Tag: federalism

The “State’s Rights” Debate

We had a interesting debate Friday night over Arizona’s right to enact laws as a matter of a State’s Right to autonomy on WWL Radio. My esteemed partner and I saw it very differently.



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First of definition of terms, as I plan to employ them:

As a matter of distrusting my own choice of words, when the semantic point came up that the idea of “Federalism” meaning FOR State’s rights, I chose to wander over and pick up my copy of “The Federalist Papers” off our library shelf. I also googled and skimmed “The Anti-Federalist Papers” which were published at the time to make the case against a strong centralized government and arguing against ratifying the Constitution. It was the Anti-Federalists who made the Bill of Rights being the first act of Congress an absolute guarantee. Jefferson was a strong Federalist in believing that the Separation of Powers would ensure a Central Government that would create safeguards against the Federal Government becoming an entity with enough power to become abusive to individual State’s or Citizen’s welfare.

The Federalist Party; thereafter was a product of pro-banking, pro-business who wanted a fiscally stable strong central government. Hamilton’s centralized banking economic policies were opposed by Jefferson – the arguments were essentially elitism versus populism; but culminated moreso in the only Federalist President, John Adam’s creation of a tax subsidized standing military (Navy) and the creation of the “Alien and Sedition Act” …the very first shot in the effort to create a Unitary Executive. However Jefferson also penned the Ky & VA resolution, which supported State’s Rights should the Federal Government overstep its bounds. A sticky wicket this term.

So, consider my usage of the term “Federalist” in description of my views for this debate only, as the Jeffersonian argument for a Central Government, and as the opposing view of the “Anti-Federalist” State’s Autonomy arguers of that era. I am comfortable in my use of this term under this intended usage. I am not employing all of the nuances of Federalist’s platforms or views in this debate, rather using the most simplistic of usages.

Ok, that said, let us move on to the legalities and ethical questions surrounding these points of views in this present era.

Health Care Reform: Who Will Make the Final Call?

Over one-hundred and seventy-five years ago, an obscure Louisiana senator awaited his time to speak in front of the Senate gallery.  In a few short days, what would have seemed to be a relatively limited debate about the merits of selling public lands in the western states of a still relatively small nation had been transformed into an expended discourse about whether secession from the Union had any legal basis.  The senator in question, Edward Livingston, had listened to a series of variously thrilling, erudite, and eloquent emotional addresses given by the giants of that body in those days.  Each trying to outdo the other, perhaps concerned a tad more for his legacy than specifically for the cause at hand, a highly competitive chamber in the best of times had grown even more charged and partisan.  Livingston had no intention of bettering what anyone had said before, rather his desire was to appeal to a sense of hopefully uniform conscience and fair play.    

The best speakers had already writ their words into if not immortality, at least a place in the history books for several generations.  Daniel Webster’s thundering, inspiring speech imploring for national unity did much to keep together an increasingly fragile peace, but words alone would prove insufficient to prevent Civil War.  Giving birth to generation of brilliant statesman after brilliant statesman would not reconcile the divisions based far more on passions than on more cerebral pursuits.  From this point onward, slavery and states’ rights overshadowed every issue on the agenda, and this singular focus inevitably drew debate back to a raging boil, regardless of how seemingly innocent and harmless was its basis.  

Upon this context, Livingston spoke.

The post of partisanship for partisanship’s sake–of seeing politics as blood sport, where the kill is the only object of the exercise–was, Livingston said, too high for a free society to pay.  Differences of opinion and doctrine and personality were one thing, and such distinctions formed the natural basis of what Livingston called “the necessary and…the legitimate parties existing in all governments.”

Parties were one thing; partisanship was another.  “The spirit of which I speaking,” Livingston said as he argued against zealotry, “…creates imaginary and magnifies real causes of complaint; arrogates to itself every virtue—denies every merit to its opponents; secretly entertains the worst designs…mounts the pulpit, and, in the name of a God of mercy and peace, preaches discord and vengeance; invokes the worst scourges of Heaven, war, pestilence, and famine, as preferable alternatives to party defeat; blind, vindictive, cruel, remorseless, unprincipled, and at last frantic, it communicates its madness to friends as well as to foes; respects nothing, fears nothing.”  

American Lion:  Andrew Jackson in the White House by Jon Meacham.

We have had our allotment of that madness after a long hot summer of discontent, but what has recently calmed down into something like order if not decorum constantly threatens to regenerate into something much more sinister.  Our own weariness and fatigue with this recession may be the only thing that keeps down the thermostat to a tolerable level.  Red state governors and representatives learned that the quickest way to win short-term accolades and the war whoops of the crowd is to obliquely raise the specter of nullification and even withdrawal from the Union, a battle which is long since past us, but still immortalized in the myth of the Great Lost Cause.  Indeed, as a native Southerner, even I was exposed to such a romantic, dashing ideal only present in the psyche of those who win the first half’s worth of play on sheer emotion, but ultimately lose the game in the fourth quarter against fresher legs and superior depth.  This is a very dangerous construct, one shared by Germans and utilized by Hitler for his own ends in advancing a narrative of historical oppression and imaginary enemies that gave unity to many but led to brutal slaughter of many others.  Given half a chance, the masses will always clamor for a re-match.

Livingston at a slightly later date stated,

There is too much at stake to allow pride of passion to influence your decision.  Never for a moment believe that the great body of the citizens of any State or States can deliberately intend to do wrong.  They may, under influence of temporary excitement or misguided opinions, commit mistakes; they may be misled for a time by the suggestions of self-interest; but in a community so enlightened and patriotic as the people of the United States, argument will soon make them sensible of their errors, and when convinced they will be ready to repair them.”

Ibid.



A belief in the inherent decency and rational sense of the American people often reads like empty rhetoric in this day, especially when so much ink gets spilled about how clueless and uninformed are the average citizen.  However, in this instance, modern day Senators and Representatives would be wise to heed the wishes of those whose trust they are the supposed stewards.  Poll after poll has shown a slow, but nonetheless undeniable upward tick in support of Public Option and other reforms.  Legislators, much like we ourselves, seem to be caught in that eternal quandary, pondering whether the commoners can act in their own best interest, or whether it is the unenviable burden of the elites to superimpose their own will in its place.  The paramount lesson to be learned here is that Americans are frequently slow to warm to and inherently suspicious of expansive change, no matter whether or not self-interest is keenly involved.        

Speaking specifically to the months-long debate with ourselves and our government, whichever health care bill is passed may likely include a provision whereby states can opt-out of a means to establish parity among health care providers, and no matter how what blend of incentives or threats of consequences, many GOP-dominated states simply will not follow suit.  The often unsatisfying compromise between centralized power and regional control known as Federalism will often materialize in these situations.  Both perspectives, either for or against are under-girded by a strong sense of distrust of distant bodies and corresponding fear of corruption.  Certain, usually conservative states are fearful of Washington’s seemingly limitless expansive control into their own affairs and even more fearful of Capitol Hill’s perceived incompetence and wasteful behavior.  The destructive power of yahoo moralizing, especially when wedded to a fear of the bumbling, slothful behavior of nameless Federal Government bureaucrats remains a force, particularly in solidly red states.  Those who would keep our union together have no choice but to navigate this rocky course and in so doing cobble together one unsatisfying compromise measure after another.          

Even so, I do believe that much good will stem from reform, whenever it shall arrive on President Obama’s desk, and though the deletion of certain particulars is not exactly to my liking, I will have to grit my teeth and live with the cards I am dealt.  It is foolish to wish for failure in the hopes that dismal outcomes will produce eventual success based on public outcry and this goes for Olympic games, the success of the first African-American President, or health care reform.  Instead I wish for resounding positive results and with it the recognition that there will be an inevitable need to tweak or slightly modify the existing framework with the passage of time.  Perhaps a true public option will arrive with time, once states that refuse to participate recognize the great benefit other states derive from its existence.  We ought to have learned by now that all or nothing thinking isn’t just unfair, it goes against logic itself.  The American people, after years of being talked to like children are being faced with a very adult decision, and unaccustomed to such treatment, do not quite know how to respond.  My hope, as it is always, is that all Americans are invited to the table and in so doing dealt a hand, so as best able to recognize that the political process is frequently a high stakes game of chance and strategy.      

Livingston concluded,

“There are legitimate and effectual means to correct any palpable infraction of our Constitution,” he said, “Let the cry of Constitutional oppression be justly raised within these walls, and it will be heard abroad–it will be examined; the people are intelligent, the people are just, and in time these characteristics must have an effect on their Representatives.”

Ibid.  

May it be so.

US Supremes clobber Big Banks

For all of us who are (ahem) less than satisfied with the vigor of the US Federal Government’s prosecution and enforcement of banking laws against large financial institutions, the US Supreme Court on Monday bucked 145 years of tradition to deliver an important and far reaching opinion that falls squarely on the side of greater accountability.

In Cuomo v. Clearing House Association (PDF), the court struck down a regulation by the US Treasury Department’s Office of the Comptroller of the Currency (OCC) that prohibited enforcement of state banking laws against national banks.


The case involved an attempt by former New York Atty. Gen. Eliot Spitzer in 2005 to investigate bank lending practices, such as whether a disproportionately large percentage of high-interest mortgages were made to minorities.

After Spitzer sent letters of inquiry to national banks, including Wells Fargo & Co., Citibank and JP Morgan Chase & Co., a bank consortium called the Clearing House Assn. filed suit to stop the investigation.

The Treasury Department’s Office of the Comptroller of the Currency, which regulates national banks, also filed suit, arguing that Spitzer was improperly encroaching on its rule under an 1864 law that it was the only entity with the “visitorial power” to examine such banks. The suits were combined and upheld by lower courts.

But Spitzer’s successor, Andrew Cuomo, appealed to the Supreme Court, arguing in part that the federal agency’s interpretation in effect shielded national banks from states’ enforcing their own laws to protect consumers and prohibit discrimination.