Friday, February 13, 2004

The most rational article I've read on this whole gay marriage debacle:


Open debate is impossible when judges make law. It's quite likely that the liberal's sacred Roe v. Wade is the source of all conflict in the abortion debates. That is, because the Supreme Court made law, opposition groups needed to radicalize their methods to break through this legal blackhole. Whereas, a natural political debate through legislative processes would eventually arrive at a solution with which the nation could live. (Probably a federalist solution, since some states would reject abortion and others allow it.) Instead it's a rallying point around which opposing ideologies expend enormous amounts of energy.
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Perhaps you've noticed my personal preference for a federal solution to most thorny political issues. I do prefer it. Federal law's scope should be hemmed by constitutional limits that leave the vast majority of day-to-day issues to the states. Though societal mobility blurs longstanding differences, States are still politically identifiable units that form coherent cultures. This culture would be coherent even if a state experienced a 100% population turnover as the new populace interacted and arrived at solutions to social issues. The United States is too disparate a polity to have too many cookie cutter laws applied to all states.
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Now that liberals are using federalism to advance their ideas, it should be noted that the Dixiecrats of yesteryear lost that argument. If Republicans keep power in Washington, these liberal attempts at federalism will also fail.

This insight also reveals federalism's dirty reality. After all, federalism has always been the cop out answer when differing opinions threaten political discord on basic issues of human dignity. Federalism first gave us southern slavery and then Jim Crow laws. A blanket solution of federalism would question the validity of Civil Rights era milestones like Brown v. Board of Education et al. And, of course, the constitutionality of these federal actions and decisions are doubted by many conservatives even still.

What line must be crossed before a constitutional right is trespassed? If Jim Crow laws didn't walk all over black Americans' rights, I guess the constitution is worthless. Hardcore libertarians would say economic pressure would have forced an end to white-only businesses, but that assumes the black community could have become economically important within the context of very skewed playing field. Malcolm X, in his autobiography, advocated that blacks first raise themselves out of poverty and then demand, as equals, their rights, rather than beg the white man for them. This is ultimately the solution for ending discrimination, but it's unlikely that people treated as second-class citizens would have made that leap in the short term. There are times when the whole by-the-bootstraps mentality is plainly ridiculous.

The argument is partly right. These decisions came only after blacks demanded their rights. (I must disagree with Malcolm X, it's not begging to ask for basic rights.) The machine of public discourse began to move, the courts and federal government helped it along. It's also important that many of the decisions did not make law, but merely guaranteed rights to people so far denied them. Ultimately, confronted with a twisted status quo, most people can't continue in their bigotry. (I'll be optimistic.)

The question in the gay debate is whether the race analogy holds true...

Well, I didn't mean to go on like that.


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