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First Principles: The Fairweather Federalist
I find curious the subject of sanctuary cities; specifically why limited government conservatives support the Trump administration’s attempts to “do something” about them. Those attempts haven’t yielded much other than litigation, and so the Trump administration has started talking about arresting local officials who do not play along. Similar is the Attorney General’s recent decision to rescind the Cole Memo, paving the way for federal prosecutors to begin cracking down on marijuana producers and retailers in states where such a thing is legal.
We have the phenomenon of those conservatives who talk about the virtues of federalism, states’ rights, subsidiarity, and limited government but it all goes right out the window when it comes to Mexicans or pot.
And so I must ask the question to those fair-weather federalists who see no problem: What is the general principle at work here?
Before you answer, let me propose a test of principle.
If you state a principle of federalism, “The feds can do X, states shouldn’t be able to do Y,” I ask that you test it by applying the Fugitive Slave Act. If you apply the Fugitive Slave Act, and you are comfortable with the results, then you’ve established your principle.
To those of you who are able to thread that needle, please speak up. State your general principle. I’m eager to hear it.
Published in General
Okay, so does that apply to the Fugitive Slave Act?
Not necessary. Hypatia just detailed rather succinctly.
I’m actually with Fred on this. And it’s not for the following reasons:
First, a short story. A little while ago, the Washington State Supreme Court issued a ruling know ’round these hear parts as the Hirst Decision. Essentially this amounted to the State saying that certain counties, including the one in which I reside, weren’t doing enough to preserve the quality of our water. This is somewhat wrapped up in the drilling and use of wells, both for commercial and domestic purposes. I won’t go in to further detail, but the long and the short is, our county government then felt compelled to put a moratorium on any building permit where a new well would be drilled or the use of an existing well would be increased. This included the building of a new warehouse that my company sorely needs. Now, the legislature finally passed a law nullifying the court order, effectively, and here in a few days the county government will pass an ordinance rescinding their previous moratorium. But it really made me angry. The decision was a highly ideological decision, pushed for by extreme environmentalist groups. They cared little for the effect on the local economy. And I thought “If I were on the county council, I’d tell the State to pound sand, and tell them to see just how far they were willing to go with this.” Because I guarantee that if State law enforcement and National Guardsmen showed up at a building site, it’d be pitchforks and torches time. And I mean the ones manufactured by Browning, Remington, and Sturm & Ruger. And frankly, that’s a show down I want to see. Because I’m tired of the next level up coming around and saying do this, and do that.
Now, this latest talk by the Administration of forcing State and County officials, at the point of gun (which is what it means when the FBI comes a-knockin’) got me thinking about it more. So I posed the question: does it make one opposed to Federalism if one supports this action in the context of sanctuary cities? Because look, I’m just a farm boy so I don’t know from all this other stuff. I just know I don’t like it when someone comes around telling us how the cow ate the cabbage, especially when we aren’t doing anyone no harm. So a conversation ensues in which I learn, again, that while it is not illegal for the states law enforcement to not enforce federal law, it is illegal for the state’s law enforcement to impede the federal government’s law enforcement, in enforcing those same laws.
(continued below, don’t comment until you read it all)
Nothing applies to the Fugitive Slave Act. It isn’t a law.
(continued from 33, read that first)
But even this doesn’t sit well with me. Because frankly, I like the idea of a Sheriff saying “You come around here and try to enforce your federal gun laws, we will arrest you.” That’s also a show down I want to see. But I extend this even to stuff I don’t necessarily like or think people ought to do, like smoking pot. Because I think you’ve got a natural right (it doesn’t need to be enumerated in the Bill of Rights, it so basic) to consume whatever it is you want to consume, even Tide pods, if you aren’t bugging anyone else.
So that brings us to sanctuary cities. Look, I get everything everyone is saying about immigration, and breaking the law, no question. I don’t like it, I want them sent back where they came from, I want the border secured, etc., etc. But the Federal government just shows up wherever the hell it wants and starts telling people this and that, and the other thing. Remember how they raided dentist offices because those people weren’t towing the line on some government rule about pharmaceuticals or something? That’s just one example. I mean, basically the Federal government just thinks the State governments are playing at government, and “they can do whatever until we say they can’t.” That’s how it feels, anyway.
So, for me, I err on the side of State governments being more important than the federal government, inside any given state. I know that creates a conflict, but things aren’t how they were when old TJ wrote the constitution. We might as well not even have states, they way it’s going.
So there you go. That’s what I think.
I think there is a lot of good substance to your arguments. Much of the kind of law with which you are distressed is probably at root unconstitutional but not yet ruled on. This is one of the great failure of our Congress and Executive not giving attention to issues of constitutionality and helping to preserve federalism. They have just gone forth and legislated in every area imaginable and then invoke the supremacy clause as if that settles it.
Frankly, I reject your premise that the Fugitive Slave Act is some ineluctable test of consistency. As has been shown on this thread indirectly.
There is no fool proof answer to governance, and that includes lack of governance. When it comes down to it, just like anything else, there is dissolution and armed resistance as the ultimate backstop.
Now, as a pro-lifer, I’m exceedingly tolerant and willing to pursue a peaceful solution even while great injustice is afoot. For consistency’s sake should I advocate for laws to be selectively enforced? Should I advocate for armed rebellion until I can get my way? I think there is a larger principle at stake than even life and liberty of those affected by a particular law: our system of resolving political disputes peacefully. Often that means we live with things we loath in order to prevent chaos and mass violence. It’s up to us to decide whether swallowing a loss or armed resistance tips the scales in a worse direction.
You’re the one who tied immigration enforcement to the Fugitive Slave Act in the first place. Hypatia treated your inflammatory hypothetical with the respect it deserves.
I guess all my words are just to say “If the Feds were just doing the things thought ought to be doing, instead of all they are, then I’d be right there with everyone on this issue.” But they are too big, too powerful, and I want them to buzz off. On everything.
You say that like the federal government is some entity wholly independent of the people. It isn’t. We have elections. We have a Constitution which begins: We the People.
Sure, I agree that the federal government should be more limited than it is now. Doesn’t mean that it’s illegitimate.
So, because they do too much, you therefore want them to not do the things they’re supposed to do?
More and more, it is.
And I think this illustrates Fred’s point: conservatives hate the Federal government, until they don’t. And it really just depends on whether it is doing what they want, or not.
If we cannot get the peoples’ respect for the duly elected POTUS who is working to scale back some of the vile actions promulgated by the Feds, I don’t hold out much chance for the states. It is interesting to know the political leanings of those trying now to invoke federalism.
Well, lead the target, and all that. If I say “I don’t want them to do anything”, and I get “they are doing a lot less than they were”, I’ll be happy.
But I won’t ever get any of that. I will only get a government that grows by a lot, or a little less than a lot, depending on which party has the levers in its hands.
Except that those are political questions. Some of your countrymen disagree with your assessment. Now what?
I don’t see us anywhere near the point where dissolution or armed resistance would be justified.
I’m just this side of a Confederalist, at least on the issue of the supremacy of the Federal government. Or however you want to say it.
I’m a Conservatarian for the same reasons as I outlined above. There are just too many dang laws, at all levels. Leave me alone. I ain’t hurtin’ nobody. If you want to smoke the marijuana cigarettes in the safety of your parent’s basement, so be it. Just don’t ask me to pay for your health insurance.
I know it’s all pie in the sky, but it’s what I want to see happen. I figure if I say “Sure, you go ahead and get high. I don’t care. And I’ll carry this new Sig Sauer 9mm and you won’t try to pass laws to stop me. Deal?”, I make some headway with folks.
That’s not a point, it’s a slogan. A largely incorrect one.
I’m a conservative and I don’t hate the federal government. Hate isn’t required to think that subsidiarity and federalism are better ideas than the opposite.
I don’t agree with this. Immigration and border control is a federal constitutional responsibility. Federal laws governing drugs have no federal constitutional basis but have been legislated by the peoples’ representatives and signed into law without any consideration of constitutionality. But it is the law, even if in the wrong place, and the immigration law, even though it is in the right place, is bad and unenforced. Not much good can be said about government. A good reason to reduce what we have.
Well, going back to my original comment, I’ll say were here in Whatcom county were close. The county government were talking about coming out and putting meters on existing wells. Some of us were talking about what we’d do when that happened. Because the fact is, if they can make you pay them for water out of your own well, then you have effectively, no property rights. So yeah, discussions were had, and decisions were made. I mean, at what point do you stand up and fight?
Once the legal and legislative fights are exhausted. Once civil disobedience is ineffective. The alternative is not the sunny uplands of unconstrained freedom.
Ok. But…the good people of Washington passed a law saying that use of Mary Jane is fine. So there is conflict. Now one has to go beyond the law, and the constitution, and ask about First Principles, as Fred indicated. And we talk about the purpose of government. We don’t just say (at least I don’t) “Well, it’s federal law, so, we can’t just pick and choose!” For two reasons:
First, because it is not the purpose of government to save us from ourselves.
Second, because yeah, we can just pick and choose, because we do just pick and choose, all the time. And the only time we say that is when we are talking about some law that we agree with.
Well, when they show up and tell you that you gotta pay them to eat your own rutabagas, you let me know about the sunny uplands.
Gotta go coach some 7th grade basketball. Later y’all. Don’t start the revolution while I’m gone.
The problem is Wickard v. Filburn.
But they can want constitutional things, can’t they? If I wanted the Feds to do constitutional things, and not do unconstitutional things, well, that wouldn’t be so bad, would it?
Many have already said that having the Feds take care of immigration is constitutional. Accordingly, people who want constitutional things can want that without compromising principles or being capricious. The Fugitive Slave Clause has been effectively abrogated by the Thirteenth Amendment. It’s now dead-letter in terms of constitutionality.
We fought a war among ourselves over slavery, to correct a defect in our Founding that many of our Founders ruefully acknowledged. That the US Constitution had to at first compromise on this defect, for the sake of union, doesn’t deprive the Constitution of its status as something it’s generally best to observe.
A minor point…Thomas Jefferson wasn’t one of the framers of the Constitution. He did not attend the Constitutional Convention. He was the principal writer of the Declaration of Independence with occasional guidance from Ben Franklin, John Adams, and a couple of others.
The whole idea that one be guided by absolute principles that can never lead down a path to a bad outcome, is the cry of a teenager, yearning for some perfect world where every last detail can be written down in black and white.
And if you don’t agree, then you are racist!
LOL. Again, amazing the editors let such comments go on the main feed.
Oh, I agree; that was Pandora’s box. I just don’t think there’s much hope of reversing that one in my lifetime. Or my children’s lifetimes.
Not a lawyer, but Constitutional jurisprudence has changed since then, no? (Though I agree with you on the larger point.)
That’s why I asked for a general principle.