President Bush announces Marriage Protection Week, and the self-proclaimed guardians of federalism don't try to rain on the party. Here's a hint, folks: "federalism" in the conservative mold means "protecting traditional preserves of state power." Marriage law is primarily state law. Ergo, if you care about marriage and you care about federalism, you should probably care about bringing up the fact that marriage is not really a federal issue.
Unless, of course, you want to federalize the particular view of marriage that the Federal Marriage Amendment expresses, and that belief trumps your federalist respect for states. But if you don't care about federalism except when you like the results, then you don't really care about federalism all that much.
I don't, either, actually, but I've never made much of a fuss about federalism as such.
I know that there's more to talk about here, but I still find it a little silly that certain conservatives attempt to cultivate a reputation for wanting to protect states' rights as such, when what they really want is, formally, the same as what welfare-state liberals want: national power for issues that they think admit of no state-level variation, but state power for whatever is left (or, as a second-best scenario, state-level power when the wrong people are in charge of the institutions of national power). The self-proclaimed "federalists" generally just differ on the estimation of the content of the policies that should be centralized at any given moment.
Link via Atrios.
MORE: The Curmudgeonly Clerk has a thoughtful and kind response taking issue with this post, here. I think that the Clerk is right (as usual!), but we may be talking past each other. The Clerk argues that the issue is complex because of the possibility that federal courts will nationalize gay marriage absent a constitutional amendment; thus defenders of FMA can say that they are in fact trying to preserve state-level decisionmaking on this issue. In addition, the Clerk notes that defending federalism does not mean that one needs to defend it as a paramount principle, "even though the heavens fall." These are critical points.
As for the first: if the Full Faith and Credit concerns are really paramount, then the text of FMA will either have to be changed or it will have to be interpreted counter to the intentions of many of its backers, who expressly want to deny all gays and lesbians the ability to marry, in every state, forever. (I don't think that the Clerk disagrees here.) That latter position does not respect federalism, of course, although it's not clear to me how many people who take that position generally defend state-level power. One example of people who do: the folks at NRO seem to want to defend state-level power on occasion, but on the issue of FMA they sacrifice federalism in the name of a policy goal and not simply in the name of stopping judges from changing marriage. Since I'm mosly interested in the way that constitutional rhetoric works in the broader political culture -- and, politically, since I'm in favor of letting states experiment with gay marriage, at least -- I hope that the Clerk can forgive me for showing a little glee on this occasion.
As for the second point: definitely true in the realm of serious argument, less true in the realm of impassioned debate. It's always useful to point out just how subordinate the idea of federalism is, when one gets right down to it. You might even say that there's an unacknowledged lexical ordering at work here. But that would seem to mean that it should be hard to get to a position in any given debate in which the word "federalism" is anything more than a moniker for a policy disagreement (even if it is one that relies on Cooley-type functional concerns -- first get the policies right, even though that may entail some discussion of distribution of decisionmaking authority). In addition, sometimes the word is a stalking horse for unacknowledged or unbridgeable policy disagreements. I don't think that these descriptions cover the cultural meaning of "federalism," and perhaps that's why the stronger cultural meaning can perform the political work that it does.
The astonishment that led me to write the post is that absolutely no one bothered to suggest that a presidential proclamation of "Federal Marriage Week" might be an inappropriate exercise of national power. To me this means, culturally, that the state - national distinction has become largely inoperative on the issue of marriage; there are probably a lot of reasons for this, from the conservative focus on marriage in the welfare debates over the past decade or so, to the current prominence of the issue of gay marriage and the FMA, as well as to the fact that the proclamation is an exercise of national power in the right direction for the type of Republican who tends to talk about federalism.
MORE: Steve also responds kindly with a defense of the claim that marriage is too important to be left to the states. Although I disagree with Steve's position, I recognize the form of the argument: states are going to screw up something that they really shouldn't be screwing up, so it's time to take it to the next level. The serious question, then, is whether or not states are actually screwing something up. That's where the debate should be. One thing that is nice about federalism, of course, is that it can act as a kind of geographic representation of the bounds of reasoned debate, or at least an imagined reasoned debate, as long as one is willing to admit the tentativeness of one's own positions -- as in, "since I don't know what's best, and since there are multiple reasonable opinions, let's consider devolving decisionmaking authority." I'm certainly not against policy experimentation when there are multiple reasonable approaches to a problem. With respect to gay marriage, though, that's also where Steve and I differ: I don't believe that it's a moral absolute that marriage has to be defined as "one man and one woman." But if you want an eloquent defense of that position, read Steve's post.
I do think it's important to note that for Steve, the 10th Amendment seems to fall off the jurisprudential cart as soon as we're talking about the "health of the republic." It's not clear that the opposite view is "antifederalism," as I think Steve is implying: James Madison once famously argued that if the treaty-making power had been left out of the Constitution, it would have to be added by amendment (set aside for a moment the fact that FMA is a proposed amendment; if it fails, we'll see more ordinary exercises of federal power in this area, the 10th Amendment be damned!). Madison was hardly an antifederalist on this point. I suppose that one could then argue that whenever someone seriously -- rather than strategically -- raises a claim that the "health of the republic" requires an exercise of national power, then one should first debate whether or not that is the case rather than simply reaching for the federalism cudgel. I can live with that.
AND MORE: I realize that the treaty-making point may seem obscure, but Madison made the point in the context of an argument intended to show that bank charters could not be issued by Congress; this was a momentous power (like the treaty-making power) that was not delegated to Congress and, I gather, left to the states, who had been exercising this kind of power already. (See Brest, Levinson, Balkin and Amar's excellent casebook, Processes of Constitutional Decisionmaking, 8-11, for Madison's arguments).
