« The Federalism Facade | Main | Congress Should Mind Its Own Business »
August 16, 2005
What About States’ Wrongs?
|
Edward Lazarus, a lawyer in private practice, is author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court." |
I wonder whether the gays and lesbians in Texas, Georgia, and Colorado — the states whose hateful anti-gay laws have triggered Supreme Court cases — realize that their real enemy is the federal Congress? Marci talks in fine sounding generalities about the value of federalism to progressives, but pardon me if I have my doubts.
There’s a reason that, historically, conservatives have championed states’ rights. In large swaths of the country, progressives don’t have a chance. And even in more liberal states like California, those highly organized and cohesive groups that Marci mentions have pushed through regressive measures, like the cap on property taxes that makes a hash of state fiscal policy as well as the state ban on affirmative action and needlessly punitive measures against undocumented aliens. Meanwhile, the Court’s federalism jurisprudence has really advanced the progressive cause, striking down anti-gun legislation, insulating states from righteous lawsuits, and limiting the ability of federal courts to correct the injustices of state court criminal law processes often overseen by elected judges who know better than to kill their careers by enforcing constitutional rights.
You won’t find me extolling Congress’ virtues. As Marci notes, Congress passed the unfortunate Schiavo bill. But the bill — as subsequent events showed — was almost totally symbolic and never posed a realistic threat to Florida’s control over family law and end of life matters. (Indeed, it would not have passed Congress if it had been really substantive.)
Moreover, if, as I suggested, the federal courts curb political gerrymandering, it would (as many scholars have noted) have the effect of bringing to Washington many more moderates of both parties — thereby making future Schiavo bills that much less likely. In any event, the real problem with Congress is not that it over-intrudes on state prerogatives, but that it doesn’t do enough to tackle the country’s big national problems — which is why I put additional judicial checks on congressional power rather low on my priority list.
Posted at August 16, 2005 12:27 PM