Commentary Magazine


Topic: federalism

The EU as America Inverted

Malcolm Lowe has written a highly engaging opinion piece for the Gatestone Institute explaining how the project of the European Union has attempted to replicate American-style federalism, and has ultimately been failing in these efforts. Of course no small part of this has to do with the fact that, as diverse as the fifty states of the American union may well be, the nations of Europe are radically more diverse. Out of that diversity a reactionary nationalism is being sustained, one that refuses to be quelled by the post-nationalist European project. Still, Lowe explains how many of the EU’s failings in its attempt to duplicate the U.S. stem from structural and organizational problems. The EU’s democracy deficit is just one very striking way in which European federalists have failed to live up to the standard set by their American counterparts.

On further reflection, however, the lack of democracy witnessed in the EU is not merely consequential. Rather, the favoring of bureaucracy over democracy stems from a core ideological difference. Whereas America was a nation founded around a positive ideal of the liberty of the individual, the EU has arisen as a response to a perceived problem, and in that sense has a negative starting point. For European federalists the problem is believed to be that of nations and the wars they engage in; hence the EU’s genesis in the 1950s as the European Coal and Steel Community—the point being that the very materials necessary for warfare would be confiscated and held collectively.

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Malcolm Lowe has written a highly engaging opinion piece for the Gatestone Institute explaining how the project of the European Union has attempted to replicate American-style federalism, and has ultimately been failing in these efforts. Of course no small part of this has to do with the fact that, as diverse as the fifty states of the American union may well be, the nations of Europe are radically more diverse. Out of that diversity a reactionary nationalism is being sustained, one that refuses to be quelled by the post-nationalist European project. Still, Lowe explains how many of the EU’s failings in its attempt to duplicate the U.S. stem from structural and organizational problems. The EU’s democracy deficit is just one very striking way in which European federalists have failed to live up to the standard set by their American counterparts.

On further reflection, however, the lack of democracy witnessed in the EU is not merely consequential. Rather, the favoring of bureaucracy over democracy stems from a core ideological difference. Whereas America was a nation founded around a positive ideal of the liberty of the individual, the EU has arisen as a response to a perceived problem, and in that sense has a negative starting point. For European federalists the problem is believed to be that of nations and the wars they engage in; hence the EU’s genesis in the 1950s as the European Coal and Steel Community—the point being that the very materials necessary for warfare would be confiscated and held collectively.

Initially, the emphasis on free trade alienated much of the left from the European project. Yet, as the anti-nationalist elements of this project gradually became more pronounced, the left would become the primary advocate for a federal Europe. Indeed, several key figures from the radical student movement of the ’60s and ’70s—such as Daniel Cohn-Bendit—would later assume important positions in driving the European project forward. And so the vast bureaucracy of the EU would soon enough become a tool by which progressives could advance their agenda. The proposed EU constitution of 2004 sought to regulate just about every conceivable area of life for Europeans. In this way the project had become utopian on two accounts; first in its promise to end war and the resentments of national rivalry so as to usher in a kind of universal brotherhood of man, and secondly by regulating daily life in accordance with more “enlightened” principles.

Whereas the structure of government in the U.S. seeks to protect against tyranny by investing legislative powers at the state level, the EU seeks to drain away the power of the elected parliaments of the various European states, accumulating it in the hands of a centralized bureaucracy that believes it knows how to use this power for a higher good. This is just one of many observable differences. While America has consistently sought to bolster its national identity around a set of values and the American way of life, the EU shuns the notion of national identity, and its president Herman Van Rompuy has spoken gushingly of the prospect of world government. Nor does the EU share the American emphasis on freedom of religion and freedom of expression. Censorship of that which is deemed politically incorrect is now the norm in Europe and the EU could be said to be at best ambivalent about religion.  

The anti-Americanism that is prevalent among parts of European society not only rejects much of American culture—dismissing it as crass materialism—but it clarifies around a rejection of American foreign policy. This is not simply driven by the usual leftist hostility to militarism or Western interventionism, but more fundamentally it stems from ideas about the end of history and how the world should be run. Rejecting the notion of great power politics, or the idea that there might be a good side and a bad side in a conflict, the European federalists are not merely post-nationalists, but rather they are such because they are also post-history. For the EU federalists, history is not still being made, the end point is clear, it now only has to be universally formalized.

Malcolm Lowe’s piece makes some very interesting points. But it would be mistaken to think that European federalists tried to recreate America and have simply gotten stuck halfway. What they have been trying to create is an alternative to the United States; an anti-America. 

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A Ruling Without Reason

This morning the Supreme Court voted by a 5-4 margin that Section 3 of the Defense of Marriage Act, defining marriage as a legal union between one man and one woman as husband and wife for the purpose of federal law, is unconstitutional. But why? Is it because Section 3 violates long-standing principles of federalism that favor state power to define and regulate family relations? Or is it because Section 3 violates the Fifth Amendment rights of gays and lesbians to equal protection of the laws? The answer, in effect, is none of the above. In a 26-page opinion brimming with constitutional catch phrases but containing no coherent rationale, the Court delivered an outcome that many find politically favorable but that no serious reader could possibly find legally sound.

There are many strong arguments against the constitutionality of Section 3 of DOMA. As I argued in the May issue of COMMENTARY, the most compelling argument is that the statute represents an unprecedented encroachment by the federal government upon the power of the states to regulate and define marital relations. Indeed, at the opinion’s outset, this seems to be the line of reasoning the majority is going to adopt in overturning Section 3. “By history and tradition,” the majority writes, “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” The majority continues in this vein for about seven pages… before announcing that federalism is irrelevant to the case!

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This morning the Supreme Court voted by a 5-4 margin that Section 3 of the Defense of Marriage Act, defining marriage as a legal union between one man and one woman as husband and wife for the purpose of federal law, is unconstitutional. But why? Is it because Section 3 violates long-standing principles of federalism that favor state power to define and regulate family relations? Or is it because Section 3 violates the Fifth Amendment rights of gays and lesbians to equal protection of the laws? The answer, in effect, is none of the above. In a 26-page opinion brimming with constitutional catch phrases but containing no coherent rationale, the Court delivered an outcome that many find politically favorable but that no serious reader could possibly find legally sound.

There are many strong arguments against the constitutionality of Section 3 of DOMA. As I argued in the May issue of COMMENTARY, the most compelling argument is that the statute represents an unprecedented encroachment by the federal government upon the power of the states to regulate and define marital relations. Indeed, at the opinion’s outset, this seems to be the line of reasoning the majority is going to adopt in overturning Section 3. “By history and tradition,” the majority writes, “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” The majority continues in this vein for about seven pages… before announcing that federalism is irrelevant to the case!

“The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism,” the majority writes–and not because the state has exclusive sovereignty over the regulation of marital relations. Rather, according to the majority, the power of the state is central because in this case New York State passed a statute of which the majority approved. The recognition by New York State of same-sex marriage “enhanced the recognition, dignity, and protection of the class in their own community.” According to the majority, the federal government snatched away that “recognition, dignity, and protection” in a fit of homophobic animus with the Defense of Marriage Act. “What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.”

This is starting to look like an equal protection argument until the majority again veers off course. It does not engage in a rigorous equal protection analysis based on an established standard of constitutional scrutiny–the rational basis test, which seeks some legitimate government interest underpinning a statute, or the strict scrutiny test, which seeks some compelling government interest supporting a statute, or even the heightened scrutiny test, which is an intermediate level of review. Instead, the Court declares DOMA a violation of the Fifth Amendment’s equal protection component demanding “careful consideration.”

Careful consideration of what?

The Court does not say. To wit, careful consideration is a standard of review conferred upon menus, brochures, and resumes, not constitutional claims for equal protection of the laws. So while supporters of same-sex marriage celebrate the outcome in United States v. Windsor, the victory may well prove pyrrhic. The degree of constitutional protection to which homosexuals are entitled is no more clear today than it was on the day that DOMA was enacted in 1996. What is more, proponents of federalism have cause for concern. By refusing to hold categorically that the states are sovereign over the regulation of familial relations within their boundaries, the Court left open the possibility of future federal legislation in that field. The Court’s decision in Windsor has neither vindicated gay rights nor championed federalism. Rather, with what Justice Scalia scathingly characterizes as a “disappearing trail of . . . legalistic argle-bargle,” the majority has presented the nation with a policy choice clothed in tatters of doctrine.

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The Gay Marriage Debate

I certainly agree with Peter Wehner and Jonathan Tobin that the sudden shift in public opinion in favor of same-sex marriage is quite remarkable and surely portends that in another generation, same-sex marriage will be about as controversial as votes for women. That is, as long as the court doesn’t hand down another Roe v. Wade and take the issue out of the political arena where issues such as this are properly settled.

Let me add just one thing regarding the main conservative reasoning for upholding DOMA. As the Wall Street Journal editorial today sympathetically put it:

Mr. Clement responded to Justice Kennedy that Doma merely defined marriage for the purposes of federal law, such as Social Security benefits. After the Hawaii supreme court had legalized gay marriage and upset the traditional definition, Congress in 1996 naturally adopted a uniform rule for federal benefits but allowed the states to debate and adapt to changing social mores.

This is nonsense.

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I certainly agree with Peter Wehner and Jonathan Tobin that the sudden shift in public opinion in favor of same-sex marriage is quite remarkable and surely portends that in another generation, same-sex marriage will be about as controversial as votes for women. That is, as long as the court doesn’t hand down another Roe v. Wade and take the issue out of the political arena where issues such as this are properly settled.

Let me add just one thing regarding the main conservative reasoning for upholding DOMA. As the Wall Street Journal editorial today sympathetically put it:

Mr. Clement responded to Justice Kennedy that Doma merely defined marriage for the purposes of federal law, such as Social Security benefits. After the Hawaii supreme court had legalized gay marriage and upset the traditional definition, Congress in 1996 naturally adopted a uniform rule for federal benefits but allowed the states to debate and adapt to changing social mores.

This is nonsense.

State marriage laws have always diverged, and significantly so in some cases. For instance, 19 states and Washington D.C. allow first-cousin marriages, 25 states forbid them, and six states allow them with restrictions (usually with reference to the age and/or fertility of the partners). The federal government had no problem with these divergences before 1995. For over 200 years, if you were legally married in the eyes of the state where you lived, then you were legally married as far as the federal government was concerned, no questions asked.

Then the Hawaii Supreme Court legalized same-sex marriage and Washington politicians all of a sudden “naturally” rushed to adopt a “uniform rule for federal benefits.” It was, of course, uniform in only one way: the marriage partners had to be of opposite sexes. And the law that “merely” set a uniform rule for federal benefits isn’t called the Uniform Rule for Federal Benefits Act, it’s called the Defense of Marriage Act.

Lawyers are paid to win the argument, not find the truth, of course. But if you buy Mr. Clement’s argument here, I have a really handsome bridge over the East River I’d like to sell you.

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