Federalism

State Interests in the Primary Process

I’d like to post a question that reader G-Veg sent to me regarding states and the primary process.

Cursory research suggests that the most common reason cited for states running Primaries is to avoid fraud.  This is certainly the reason cited by Progressives in Teddy Roosevelt’s time for campaign reform.  While not strictly focused on Primaries, 19th and early 20th Century Progressives made huge strides in dismantling political machines.  (Interestingly, at least in Pennsylvania and New York, primary contests have been paid for and managed by the state for as far back as I could research on line.  In Pennsylvania, for example, election officials ran primary contests at least as early as Lincoln’s election and there are records of New York City primaries for Mayor going back to 1850.)

Research suggests that we’ve been doing state paid for and managed primaries for quite some time with almost no thought as to whether there is even a legitimate state interest in the contests to begin with.  I suggest that there is no legitimate interest and that state patronage is both unconstitutional and irrational.

First, I’ll note what we all know: that we have a “Two Party System” by default, not law.  The Constitution of the United States makes no mention of the country’s political makeup or character.  That reality gives particular significance to Washington’s warnings about factionalism.

Second, the argument that State sponsorship controls fraud is, itself, a farce.  It does nothing of the kind because the “back room deals” Progressives sought to control continue to rule the process.  It seems like a well-intentioned but failed experiment.  It is an expensive one too.  In Pennsylvania, for example, a statewide election, whether primary or general, costs a touch more than $1 million (2010).

Third, even if State sponsorship controlled a host of ill effects like fraud, disputed outcomes, and mob selections of candidates, the state has no interest in contests.  So what if Party X chooses a union bullied candidate or one purchased lock, stock, and barrel by monied interests?  Party X can do what it wishes.  They can select by heredity if they want to.  As long as there is a robust general election, how candidates get on the ballot is largely irrelevant.

Fourth, state paid for and managed primaries force out of elections many millions of qualified citizens because there can never be more than two “real” parties as long as the coercive powers of the state are used to keep alternatives marginalized and disenfranchized.  Surely the state has an interest in promoting greater levels of public service among the citizenry and anything that discourages such participation should be overhauled.

For these reasons, I believe that states should stop paying for and managing primaries.  I’d like to hear your thoughts.

Personally I don’t think there’s much under the constitution that would allow the federal government to get the states out of elections, and any large-scale attempt to get the states out of the business may only enhance the power of the two-party system.  But I’d like to hear thoughts on this.

Perry Vs. Santorum on Gay Marriage

At this early stage of the game, I’d say that my top  choices for the GOP nomination are two Ricks: Perry and Santorum.  The latter has as much chance as I do of actually getting the nomination, but he’ s also the one who I am most sympathetic to ideologically.

I say this all as a preamble because I’m going to disagree with parts of both of their comments from this past weekend.  Rick Perry had this to say about New York’s decision to permit gay marriage:

Perry, who is considering running for president, at a forum in Colorado on Friday called himself an “unapologetic social conservative” and said he opposes gay marriage — but that he’s also a firm believer in the 10th Amendment, the Associated Press reported.

“Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their business, and that’s fine with me,” he said to applause from several hundred GOP donors in Aspen, the AP reported.

“That is their call. If you believe in the 10th Amendment, stay out of their business.”

Perry’s argument on behalf of federalism is completely legitimate.  For now I’ll leave that specific debate aside and focus on the tenor of Perry’s statement.  While one can argue that a state has a right to do x, it does not follow that the state should be free from criticism.  This is similar to something that Rudy Giuliani said, and which I criticized last week.  All that federalism means is that individual states have wide latitude to formulate their own laws, free from interference by the federal government.  Federalism does not mean that citizens of other states cannot criticize these decisions.  This idea that federalism entails complete silence on the doings of other states is akin to those who hide behind the first amendment when they say something silly and earn public ridicule.  Just because you have the right to do something or say something it doesn’t mean that you should do something, and citizens of other locales absolutely have the right to speak out against these decisions and perhaps persuade the citizens of the state in question to change their mind.

That said, I have a slight issue with Santorum’s response:

That prompted a response from Republican presidential candidate Rick Santorum, who tweeted overnight: “So Gov Perry, if a state wanted to allow polygamy or if they chose to deny heterosexuals the right to marry, would that be OK too?”

It’s not unfair to employ the logic of  a slippery slope argument.  There are already rumblings from polygamist groups who want to legalize polygamy now that the floodgates have opened.  That said, there are a couple of problems with this rhetorical strategy.  To me the slippery slope argument is the last refuge when all other arguments fail.  It doesn’t really address the actual issue at hand, and in fact there’s a subtle implication that the subject under consideration is not all that serious a concern.

I guess what bothers me about Santorum’s tweet is that it doesn’t tackle the issue of gay marriage head on.  I acknowledge that this is just a tweet, and Santorum has no doubt argued well on behalf of traditional marriage before.  But this smacks too much of a dodge, as though gay marriage isn’t that bad – but polygamy and the outlawing of heterosexual marriage, now that’s bad.  If the issue under discussion had been abortion, would Santorum have raised the specter of something semi-related?  I doubt it.

I’ll admit I might be nitpicking here, and that Santorum is simply mocking the absurdity(in his view) of Perry’s federalist stance.  Again, you’re not going to capture a lot of nuance in a single tweet – which says something about the nature of twitter, but that’s for another rant.  I just fear that too often defenders of traditional marriage rely upon the slippery slope argument too facilely.  If gay marriage is as bad for society as we think it is, we should argue against it on its own merits (or demerits) instead of attacking semi-related subjects.

'The Federalist Papers' and Contemporary Political Challenges

American Political Theory and Constitutional Law Series, Pt. I

The American people have a history of distrust and suspicion of centralized authority. The original framework for the primitive independent-America outlined in the Articles of Confederation was not weak by accident. Even despite the clear insufficiency of the-then government under the Articles, the framers of the Constitution still found their vision of government to be a hard sell. It is fair to say their success was in finding an effective mix between the Athenian assembly and Roman Senate combined with ‘checks and balance’ with two other branches of government—a republic instead of a direct democracy.

In many ways, this debate has lived on. It is remarkable, particularly in recent decades, how many constitutional amendments have been given real and serious consideration by the U.S. Congress, from balanced budgets, to flag desecration, to super-majorities for taxes,  to line-item veto just begin the list in attempts to reshape the constitutional order.

For some time I have had mixed and often conflicting beliefs about this whole debate. The usual “left” versus “right” spin is, as usual, tiring. Though, I have re-engaged the matter due largely to a new found interest in the project development of Catholic legal theory. Such an undertaking on the part of Catholic law professors and legal professionals have been enormously helpful in the process of asking serious questions and finding an authentic Catholic answer to crucial questions about American government, constitutional law, and jurisprudence. This couldn’t be more true than with my quarrels with the “living Constitution theory” as well as “originalism.” Though it is probably still the case, to some degree, that I am troubled about answers to these questions. I have become more convinced by those who make the case (in regard to one matter) that America needs a much needed reminder: constitutional amendments should be rare and limited to issues of historic significance. The U.S. Constitution must be preserved from short-term and sudden passions. The starting point, I think, is to reiterate, as the Founding Fathers did, the merits of representation, deliberation, and conciliation.

American voters in great number say they favor change, but there is no consensus or clarity about neither the amount nor direction such change should take. Not so surprisingly, contemporary political debates do very little to educate the public about essential constitutional issues. Serious discussion is not only past due, but is vital. What is a greater threat to constitutional government than a lack of substantive public debate and public awareness? An uninformed, ignorant public is perilous to the common good and constitutional order.

→']);" class="more-link">Continue reading

Proposal: The Fair Fight Initiative

As is observed every time we discuss Supreme Court appointments, there is very little pro-life progress possible under the Roe v. Wade regime, because anything which is seen as unduly obstructing a woman’s access to terminate her pregnancy (and thus use her constitutional right to “privacy”) is struck down by the courts. And yet, while abortion on demand is decidedly not popular according to the polls, Roe v. Wade mysteriously is. A solid majority of people way they want to keep Roe v. Wade, despite the fact that a solid majority would also be in favor of legal restrictions on abortion well in excess of what Roe allows.

It seems to me that one of the most difficult tasks for the pro-life movement is thus not to convince the population that abortion should be seriously restricted and reduced (banning would right now be a very hard sell, but it would seem that a great deal of progress in that direction would be possible) but rather to convince citizens that Roe is actually an obstacle to this. Thus, “the fair fight initiative”. The purpose would be (and the lawyers on here can inform me if this is indeed a legal possibility) for Congress to pass a law which would officially remove from the federal government (legislature and courts) any ability to restrict or allow abortion.

→']);" class="more-link">Continue reading

Federalist vs. Pro-Life

The quixotically named Catholic blogger Morning’s Minion has a post this morning in which he (yet again) tries to make the case that the pro-life issue is basically a wash between Senators Obama and McCain. Now, I know that many of our readers already agree that MM’s conclusion is wrong, and deeply wrong, but I want to focus on why this particular argument is wrong, because I think it’s an important question for Catholics living in our republic. So I’d like to ask that people avoid basic “I don’t see how any good Catholic could vote for Obama” comments in favor of discussing whether federalism can be a pro-life position, or is simply a passing of the buck.

MM says:

Basically, neither candidate can be called “pro-life”….
OK, abortion. The starkest difference here is not related to the need to grant legal protection to the unborn child. No, the candidates instead indulged in a quaint little constitutional debate. Obama: “the constitution has a right to privacy in it that shouldn’t be subject to state referendum”. McCain: “I think decisions should rest in the hands of the states. I’m a federalist”. Sorry, but neither position qualifies as pro-life. It is a debate about which level of government has the right to strip legal protection from the unborn child…

→']);" class="more-link">Continue reading

Follow TAC by Clicking on the Buttons Below
Bookmark and Share
Subscribe by eMail

Enter your email:

Recent Comments
Archives
Our Visitors. . .
Our Subscribers. . .