4 ms·

There are some issues that don't fall neatly into the "50 laboratories" theory. We tried that with slavery, women's suffrage, civil rights/desegregation, gay ma

by jadell 7y ago

There are some issues that don't fall neatly into the "50 laboratories" theory. We tried that with slavery, women's suffrage, civil rights/desegregation, gay marriage, and a host of other things. California or New York banning housing discrimination based on race doesn't help me if I'm a poor black family living in Georgia and can't afford (or other reason) to move to one of those places. Hence, federal housing discrimination laws that apply everywhere. The problem is identifying at the time which issues fall into that bucket. Sure, any of the ones I mentioned are obvious to contemporary sensibilities in hindsight. But at the time they were being argued, people were making the same argument you are making. That's why the phrase "state's rights" has lost meaning as anything other than a dog-whistle for "the right to discriminate against people we don't like." It used to mean what you are arguing. I don't disagree with your point, I've just never seen heard a reasonable way to distinguish which issues fall into the "50 labs" bucket vs. the "federal responsibility" bucket without the benefit of decades of hindsight.

turc1656 7y ago
It's not easy. But a good starting point would be anything that falls within the bounds of the constitution is clearly a federal issue, essentially be definition. If it's an issue of basic human rights which are protected within the constitution or anything else covered within it, then it has to be a federal issue. Once we are outside of that, I think the default should be to have it be a state decision unless a strong case can be made for things that affect others crossing state borders or a common good/service that federal taxes pay for (i.e. externalities related to dumping, environmental regulation, borders, immigration, interstate trade, roads/infrastructure, military, etc.) That should cover the majority of cases and we can argue about the rest as they pop up. As for some of the examples you listed - I get your point but two of those ended up gaining enough support such that there were constitutional amendments put in place to make those even higher than federal law. So maybe if we gave the other two enough time we would have had a self-adjustment through legislation on the state level due to changing opinions or enough support to warrant the supermajority required for a constitutional change. The other part of this is identifying and viciously pursuing laws that are at odds with each other within the legal system. For example, the bill of rights existed and supposedly protected all persons (citizens or not) within the US. And yet at the same time, those rights were ignored for nearly all of an entire race of people. For that to be consistent at the federal level, one would have had to argue in court that these were not human beings. They didn't do that - they merely declared them as property, but never actually stripped them of their human status, as far as I know. Reading your comment over again, I realize the first paragraph effectively falls into the same category as the problem I am pointing out, in a way. The implication of "we tried that with slavery, women's suffrage, civil rights/desegregation, gay marriage, and a host of other things" to me reads as "a bunch of people were clearly doing the wrong thing and were given a chance to correct it but they didn't, so they obviously had to be forced to do the right thing." And that's precisely the issue I raised. If someone in Alabama was prevented the right to marry because they were homosexual, but no laws were actually being violated (the supreme court ruling changed that), then should I vote to try to force them into submission if it doesn't affect me or anyone in my state? I'm not sure the answer to that should be yes because it results in the kind of issues we face today. I do realize that "your rights are my responsibility" and all that, but I'm referring to the pre-USSC ruling where it wasn't a federally defined right that required protection.
- nerdponx 7y ago
  If it's an issue of basic human rights which are protected within the constitution or anything else covered within it, then it has to be a federal issue. Once we are outside of that, I think the default should be to have it be a state decision I don't think anyone who understands and appreciates federalism disagrees with this. The problem is that we all disagree on what those terms mean (read: most of us agree most of the time, some people have legitimate disagreements, and others disagree in bad faith and stir up populist movements against consensus).

by jadell 7y ago

turc1656 7y ago

It's not easy. But a good starting point would be anything that falls within the bounds of the constitution is clearly a federal issue, essentially be definition. If it's an issue of basic human rights which are protected within the constitution or anything else covered within it, then it has to be a federal issue. Once we are outside of that, I think the default should be to have it be a state decision unless a strong case can be made for things that affect others crossing state borders or a common good/service that federal taxes pay for (i.e. externalities related to dumping, environmental regulation, borders, immigration, interstate trade, roads/infrastructure, military, etc.) That should cover the majority of cases and we can argue about the rest as they pop up. As for some of the examples you listed - I get your point but two of those ended up gaining enough support such that there were constitutional amendments put in place to make those even higher than federal law. So maybe if we gave the other two enough time we would have had a self-adjustment through legislation on the state level due to changing opinions or enough support to warrant the supermajority required for a constitutional change. The other part of this is identifying and viciously pursuing laws that are at odds with each other within the legal system. For example, the bill of rights existed and supposedly protected all persons (citizens or not) within the US. And yet at the same time, those rights were ignored for nearly all of an entire race of people. For that to be consistent at the federal level, one would have had to argue in court that these were not human beings. They didn't do that - they merely declared them as property, but never actually stripped them of their human status, as far as I know. Reading your comment over again, I realize the first paragraph effectively falls into the same category as the problem I am pointing out, in a way. The implication of "we tried that with slavery, women's suffrage, civil rights/desegregation, gay marriage, and a host of other things" to me reads as "a bunch of people were clearly doing the wrong thing and were given a chance to correct it but they didn't, so they obviously had to be forced to do the right thing." And that's precisely the issue I raised. If someone in Alabama was prevented the right to marry because they were homosexual, but no laws were actually being violated (the supreme court ruling changed that), then should I vote to try to force them into submission if it doesn't affect me or anyone in my state? I'm not sure the answer to that should be yes because it results in the kind of issues we face today. I do realize that "your rights are my responsibility" and all that, but I'm referring to the pre-USSC ruling where it wasn't a federally defined right that required protection.

nerdponx 7y ago
If it's an issue of basic human rights which are protected within the constitution or anything else covered within it, then it has to be a federal issue. Once we are outside of that, I think the default should be to have it be a state decision I don't think anyone who understands and appreciates federalism disagrees with this. The problem is that we all disagree on what those terms mean (read: most of us agree most of the time, some people have legitimate disagreements, and others disagree in bad faith and stir up populist movements against consensus).