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Conservatives, Federalism, & Consistency
Supporters of federal action on marriage and abortion are not hypocrites.


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Are conservatives hypocrites? Are they “fair weather” federalists, as Emily Bazelon recently suggested, writing in the Washington Post? More specifically, by calling for a constitutional amendment banning same-sex marriages, and endorsing a federal prohibition on partial-birth abortions, do conservative activists and legislators contradict their professed commitments to limited government and local control? Anyone following the debates over these hot-button issues has no doubt heard this charge–from the right and the left alike. Is it a fair one?

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As Bazelon (quite rightly) points out, conservatives have “made curbing national authority a battle cry.” And yet, she contends, they appear more than willing to embrace big-government uniformity, and federally imposed conformity, when it suits their ideological interests. The New Republic has echoed the accusation (“Mass Appeal,” Dec. 1 & 8, 2003): “We have long suspected that the religious right’s alleged support for federalism was always a disguise for its sectarian agenda and would collapse the minute a state wanted to do something its members disliked.” And to Simon Lazarus, also writing in the Washington Post, conservatives’ and the Rehnquist Court’s “federalism crusade” looks increasingly like a “selectively applied sham.” And so, he insists, the question for those justices who claim to believe there are strict limits on Congress’s powers is whether they will “keep their federalism faith, even if that requires betraying political allies on the religious right?”

Put aside the tendentious suggestion that the justices have “political allies,” and the quite-mistaken assumption that moral objections to partial-birth abortion–a practice that the late Senator Daniel Patrick Moynihan could not distinguish from infanticide–are a quirk of the “religious right.” These writers’ charges are important and deserve an answer. Most of us want to believe–though, admittedly, it is not always easy–that constitutional law involves principles, and not just ideological preferences. We suspect, reasonably, that one whose policy goals are never frustrated by the Constitution’s text and structure is probably misreading the document. If our Constitution creates a federal government of specified, limited powers (and it does), then conservatives should have to live with those limits, even when it means tolerating practices and policies they oppose.

WHITHER CONSERVATIVE PRINCIPLES?

Accordingly, Bazelon contends that conservative plans to undo the Massachusetts same-sex-marriage decision with a constitutional amendment are “both aggressive and opportunistic.” Conservatives, she suggests, should know better. Remember, it is a fundamental tenet of federalism that, when it comes to individual rights, states are free to experiment with expanded liberties and increased protections. Thus, “respecting the sovereignty of right-leaning states means respecting the sovereignty of Massachusetts, too.”

Lazarus’s argument is similar. He concedes that “[a]bortion opponents won a major victory” with the widely supported ban on partial-birth abortions, but then warns that the “victory could turn sour when the case reaches the Supreme Court.” In his view, unless the conservative justices jettison their principles “to save legislative artifacts of the religious right,” they will be hard-pressed to buy the argument that Congress’s power to regulate interstate “commerce” justifies the ban.

These and similar “fair-weather federalism” charges, while superficially plausible, are, in the end, unconvincing. Start with the partial-birth-abortion ban. True, many conservatives would likely (though perhaps regretfully) concede that, properly understood, the Constitution’s Commerce Clause does not authorize Congress to regulate abortion in the states. However, they might also insist that the Constitution does allow the states to regulate abortion, and that, in any event, it has been many years since the Commerce Clause was “properly understood.” Why, they might ask, in the face of disingenuous accusations of hypocrisy, should conservatives have to pretend otherwise?

To be clear, the argument is not “I know you are but what am I?” and the claim is not that two constitutional wrongs make a right. The point, instead, is that it is not necessarily disingenuous to take the law as one finds it. It would seem reasonable, then, to demand of conservatives that, for consistency’s sake, they avoid expanding federal power as a way of achieving their desired policy ends. It is not at all clear, though, that conservatives who accept the status quo, and who have no interest in tilting jurisprudential windmills, are therefore unprincipled hypocrites.

Remember, even the Court’s conservative justices are quite reconciled to, even if they are unhappy with, an expansive understanding both of interstate commerce and Congress’s power to regulate it. Contrary to the claims of some law professors and presidential candidates, it is simply not the case that a crusading Rehnquist Court has radically curtailed Congress’s regulatory authority or hamstrung federal anti-discrimination and environmental-protection statutes. Instead, the Court has imposed largely symbolic limits on Congress in a few widely remarked but rarely followed decisions. Nothing in the Rehnquist Court’s federalism decisions commits it to holding that the Commerce Clause power does not extend to the provision and regulation of abortion. Abortion is, among other things, a financial transaction, a commercial activity, a business–even an industry. People pay for and travel to get them; they are paid and travel to provide them. Its regulation would therefore seem well within the bounds of the Commerce Clause power, even as understood by the Court’s federalism-friendly conservatives.

WHY CHANGE THE CONSTITUTION? WHY NOW?

Turning to the proposed federal marriage amendment, there is nothing inconsistent about believing both that our Constitution creates a federal government of limited powers and that it should be formally amended, in accord with the demanding procedures set out in the Constitution itself, so as to provide a uniform definition of marriage. It is worth recalling that what is loosely called “federalism” is more than a “States’ rights” credo. The point of federalism is not so much that the states should be able to do whatever they want as it is that the federal government does not have the power to do whatever it wants. To be sure, there are good reasons to believe that, generally speaking, decision-making should be decentralized, experimentation encouraged, and policy diversity tolerated. (The Catholic notion of “subsidiarity” captures nicely this idea). But such a belief is compatible with the idea that, sometimes, uniformity is necessary and that, sometimes, the federal government has, or should be given, the power to impose it.

Now, no one has seriously suggested that Congress currently has the power to outlaw same-sex marriage. Certainly, no one believes the Supreme Court could or should undo the Massachusetts ruling. As things now stand, a decision by a state court that a state constitution requires recognition of same-sex marriages is, literally, none of the Supreme Court’s business. Thus, unlike those who agitated for the creation of a right to abortion, those who support a federal marriage amendment (and, of course, not all conservatives do) are not proposing that the Supreme Court outlaw gay marriage. Instead, they are urging the people to undertake the serious and appropriately difficult task of outlawing it themselves.

Still, one might object: Why should conservatives do this? Why isn’t this one of those times when experimentation and diversity should be preferred to federalization and uniformity? These are fair questions. Still, given recent trends, it is not at all paranoid for those who support a federal marriage amendment to believe the Supreme Court will eventually declare that same-sex marriage is a constitutional right. If marriage is going to be federalized, one way or another, it hardly seems hypocritical for conservatives to opt for the constitutionally prescribed method of amendment and for their own preferred definition of marriage. They are not asking judicial elites to revise the Constitution in keeping with their own ideological commitments. Yes, a marriage amendment is an attempt to federalize the resolution of a controversial moral question. And yes, the Constitution would change, but as a result of politics and popular sovereignty, not legislative overreach or judicial fiat. The Constitution should not be amended heedlessly, and it should not be cluttered–as many constitutions are–with ideological baggage and special-interest goodies. That said, whatever the merits of a federal marriage amendment, it is not hypocritical for conservatives to support it.

Richard W. Garnett is an associate professor at Notre Dame University’s law school.



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