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August 16, 2005
Hey Eddie, Remember Schiavo?
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Marci Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law." |
Despite what Eddie thinks, the little guy has a far better chance getting his city council recalled than he ever will affecting national politics in the face of the national interest groups. In Kelo vs. New London, the losers went through the wrong process, encouraged by national interest groups that, ultimately, did not win at the Court. Eddie has vastly underestimated the power of national interest groups behind the scenes — scenes the vast majority of voters will never enter — to push policy their way.
As political scientist Mancur Olson brilliantly showed, small, cohesive interests do far better in the legislative process than do unorganized majorities. At the national level, the power of such cohesive interests has the potential to undermine a much larger number of people. Take, for example, the Terri Schiavo action in Congress. A small minority of interests was able to call Congress (both parties) to session and to persuade the President to fly into Washington over a weekend to sign a bill that involved state law, which had been subject to repeated, consistent state court interpretation, and affected a sum total of 2 people — her parents. The polls showed that well over 70 percent of the American people thought Congress had been overreaching — that's a lot of people whose views were not reflected in that piece of legislation.
Liberals make a major misstep when they accede unlimited, or unchecked, power to Congress, especially in an era when gay marriage is on the table. The institution of marriage is fundamentally a state law issue. Federal intervention is unconstitutional under existing case law. Preserving states' rights in areas like gay (or not gay) marriage serves everyone's interests in the long run — more experimentation and more power to those out of power in DC. On Eddie's reasoning, though, Congress could usurp the state's power over marriage at will, and impose a one-size-fits-all marriage formula on the country.
In any event, by saying that he is more concerned about the power of the Court and the president, he has confused the separation of powers with federalism. That comparison does not begin to meet the objection from the co-sovereign states when Congress overreaches.
Posted at August 16, 2005 12:14 PM