Professor Heather Gerken of  Yale Law School wrote an interesting article called, A New Progressive Federalism for a journal called Democracy: A Journal of Ideas ,which was picked up by the Huffington Post.  The article makes a progressive argument for federalism.

The article makes several excellent points about the importance of state and local control, breaking away from the more nationalistic view which is held by many progressives.

One argument she made: dissenters can force an issue they feel passionately about on the local and state level, which in return forces it to become a national issue.  She used examples of Arizona passing their controversial immigration bill and San Francisco issuing gay marriage licenses.  She pointed out that in both cases, locals were frustrated by lack of action by the federal government on these issues, and by taking actions in their hands have made immigration and gay marriage national issues.

Gerken also addresses the problems in the past, where state rights was used as a means promoting racial inequality.  However, she points out how states rights can also be used in promoting racial equality.  As minorities gain control on the local and state level, they can help promote racial equality being in these positions.

On this point, she wrote:

Critical distinctions get lost when we treat these issues as debates about segregation versus integration. The most obvious is that these institutions may be different from the racial enclaves of Jim Crow. The less obvious is that, viewed through the lens of federalism, we might imagine these sites as opportunities for empowering racial minorities rather than oppressing them.

Gerken also addresses problems of both local and national rule:

It would be silly to argue that minority rule is without costs. But the model currently favored by progressives—a strong nationalist system—has costs as well, as the discussion above makes clear. (examples she cited in her article) Eliminating opportunities for local governance to protect racial minorities and dissenters also means eliminating the very sites where they are empowered to rule.

Pushing the point even more, she wrote:

It would be foolish to insist that every state and local policy must be progressive for progressives to favor federalism. Decentralization will produce policies that progressives adore, and it will produce policies that they loathe. The same, of course, is true of a national system.

This article is interesting read, I do agree with many of the points she made.  Since this published in a progressive journal and later picked up by The Huffington Post, I do hope more progressives will read it and consider her arguments.

However, there are some problems as well.  Gerken does a great job making the case that local rule must be considered, but I do sense an implication that she still favors a stronger federal government more so than most Tenthers could support.

Her suggestion that San Francisco’s  and Arizona’s efforts on their issues has made gay marriage and immigration national issues for which the Feds will need to act.  Tenthers here could ask, “Why?”

Gerken also makes several references to the Fourteenth Amendment in her article.  Through history, there has been a huge debate on the actually meaning of the Fourteenth Amendment.  Progressive have adopted the view that has been consistent with the Supreme Court rulings since the late 1960s.

The problem with the Progressive interpretation of the Fourteenth Amendment is that it constantly locks antlers with the Tenth Amendment.  Many Progressives feel that if the Tenth Amendment was strictly enforced, the southern states will fall back into their pre-1970s state.

They really don’t know the history of Nullification which actually has helped supporting racial equality as documented by Tom Woods in his book.

The concept of putting more and more power in the federal system as the two major parts arm wrestle for control just seems absurd to me.  Former presidential candidate, Rick Santorum actually stated he is not a supporter of the Tenth Amendment when it came to his own Social Conservative views.   Why would a Progressive think that a stronger national system where someone like Santorum could actually win the presidency is better than one with more decentralized control?

The biggest difference between the Tenth and Fourteenth Amendments: The Tenth constricts the federal government while the Fourteenth embodiments it.  Since the Fourteenth expands government power, what is the check on said power?  The Fourteenth Amendment was clearly abused  with the school busing issue.

The Tenth Amendment does have a built in check.  Local and State governments have an Achilles’ Heel: revenue.  If a local or state government becomes to abusive, the citizens will just leave and move to region more aligned with their views.  With this, the loss of tax revenue will start taking an effect.

However if the Feds start abusing their power, we can’t move away,  and they still get our taxes while also having the luxury to print money for themselves as well.  Something for all to consider…

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