Devolving Social Conservatism to States

The Republican presidential race these days seems splintered into the old divisions of “fiscal conservatives” and “social conservatives.” Some conservatives bemoan the social conservatism of Rick Santorum or other conservatives like Sarah Palin, Michelle Bachmann and Rick Perry. The fundamental problem is not which part of conservatism is more important but rather which areas are properly handled by the federal government and which left to state governments or to individual choice.

The left has federalized almost everything and it has also made almost every aspect of human life subject to government oversight. This is not the system created by our Constitution. The federal government has power only to act in a small part of our lives, specifically what is explicitly recited in Article I, Section 8. The executive and judicial branches of government had no powers beyond those few outlined in Article I because Congress alone could make laws.

The Bill of Rights further limits what the federal government can do but it does not purport to limit state governments at all. In fact, the last two of those ten amendments were intended to emphasize that the federal government had no greater powers than expressed in the Constitution. This allowed the citizens of individual states to provide protections for civil liberties, adopt whatever social policies that government ought to create, and also to allow Americans who were unhappy with the bundle of rights in one state to move to another.

As a consequence, Americans who felt that abortion should be legal or largely unregulated were free to move to states which allowed abortion while those who felt that it was a crime were allowed to live in states that regulated or outlawed abortion. States were free to allow common law marriages or to require ceremonial marriages. The age of consent to marry and the degree of consanguinity were also regulated by state law. Violent crimes are defined by state law, not federal law.

What happened to our federal system which allowed states to govern most aspects of our lives which required governance and which left the federal government exercising few powers and leaving Americans alone? The Supreme Court, through the “Incorporation Doctrine,” has judicially amended the Constitution by providing that those two clauses of the 14^th Amendment which provides equal protection of the laws and that all citizens are granted due process of laws actually meant that the whole federal Bill of Rights now applied to the states.

It is vital to realize that this doctrine did not grant to citizens of the several states new rights. The constitutions of every state had its own bill of rights and, in many cases, these rights were broader than those in the federal Constitution. What the incorporation doctrine did was to make the protection of civil rights a federal, rather than a state, issue.

The left considers this good but only because it has long controlled the judiciary, federal bureaucracy and establishment media. But this insures that, unless vast numbers of Americans surrender their personal moral beliefs to Washington, that no social issue is ever really resolved. So some future Supreme Court, with a social conservative majority, could strike down every state law allowing abortion and determine that each fetus was a citizen entitled to equal protection of the laws. Moreover, because this would have flowed from an interpretation of the Constitution, Congress and the Presidency would have no power to allow abortions.

In fact, the longer that all social issues are made government issues; and these government issues are considered federal issues; and these federal issues are questions of judicial interpretation of the Constitution, the pot of social issues will continue to simmer and to undermine the moral legitimacy of the federal government. Nothing will be solved. Instead, festering sores and bitter recriminations will more and more dominant federal politics.

There is a simple change which would end this problem. Amend the Fourteenth Amendment by repealing the current language of Section 5, which grants Congress the power to enforce the rights guaranteed in the amendment, and adding this language in its place:

“The sole power to enforce the provisions of this amendment shall reside with the governments of the several states.”

This would result in things that social conservatives may not like. If Vermont wants to allow gay marriage or Idaho wants to allow polygamy or Hawaii wants a very liberal abortion statute, those of us who disagree with those actions would have to accept them as the price of having our own state policies on those social issues.

It would mean that school prayer would again be allowed in states which found such prayer wholesome and inoffensive. It would mean states could end affirmative action programs. It would mean abortion would once again be a state, not federal, question. It would mean that governments would again reflect the values of the governed.

Devolving social conservatism to state governments would also create, over time, that common vested interest among all states – leftist and conservative – in retaining power rather than surrendering it to Washington. Once that happens, once we recover true tolerance among the states of the different values of their sibling states, then we have won a huge battle in the campaign to recover the greatness of America .