Federalism is Usually Opportunistic

ssm-and-federalism

Another example: House Republicans Want To Sue The President For Not Arresting People For Marijuana

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15 Responses to Federalism is Usually Opportunistic

  1. 1
    gin-and-whiskey says:

    It’s not clear whether it reflects opportunism or a correlation between conservatism and support for state rights (which is also a thing, I think.) To know for sure you’d have to find something where the federal position was more conservative than the state position, and see if folks flipped.

  2. 2
    Eytan Zweig says:

    G&W – I’m not sure I understand you. How do these graphs show that? I mean, in 2006 the conservative side seemed more in favor of a federal solution than the pro-SSM side is today. I’m not seeing the correlation, but maybe I’m missing something. It’s true that the trend in this case is towards conservatives being more supportive of state rights, but do you believe that there was a more general change in the overall approach to state rights since 2006?

    Note that I think these graphs show that both side of this debate are more or less equally opportunistic, not just the conservatives or the liberals.

  3. 3
    Fibi says:

    I think what’s striking here is that there are two intuitively conflicting facts that are both supported by this evidence. The first is that whether a majority of the supporters of any political position favor a federal resolution is not just influenced, but basically decided by how the winds are blowing.

    The second insight is that the majority of individuals of any group actually do not change their minds on the federalism based on the winds. Specifically, it appears* that 86% of supporters and 71% of opponents of SSM have stuck to their guns on the federalism question.

    So, if you are having a discussion about SSM and federalism it is far more likely than not that the person you are having that discussion with is being principled on the federalism question, even though a group’s overall position is far less stable.

    *There is another way to explain this data. And that is that people have stable views on federalism, but change their minds on the underlying issue. Even though I fit into this group personally (in 2006 I was an opponent of SSM who felt the issue was best reserved for the states, now I am a supporter who still believes it is an issue best reserved to the states), I don’t think it is the major driver of this phenomenon.

  4. 4
    JutGory says:

    I wonder how much of this change (or the positions in general) are related to DOMA.

    DOMA was in force in 2006 and part of it, the same sex marriage part, was struck down in 2013.

    That the Fed part of the case has been lost or won (depending on your point of view), a shift to the Feds on the part of supporters and a shift to the states on the part of opponents may make perfect sense.

    However, as to the support of a Fed solution on the part of opponents in 2006, DOMA may also explain that. Part of DOMA (properly or improperly) insulated states from decisions or acts made by other states on this question. So, DOMA had a federalist aspect to it.

    -Jut

  5. 5
    gin-and-whiskey says:

    Eytan Zweig says:

    G&W – I’m not sure I understand you

    And for good reason: I was misreading the graph! lol. Sorry.

  6. 6
    mythago says:

    The question is very weird. “Decide same-sex marriage” means what, exactly?

  7. 7
    JutGory says:

    Mythago,
    I agree. There is no Federal marriage. It is all a matter of state law. The only real Federal marriage issues are: 1) the definition of marriage for purposes of Federal regulations (Social Security, immigration, etc.); 2) the definition of marriage for purposes of benefits for Federal employees (health coverage, retirement, etc.); 3) full faith and credit issues between states; and 4) equal protection arguments (those are the big ones, at least).

    But, the way the issue is framed in the post (I don’t know what the survey questions were), it could almost mean: should the Federal government pre-empt state laws on marriage?

    -Jut

  8. 8
    Phil says:

    I’m not sure that the premise of this post (and some of the comments) is/are reasonable. In other words, the original post seems to assume that the people polled have an opinion about federalism that is separate from their opinion about issues. While constitutional scholars and federal judges may need to have such an opinion, it seems wrong to imply that it’s hypocrisy that an average citizen doesn’t.

    Favoring the government that can most likely accomplish the job that needs to be done seems pragmatic, but I’m not sure if that’s opportunistic, and certainly not hypocritical.

    Consider: I may live in a house in some weirdly unincorporated stretch of America such that there is a legitimate and principled dispute to be had about whether the city or state police should respond to a home break-in. But if a homicidal maniac has entered my house and is trying to kill me, I don’t give a shit about that principled dispute–I want whoever can come to my house and potentially save me to get there, as fast as possible. If you polled me while I’m hiding in my kitchen at that moment–foolish pollster, you–and I had any reason to believe that my answer could affect the outcome, then I am going to answer based on who can get there the fastest, and I should not be faulted for that.

    Certain members of society were suffering actual, practical, measurable harms from discriminatory marriage law. Since thousands of gay people lived and died without ever seeing marriage equality, I think the people suffering direct harm should be exempted from charges of opportunism, and certainly from charges of hypocrisy.

    My personal opinion is–and has been, for as long as I can remember, that same-sex marriage should be decided by couples, not by the states or the feds. If a couple wants to enter into a same-sex marriage, they should decide that. If a couple doesn’t want to enter into a same-sex marriage, they absolutely should have that right–especially if they’re not members of the same sex. Of course, it’s necessary for all of the states and the federal government to eliminate discriminatory restrictions on these couples so that their decisions are unimpeded.

  9. 9
    ballgame says:

    Fibi, I think you raise an excellent point. To me, the charts show that federalism is “usually” not opportunistic, given that overwhelming majorities of both SSM supporters and opponents ‘stuck to their guns’ regarding the federalism issue in the two years of samples.

    There have been other issues where I’ve seen people draw similar conclusions to the one Amp is making here. For example, polls show that overwhelming majorities of both Democrats and Republicans feel the same way about federal intrusions into citizens’ privacy today as they did back during the Bush era … but the flip of a small minority in each camp ties each group’s stance to whether it’s ‘their guy’ who is doing the ‘intruding.’

  10. 10
    Ampersand says:

    Fibi and Ballgame, you’re right. Point well taken.

    Mythago, a few years ago is was very common for people on the right to call for a Constitutional amendment banning SSM in all 50 states. On the left, it seems like a lot of folks are hoping for a decision from the Supreme Court forcing all states to fully recognize same-sex marriage.

  11. 11
    JutGory says:

    Amp @10:

    a few years ago is was very common for people on the right to call for a Constitutional amendment banning SSM in all 50 states

    Do you have a cite for that? My understanding (and I could be wrong) was that the Constitutional Amendment would parallel Section 2 of DOMA, that is that a state would not have to recognize marriages from another state if the marriages violated the public policy of that state. Basically, the issue was whether the full faith and credit clause had to be limited, which would require an amendment; however, others argued that such an amendment was not necessary, as states have never had to give full faith and credit to actions of other states that violate public policy.

    I think that discussion about an amendment is an important one about federal policy; it is also one that directly implicates federalism and state control. In addition, as you suggest, some on the left want to accomplish their goals through the judiciary, making the need for an explicit amendment on the issue more imperative (whether or not it is strictly necessary to have one).

    But, an amendment banning SSM in all 50 states? If that was a serious position on the right (and, who knows, hundreds of amendments get proposed and go nowhere), count me out. It is not the business of the feds to regulate marriage and they should keep out of it.

    -Jut

  12. 12
    Kohai says:

    JutGory,

    Look up the Federal Marriage Amendment. http://en.wikipedia.org/wiki/Federal_Marriage_Amendment

    Social conservatives in the early part of this century argued that the U.S. Constitution needed to be amended to roll back and/or prevent same-sex marriage in all 50 states. The amendment had the support of President Bush and came up numerous times during the 2004 campaign. It was a big deal at the time.

  13. 13
    JutGory says:

    Thanks, Kohai.
    From a federalist standpoint, that was a stupid amendment. An amendment to limit the definition for purposes of the U.S. Constitution or laws may be considered appropriate (for reasons I expressed above), but the application to all of the states is problematic.
    -Jut

  14. 14
    RonF says:

    [ off - topic ]

    But if a homicidal maniac has entered my house and is trying to kill me, I don’t give a shit about that principled dispute–I want whoever can come to my house and potentially save me to get there, as fast as possible.

    If a homicidal maniac has already entered your house and is trying to kill you and your only alternatives are among which police agency is going to answer your call, the issue is most likely going to be moot to you because you’ll most likely be dead before either one shows up. You need a 12 gauge or .45 caliber alternative, friend – because at that point the alternative is actually whose blood the cops are going to clean up once they get there, and you don’t want it to be yours.

    “When seconds count, the police are only minutes away.”

    [ / off - topic ]

  15. 15
    mythago says:

    Amp, it’s still a weird question. It could mean anything from ‘the federal government declares same-sex marriage is legal/banned everywhere’, which would be extremely unusual because marriage is a state issue, to ‘the Supreme Court should decide that the US Constitution does/doesn’t allow prohibition on same-sex marriage’, to ‘the federal government should just let states do whatever they vote to do’.