Ginsburg’s question presupposes an inaccurate (to put it mildly) narrative about the development of marriage law.
On Thursday I spoke at a panel at the Federalist Society’s National Convention entitled: Is Everyone for Federalism Now? The title is a backhanded tribute to the President. Finally, he is bringing us together, because he has caused the liberal resistance to Trump to appreciate federalism—a cornerstone of conservative thinking about constitution! But that is actually the shallower reason for the renewed interest in possible cross- ideological agreement on America’s most famous practical contribution to governance. The deeper reason is that a whole new school of law professors has embraced federalism under the new name of “national federalism.” Two of its most distinguished adherents, Heather Gerken and Abbe Gluck, were on this panel.
Count me a skeptic, however, about the prospect of any enduring alliance. To be sure, there may be tactical and opportunistic use of federalism by those who oppose the administration: that is the nature of politics particularly in Washington where for many politicians the meaning of the Constitution changes depending on whether they are in power. And there may be a few actual areas of rapprochement: it is conceivable, for instance, that some liberals may join conservatives in opposing commandeering of state officials.
But in general there will be no intellectual convergence because the right and left’s understanding of federalism—its content, origins and purposes—is very different. The right believes that federalism derives from a text of the Constitution that limits the power of the federal government, giving different responsibilities to federal and state officials. The purpose of this distribution of power is ultimately to protect individual liberty from government.
In contrast, progressives who promote federalism support a federalism that promotes activist government and exists largely at its sufferance—almost the opposite of constitutional federalism. As the new school of national federalism argues, federalism may be useful in helping national democracy work better or as instrument of national social change, but ultimately it is not judicially protected much if at all against federal power. Progress may be helped along by movements in the state, but once sufficient progress occurs that progress may be nationalized. Thus, states may be useful to advance same-sex marriage, but for national federalists nothing in national federalism prevents the federal government from forcing same sex marriage on dissenting states at the direction of the federal legislatures or federal courts. Massachusetts may experiment with an individual mandate in health care, but the limitations of the enumerated powers create no obstacle to imposing that program on all the states.
The difference between national federalism and constitutional federalism in fact illustrates the irreconcilable difference in political vision between the left and the right. The Right has what Thomas Sowell sees as the constrained vision. Man has an unchanging nature that is self-interested and knowledge of how to improve the human condition is hard to come. Accordingly, the question for constitutional design is how to harness that nature for the common good while constraining its baleful effects through government coercion. The result is enthusiasm for markets, decentralization and permanent constraints on centralized power.
In contrast, the Left’s vision of politics is more unconstrained—far more confident in the beneficence of centralized, collective action, even to the extent of improving man’s nature. Progressivism has long sought to remove the roadblocks that may it harder to fundamentally change society to create greater equality along whatever axis of equality is deemed relevant. It thus will dispose of restraints on national power whenever necessary to advance that vision. In my next post, I will detail the many differences between constitutional federalism and progressive or national federalism and show that national federalism resembles the constitutional kind in nothing but name.