Monday, February 09, 2004
There are a lot of people, I think, that have some serious misconceptions about what the principles at issue here are. I get the impression that when most people think of the Federalist society, they think of something like the College Republicans for Law Students; a highly partisan, politically-oriented group for conservatives and libertarians.
It would be foolish to deny that there is a bit of truth to that perception. It is true that the large majority of Federalist Society members are politically of a conservative/libertarian bent. It is hardly surprising that when these people get together, their conversations and their attitudes trend in that general direction.
But the main question that concerns Federalists is this: Who makes policy in this country? Is it the people, through their elected representatives? Or is it the (often appointed with life tenure) judges? As a Federalist, I answer that it is us, it is the people.
Governments are instituted among Men, deriving their just powers from the consent of the governed...When judges use their power to govern us, they are betraying this concept of consent. We submit to the laws because we have had our fair chance to shape them. We can accept being governed even by laws which we strongly oppose, because we got a fair chance to shape the law, and continue to have a fair chance to change the law again. We can accept as a fair reason for losing the policy debate that our principles are not shared by the majority of others.
Speaking for myself, I cannot accept being bound and governed by policies in which I have had no chance to directly shape the creation of such policy by vote, or right to petition the policymaker, or ability to marshall public opinion or outrage to apply pressure to the policymaker. I will not consent to being governed by judges who have no reason or obligation to care what anyone accept themselves thinks about a policy - whether I agree with the policy or not.
That is why it is not required that one be a conservative or libertarian with respect to policy preferences to be a Federalist. In fact, it is rather surprising to me that this would be perceived to be the case. Do so-called liberals accept it as their position that they are against giving the electorate control over its own fate? Where are the progressive cries of "power to the people" now? The sad fact is, I suspect that for many of them, these principles of power and government are not as important to them as whose ox is being gored. They still yearn for a return to the days not so long ago when the courts freely implemented their policies, seemingly without constraint. They point to political success as an argument against federalism. Perhaps they are right to a degree; certain political developments that are unquestionably positive might have taken slightly longer to occur.
But at what price? A benevolent tyrant is still a tyrant. "A government that is strong enough to give you everything you want is also strong enough to take it all away." And as we survey what has happened since these cases, can we really say that the issue has been settled? Who believes that racial animosity is less now than it was at the time of Brown v. Board of Education? Who believes that we have reached political concensus on government regulation of abortion? It may truly be that people, Americans especially of all, tend to simply radicalize when their input is shut out of the policymaking process. We're relatively graceful at politically losing, but we have to be allowed to play the game.
It doesn't matter what policies you want. It doesn't matter what you think about War in Iraq, or health care, or guns, or taxes. All you have to believe is that whatever political chages ought to occur, should be done by political concensus. All you have to believe is that everyone should have their fair chance for input into the policymaking process. That is what federalism is about.
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