States, Subsidiarity, and its problems

Great Debates
1

In my Social Studies classes, we’ve been speaking a lot about the EU, and we’ve outlined a lot of the positive and negative aspects involved in the policies of even having a European Union. I’ve also been hearing a lot about the 10th amendment, and people who want to use it as a blanket excuse to remove all power from the federal government, and give it all to the states.

I have a problem with the state system as a whole. The problem is pretty simple: having incredibly different laws on crucial issues in the same country is a very real issue. We’ve seen this at the hands of, especially, DOMA: couples who are legally married in Massachusetts go to Texas or Florida and suddenly their marriage doesn’t count for things like, say, hospital visiting rights and taxes. Or abortion – if an individual state wants to make abortion a crime, setting aside Roe vs. Wade, what does a mother who wants to have an abortion do? She goes to the next state over where it’s legal, often a drive of only a few hours; never mind that her home state effectively considers it murder.

The solution proposed by those who tout statism and the 10th amendment as a be-all, end-all guide to federal policy is simple: amend the constitution on these particular issues so that a marriage is between a man and a woman and a fetus is a living human. But that simply touches on a few of the more explosive symptoms, rather than the underlying problem.

Having radically different laws in different regions of the same country is a bad idea.

I don’t support the European Union. It’s pretty simple, really: finding a middle ground in legislation between, say, Germany, Greece, and Hungary is close to impossible. They’re three different countries with radically different cultures, economies, and ways of life. And if this actually did apply to the USA in the same manner, in any meaningful way (I’m not sure it doesn’t, but let’s just assume for the sake of argument), I would support the nation splitting into groups of states (like, New England, Jesusland, West Coast, Midwestern Territories). However, I don’t necessarily think that this is the case. And the problems with increased states rights will continue to exist as long as we have such radically different laws. We need more Federalism, or we need to split. The current system is just really problematic.

Thoughts?

2

Are you a European? You appear to be mistaken on some issues of American law.

Abortion used to be a state issue. It was legal in some states and illegal in others. If a woman lived in a state where abortion was illegal, she could travel to another state for an abortion.

But Roe V. Wade changed this. It ruled that abortion was a federal issue and that no state could make it illegal. A state can’t set aside a Supreme Court ruling like Roe v. Wade.

Marriage has always been a state issue. But the old policy was that every state had to recognize the existence of a public act from any other state (the “full faith and credit” clause). So if you got married in one state, every other state had to recognize you were married.

This was changed by the Defense of Marriage Act which was enacted by Congress in 1996. This created an exception which said that states could refuse to recognize the validity of same-sex marriages that were performed in other states.

3

I’m an ex-pat. I’m well aware of Roe V. Wade; when I said “setting aside Roe vs. Wade” I mean if we ignore it for the purpose of argument.

But saying that it’s a state issue is simply inaccurate at the point where the federal government mandates it, no?

4

How often is this really an issue though? It seems to me that I can move from Texas to Wyoming or California and the crucial legal issues are going to be much the same.

Okay, but for the most part I don’t see radically different laws from state to state.

I don’t really see any big problems like you’re seeing. I don’t really know what you mean by “more Federalism.” The idea behind Federalism is that there are shared powers between the states and the Federal government not that the Federal government is in charge of everything.

5

State’s Rights aren’t really a problem because states don’t really have any rights. That is, they don’t have any they themselves can insist on. European countries remain sovereign but American states are not (despite much rhetoric to the contrary). There is a lot of talk about Greece leaving the Euro but Alabama can’t leave the dollar. Our states have just as much authority as the federal government says they have and no more.

There is no rState’s Rights Party in America because the major parties alternate control of the federal government. They only play the State’s Rights card when the other guy is running the federal government (or the relavent part of it). If the party in charge nationally believes state or regional issues can be resolved to their satisfaction at the national level then suddenly the federal government has the authority to decide it. Look at the Civil Rights era. The Democratic Party decided that it was unacceptable to deny political rights to Southern blacks. (Not out of the goodness of their hearts but because they needed black votes to control Northern cities.) So Jim Crow, which for decades had been solely a state issue, was now within the domain of the federal government.

6

What do you think about the Schengen Agreement and open borders in general?

I tend to agree with the OP that having wild variations in the law within a nation-state asks for trouble. This is why Roe legalized abortion nationwide, & one reason for the present high anger on gun control.

But I also favor open borders and migration. Can I justify asking Florida and Mississippi to agree on laws when I know Spain and Croatia will differ?

7

I don’t see that the problem, if it even is a problem, is increasing. If anything, the federal government has consistently assumed more and more authority over the states over time-- not the other way around. We’re not going to split, at least not unless there is some cataclysmic event. We tried that once, and it didn’t turn out so well.