What about Principles? Some unqualified thoughts about federalism in today's political climate.

First off, I can't believe I have been slacking for two months.  It started with a trial, then there was the job change, other creative endeavors and, well, I thought I had only been gone a few weeks.

To my two to seven regular readers: I'm sorry (for past and current writing sins). [Editor's note: I don't know why this suddenly switches to white highlighting halfway through the post.  I have tried to fix it and cannot.  I am an idiot.]

I don't like to talk politics and I really don't like to write politics.  However, because I eventually tend to believe that the national media (on the right and the left) often "get it wrong" I feel compelled to lend my perspective to current events, with the understanding that it will be generally ignored by most and probably misconstrued by the rest. A few disclaimers (I am an attorney, you know).  I do this for free and I rarely write about politics.  If this is not done to the high journalistic standards of a real reporter, the intellectual clarity of an academic or the technical precision of an appellate judge, then all is as it should be, as I am none of those things.  You don't need to tell me about it because I already know.  I write this for my own mental health and, in the naive hope that I will write something that could make someone else think and, in turn, advocate thoughtful politics and political discourse.  I find the current discourse which consists of yelling at others via the internet counterproductive and unhealthy for us as a nation.

First, the premises.  In my experience, and I feel I have inside information on this subject, the intense right, has argued that the left's policies, while perhaps well-meaning, violated Constitutional principles.  I take the fact that so many of my very right-leaning friends, families and compatriots have recommended at various times that every citizen have a copy of the United States Constitution on their person at all times, as evidence of this (side note: if you are a true believer in State's rights and Federalism, would you not also carry with you your State's constitution as well?) .  With that in mind, it is my belief that, in general, strong right leaners claim that this country should be guided by Constitutional principles, with the the beliefs and writings of the founding fathers giving context to the text of the Constitution.

Second, the right (and I have always believed myself to be a member of the conservative side of politics), generally believes that federalism - a system where states (as in sovereign states) share power in a conglomeration that forms a new larger state for the benefit of all the states is a good thing insofar as the states retain significant power.  The idea being that by having the states retain a measure of independence, tyranny by the larger government can be held at bay.  The idea could also allow for heterogeneous groups (i.e., the states) to coexist as a larger entity without doing harm to the unique traits/beliefs of the more homogenous populations of the individual states.  I think it is fair to say, that this, roughly, is the  idea behind the 10th Amendment, which states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
That is, the Federal government, that government created by the collection of states of which it is constituted, has only those powers granted unto it by those states of which it is constituted.  

Third, right leaning folk argue that sticking to the Constitution and its principles will keep the country safe and headed in the right direction.  Thus, those powers given it in the constitution, are the limits of its powers. When Democrats are in power, they argue that the left-leaning policies espoused by the Democrats are contrary to the principles of the Constitution.  I think these are fair examples:
Do Democrats care about the Constitution?
Yes, Democrats hate the Constitution.

Finally, there is the general belief by right leaning folk that Federalism is under attack by the judicial branch and, of course, left leaning politicians.  When I was in law school, my grumpy, old employer told me that the Wickard v. Filburn decision by the US Supreme Court signalled the death of federalism, the death of the power of the states.  He and they believe that this and subsequent decisions have slowly choked the life out of the Tenth Amendment to the Constitution.  The question, that I will not attempt to answer today, is whether that much state power, and thus, that weak of a federal government, alone would provide the freedom and safety its proponents claim.  The European Union is an argument for both sides, for example.  A collection of states (certain European countries), realized that they needed to consolidate their power in order to attain advantages in the global marketplace.  The fact that the did so is an argument against the strength of the 10th Amendment.  The fact that it looks like it may fail, is an argument to the contrary.

For today's purposes, the correct answer is irrelevant, because my intent today is to ask that we examine whether those on the right who support the Trump administration's policies are holding to those principles of the Constitution.  Am I cherry picking the issues?  Sure.  I don't claim that everything that Trump does is wrong (although one might argue that Trump could make a right thing wrong if left to his own devices).  I just think that a number of Trump's policies show that politics (on either side) are about power and making sure your team is perceived as the "winner" regardless of the "principle" that any particular policy advances.

What policies will we examine?

Let's start with his administration's stance on Marijuana.  Trump's attorney general, Jeff "stereotypical southern name" Sessions has been the mouthpiece of this policy.  It need not be said, but I will write it anyway, that there is a trend among states to legalize marijuana.  Marijuana is fast becoming alcohol-like in how it is treated by various states.  By this I mean that it is not being limited in states like Colorado and Nevada as a drug that is useful only for medicinal purposes.  Rather, even recreational uses are being legalized.  Regardless of a person's personal beliefs on marijuana, it is clear that a number of states have determined that marijuana should be legal.  In response, what does our president's administration - that campaigned on a platform of upholding the Constitution - say?  Jeff Sessions says that "We need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it's in fact a very real danger."  Link. The problem with this quote is not that he doesn't like marijuana, but what he thinks the Federal Government should do about it.  This quote is concerning: "Federal law is 'not eviscerated because the state ceases to enforce it in that state,' Mr. Sessions said at the time." Link.  It is hard to see this as anything other than a diminution of the 10th Amendment.  In this instance, at least, Mr. Sessions is arguing that the states are bound by whatever the federal government says is "right."  A position that he would likely not take with respect to transgender bathrooms, for example.

How about immigration?  While some interpret his stance as a furtherance of Federalism, when we break it down is it?  Sessions (and Trump) are immigration hard liners.  Their personal beliefs about immigrants have lead them to promote policies where they punish "sanctuary cities", or cities that do not toe the federal line as it relates to federal immigration policies.  The Trump/Sessions policy on "sanctuary cities" would take money from the states and then refuse to give it back, unless those states adopt the federal scheme of immigrant administration.  Again, would his position be the same if George W's policies making it easier to give federal funds to religious institutions were changed?  It seems unlikely. 

I am not here, however, to argue nothing the Trump administration does can be viewed as favorable to the power of states. In fact, even in some of his less popular policies, there is an opportunity for the power of the states to trump Trump.  Of recent vintage, is Trump's decision to exit the Paris accord.  Right or wrong, he has signaled a beginning to the end of that treaty.  It is symbolically distressing and it could have some serious real-world implications, unless the states assert their own power on this issue.  The LA Times recently reported that :

    Led by California, dozens of states and cities across the country responded Friday to Trump’s             attack on the worldwide agreement by vowing to fulfill the U.S. commitment without 
    Washington — a goal that is not out of reach.
Link.  In this instance, Trump's policy is probably agnostic as to states' rights, but the conservative principle supporting the 10th Amendment could be used to support an agenda usually deemed "liberal."  How?  States whose populations support legislation that supports the goals of the Paris Accord, can do so.  There should be no federal legislation that could stop them.  

I'm running out of steam here.  I have a job, a bunch of side hustles and a church meeting to get to, so I am going to wrap it up here, even though I think this idea could be fleshed out for a good long while.  

What is my point?  I have a couple of points.  First, I have been grappling with whether I am or am not still a Republican.  I have thought about leaving the party (not that it would miss me) because I don't like how inconsistent they are in their principles.  The fact is, the Republican party is really no better than the Democratic party.  Neither is consistent in its core legal/constitutional principles.  Neither party is willing to go against their constituency in order to be consistent in applying Constitutional principles.   They are only consistent in opposing the other party.  As such, the political realm has become akin to the sports realm.  Everybody cheers for their team, even when they suck (see the Cleveland Browns).  The only goal is for your team to win.  If your team wins, you were right.  This is not the type of politics I can get behind.  Further, I don't believe it is the type of politics our founding fathers would espouse.  If one cares about principles, I think one must become independent of the two parties.  

My second point, is this:  I believe that the founding fathers set up a system that was intentionally hard to work.  I believe there is a lot of inherent inertia intentionally built into our government.  I think in its near-ideal form, our government is not intended to get much accomplished.  Thus, I don't get too worked up if my own beliefs are not being actively codified into statute, because I know in a few years, someone else's beliefs would then be codified in their place.  I think that we should take responsibility for our country and actively put our own time and money into the causes that we think will improve our country.  For example, if the republicans don't think that the government should pay for health care (and they don't just advocate for the death of the poor), republicans should be privately funding health care for the poor.  In general, if people don't like what the feds are doing, they should get their state to do it right.  

I will end with this.  Let's spend less time being incensed and angry.  Let's spend more time seeing what we can do to organize ourselves without involving the government to solve our problems.  This theory is helpful as it helps prevent tyranny, helps strengthen community bonds and can still provide "progress" that meets the definition of smaller, more homogenous groups that could never have their needs met by the larger federal system.  

Does anybody want to talk  principles?


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