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Wednesday, June 26, 2013

Rights and Risk Aversion: Should the Left Embrace the Gift of Federalism on Marriage and Family?

Back in April, Linda Greenhouse warned liberals to "[b]eware of conservatives bearing gifts" -- in particular, the "gift" of "the discordant music of federalism" on marriage rights. According to Greenhouse, the SCOTUS's holding that the federal government cannot not discriminate against same-sex couples without reaching any conclusion about whether states could so discriminate "is a truly bad idea, and the campaign for marriage equality would be worse off for it." The reason is that "basic civil rights" should not vary state by state: They should be uniform throughout the land. Federalism is just a creepy-crawly thing that "tends to emerge from under the rocks in times of constitutional ferment, when the status quo is cracking and needs some propping up."

Well, now that Windsor has given us the gift of federalism with respect to Fifth Amendment rights, should the Left look a gift horse in the mouth? Or should they welcome a little federalism with respect to marriage and family matters? I think the answer to the question depends on risk aversion and discount rate. If you are a Lefty with a strong stomach for risk, then you should be no friend of federalism: You should favor the winner-take-all, high-stakes game of having the SCOTUS define "basic civil rights" in family matters in hopes that the votes will break your way. If you are a Lefty with a high discount rate, you will also discount future risks that a future SCOTUS will define "basic civil rights" in a conservative direction and try to nationalize your preferred definition of "basic civil rights" right now with the current Court and not worry about whether encouraging judicial creativity about nationalizing rights will injure your interests down the road.

I can understand why a high-stakes gambler with an impatient streak would disapprove of federalism with respect to family matters. What I cannot understand is why people like Greenhouse do not seem to appreciate that their urging of rights nationalism is a risky gamble for the causes in which they believe. Nothing in Greenhouse's column shows any awareness that a SCOTUS that felt empowered to define basic civil rights according to their moral lights would not do so in a way that might threaten "basic civil rights" according to Greenhouse's and others on the Left. It is one thing to roll the dice with full awareness that one is taking a risk. It is another thing altogether to do so blithely unaware that the dice could come up snake eyes.

How does federalism provide insurance for the risk-averse citizen, whether Left or Right? The answer, of course, is that, by reserving categories of topics for subnational resolution, federalism reduces the costs of the national government's being captured by one's opponents. Federalism performs this insurance function with basic civil rights as much as with any other topic, because basic civil rights can be a zero-sum game: One's opponents' view of rights might not only be different from, but also might actually violate, one's own conception of rights. Obvious examples come from abortion and religion: A broad definition of fetal rights violates broad definitions of women's rights to choose whether to give birth, while broad definition of free exercise rights violates a broad notion of rights to be free from establishments of religion. But less obvious examples can be drawn from many other contexts where the "Left" version of a right might be vindicated not by courts but by legislatures: Freedom of contract, for instance, can destroy a right to collective bargaining or a living wage.

That judicial creativity with rights can be risky for the Left is especially true with ethnoculturally sensitive issues like family and marriage like parental rights -- for instance, the rights of parents to home-educate their kids with minimal state supervision, the right of parents to administer corporal punishment to their children, the right of parents to stop the use of textbooks in K-12 schools celebrating views of sexuality with which the parents disagree, etc.

One possible response to the risk that the SCOTUS would vindicate these "conservative" rights is denial: One could argue that such conservative claims for such conservative rights are so obviously meritless that they will never prevail nationally before the SCOTUS. Such denial is, I think, the product of a high discount rate: Because SCOTUS is likely to reject such claims right now, one believes that SCOTUS will likely reject them further down the road. Such confidence is, I think, misplaced, as the gradually successful campaign in favor of Second Amendment rights indicates. (The Second Amendment is, by the way, one of those rights that, according to a capacious view of private rights to be free from violence, arguably violates a Left or at least Liberal conception of rights).

By repeatedly hammering home the idea that family and marriage are matters primarily for subnational resolution, opinions like Windsor reenforce a legal culture in which winner-take-all constitutionalism on extremely divisive matters by both the Left and Right is discouraged. It was precisely conservatives' leeriness about nationalizing marriage that led conservatives during the Bush Administration to take the laborious route of trying to outlaw same-sex marriage through a constitutional amendment rather than a federal statute. Indeed, some conservatives even opposed the anti-gay constitutional amendment itself on the theory that the spirit of federalism prohibited such a measure.

Federalism is indeed an ambiguous gift: Like any insurance policy, it exacts a costly "premium" in the form of not getting everything one wants at the national level right when one wants it. The Left should feel absolutely free to decline such insurance on the theory that they do not really need it, because the national government and federal courts will always be on their side.

But before they do, they should at least ask themselves the question: "Do I feel lucky?" And, if like myself, they are risk-averse enough to answer "not always," then they might want to accept that conservative gift of federalism insurance with a bit more enthusiasm.

Posted by Rick Hills on June 26, 2013 at 02:42 PM | Permalink


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Yes, Andrew, you are exactly right that federalism -- like all constitutional doctrines and concepts -- gives rise to a two-stage game. The problem is not unique to federalism: It arises with freedom of speech, religious liberty, equal protection -- any general concept that, when applied to specific situations, benefits some groups at the expense of others. Assembling a stable coalition to enforce a general principle over sequential decisions, where each decision benefits one part of the coalition but burdens other parts, requires some mechanism for fostering credible commitment to hold together the coalition.

Take freedom of speech. Protecting picketing as "speech" benefits unions but might be of little interest to, say, middle-class academics interested in academic freedom. Protecting sexual speech might be a matter of indifference to unions. How can all of these groups form a stable coalition to enforce freedom of speech in abstract? Why don't justices indifferent or hostile to particular manifestations of a general principle defect when their ox is being gored?

Courts have ways of overcoming defection from a constitutional coalition, including stare decisis, insistence on crisp ("judicially manageable") rules that make defection obvious, and professional norms that push towards general (so-called "neutral" but really simply coalition-respecting) principles.

Demonstrating credibility by voting for a principle against one's other ideological commitments is one way to signal that one is a trustworthy coalition partner. I suggest that this is precisely what Justice Kennedy did in Windsor. Here's hoping that Breyer, Kagan, and other "Left" justices reciprocate when federalism benefits conservative causes.

Posted by: Rick Hills | Jun 26, 2013 6:49:47 PM

Great post, but you seem to assume that for one side to embrace federalism now makes it more likely that the other side will do so later. That might be the case, but I'd like to hear more about the mechanism by which we can expect such a cooperative equilibrium to emerge. It cannot be enough for the stronger faction at T1 to have low discount rates or high risk aversion. That faction must also trust the other side not to exploit its strength when their positions are reversed. Otherwise, there is no future gain to be expected (at whatever discount rate) from buying a federalist insurance policy at T1. Credible commitment and deterrence theory seem relevant here, thought I am not sure what they would say.

Posted by: Andrew Coan | Jun 26, 2013 4:09:44 PM

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