The Lives Federalists Won’t Save
May 4, 2011
Joe Carter
The young obstetrics and gynecology resident watched as the two-pound fetus was placed in a bucket, crying and struggling to breathe. Although the other medical personnel who participated in the illegal abortion pretended not to notice, the medical student recognized they were overstepping the bounds of morality by picking and choosing who should live and who should die.
“Soon the crying stopped,” says physician and Congressman Ron Paul in his forthcoming book, Liberty Defined. “This harrowing event forced me to think more seriously about this important issue.”
Paul has thought seriously about the issue. Over the past four decades he has become one of the most prominent pro-life voices within libertarianism. But his consistency on the issue of the sanctity of life is trumped by his allegiance to federalism. Although Paul admits that the federal government has a responsibility to protect human life, he inexplicably does not believe the federal government should be involved in protecting human fetal life. He is also surprised to find that few pro-life advocates share his view that only state governments have the responsibility to protect these innocents:
Strangely, given that my moral views are akin to theirs, various national pro-life groups have been hostile to my position on this issue. But I also believe in the Constitution, and therefore, I consider it a state-level responsibility to restrain violence against any human being.
I disagree with the nationalization of the issue and reject the Roe v. Wade decision that legalized abortion in all fifty states. Legislation that I have proposed would limit federal court jurisdiction of abortion. Legislation of this sort would probably allow state prohibition of abortion on demand as well as in all trimesters. It will not stop all abortions. Only a truly moral society can do that.
Paul is right to say that legislation alone will not end the tragedy of abortion. Even if Roe v. Wade is overturned by the judiciary, the issue will shift to fifty state legislatures, requiring a long-term, incrementalist approach to protecting the unborn. If this were all he meant—if Paul were merely making a pragmatic suggestion that the issue is best resolved at the state level—his position would be unobjectionable.
But as he tends to do on Constitutional issues, Paul puts his preference for procedure ahead of principle. If any level of government fails to do its duty in defending and protecting the lives of its innocent citizens, it is the obligation of the other branches to compensate for the failure in governance. Paul disagrees, preferring, when the two conflict, to defend federalism rather than the lives of the unborn.
Unfortunately, many pro-life conservatives share Paul’s libertarian view of federalism. They mistakenly assume that American-style federalism—a system that shares power between the federal government and state governments—is an inherently conservative philosophy. But federalism is a neutral philosophical position; it is neither conservative nor liberal. As Robert Alt once explained at National Review Online,
Contrary to our liberal friends' assumption, federalism is not necessarily conservative. Rather, federalism is a series of constitutional rules, and as rules cut against both conservative and liberal positions alike. Yes, federalism will disappoint those who think that the only solution is a national one, but in terms of policy outcomes, federalism proves itself to be a neutral dealer.
The proper scope of federalism is limited to determining what level of government—state or federal—should have specific power and authority. What federalism doesn’t address are situations in which neither the state nor federal government has a legitimate claim to power and authority. Too often conservatives—especially conservative politicians—read the 10th Amendment too broadly. They interpret the claim that that powers not delegated to the federal branch are reserved to the States or to the people as implying that just about anything can be decided by the individual State.
For example, at least three of the GOP candidates from the last election (Mike Huckabee, Mitt Romney, Fred Thompson) defended adherence to federalism by using the unfortunate phrase "laboratories of democracy." None of the candidates seem to be aware of the metaphor’s nefarious origin. The famous dictum by Justice Louis D. Brandeis, notes federalism scholar Michael Greve, “had almost nothing to do with federalism and everything to do with his commitment to scientific socialism."
Indeed, the problem with the “laboratories of democracy” view of federalism is that it is more applicable for advancing socialism than for protecting conservative interests.
For instance, under federalist principles, the state of Massachusetts could become a socialist utopia (or dystopia) if the people of the state so choose. The state government could assume complete control over all internal institutions, could redefine all other societal organs (marriage, schools, corporations) and refuse to recognize any institution that didn’t comply.
For example, Massachusetts could redefine marriage to include only polygamous arrangements and refuse to recognize any other form. As long as Massachusetts didn't extraterritorialize its policy decisions on other states, its polity would be perfectly within the bounds of federalism.
This is certainly not what most conservatives—especially those who confuse adherence to federalism with limited government—have in mind.
The alternative is not to abandon federalism but to recognize its limits. While federalism has its place in deciding constitutional questions, its strict binary nature—either state or federal—is ultimately inferior to other principles of governmental demarcation, such as subsidiarity or sphere sovereignty.
The principle of subsidiarity is an idea found in Catholic social thought that holds that nothing should be done by a larger and more complex organization that can be done as well by a smaller and simpler organization. A related idea from the Reformed tradition (the one to which I subscribe) is the neo-Calvinist notion of “sphere sovereignty.” Sphere sovereignty is the concept that each sphere of life has its own distinct responsibilities and authority or competence, and stands equal to other spheres of life. No one area of life or societal community is sovereign over another since each sphere has its own created integrity.
Unlike Federalism, where there is a part-whole relationship between the States and the Federal branch, each societal sphere (such as churches, families, or charities) is a whole unto itself. Because these positions limit the role of government and protect the dignity and liberty of both individuals and communities, they are exponentially more conservative than garden-variety federalism.
Subsidiarity and sphere sovereignty also can prevent a central failing of federalism: the tendency to allow squabbles over power to trump matters of justice. One of the most disheartening and shameful examples from the last decade was when so-called conservatives claimed that the Terri Schiavo case should have been left solely to the state of Florida, and that it was illegitimate for the federal government to intervene to protect her. The charitable view is to assume that had these federalists known that a woman was being killed by the state without due process of law, they would have sided with justice over judicially mandated involuntary euthanasia. The less generous opinion is that they simply haven't considered how federalism relates to conservative principles.
If conservatives are willing to put the rights of the government ahead of the rights of the individual, to let adherence to procedure trump our dedication to justice, and to give the state the power to decide whether one can kill an innocent woman or an unborn child, then conservatism has lost all meaning. Conservatives should be for more checks and balances and limits on government, rather than a mere shifting of power from federal to state authorities. What does it reveal about our movement when conservatives (and libertarians) are defending limited government by advocating that state governments be allowed an increase in unchecked power and illegitimate authority?
Federalism can be useful in drawing up legitimate lines of Constitutional authority. But when it is allowed to transfer power to the states from other societal spheres, the philosophy merely establishes fifty separate laboratories of liberalism.
Joe Carter is Web Editor of First Things and the co-author of How to Argue Like Jesus: Learning Persuasion from History's Greatest Communicator. His previous articles for “On the Square” can be found here.
RESOURCES
Ron Paul, Excerpt from Liberty Defined
Robert Alt, Is Federalism Conservative?
Michael S. Greve, Laboratories of Democracy
Comments:
5.4.2011 | 8:54am
Dan says:
If government size should be controlled for scope and power, what about private enterprise? What leaves it sacrosanct, these large now faceless institutions that are larger than some countries? It seems that these entities are never evaluated by size criteria, yet the government always is.
5.4.2011 | 9:13am
Thomas L. says:
If such legislation (i.e. repeal of court authority) had been passed when there was a majority of "pro-life" legislators in the Congress (and an executive who would sign it), think of how many lives could have been saved by now?
What Dr. Paul has proposed is a way that the unborn can be protected that doesn't rely on the "fixing" of the Supreme Court (a method which has so utterly failed, time and time again). Is this too risky because his political philosophy doesn't fit within "Reformed sphere sovereignty"? What could be worse for the pro-life cause than a national court ruling that binds all 50 states to protect abortion as a right?
What Dr. Paul has proposed is a way that the unborn can be protected that doesn't rely on the "fixing" of the Supreme Court (a method which has so utterly failed, time and time again). Is this too risky because his political philosophy doesn't fit within "Reformed sphere sovereignty"? What could be worse for the pro-life cause than a national court ruling that binds all 50 states to protect abortion as a right?
5.4.2011 | 9:27am
norman ravitch says:
Historically conservatives were more concerned with the maintenance of a Christian social order than with individual liberties and constitutional schemes. We need to use more up-to-date language when discussing our political philosophy and practices.
5.4.2011 | 9:50am
JDC says:
Yes. This was, mutatis mutandis, Bill Buckley's position on the race problem from the early days of National Review. He later recanted that position, saying it was impossible that the Southern states would climb up, without federal hectoring, out of Jim Crow. He was not racist, but he was accused of it because he wanted the states to take care of the problem themselves.
Oddly, he did not consider that favoring the states simply relocated the problem of tyranny he feared at the federal level, but it makes sense in the context of FDR's Keynesian America. In later life, he seems to have backed away from his earlier, more libertarian perspective. Perhaps Ron Paul will do the same.
Oddly, he did not consider that favoring the states simply relocated the problem of tyranny he feared at the federal level, but it makes sense in the context of FDR's Keynesian America. In later life, he seems to have backed away from his earlier, more libertarian perspective. Perhaps Ron Paul will do the same.
5.4.2011 | 11:47am
Stephen says:
@Dan,
How do you define "large institutions"?
By sales figures subject to the seasonal whims of consumers?
By market share subject to volatile equities markets?
By employees receiving great wages/benefits?
We live in a risky and complex world. Large institutions are able to better bear those risks, to invest in economies of scale that bring us cheaper prices and to reach even the most remote and esoteric consumers.
How do you define "large institutions"?
By sales figures subject to the seasonal whims of consumers?
By market share subject to volatile equities markets?
By employees receiving great wages/benefits?
We live in a risky and complex world. Large institutions are able to better bear those risks, to invest in economies of scale that bring us cheaper prices and to reach even the most remote and esoteric consumers.
5.4.2011 | 11:50am
Stephen says:
Since the pro-abort crowd has a grip on most of our public institutions (media, academia, mainline Protestant groups, Democratic Party), I would rather fight 50 skirmishes with a pro-life militia than a large winner-take-all battle.
5.4.2011 | 12:29pm
Dave says:
This argument seems to hinge on the definition of federalism as a "part-whole relationship" between the states and the "federal branch" (I'll leave that one alone for the moment), which is a matter of fairly lengthy debate between those who subscribe to dual federalism and the more modern cooperative federalism.
A quick Wikipedia search led me to Federalist 46, in which Madison "asserted that the states and national government "are in fact but different agents and trustees of the people, constituted with different powers."
The actual sentence is truncated by Wikipedia and is, in whole: "The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes."
To me, that seems fairly consistent with sphere sovereignity. I would argue that most conservatives are fighting to reestablish the older view in order to protect what Tocqueville called secondary associations necessary to defend the cultural institutions and societal organs Carter is so concerned about.
Carter, is therefore wrong in my opinion - Paul isn't putting procedure ahead of principle. He is putting the principle of political liberty over the principle of protecting life in utero. I'd argue that Paul has made a strategic/operational decision necessitated by the fact that we live in a democracy.
Carter is right about one thing, though - realizing any the sovereinity of any sphere may result in any number of aberrations, abominations, or dystopias. Madison said in Fed. 46, in fact: "[The adversaries of the constitution] must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents."
Carter may have written the book on how to argue like Jesus, but if he is going to continue his prodigious (and near overwhelming) output at First Things I wish he'd read a book on how to think like Augustine. Or Barth. Or someone.
A quick Wikipedia search led me to Federalist 46, in which Madison "asserted that the states and national government "are in fact but different agents and trustees of the people, constituted with different powers."
The actual sentence is truncated by Wikipedia and is, in whole: "The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes."
To me, that seems fairly consistent with sphere sovereignity. I would argue that most conservatives are fighting to reestablish the older view in order to protect what Tocqueville called secondary associations necessary to defend the cultural institutions and societal organs Carter is so concerned about.
Carter, is therefore wrong in my opinion - Paul isn't putting procedure ahead of principle. He is putting the principle of political liberty over the principle of protecting life in utero. I'd argue that Paul has made a strategic/operational decision necessitated by the fact that we live in a democracy.
Carter is right about one thing, though - realizing any the sovereinity of any sphere may result in any number of aberrations, abominations, or dystopias. Madison said in Fed. 46, in fact: "[The adversaries of the constitution] must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents."
Carter may have written the book on how to argue like Jesus, but if he is going to continue his prodigious (and near overwhelming) output at First Things I wish he'd read a book on how to think like Augustine. Or Barth. Or someone.
5.4.2011 | 12:31pm
mark says:
For anyone who cares about conservative outcomes to argue that federalism is not a better road than our current situation is laughable, especially on the abortion issue. What can possibly make one think there is any hope for progress at the national level when we know for a fact that abortion would be extremely limited if not outrightly banned in many states if they had their say as the constitution clearly gives them? When even CA recently passed a prop against gay marriage, who tried to overturn it? The federal courts.
5.4.2011 | 1:35pm
Mark B says:
No, federalism is not the kingdom. We will find a way to pervert it also. But it does allow for voting with feet. We are recreating the Treaty of Augsburg - Cuius Regio, Eius Religio except probably backward. Whose religion, their region.
5.4.2011 | 1:35pm
Joe Carter says:
@Dave ***Carter, is therefore wrong in my opinion - Paul isn't putting procedure ahead of principle. He is putting the principle of political liberty over the principle of protecting life in uteri.***
I’m tempted to agree with you because I think you are correct that what is motivating Paul is his love of political liberty. But I also think it matters in how it gets translated into action. There is no inherent conflict between political liberty and the federal government protecting fetal life. But Paul subscribes to a way of reading the Constitution in which that isn’t really an option.
***I’d argue that Paul has made a strategic/operational decision necessitated by the fact that we live in a democracy.***
But we don’t live in a democracy, we live in a republic. In a democracy the people could vote on whatever they wanted to happen and that would be law. But our system has many, many checks in place to make that all but impossible.
***Carter may have written the book on how to argue like Jesus, but if he is going to continue his prodigious (and near overwhelming) output at First Things I wish he'd read a book on how to think like Augustine. Or Barth. Or someone.***
Interesting that you say that because I’ve always wanted to write a follow-up book titled “How to Think Like St. Paul.” (For the Paulites out there, that would be the Paul from Damascus, not the one from Texas.)
I’m curious, though, what you mean by that. Is it in reference to a general pattern you observe in my writing or something from this article?
@Mark ***For anyone who cares about conservative outcomes to argue that federalism is not a better road than our current situation is laughable, especially on the abortion issue.***
I don’t disagree with on the practical aspects of making progress at the state level. But my point is that the strict adherents to federalism would say that even if the federal government was willing to outlaw abortion that it would be illegitimate to do so since that is a right reserved to the states. (My point, of course, is that no level of government has the right condone the taking of innocent life.)
I’m tempted to agree with you because I think you are correct that what is motivating Paul is his love of political liberty. But I also think it matters in how it gets translated into action. There is no inherent conflict between political liberty and the federal government protecting fetal life. But Paul subscribes to a way of reading the Constitution in which that isn’t really an option.
***I’d argue that Paul has made a strategic/operational decision necessitated by the fact that we live in a democracy.***
But we don’t live in a democracy, we live in a republic. In a democracy the people could vote on whatever they wanted to happen and that would be law. But our system has many, many checks in place to make that all but impossible.
***Carter may have written the book on how to argue like Jesus, but if he is going to continue his prodigious (and near overwhelming) output at First Things I wish he'd read a book on how to think like Augustine. Or Barth. Or someone.***
Interesting that you say that because I’ve always wanted to write a follow-up book titled “How to Think Like St. Paul.” (For the Paulites out there, that would be the Paul from Damascus, not the one from Texas.)
I’m curious, though, what you mean by that. Is it in reference to a general pattern you observe in my writing or something from this article?
@Mark ***For anyone who cares about conservative outcomes to argue that federalism is not a better road than our current situation is laughable, especially on the abortion issue.***
I don’t disagree with on the practical aspects of making progress at the state level. But my point is that the strict adherents to federalism would say that even if the federal government was willing to outlaw abortion that it would be illegitimate to do so since that is a right reserved to the states. (My point, of course, is that no level of government has the right condone the taking of innocent life.)
5.4.2011 | 1:54pm
Dave says:
I think making progress at the state level would be manageable, but as the issues rose to a national level, I think there would be too much ambiguity to get anything politically to change the issues surrounding fetal life. I'm always left wondering if politicians on both sides of the abortion debate are driven more by political instincts or the true compassion (or lack of compassion) for fetal life.
5.4.2011 | 2:13pm
Walter says:
If we can justify federal anti-lynching laws (as Senator Robert A Taft did) we can justify federal anti-abortion laws. How to translate this into practical politics is another matter.
In a post-Roe scenario, given the way that Congress (especially the Senate) is designed to operate (with filibusters, committee rules, etc.) only those restrictions on abortion that enjoy the broadest support are likely to pass or even come up for a vote.
Other restrictions will be up to state governments, whose laws will vary widely - especially given the role of state-level judicial activism in some jurisdictions, which might not be trumped by anything but federal legislation.
In other words, without a major shift in public opinion, restrictions on partial-birth and other late term abortions would be enacted at the federal level, restrictions on first-trimester abortions in cases where rape is alleged would be passed in some states but would (unfortunately) never even come up for a vote in the US Congress, and the state of federalism in our republic would remain about the same as before.
In a post-Roe scenario, given the way that Congress (especially the Senate) is designed to operate (with filibusters, committee rules, etc.) only those restrictions on abortion that enjoy the broadest support are likely to pass or even come up for a vote.
Other restrictions will be up to state governments, whose laws will vary widely - especially given the role of state-level judicial activism in some jurisdictions, which might not be trumped by anything but federal legislation.
In other words, without a major shift in public opinion, restrictions on partial-birth and other late term abortions would be enacted at the federal level, restrictions on first-trimester abortions in cases where rape is alleged would be passed in some states but would (unfortunately) never even come up for a vote in the US Congress, and the state of federalism in our republic would remain about the same as before.
5.4.2011 | 2:18pm
harry says:
Our primary legal document, the Declaration of Independence, makes a few things very clear: It is not Caesar's to bestow or withdraw our inalienable rights; it is his only to protect them. It is humanity that bestows or withdraws the state's right to exist, not the other way around. It is humanity's duty to alter or abolish the state when it implicitly or explicitly claims or acts otherwise.
I say the Declaration is our primary legal document because every other legal document assumes it has the authorization of an independent nation; without the assertion of independence made in the Declaration, every other purportedly “legal” document, including the Constitution, is without authority, as is every “legal” decree that violates the principles set forth in the Declaration. Without the Declaration the rest is mere delusions committed to paper.
So, the question isn't really whether “legalized” child killing ought to be dealt with on the federal or the state level. The question is why have we tolerated the illegitimate withdrawal of the protection of law from an innocent segment of the human family at any level?
It should be clear that one kind of government necessarily arises from the principles set forth in our Declaration of Independence, and quite another kind of government develops from the abandonment of those principles. With the former there is an authority above the government that is the basis for questioning the morality of governmental actions and decrees. With the latter there is no higher authority and what the government decrees is necessarily “right” just because it decreed it – end of discussion.
Christianity is what made criticism of the morality of Caesar's decrees thinkable and made the concept of “inalienable human rights” possible. With contemporary secular government's hostility to any acknowledgment of an authority to which even it is accountable comes once again governmental decrees being justified only on the basis that Caesar has decreed them. How many times have you heard, “Whatever some people may think about abortion, it IS legal.” Actually, it was, is and will always be intrinsically illegal, but you see how with no acknowledged higher authority the decree itself becomes its own justification.
It is not a matter of getting the Supreme Court or state governments to bestow the protection of law on the child in the womb. Neither the Supreme Court or state governments have the authority to bestow the protection of law upon innocent human beings or to withdraw it from them. Again, it is not Caesar's to bestow or withdraw the inalienable rights of humanity; it is only his to protect them.
Allowing the Supreme Court or a state government to “bestow” the protection of law upon the child in the womb is a denial of the principles in our founding document. While the lives that would be saved would justify allowing this, the fundamental problem would remain, there being nothing to prevent Caesar from arbitrarily withdrawing the protection of law from some other segment of the human family.
We don't need a “personhood” amendment where Caesar “bestows” the protection of law on all innocent humanity today while we pretend he has the authority to do that, thereby affirming his right to withdraw the protection of law from some segment of the human family tomorrow if it seems “right” to him to do so. What we need is a “statehood” amendment that clearly and forever reiterates the limited authority of the state and the supremacy of the inalienable rights of humanity, which give the state its reason for being. That would save lives today and tomorrow.
I say the Declaration is our primary legal document because every other legal document assumes it has the authorization of an independent nation; without the assertion of independence made in the Declaration, every other purportedly “legal” document, including the Constitution, is without authority, as is every “legal” decree that violates the principles set forth in the Declaration. Without the Declaration the rest is mere delusions committed to paper.
So, the question isn't really whether “legalized” child killing ought to be dealt with on the federal or the state level. The question is why have we tolerated the illegitimate withdrawal of the protection of law from an innocent segment of the human family at any level?
It should be clear that one kind of government necessarily arises from the principles set forth in our Declaration of Independence, and quite another kind of government develops from the abandonment of those principles. With the former there is an authority above the government that is the basis for questioning the morality of governmental actions and decrees. With the latter there is no higher authority and what the government decrees is necessarily “right” just because it decreed it – end of discussion.
Christianity is what made criticism of the morality of Caesar's decrees thinkable and made the concept of “inalienable human rights” possible. With contemporary secular government's hostility to any acknowledgment of an authority to which even it is accountable comes once again governmental decrees being justified only on the basis that Caesar has decreed them. How many times have you heard, “Whatever some people may think about abortion, it IS legal.” Actually, it was, is and will always be intrinsically illegal, but you see how with no acknowledged higher authority the decree itself becomes its own justification.
It is not a matter of getting the Supreme Court or state governments to bestow the protection of law on the child in the womb. Neither the Supreme Court or state governments have the authority to bestow the protection of law upon innocent human beings or to withdraw it from them. Again, it is not Caesar's to bestow or withdraw the inalienable rights of humanity; it is only his to protect them.
Allowing the Supreme Court or a state government to “bestow” the protection of law upon the child in the womb is a denial of the principles in our founding document. While the lives that would be saved would justify allowing this, the fundamental problem would remain, there being nothing to prevent Caesar from arbitrarily withdrawing the protection of law from some other segment of the human family.
We don't need a “personhood” amendment where Caesar “bestows” the protection of law on all innocent humanity today while we pretend he has the authority to do that, thereby affirming his right to withdraw the protection of law from some segment of the human family tomorrow if it seems “right” to him to do so. What we need is a “statehood” amendment that clearly and forever reiterates the limited authority of the state and the supremacy of the inalienable rights of humanity, which give the state its reason for being. That would save lives today and tomorrow.
5.4.2011 | 2:33pm
David Nickol says:
I don't think the following is quite accurate: "But my point is that the strict adherents to federalism would say that even if the federal government was willing to outlaw abortion that it would be illegitimate to do so since that is a right reserved to the states."
For those who believe the Constitution is silent on the issue of abortion, the federal government has no *mechanism* for outlawing abortion. Ron Paul introduced a Human Life Amendment quite some time ago. Unless he has changed his mind and believes that the Constitution should not be amended, his position that abortion is a matter for the states is not a matter of extreme federalism. It's the majority view that Row was wrongly decided and the Constitution as it stands gives the federal government no say one way or the other in abortion.
If were legitimate to switch one's interpretation of the Constitution in order to achieve a desired outcome, there should be pressure on Scalia and the other four Catholics (who are presumably personally pro-life) to interpret the 14th Amendment to prohibit abortion. But we know Scalia's judicial philosophy causes him to believe that "person" in the 14th Amendment was not *intended* to refer to the unborn, and therefore it can't be used to defend the unborn.
For those who believe the Constitution is silent on the issue of abortion, the federal government has no *mechanism* for outlawing abortion. Ron Paul introduced a Human Life Amendment quite some time ago. Unless he has changed his mind and believes that the Constitution should not be amended, his position that abortion is a matter for the states is not a matter of extreme federalism. It's the majority view that Row was wrongly decided and the Constitution as it stands gives the federal government no say one way or the other in abortion.
If were legitimate to switch one's interpretation of the Constitution in order to achieve a desired outcome, there should be pressure on Scalia and the other four Catholics (who are presumably personally pro-life) to interpret the 14th Amendment to prohibit abortion. But we know Scalia's judicial philosophy causes him to believe that "person" in the 14th Amendment was not *intended* to refer to the unborn, and therefore it can't be used to defend the unborn.
5.4.2011 | 4:05pm
Dave says:
Mr. Carter,
I should state that I generally disagree with libertarians and that I don't support Ron Paul.
That being said, my comment regarding his choice to put the principle of political liberty - or, more accurately, the decentralization of legitimate political authority - over the principle of protecting life in utero was not to suggest that there is an inherent conflict between the two. Rather it was an attempt make his position (or, if not his position, the position of a conservative who supports a return to a more traditional view of federalism) less "inexplicable" and suggest that you fundamentally misunderstand Paul's argument on account of how you define federalism.
This is the source of my uncharitable closing. By defining federalism as a "part-whole relationship between the states and the federal branch" but not acknowledging the history of the concept or the debate surrounding it, you do a disservice to the audience. You also fail to provide a fair depiction of Paul's understanding of federalism, which I would venture is closure to the "dual federalism" than the "cooperative federalism" you describe. I can't really be sure because, in your rush to provide your view of federalism, you never flesh his out. Again, you do a disservice to the audience.
You also link federalism to limited government when, in fact, there is no connection. The semi-sovereign state, due to its sovereignity, has complete authority over all matters not delegated to the federal government (thanks to our system of representative democracy, or republicanism, which you so ably pointed out) It is my understanding that it is because of that same sovereign power that state constitutions also contain a bill or declaration of rights.
In addition, I find your description of the Terri Schiavo case severely deficient. Was it in fact the case that "a woman was being killed by the state without due process of law"? It took me less that two minutes to discover that the controversy started when Schiavo's husband petitioned the Sixth Circuit Court of Florida "to remove her feeding tube pursuant to Florida Statutes Section 765.401(3)." How is that not due process, exactly? And - important fact - It wasn't the state that allowed Terri Schiavo to die, it was her legal guardian and husband.
Finally, it is not simply the case that (some!) conservatives wish to put the rights of government over the rights of individuals. Rather, they seek to bring government closer to the people, for a whole host of reasons.
So, in answer to your question, it isn't your writing style that I find objectionable - it is what appears to be an inability to adequately and fairly address the subject of your writing, the reluctance to come to terms with your audience, your mischaracterization of past events, and your reckless opinionating about subjects of which you appear to have only a superficial knowledge at best.
Maybe I'm wrong, or maybe I expect too much from "On the Square", but it is one of the reasons why I find myself turning to First Things less and less for thoughtful commentary and opinion.
I should state that I generally disagree with libertarians and that I don't support Ron Paul.
That being said, my comment regarding his choice to put the principle of political liberty - or, more accurately, the decentralization of legitimate political authority - over the principle of protecting life in utero was not to suggest that there is an inherent conflict between the two. Rather it was an attempt make his position (or, if not his position, the position of a conservative who supports a return to a more traditional view of federalism) less "inexplicable" and suggest that you fundamentally misunderstand Paul's argument on account of how you define federalism.
This is the source of my uncharitable closing. By defining federalism as a "part-whole relationship between the states and the federal branch" but not acknowledging the history of the concept or the debate surrounding it, you do a disservice to the audience. You also fail to provide a fair depiction of Paul's understanding of federalism, which I would venture is closure to the "dual federalism" than the "cooperative federalism" you describe. I can't really be sure because, in your rush to provide your view of federalism, you never flesh his out. Again, you do a disservice to the audience.
You also link federalism to limited government when, in fact, there is no connection. The semi-sovereign state, due to its sovereignity, has complete authority over all matters not delegated to the federal government (thanks to our system of representative democracy, or republicanism, which you so ably pointed out) It is my understanding that it is because of that same sovereign power that state constitutions also contain a bill or declaration of rights.
In addition, I find your description of the Terri Schiavo case severely deficient. Was it in fact the case that "a woman was being killed by the state without due process of law"? It took me less that two minutes to discover that the controversy started when Schiavo's husband petitioned the Sixth Circuit Court of Florida "to remove her feeding tube pursuant to Florida Statutes Section 765.401(3)." How is that not due process, exactly? And - important fact - It wasn't the state that allowed Terri Schiavo to die, it was her legal guardian and husband.
Finally, it is not simply the case that (some!) conservatives wish to put the rights of government over the rights of individuals. Rather, they seek to bring government closer to the people, for a whole host of reasons.
So, in answer to your question, it isn't your writing style that I find objectionable - it is what appears to be an inability to adequately and fairly address the subject of your writing, the reluctance to come to terms with your audience, your mischaracterization of past events, and your reckless opinionating about subjects of which you appear to have only a superficial knowledge at best.
Maybe I'm wrong, or maybe I expect too much from "On the Square", but it is one of the reasons why I find myself turning to First Things less and less for thoughtful commentary and opinion.
5.4.2011 | 4:21pm
Katie says:
Am I the only one who finds Ron Paul rather creepy and would prefer that he stay far, far away from my "lady parts"?
And really, I'm totally pro-life, but the dude gives me the willies...
And really, I'm totally pro-life, but the dude gives me the willies...
5.4.2011 | 4:54pm
Joe Carter says:
@Dave ***less "inexplicable" and suggest that you fundamentally misunderstand Paul's argument on account of how you define federalism.***
Perhaps I am inadvertently misunderstanding Paul’s view of federalism. But I don’t see how that relates to his inexplicable claim that that the federal government has a responsibility to protect human life and that the federal government does not have a responsibility to protect human life in the womb.
***By defining federalism as a "part-whole relationship between the states and the federal branch" but not acknowledging the history of the concept or the debate surrounding it, you do a disservice to the audience.***
I think you may be reading a bit more into that then I intended. Saying that there is a “part-whole relationship between the states and the federal branch” is tautological, it’s embedded into the definition of federalism. The “whole” (our federalist system) has two “parts” (the states and the federal government). If you take away one of those parts away you no longer have federalism. In contrast, sphere sovereignty can have many parts, almost all of which could be added or subtracted without affecting the concept.
***You also fail to provide a fair depiction of Paul's understanding of federalism, which I would venture is closure to the "dual federalism" than the "cooperative federalism" you describe.***
Perhaps so, but since I believe my critique applies to both it isn’t all that relevant to my point.
***You also link federalism to limited government when, in fact, there is no connection***
Actually, I don’t. I say that some conservatives “confuse adherence to federalism with limited government.” But I think it should be clear from my article that I do not subscribe to that view.
***It took me less that two minutes to discover that the controversy started when Schiavo's husband petitioned the Sixth Circuit Court of Florida "to remove her feeding tube pursuant to Florida Statutes Section 765.401(3)." How is that not due process, exactly? And - important fact - It wasn't the state that allowed Terri Schiavo to die, it was her legal guardian and husband.***
At the time of the Schiavo incident, I was working for a bioethics think-tank. We spent a lot of time and research on the topic so I can appreciate how it might be easy to overlook the particulars, especially when the press distorted the situation to favor the pro-euthanasia side. Although the case is complex and there have been so many distortions of the facts involved that it would be hard to give an adequate explanation in a comment thread, I’ll address a few points that I think are relevant to this discussion.
—Michael Schiavo was the husband only on paper. Under a federalist view, this is enough since the state gets to define and decide what “marriage” is. But Mr. Schiavo had abandoned Terri and was living as the common-law husband of another women with whom he had kids.
—Michael Schiavo lied about Terri’s wishes. When he was suing the insurance company to keep her alive he claimed that she would not have wanted to be taking off life-sustaining support. Later, he changed his claim and said that show would not have wanted that. Since both can’t be true, he was lying in one of the situations. Because he was not credible it made no sense at all to base testimony on a false witness. There was no other witness who claimed that Terri wanted to die.
—Terri Schiavo was not in the dying process. It was not a case where you turn off artificial sources of life support because the person is already dead (either a cessation of breathing and circulation or brain death). Terri was very much alive but, like many hospital patients, was unable to feed herself. Removing the feeding tube was thus not a step that sped up the natural dying process, but an act that *caused her death*. Terri Schiavo starved to death. The judge even went so far as to forcefully prevent anyone from giving her any food and water (even ice chips).
Even if due process is applied, there is no situation in America where you can—either legally or morally—starve someone to death.
Federal legislators recognized what a stocking travesty of justice was being perpetrated and intervened to stop it. Disgustingly, many conservatives criticized the attempt to prevent her legalized murder because it violated the rights of the state and Terri’s “husband.” The fact that no one has the right to actively starve another human being to death seems not to have concerned them nearly as much as defending the abstract principle of federalism.
***your reckless opinionating about subjects of which you appear to have only a superficial knowledge at best.***
I will admit that I may be guilty of that at time. But the criticism carries less weight coming from someone who thinks they can lecture me on the Schiavo incident base on the two minutes you spent on research.
Perhaps I am inadvertently misunderstanding Paul’s view of federalism. But I don’t see how that relates to his inexplicable claim that that the federal government has a responsibility to protect human life and that the federal government does not have a responsibility to protect human life in the womb.
***By defining federalism as a "part-whole relationship between the states and the federal branch" but not acknowledging the history of the concept or the debate surrounding it, you do a disservice to the audience.***
I think you may be reading a bit more into that then I intended. Saying that there is a “part-whole relationship between the states and the federal branch” is tautological, it’s embedded into the definition of federalism. The “whole” (our federalist system) has two “parts” (the states and the federal government). If you take away one of those parts away you no longer have federalism. In contrast, sphere sovereignty can have many parts, almost all of which could be added or subtracted without affecting the concept.
***You also fail to provide a fair depiction of Paul's understanding of federalism, which I would venture is closure to the "dual federalism" than the "cooperative federalism" you describe.***
Perhaps so, but since I believe my critique applies to both it isn’t all that relevant to my point.
***You also link federalism to limited government when, in fact, there is no connection***
Actually, I don’t. I say that some conservatives “confuse adherence to federalism with limited government.” But I think it should be clear from my article that I do not subscribe to that view.
***It took me less that two minutes to discover that the controversy started when Schiavo's husband petitioned the Sixth Circuit Court of Florida "to remove her feeding tube pursuant to Florida Statutes Section 765.401(3)." How is that not due process, exactly? And - important fact - It wasn't the state that allowed Terri Schiavo to die, it was her legal guardian and husband.***
At the time of the Schiavo incident, I was working for a bioethics think-tank. We spent a lot of time and research on the topic so I can appreciate how it might be easy to overlook the particulars, especially when the press distorted the situation to favor the pro-euthanasia side. Although the case is complex and there have been so many distortions of the facts involved that it would be hard to give an adequate explanation in a comment thread, I’ll address a few points that I think are relevant to this discussion.
—Michael Schiavo was the husband only on paper. Under a federalist view, this is enough since the state gets to define and decide what “marriage” is. But Mr. Schiavo had abandoned Terri and was living as the common-law husband of another women with whom he had kids.
—Michael Schiavo lied about Terri’s wishes. When he was suing the insurance company to keep her alive he claimed that she would not have wanted to be taking off life-sustaining support. Later, he changed his claim and said that show would not have wanted that. Since both can’t be true, he was lying in one of the situations. Because he was not credible it made no sense at all to base testimony on a false witness. There was no other witness who claimed that Terri wanted to die.
—Terri Schiavo was not in the dying process. It was not a case where you turn off artificial sources of life support because the person is already dead (either a cessation of breathing and circulation or brain death). Terri was very much alive but, like many hospital patients, was unable to feed herself. Removing the feeding tube was thus not a step that sped up the natural dying process, but an act that *caused her death*. Terri Schiavo starved to death. The judge even went so far as to forcefully prevent anyone from giving her any food and water (even ice chips).
Even if due process is applied, there is no situation in America where you can—either legally or morally—starve someone to death.
Federal legislators recognized what a stocking travesty of justice was being perpetrated and intervened to stop it. Disgustingly, many conservatives criticized the attempt to prevent her legalized murder because it violated the rights of the state and Terri’s “husband.” The fact that no one has the right to actively starve another human being to death seems not to have concerned them nearly as much as defending the abstract principle of federalism.
***your reckless opinionating about subjects of which you appear to have only a superficial knowledge at best.***
I will admit that I may be guilty of that at time. But the criticism carries less weight coming from someone who thinks they can lecture me on the Schiavo incident base on the two minutes you spent on research.
5.4.2011 | 5:59pm
Gregory K. Laughlin says:
Believing abortion is a matter of justice (as do I), Mr. Carter wants to end abortion nationwide and so he selects the federal government as the forum in which he wants the issue decided. Some level of human government will have to decide it and since it is a matter of justice and not mere prudence, he wants it decided at the national level and to have the just solution imposed on all the states.
But why stop there? If this is a matter of justice then the protection of life cannot depend on the fortuity of where one's mother resides, and not merely what state she resides in, but what nation she resides in. So why not have the U.N. decide the issue and give it authority to decide? After all, considerations of national sovereignty are just as "procedural" as are issues of federalism? Indeed, why shouldn't all issues of "justice" be decided by a much more empowered U.N. which, of course, would have to also decide which issues are matters of "justice" and which are matters of "prudence"?
No, Mr. Carter, federalism is an important principle which acts as a defense of liberty. The problem over the past 80 years has not been that to few issues of "justice" have been decided at the national level but that the federal courts have usurped too many matters of prudence from the states by declaring them to be issues of justice and imposing one national solution, frequently a solution that is neither prudent nor just. How and where policy is decided is as important as what is decided. If conservatives surrender this principle, we will live to regret it.
But why stop there? If this is a matter of justice then the protection of life cannot depend on the fortuity of where one's mother resides, and not merely what state she resides in, but what nation she resides in. So why not have the U.N. decide the issue and give it authority to decide? After all, considerations of national sovereignty are just as "procedural" as are issues of federalism? Indeed, why shouldn't all issues of "justice" be decided by a much more empowered U.N. which, of course, would have to also decide which issues are matters of "justice" and which are matters of "prudence"?
No, Mr. Carter, federalism is an important principle which acts as a defense of liberty. The problem over the past 80 years has not been that to few issues of "justice" have been decided at the national level but that the federal courts have usurped too many matters of prudence from the states by declaring them to be issues of justice and imposing one national solution, frequently a solution that is neither prudent nor just. How and where policy is decided is as important as what is decided. If conservatives surrender this principle, we will live to regret it.
5.4.2011 | 6:40pm
Gregory K. Laughlin says:
Let me add, if abortion law should be decided at the federal level, why not all of homicide law? Why not remove from the states jurisdiction to enact homicide statutes and to try homicide cases? And if we do that, why not have it take over other areas of criminal law, such as rape?
5.4.2011 | 6:51pm
Gene Jordano says:
@Katie - What makes you think that Ron Paul would desire to reach your "lady parts"? At least Ron Paul cringed when he heard or learned that a two pound fetus was crying as he or she (not an it) was put in a bucket like a guinea pig. I wonder what gives you the creeps...
5.4.2011 | 7:09pm
Dave says:
Joe,
In the linked excerpt from "Liberty Defined", after discussing the fact that the constitution left laws about violence up to the states, Paul says that "It’s a giant leap for the federal courts to declare abortion a constitutional right and overrule all state laws regulating the procedure. If anything, the federal government has a responsibility to protect life—not grant permission to destroy it."
Because of the "If anything", I understand him to believe that the federal government has no responsibility regarding protection of life from violence, BUT if it did, it ought to protect life - not grant permission to destroy it. If that's the case, Paul makes no inexplicably contrary claim.
I don't think I'm reading to much into the part-whole relationship that is federalism. When I hear that, I understand you to mean that the states are subdivisions of the national government. What I (and I think most conservatives - maybe even Ron Paul) have in mind when they think of federalism is actually something very like sphere sovereignity. But that is not what federalism means to a lot of people, especially liberals, and I think it's unfair to criticize unnamed conservatives for holding a view that, in all likelyhood, they don't.
I also don't think it makes sense to describe the federal system as a whole, since I it to be a relationship between 51 goverments elected and constituted by hundreds if not thousands of various communities, not a relationship between two parts, but I'm not exactly how to develop that at the moment. All I can say at the moment is that real people and real communities don't fall neatly into any one sphere.
I would probably say that even if the federal government was willing to outlaw abortion it would be illegitimate to do so since that is a right reserved to the states. And I think that could result in some unfortunate outcomes - the death of innocents, even. In a totally depraved world, isn't that a problem with sphere sovereignity in and of itself?
Anyway, I'll defer to your exertise on Schiavo and the douchebaggery of her "husband". I do which you would have addressed Madison's discussion in Federalist #46, but thanks for the challenging back and forth.
In the linked excerpt from "Liberty Defined", after discussing the fact that the constitution left laws about violence up to the states, Paul says that "It’s a giant leap for the federal courts to declare abortion a constitutional right and overrule all state laws regulating the procedure. If anything, the federal government has a responsibility to protect life—not grant permission to destroy it."
Because of the "If anything", I understand him to believe that the federal government has no responsibility regarding protection of life from violence, BUT if it did, it ought to protect life - not grant permission to destroy it. If that's the case, Paul makes no inexplicably contrary claim.
I don't think I'm reading to much into the part-whole relationship that is federalism. When I hear that, I understand you to mean that the states are subdivisions of the national government. What I (and I think most conservatives - maybe even Ron Paul) have in mind when they think of federalism is actually something very like sphere sovereignity. But that is not what federalism means to a lot of people, especially liberals, and I think it's unfair to criticize unnamed conservatives for holding a view that, in all likelyhood, they don't.
I also don't think it makes sense to describe the federal system as a whole, since I it to be a relationship between 51 goverments elected and constituted by hundreds if not thousands of various communities, not a relationship between two parts, but I'm not exactly how to develop that at the moment. All I can say at the moment is that real people and real communities don't fall neatly into any one sphere.
I would probably say that even if the federal government was willing to outlaw abortion it would be illegitimate to do so since that is a right reserved to the states. And I think that could result in some unfortunate outcomes - the death of innocents, even. In a totally depraved world, isn't that a problem with sphere sovereignity in and of itself?
Anyway, I'll defer to your exertise on Schiavo and the douchebaggery of her "husband". I do which you would have addressed Madison's discussion in Federalist #46, but thanks for the challenging back and forth.
5.4.2011 | 8:37pm
Don Roberto says:
Touché, Joe. While it is obviously impossible to stop parents from committing atrocities upon their dependents (and I do not doubt that such people will go dumbfounded to Sheol for doing so), Natural Law tells us that there's no other place to draw the line on what constitutes a "person" except conception, and I pray that we as nation (and individual allegedly Catholic jurists) will eventually arrive at the necessary level of sentience to incorporate this into the national law, which, if sometimes hard to enforce, is a teacher (and evil laws teach evil). In the meantime, may God have mercy on us!
For issues other than ones as clear as this, I like Mark B's idea of being able to vote with my feet. We have often wondered if we could at least make it in (my perhaps idealized image of) Utah or Idaho, given the horrific state of moraility in most other states.
†
For issues other than ones as clear as this, I like Mark B's idea of being able to vote with my feet. We have often wondered if we could at least make it in (my perhaps idealized image of) Utah or Idaho, given the horrific state of moraility in most other states.
†
5.4.2011 | 11:17pm
Joe Carter says:
@Gregory K. Laughlin ***Some level of human government will have to decide it and since it is a matter of justice and not mere prudence, he wants it decided at the national level and to have the just solution imposed on all the states. ****
Well, not exactly.
When I sat down to write this piece it was almost 3,000 words long. When I cut it down to the current length (which is still too long) I probably left out some important info, so I’ll try to clarify a bit here.
Sphere sovereignty is the view that human society is formed not of disengaged individuals or overarching collectives (state, race, ethnicity), but rather in terms of distinct spheres (family, church, school, state, business). Each of which are sovereign in relation to the others, but subject directly to God under the divine laws particular to each sphere, and each of which has distinctive kinds of authority, limited to a particular sphere.
The relationship between these spheres is horizontal, so the vertical metaphor that we commonly use in these situations is not applicable. The liberal view that the states are “lower” than the federal government (and that other private organizations are lower still) is completely incompatible with this view. (Although you didn’t use the higher/lower distinction, I think many people will view your comment that way since that is the general way that we perceive government nowadays.)
Under sphere sovereignty (and, I believe, subsidiarity), justice and governance is best when it is closer to the individual. Because the state government is generally closer to the citizen than the federal level, it is preferable to shift everything that legitimately can be moved to that sphere. So as a general rule I would *not* like to see a solution imposed on all states.
But what happens when there is a failure within a sphere? Then the other spheres have to step in and restore order and justice. For example, a parent has sovereignty over family decision, such as the discipline of children. But if a parent begins to physically abuse a child (such as beating them with their fists) then the other spheres (mainly the government) have a responsibility to the child to step in and provide protection.
Similarly, the states have a responsibility to protect unborn humans. But if they fail to do their duty then it is necessary for another sphere (the federal government) to step in and provide protection.
***If this is a matter of justice then the protection of life cannot depend on the fortuity of where one's mother resides, and not merely what state she resides in, but what nation she resides in.***
True enough, so far.
***So why not have the U.N. decide the issue and give it authority to decide?***
(Before I respond, let me note that many neo-Calvinists may disagree with my answer.)
The short answer is that U.N. has no inherent authority because it’s not really a “sphere” at all. The legitimate role of the U.N. is simply to provide a structure for mediation of nation-states (which are legitimate spheres). Technically, the “U.N.” cannot do anything. It is merely a device used by the member nations to act.
So could other nations use the U.N. to intervene in defense of innocent life? Only if the members states are willing to use force in order to provide humanitarian support. I’m not sure that could be justified under normal just war criteria (though its possible). But what would be happening is that spheres with authority (nation-states) would be using the U.N. as a medium to act. Whether that action is legitimate is questionable.
***After all, considerations of national sovereignty are just as "procedural" as are issues of federalism?***
I disagree. According to the Bible, nations are ordained by God so there is such a thing as “national sovereignty.” The U.N. might serve a useful function, but I’m not sure we can say that is was instituted by God.
***Let me add, if abortion law should be decided at the federal level, why not all of homicide law? Why not remove from the states jurisdiction to enact homicide statutes and to try homicide cases? And if we do that, why not have it take over other areas of criminal law, such as rape?***
The question is not who has the legitimate authority to adjudicate statutes (that is a legitimate function of federalism questions), but of what happens when a certain sphere refuses to do justice.
A prime example is federal anti-lynching laws. Prior to such laws, there were many states were failing to protect their citizens. Should we have simply shrugged and said that nothing could be done since we have to respect procedure?
@Dave ***Because of the "If anything", I understand him to believe that the federal government has no responsibility regarding protection of life from violence, BUT if it did, it ought to protect life - not grant permission to destroy it.***
If that’s the case, then I agree Paul is not being inconsistent. But if he recognizes that what is being destroyed is a human life and yet doesn’t think that federal government should have a role in protecting it, then I’ll lose a lot of respect for him.
***When I hear that, I understand you to mean that the states are subdivisions of the national government.***
Not at all. See my explanation above about sphere sovereignty.
***I also don't think it makes sense to describe the federal system as a whole, since I it to be a relationship between 51 goverments elected and constituted by hundreds if not thousands of various communities, not a relationship between two parts, but I'm not exactly how to develop that at the moment.***
If it doesn’t make sense, then we should stop using the term federalism. After all, that is all that is really meant by the term.
***All I can say at the moment is that real people and real communities don't fall neatly into any one sphere.***
True, but that does not mean that distinctions can’t be made. A person can be a parent and a schoolteacher, but even if their own child is in their classroom, they roles are distinct.
***I would probably say that even if the federal government was willing to outlaw abortion it would be illegitimate to do so since that is a right reserved to the states. ***
If abortion is unjust (and I suspect we agree that it is), then how could it be legitimate for the states to allow such injustice? Was the federal government wrong to step in and prevent the unjust treatment of black Americans in the South during the 1960s?
***And I think that could result in some unfortunate outcomes - the death of innocents, even. In a totally depraved world, isn't that a problem with sphere sovereignity in and of itself?***
Obviously in a fallen world, there is a possible for injustice to occur in any system. But I don’t think that precludes us from correcting blatant injustice when it occurs.
***I do which you would have addressed Madison's discussion in Federalist #46, ***
I think #46 is a brilliant defense of federalism and adequately explains the reason why it is the form that our system should take. The only quibble I would have is that the “ultimate authority” is not ultimately “the people” but God. Even the people cannot legitimately decide to allow the killing of innocent human beings.
@Don Roberto ***For issues other than ones as clear as this, I like Mark B's idea of being able to vote with my feet.***
While I can sympathize with the “vote with your feet” idea, I think conservatives should consider it only as the absolute last resort. After all, conservatism is about putting down roots in a specific place. If we simply move somewhere else whenever we lose a fight then we are merely speeding up the process by which our principles are undermined.
Also, what happens to those that get left behind? Look at the inner cities. Many of those with conservative values and lifestyles moved away as soon as they had the financial resources to do so. Now the remaining conservatives, especially the poor ones, don’t have the support they need to protect their own children against the pathologies created by liberalism.
Well, not exactly.
When I sat down to write this piece it was almost 3,000 words long. When I cut it down to the current length (which is still too long) I probably left out some important info, so I’ll try to clarify a bit here.
Sphere sovereignty is the view that human society is formed not of disengaged individuals or overarching collectives (state, race, ethnicity), but rather in terms of distinct spheres (family, church, school, state, business). Each of which are sovereign in relation to the others, but subject directly to God under the divine laws particular to each sphere, and each of which has distinctive kinds of authority, limited to a particular sphere.
The relationship between these spheres is horizontal, so the vertical metaphor that we commonly use in these situations is not applicable. The liberal view that the states are “lower” than the federal government (and that other private organizations are lower still) is completely incompatible with this view. (Although you didn’t use the higher/lower distinction, I think many people will view your comment that way since that is the general way that we perceive government nowadays.)
Under sphere sovereignty (and, I believe, subsidiarity), justice and governance is best when it is closer to the individual. Because the state government is generally closer to the citizen than the federal level, it is preferable to shift everything that legitimately can be moved to that sphere. So as a general rule I would *not* like to see a solution imposed on all states.
But what happens when there is a failure within a sphere? Then the other spheres have to step in and restore order and justice. For example, a parent has sovereignty over family decision, such as the discipline of children. But if a parent begins to physically abuse a child (such as beating them with their fists) then the other spheres (mainly the government) have a responsibility to the child to step in and provide protection.
Similarly, the states have a responsibility to protect unborn humans. But if they fail to do their duty then it is necessary for another sphere (the federal government) to step in and provide protection.
***If this is a matter of justice then the protection of life cannot depend on the fortuity of where one's mother resides, and not merely what state she resides in, but what nation she resides in.***
True enough, so far.
***So why not have the U.N. decide the issue and give it authority to decide?***
(Before I respond, let me note that many neo-Calvinists may disagree with my answer.)
The short answer is that U.N. has no inherent authority because it’s not really a “sphere” at all. The legitimate role of the U.N. is simply to provide a structure for mediation of nation-states (which are legitimate spheres). Technically, the “U.N.” cannot do anything. It is merely a device used by the member nations to act.
So could other nations use the U.N. to intervene in defense of innocent life? Only if the members states are willing to use force in order to provide humanitarian support. I’m not sure that could be justified under normal just war criteria (though its possible). But what would be happening is that spheres with authority (nation-states) would be using the U.N. as a medium to act. Whether that action is legitimate is questionable.
***After all, considerations of national sovereignty are just as "procedural" as are issues of federalism?***
I disagree. According to the Bible, nations are ordained by God so there is such a thing as “national sovereignty.” The U.N. might serve a useful function, but I’m not sure we can say that is was instituted by God.
***Let me add, if abortion law should be decided at the federal level, why not all of homicide law? Why not remove from the states jurisdiction to enact homicide statutes and to try homicide cases? And if we do that, why not have it take over other areas of criminal law, such as rape?***
The question is not who has the legitimate authority to adjudicate statutes (that is a legitimate function of federalism questions), but of what happens when a certain sphere refuses to do justice.
A prime example is federal anti-lynching laws. Prior to such laws, there were many states were failing to protect their citizens. Should we have simply shrugged and said that nothing could be done since we have to respect procedure?
@Dave ***Because of the "If anything", I understand him to believe that the federal government has no responsibility regarding protection of life from violence, BUT if it did, it ought to protect life - not grant permission to destroy it.***
If that’s the case, then I agree Paul is not being inconsistent. But if he recognizes that what is being destroyed is a human life and yet doesn’t think that federal government should have a role in protecting it, then I’ll lose a lot of respect for him.
***When I hear that, I understand you to mean that the states are subdivisions of the national government.***
Not at all. See my explanation above about sphere sovereignty.
***I also don't think it makes sense to describe the federal system as a whole, since I it to be a relationship between 51 goverments elected and constituted by hundreds if not thousands of various communities, not a relationship between two parts, but I'm not exactly how to develop that at the moment.***
If it doesn’t make sense, then we should stop using the term federalism. After all, that is all that is really meant by the term.
***All I can say at the moment is that real people and real communities don't fall neatly into any one sphere.***
True, but that does not mean that distinctions can’t be made. A person can be a parent and a schoolteacher, but even if their own child is in their classroom, they roles are distinct.
***I would probably say that even if the federal government was willing to outlaw abortion it would be illegitimate to do so since that is a right reserved to the states. ***
If abortion is unjust (and I suspect we agree that it is), then how could it be legitimate for the states to allow such injustice? Was the federal government wrong to step in and prevent the unjust treatment of black Americans in the South during the 1960s?
***And I think that could result in some unfortunate outcomes - the death of innocents, even. In a totally depraved world, isn't that a problem with sphere sovereignity in and of itself?***
Obviously in a fallen world, there is a possible for injustice to occur in any system. But I don’t think that precludes us from correcting blatant injustice when it occurs.
***I do which you would have addressed Madison's discussion in Federalist #46, ***
I think #46 is a brilliant defense of federalism and adequately explains the reason why it is the form that our system should take. The only quibble I would have is that the “ultimate authority” is not ultimately “the people” but God. Even the people cannot legitimately decide to allow the killing of innocent human beings.
@Don Roberto ***For issues other than ones as clear as this, I like Mark B's idea of being able to vote with my feet.***
While I can sympathize with the “vote with your feet” idea, I think conservatives should consider it only as the absolute last resort. After all, conservatism is about putting down roots in a specific place. If we simply move somewhere else whenever we lose a fight then we are merely speeding up the process by which our principles are undermined.
Also, what happens to those that get left behind? Look at the inner cities. Many of those with conservative values and lifestyles moved away as soon as they had the financial resources to do so. Now the remaining conservatives, especially the poor ones, don’t have the support they need to protect their own children against the pathologies created by liberalism.
5.5.2011 | 12:06am
Jenifer pham says:
I think the government size should be controlled for scope and power. It seems that these entities are never evaluated by size criteria, yet the government always is.
5.5.2011 | 1:11am
Katie says:
Gene, (my Grandma's name!)
I'm thrilled that he's pro-life. I really am. (I realize how fake that sounds over the internet, but it's true.) I'm glad that he is disturbed by a live infant being carried in a bucket to its death.
Maybe it's because he reminds me of creepy Dr. Rolf on Days of our Lives, I don't know...but seriously, the moment I found out several years ago that he was (is?) an OB-GYN, I completely had the heebie-jeebies.
I wouldn't want to be in the same room as him, let alone pay him to be my doctor. Seriously, am I really the only one??
(For the record - I've never met him. He could be a lovely individual, but there's just something about him...)
I'm thrilled that he's pro-life. I really am. (I realize how fake that sounds over the internet, but it's true.) I'm glad that he is disturbed by a live infant being carried in a bucket to its death.
Maybe it's because he reminds me of creepy Dr. Rolf on Days of our Lives, I don't know...but seriously, the moment I found out several years ago that he was (is?) an OB-GYN, I completely had the heebie-jeebies.
I wouldn't want to be in the same room as him, let alone pay him to be my doctor. Seriously, am I really the only one??
(For the record - I've never met him. He could be a lovely individual, but there's just something about him...)
5.5.2011 | 2:05am
Don Roberto says:
I reside/work in the SF Bay Area, Joe. When one bathes in mental manure long enough, one should not be surprised if some residue sticks. And I have kids. So, though I might have to give up ministering to imprisoned gangsters, I do dream of a living someplace where less than every third person I encounter, and must be congenial with, is not a murderer, i.e., has not had their own precious child ripped to pieces (99% of the time essentially for their perceived convenience).
God bless.
God bless.
5.5.2011 | 10:03am
Gregory K. Laughlin says:
@Joe Carter.
You write, "But what happens when there is a failure within a sphere? Then the other spheres have to step in and restore order and justice. For example, a parent has sovereignty over family decision, such as the discipline of children. But if a parent begins to physically abuse a child (such as beating them with their fists) then the other spheres (mainly the government) have a responsibility to the child to step in and provide protection.
Similarly, the states have a responsibility to protect unborn humans. But if they fail to do their duty then it is necessary for another sphere (the federal government) to step in and provide protection."
This sounds good in theory, but under the scenarios you present, someone has to have the final authority. Otherwise, all you have is competing spheres of influence in potentially unending conflict. Why should the federal government be the sphere that has final say? And whose to say that if it does, it will be the sphere that will in fact impose justice and not, rather, be the one that imposes injustice? Indeed, on this very issues, abortion, most of the states restricted abortion prior to Roe v. Wade. It was one branch of the federal government, the judicial branch, which imposed an unjust solution on the other branches. In the past, of course, the states acted unjustly and the federal government imposed a just solution, but history tells us that is not always the case. Your proposal works only if one of the spheres can reliable be counted upon to act justly and has the power to impose its solution on all other spheres. The first criteria simply is not factual: no sphere can be relied upon to always be just. The second brings us back to what you refer to procedure: who decides? Since the first criteria (a sphere that is can be counted on to always be just) cannot be met, there is no reason to prefer you solution to the one preferred by Mr. Paul and the founders.
But, you may say, the federal government is the on that imposed justice when it abolished slavery. True, but how did that happen. Lincoln was not an abolitionist. In fact, he believed the federal government lacked authority to abolish slavery in the state where it already existed. His policy was one of containment: no new states would be admitted unless they were free states. The federal government did posses that authority. The Southern states seceded and a war was fought. During that war, Lincoln, acting under war power, emancipated the slave in enemy territory (Lincoln still believed he lacked authority to abolish slavery in territory controlled by the Union.) After the war ,the remaining slaves were emancipated by the 15th amendment. Now, if your proposal was that the federal government could and should take over abortion law by means of a constitutional amendment, I would agree that such is a permissible and even commendable approach (though not the approach I prefer), but that is not what you propose. You propose that the federal courts or Congress usurp an area of law which from the founding of the republic (even before the Constitution) until January 22, 1973 was always and indisputably a matter of state law. This is a dangerous proposition. It is, in fact, exactly the proposition upon which liberals have operated for more than 3/4 of a century. It is, I believe, a proposition that says "if you can't beat them, join them."
And what if the federal government is the sphere which acts unjustly, as is the case with abortion? Who imposes the just solution them? Well, it could be the states. But how are they going to do that in practice, your having already conceded to the federal government the authority to impose justice? Or it could be an empowered U.N., but that would require surrendering sovereignty to it, something which you are unwilling to do.
In fact, there is no reason to believe that your proposal is any more likely to achieve a just result than is Mr. Paul's. But Mr. Paul's approach has several advantages over yours. First, it is in fact the method for dividing sovereignty which operated in the U.S. for most of its history and was the one our founders designed. Second, since we live in a world in which fallen men are our governors, it disperses sovereignty so that even if some sovereigns are unjust, there is the prospect that others will not be and, so, justice may be done somewhere. Further, the unjust will be checked by the just. Of course, this works the other way as well, that is, the just are checked by the unjust, but given the fall, it is unlikely that justice would prevail everywhere if power is centralized.
In fact, what you call procedure matters because we live in an imperfect world and procedure is designed to mitigate against those imperfection. Indeed, procedure was an important element in the Levitical law. The same law that forbade certain acts and demanded the death penalty for commission of those acts also established rules of evidence on how violates are to be proven. Our Lord Himself referred to those rules of evidence to prove who He was and is. That is, there must be at least two witnesses to prove guilt. Further, if a witness perjured himself, he was to receive the penalty which the accused would have received and if the accused were convicted, the witnesses had to begin the execution by their own hands. These procedures were designed to ensure justice (that an innocent man wasn't wrongfully convicted and put to death). In the same way, the division of powers are designed to prevent injustices. We would be wise to remember that before dismissing them as less importance than the substantive law. As I often say, who decides and how decisions are made is just as important as what is decided. We ignore this dictum at our peril.
You write, "But what happens when there is a failure within a sphere? Then the other spheres have to step in and restore order and justice. For example, a parent has sovereignty over family decision, such as the discipline of children. But if a parent begins to physically abuse a child (such as beating them with their fists) then the other spheres (mainly the government) have a responsibility to the child to step in and provide protection.
Similarly, the states have a responsibility to protect unborn humans. But if they fail to do their duty then it is necessary for another sphere (the federal government) to step in and provide protection."
This sounds good in theory, but under the scenarios you present, someone has to have the final authority. Otherwise, all you have is competing spheres of influence in potentially unending conflict. Why should the federal government be the sphere that has final say? And whose to say that if it does, it will be the sphere that will in fact impose justice and not, rather, be the one that imposes injustice? Indeed, on this very issues, abortion, most of the states restricted abortion prior to Roe v. Wade. It was one branch of the federal government, the judicial branch, which imposed an unjust solution on the other branches. In the past, of course, the states acted unjustly and the federal government imposed a just solution, but history tells us that is not always the case. Your proposal works only if one of the spheres can reliable be counted upon to act justly and has the power to impose its solution on all other spheres. The first criteria simply is not factual: no sphere can be relied upon to always be just. The second brings us back to what you refer to procedure: who decides? Since the first criteria (a sphere that is can be counted on to always be just) cannot be met, there is no reason to prefer you solution to the one preferred by Mr. Paul and the founders.
But, you may say, the federal government is the on that imposed justice when it abolished slavery. True, but how did that happen. Lincoln was not an abolitionist. In fact, he believed the federal government lacked authority to abolish slavery in the state where it already existed. His policy was one of containment: no new states would be admitted unless they were free states. The federal government did posses that authority. The Southern states seceded and a war was fought. During that war, Lincoln, acting under war power, emancipated the slave in enemy territory (Lincoln still believed he lacked authority to abolish slavery in territory controlled by the Union.) After the war ,the remaining slaves were emancipated by the 15th amendment. Now, if your proposal was that the federal government could and should take over abortion law by means of a constitutional amendment, I would agree that such is a permissible and even commendable approach (though not the approach I prefer), but that is not what you propose. You propose that the federal courts or Congress usurp an area of law which from the founding of the republic (even before the Constitution) until January 22, 1973 was always and indisputably a matter of state law. This is a dangerous proposition. It is, in fact, exactly the proposition upon which liberals have operated for more than 3/4 of a century. It is, I believe, a proposition that says "if you can't beat them, join them."
And what if the federal government is the sphere which acts unjustly, as is the case with abortion? Who imposes the just solution them? Well, it could be the states. But how are they going to do that in practice, your having already conceded to the federal government the authority to impose justice? Or it could be an empowered U.N., but that would require surrendering sovereignty to it, something which you are unwilling to do.
In fact, there is no reason to believe that your proposal is any more likely to achieve a just result than is Mr. Paul's. But Mr. Paul's approach has several advantages over yours. First, it is in fact the method for dividing sovereignty which operated in the U.S. for most of its history and was the one our founders designed. Second, since we live in a world in which fallen men are our governors, it disperses sovereignty so that even if some sovereigns are unjust, there is the prospect that others will not be and, so, justice may be done somewhere. Further, the unjust will be checked by the just. Of course, this works the other way as well, that is, the just are checked by the unjust, but given the fall, it is unlikely that justice would prevail everywhere if power is centralized.
In fact, what you call procedure matters because we live in an imperfect world and procedure is designed to mitigate against those imperfection. Indeed, procedure was an important element in the Levitical law. The same law that forbade certain acts and demanded the death penalty for commission of those acts also established rules of evidence on how violates are to be proven. Our Lord Himself referred to those rules of evidence to prove who He was and is. That is, there must be at least two witnesses to prove guilt. Further, if a witness perjured himself, he was to receive the penalty which the accused would have received and if the accused were convicted, the witnesses had to begin the execution by their own hands. These procedures were designed to ensure justice (that an innocent man wasn't wrongfully convicted and put to death). In the same way, the division of powers are designed to prevent injustices. We would be wise to remember that before dismissing them as less importance than the substantive law. As I often say, who decides and how decisions are made is just as important as what is decided. We ignore this dictum at our peril.
5.5.2011 | 10:09am
Gregory K. Laughlin says:
@Joe Carter:
You write: "According to the Bible, nations are ordained by God so there is such a thing as “national sovereignty.” The U.N. might serve a useful function, but I’m not sure we can say that is was instituted by God."
I'm not so sure about that. Scripture declares government is ordained by God, but other than Israel, I'm not aware of any evidence that nations are. Indeed, the very passage of Scripture that tells us government is ordained by God is referring to the Roman Empire, a government that controlled many nations, including the nation of Israel, and imposed its authority over it. I certainly don't want to return to the days of the Roman Empire, but it is, in fact, an example cited in Scripture in which we are told God gave authority to a government that governed many nations. Indeed, Christ told Pilate, an agent of the Roman Empire, that he had no authority except that given to him by God. Pilate was governing a nation, Israel, on behalf of a foreign power, Rome. In short, I do not believe Scripture supports your case in this regard.
You write: "According to the Bible, nations are ordained by God so there is such a thing as “national sovereignty.” The U.N. might serve a useful function, but I’m not sure we can say that is was instituted by God."
I'm not so sure about that. Scripture declares government is ordained by God, but other than Israel, I'm not aware of any evidence that nations are. Indeed, the very passage of Scripture that tells us government is ordained by God is referring to the Roman Empire, a government that controlled many nations, including the nation of Israel, and imposed its authority over it. I certainly don't want to return to the days of the Roman Empire, but it is, in fact, an example cited in Scripture in which we are told God gave authority to a government that governed many nations. Indeed, Christ told Pilate, an agent of the Roman Empire, that he had no authority except that given to him by God. Pilate was governing a nation, Israel, on behalf of a foreign power, Rome. In short, I do not believe Scripture supports your case in this regard.
5.5.2011 | 11:22am
Joe Carter says:
@Gregory ***an example cited in Scripture in which we are told God gave authority to a government that governed many nations. ***
Fair enough. I used "nation-state" instead of government since that is the form that they most often take in the modern age. However, I think you can swap the terms in my comment and my point would still stand. The U.N. is not, in any Biblical sense, a "government."
Fair enough. I used "nation-state" instead of government since that is the form that they most often take in the modern age. However, I think you can swap the terms in my comment and my point would still stand. The U.N. is not, in any Biblical sense, a "government."
5.6.2011 | 11:08am
Bryan Hann says:
Joe,
I just wrote a long comment that I really need to read more carefully, and then only after reading the previous comments more carefully. I might be saying nothing new.
For now, just let me say two things regarding the relationship in the USA between the states and the union, in furtherance to your proper reference to sphere sovereignty.
Part-whole relationship: No.
Enkaptic* relationship: Yes. (*In the Dooyeweerdian sense)
I just wrote a long comment that I really need to read more carefully, and then only after reading the previous comments more carefully. I might be saying nothing new.
For now, just let me say two things regarding the relationship in the USA between the states and the union, in furtherance to your proper reference to sphere sovereignty.
Part-whole relationship: No.
Enkaptic* relationship: Yes. (*In the Dooyeweerdian sense)
5.9.2011 | 10:12am
Nancy D. says:
Since it is true that our Founding Fathers knew that the definition of CREATED is "to bring into being", while the definition of BORN is "to come forth from the womb alive", there is no doubt that they understood that we are endowed with our UNALIENABLE Right to Life at the moment we are brought into being, for they did not state, unanimously, that all men are born equal, but rather, "We hold these truths to be self-evident, that all men are CREATED equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and The Pursuit of Happiness..." The first Right being our fundamental Right to Life, for our Right to Liberty and The Pursuit of Happiness depends on protecting our fundamental Right to Life, to begin with.
5.12.2011 | 3:09pm
Anymouse says:
"The question is not who has the legitimate authority to adjudicate statutes (that is a legitimate function of federalism questions), but of what happens when a certain sphere refuses to do justice.
A prime example is federal anti-lynching laws. Prior to such laws, there were many states were failing to protect their citizens. Should we have simply shrugged and said that nothing could be done since we have to respect procedure?"
Arguably, yes. It is not a procedural matter, but a matter of principle. And I question whether the federal government has any more authority to prevent murder than I do. Arguably less authority than I do.
A prime example is federal anti-lynching laws. Prior to such laws, there were many states were failing to protect their citizens. Should we have simply shrugged and said that nothing could be done since we have to respect procedure?"
Arguably, yes. It is not a procedural matter, but a matter of principle. And I question whether the federal government has any more authority to prevent murder than I do. Arguably less authority than I do.
5.12.2011 | 10:40pm
Bill says:
I'm a little late on this post, but Mr. Carter remains incorrect on the legalities of the Schiavo case.
The Florida Supreme Court in 1990, well before the Schiavo case had already considered the issue of feeding tubes (In Re Guardianship of Browning)
Their decision was that feeding tubes were both a medical treatment that could be refused, and that a guardian could rely on prior oral testimony in deciding if the ward would wish to continue being tube-fed.
The court did note that a trial would be likely in the latter case, which is what occurred with Schiavo.
Carter is also incorrect to state that only her husband testified as to her wishes to not continue with a feeding tube.
The Florida Supreme Court in 1990, well before the Schiavo case had already considered the issue of feeding tubes (In Re Guardianship of Browning)
Their decision was that feeding tubes were both a medical treatment that could be refused, and that a guardian could rely on prior oral testimony in deciding if the ward would wish to continue being tube-fed.
The court did note that a trial would be likely in the latter case, which is what occurred with Schiavo.
Carter is also incorrect to state that only her husband testified as to her wishes to not continue with a feeding tube.
6.29.2011 | 2:34am
Cameron Annand says:
Allowing the Supreme Court or a state government to bestow the protection of law upon the child in the womb is a denial of the principles in our founding document. While the lives that would be saved would justify allowing this, the fundamental problem would remain, there being nothing to prevent Caesar from arbitrarily withdrawing the protection of law from some other segment of the human family. ***I would probably say that even if the federal government was willing to outlaw abortion it would be illegitimate to do so since that is a right reserved to the states. ***
10.18.2011 | 7:48am
Ben Embry says:
Joe, (I didn't read very many of the preceding comments, first of all), from your opening paragraphs you present the thought that the federal law should "protect lives". Abortion is murder. Question: are there federal laws against murder? Do you endorse the idea that there should be?
I'm want to see if you have a valid conviction here, or if you are just blowing smoke. Are there federal laws against murder? do you endorse the idea that there should be? And further, if there is scanty federal protection of life, how then is life protected at all by law? Answer: by the states, which is Ron Paul's point.
I'm want to see if you have a valid conviction here, or if you are just blowing smoke. Are there federal laws against murder? do you endorse the idea that there should be? And further, if there is scanty federal protection of life, how then is life protected at all by law? Answer: by the states, which is Ron Paul's point.
2.28.2012 | 7:19pm
degu says:
Makes me think of the 'Catholic' Thomas Fleming's position on the matter. I stopped reading his rag after that. Very few seemed to care, though; he kept his reputation as a leading Catholic writer. I'm not sure if he retracted/ repented of it, I hope he did and I certainly apologize if he has.
Buckley's conduct during the disgusting affair was inexcusable as well.
If anything, true subsidiarity would involve the highest level of government getting involved when everything else at a lower level fails. Libertarians and apparently some supposed conservatives take the principles of federalism and subsidiarity all the way to one extreme without acknowledging the other end. They can't deal with every single case that slips through the cracks, but this was right on the damn television in front of everybody. Screw the law if it lets a woman dehydrate to death at the whim of an adulterous husband.
Buckley's conduct during the disgusting affair was inexcusable as well.
If anything, true subsidiarity would involve the highest level of government getting involved when everything else at a lower level fails. Libertarians and apparently some supposed conservatives take the principles of federalism and subsidiarity all the way to one extreme without acknowledging the other end. They can't deal with every single case that slips through the cracks, but this was right on the damn television in front of everybody. Screw the law if it lets a woman dehydrate to death at the whim of an adulterous husband.
