« SCOTUS Symposium: The final week | Main | SCOTUS Symposium: Perry v. MSPB »

Monday, June 26, 2017

Federalists do not know how to party: Why Federalism is a Boring but Vital Idea

Stephen Marche complains in yesterday's Sunday NY Times that "Canada doesn't know how to party," because Canadians are unenthusiastic about celebrating the British North America Act of 1867, the statute that created the modern Canadian state. It is not that Canadians dislike the BNA. It is just that the BNA is boring -- "the single most boring object ever produced by human consciousness," in Marche's words. It is a long, technical document largely designed to accommodate Anglophones' and Francophones' mutual desire to be left alone. Since 1982, when the BNA was "repatriated" to become Canada's Constitution, it has been gussied up with a Charter of Rights and Freedoms, but even this addition is qualified by section 33's "notwithstanding" clause allowing provinces to opt out of Canada's bill of rights.

As a mere federal framework for mutual non-interference, Canada's Constitution has a whiff of the dull drudgery of a good-enough marriage. (The BNA begins with this soporific preamble: "Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion...."). And yet, as Marche notes, the absence of celebration is a pity, because Canada's success as an extraordinarily peaceful, prosperous, multi-national state owes a lot to this dull, "go along to get along" document.

Marche's piece could be generalized as posing the essential dilemma faced by the idea of federalism. Because it is a boring and merely territorial compromise, federalism can be effective at defusing otherwise intractable partisan or ethnocultural disputes that resist resolution through national theories about the Good and the Just. But precisely because it is boring, the federal idea is hard to enforce when it conflicts with one's more passionate commitments. The result is that each side is tempted to bail from a federal commitment when disputed rights are at stake, causing the entire system to unravel. Of course, one might rationally realize that one's passionately felt right is one's opponent's passionately felt wrong and that winner-take-all nationalism might leave one with nothing when that opponent controls the national government. But such dry, rational argument is easily brushed aside when one has the reins of national power in one's own hands and can end, once and for all, [fill in your own pet cause]. Against the cautious federalist who wonders whether the policy in question really is a necessarily national policy about which reasonable people cannot disagree, the nationalist brusquely offers the Reductio ad Brownum ("So would you safeguard Jim Crow with federalism?"). It turns out that, when one has a congressional majority, every policy with which one disagrees, from Sanctuary Cities to Clear & Convincing Proof standards for college campus sexual assault hearings, looks as bad as Jim Crow.

The problem with federalism is, in short, that we Federalists do not know how to party -- which is a shame, because there is actually a lot to celebrate in a robust federal regime.

Posted by Rick Hills on June 26, 2017 at 06:30 AM | Permalink

Comments

Post a comment