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A Fundamental Debate: Which Came First, Federalism or Religion?

I have argued for some time now that the Republican Party was coming to a point of conflict between the factions that comprise her.

In one corner we have the libertarian wing – the get government off my back and out of my life crowd. They want nothing more than an exceedingly limited federal government with the bulk of important decisions made by the branch of government closest to them.

In the other corner, we have the religious wing of the party. They claim the title “conservative” but there is nothing restrained in their pursuit of public policy based on their theology. They say they want government out of their lives, but then they use the power of the fed in an attempt to legislate everything from government mandated a la carte television to right to die issues dragged up from lower courts simply because the original verdict offended some religious sensibility.

These two factions have been clashing of late because the former holds the latter somewhat to blame for the party’s losses in 2006. The rabid pursuit of a gay marriage amendment and the circus that was the Terri Schiavo case, the argument goes, drew negative attention to the party in a way unseen since Pat Buchanan’s bigoted speech at the 1992 convention. Not in 14 years had the religious right done so much to harm the GOP.

The religious wing fires back that it was the heathens among the GOP (Mark Foley being one) that cost us the election. They believe (despite polling to the contrary) that the country yearns for the same sort of theologically pure government not seen since the Taliban was routed in 2001.

Now the debate is playing out in the politics of the Presidential contest. This morning, Joe Carter at the Evangelical Outpost took aim at Fred Thompson for his support of Federalism.

Now I’m not so certain. His views of the federal marriage amendment, the Schiavo case, and his general position on federalism are troubling. For me, conservatism trumps federalism, while the position Thompson endorses seem to reverse that order…

Federalism also can disappoint those who believe that justice trumps ideological concerns. One of the most disheartening and shameful scenes of the last decade was to see so-called conservatives claim that the Terri Schiavo case should have been left solely to the state of Florida. The charitable view is to assume that had they known that a woman was being killed by the state without due process of law, they would have sided with justice over judicially mandated involuntary euthanasia. The less generous opinion is that they simply haven’t considered how federalism relates to conservative principles.

For if conservatives are willing to give the state the power to kill an innocent woman, willing to let adherence to procedure trump our dedication to justice, willing to put the rights of the government ahead of the rights of the individual, then we have lost all sense of what it means to be conservatives.

Federalism can be useful in drawing legitimate lines of Constitutional authority. But when it is allowed to transfer power to the states from other societal spheres, the philosophy merely creates 50 separate laboratories of liberalism.

A Fundamental Question

Carter makes an argument that Federalism is not a conservative position. It raises an interesting topic of debate. He gets into theoretical discussions about various interpretations of the ideologies that shape society, but suffice it to say he does not adopt a Federalist viewpoint. The basics of his argument are the government of Massachusetts could, if it wanted, assume a totalitarian position and define all aspects of society. They could enforce not only their own views of religion, definitions of marriage, etc, but they could prohibit all others.

Well, yes. Exactly. That’s essentially the theory of Federalism. If the majority of the people of Massachusetts, who elect the governing bodies of the state, felt that was acceptable, they could do just that. His argument is rather simplistic as he describes a more dictatorial regime, and seems to ignore that Federalism still begins and ends with the role of the people being governed in setting the course of their life. If you include that, he’s pretty much right on. People can, if they choose, set their own rules and live by them.

So which is the conservative position? Should Conservatives resist the encroachment of the Federal Government into the most private decisions of our lives?

To explore that, let’s return to the Schiavo case. What we see in her situation is exactly that. A state, based on the laws enacted by the duly elected representatives and the adjudication performed by its judiciary, made a decision to let a woman die. States do this routinely. States choose not to admit evidence in cases that could exonerate innocent people wrongly convicted and slowly dying in an 8×8 metal cage. We acknowledge the injustice, but there it is. The fact is the rule of law, for all its power to manage society, is an imperfect machine that is occasionally greased with the blood of the innocent.

Does that justify the federal government forcing its nose into the tent and demanding a different set of laws (laws of its choosing) be applied because the citizens of California, Washington, DC, or Illinois were bothered by the rules set forth in Florida? Does it justify the expansion of the federal government’s role to interfere with the laws of a state?

Occasionally, we see a murder case where the outcome of the trial is so horrific it appalls us as a people. Take a look at O.J. The overwhelming majority of this nation was horrified that these two lives were taken. The country watched in shock as the joke that is the California judicial system let the killer walk free.

Yet nobody demanded that the federal government intercede on behalf of “the innocent”. Nobody staged protests to demand that the rights of Nicole and Ron be heard and the murderer be dragged to Washington for justice. We understood that there was an imperfect trial, in a flawed court system, and a travesty occurred.

If you really want to see this argument on display, suggest to someone who is pro-life that a Constitutional amendment banning abortion is completely contrary to Conservative beliefs. Abortion is murder! They will claim. We need to protect life at the federal level!

But this ignores the fact that murder is tried as a local crime. It is left to the local courts to determine whether a murder was premeditated or a crime of passion. It is left to the states to decide which homicides can be justified and which cannot. It is left to the states to decide what level of punishment is applied to a crime. Why then, is abortion, or right to die not afforded the same level of local discretion?

Federalism and Marriage

Now I can jump on my other favorite “federalist” soapbox, again. If you consider yourself Conservative, the idea of a federal amendment “protecting” marriage should make your skin crawl.

The debate over marriage, as I have often been known to rant about, is not about the “definition” of marriage. It is not a question of whether marriage is one man and one woman, two men, two women, or a human being and a goat. The real debate over this issue must, and I believe eventually will, come down to what is the basis for marriage.

Is marriage a contract between two people and God? Or is a marriage a contract between two people and the state? In computer security terms, who, in this arrangement, is the certificate authority? Who ultimately sanctions the marriage?

If marriage is a contract between the united and their God, then the government has absolutely nothing to say about it. The Constitution is quite specific on that point. Churches, then, should be the ultimate arbiters of what “defines” marriage for their parishioners.

If marriage is a document legally binding two parties for the purpose of legal assets and legal protections, then the contract should be gender neutral as is every other contract drawn between consenting parties. I can sell my car to a man or a woman. Homosexuals can trade real estate under the same rules that govern such transactions for heterosexuals. Marriage, if it is a contract with the state, should be no different.

It is that debate, and that question, that must ultimately be decided before any law to define marriage can be written.

So Who Is Conservative?

Now I have been called a “squishy” Republican because I pursue the principles of my party before the principles of my faith. I have had my conservatism challenged by those, like Carter, who ignore the very meaning of Conservatism. Conservatives adhere to tradition and the continuance of trusted methods. The very word conservative implies that change to the existing structure of society should be measured and tempered.

By comparison, liberal ideology stresses the rapid adoption of new laws and the imposition of the federal government’s authority to address any perceived situation. Think there might someday be a problem with discrimination on the Internet? Legislate the solution before you have ever seen a problem. That’s the liberal way.

I am terrified because it seems, increasingly, to be the way adopted by the religious wing of the GOP. It is a disturbing trend, and one that threatens to rip the very fabric of the GOP coalition. If religious conservatives abandon the detente that exists with fiscal conservatives in pursuit of their ideology, they are threatening the ability of either of us to be successful.

However, a rift between the two factions of the GOP could be a good thing. It may bring about a fundamental realignment of electoral politics. The religious right and the tax-and-spend liberal left would unite in pursuit of a federal government that not only mandated the “right” way to live (be it through edicts on smoking or worship), but they could enforce it through taxation.

On the other side, the fiscally conservative Democrats, the libertarians in the GOP, and the moderate centrists, fearful of an all-powerful government and distrustful that it’s one-size-fits-all solutions would be either cost-effective or successful, would stand in opposition.

If anyone thinks that a Federal government empowered to weigh in on religious decisions will always weigh in on the side of the religious, they are sorely mistaken. If anyone believes that a government big enough to tell you what to do with your womb, your choice of mate, or your right to die will practice restraint in telling you what to do with your wallet, you’re high as a kite.

Written by Michael Turk