of jealous nations."

And in closing, let me just offer an historical addendum. Lincoln may have opposed letting states decide on the expansion of slavery, but until the Emancipation Proclamation, he supported permitting slavery in states where it already existed–and even with the Proclamation, only justified the decision on military rather than moral grounds.

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