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I am not sure this piece will continue to live on Forbes' website therefore I thought we should put it here for posterity and discussion.
Consider the following list: 1) Marry someone of your same gender, 2) join a harem, 3) have sex with your donkey, 4) kill your baby the moment before, during, or after delivery, 5) smoke a dried weed, 6) eat a fattened goose liver, 7) shop with plastic bags, and 8) buy a 32-ounce Coke at McDonalds.
Every one of these items has been in the news lately, skirmishes in the perpetual culture war that defines too much of contemporary politics. (I’m sure you can add a dozen more.) Each has engendered legal action, legislative wrangling, kitchen table debate, and bloviating punditry.
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Where do you draw the line, and why? More importantly, how do we draw the line for others, and by what right?
Get 10 random people in a room and it would be virtually impossible to reach agreement on which of these acts is right, wrong, or neither and which should be left to individual choice or for “society” to regulate. Then how can we expect 300 million people to do any better in coming to an agreement?
Our Founders likely never pondered these particular matters. But although, as a group, they were more like-minded than modern Americans, they established a constitutionally limited federal government of strictly enumerated powers that intentionally punted on addressing such questions.
Instead, with specified exceptions, they left it to state governments to fashion local laws that suited the citizens they respectively served, establishing multiple laboratories for democracy tied together under the umbrella of a republic. The federalist experiment wasn’t perfect—the acceptance of slavery being its most egregious failing, ultimately corrected at horrendous cost—but through most of our history it held a large and diverse nation together.
How things have changed! Article 1, Section 8 of the U.S. Constitution lists just 17 categories of power granted to Congress. Most Americans today would be hard pressed to name them. None of these powers speak to the list of choices and behaviors above. None allow the federal government to legislate morality. And none confer upon Congress general police powers or authority over what today we generally refer to as “culture war” issues. (Including infanticide—which even the most passionate abortion advocates would consider murder—falls under the powers of the states to punish.)
The Framers of our Constitution explicitly preserved state authority to address such questions, precisely because they knew the citizens of a large and diverse country could not agree to uniform national solutions to these contentious problems.
Yet that is what many Americans now demand thanks to the transformation of our republic into a majoritarian democracy, limited only by the explicit “Congress shall make no law” proscriptions embodied in the Bill of Rights.
Has this made us better off? Does anyone seriously believe that giving the majority the power to run roughshod over the minority will not eventually blow up in our faces at the next swing of the political pendulum?
Partisans on the extremes of the cultural divide have effectively captured our two dominant national political parties, and succeeded in their common goal of keeping the electorate in a state of constant agitation over matters that shouldn’t fall under the federal government’s purview in the first place.
This has helped the major parties keep their base supporters on a perpetual war footing, ensuring the flow of campaign dollars—which, combined with ballot access restrictions, campaign financing laws, gerrymandering, and other manipulations of the political system, have ensured that no truly competitive political party has been founded in the U.S. since the Republican Party emerged to save the union and free the slaves over 150 years ago.
Given the longevity of this duopoly, it’s worth asking some questions about it. Are citizens satisfied with the status quo? Do they hold Congress in high esteem? Do Americans customarily treat a president of the opposing party with civility?
If you answered “no” to any of these questions, consider hitting the reset button to allow a rebirth of federalism that would shift power, money, and influence out of a floundering Washington and back to state capitals, closer to the people. Every problem does not require a national solution!
Wouldn’t it be instructive to watch different states come up with different answers to divisive issues, thereby allowing us to gain some practical understanding of the consequences of different policies? Imagine a country in which citizens were free to move to a geography and a culture that works best for them without being forced to give up their nationality.
It’s not hard to see where the future leads if we follow in the footsteps of Europe’s exhausted democracies, destined for bankruptcy via ruinous centralization. Why not let the centrifugal forces in American politics work to our advantage for a change—letting Texans be Texans and Californians be Californians?
Federalism wouldn’t be perfect. But it is exactly what made the American experiment so successful and unique. And it certainly couldn’t be worse than our current futile efforts to impose one-size-fits-all “solutions.” All this has accomplished is to steel the opposing political armies for another go at one another, distracting us from tackling existential economic and fiscal issues whose severity threaten to render the culture wars moot.
The alternative to federalism is continued gridlock, a dangerous choice as the runaway train in Washington heads for the cliff.