I've been on a break - and how - from writing, especially about politics, for a number of reasons. Much of it is related to my promotion at work, which has consumed a great deal of my time; other life interests are intervening as well. Still, I've also been so thoroughly disgusted with much of what passes for politics lately, that a general run of silence seemed the most practical response.
Lately, I've been finding myself waiting - like others - for the Supreme Court's health care decision; since until they provide some clarity on something, it's hard to say where health care issues really are, politically. But yesterday brought a decision in the Arizona immigration case, and it reminded me of a couple of things that I think have been lost in a lot of recent political handwringing.
Let's start with the fact that striking down Arizona's immigration law was really the only sensible, plainly logical step to be taken. Giving state and local law enforcement broad powers to stop and check the immigration status of anyone was everything its opponents claimed: probably racist, an intrusion by the state into federal jurisdiction, and no solution to the ostensible problem it claimed to solve.
It shouldn't, really, be remarkable that the Supreme Court invalidated large chunks of the law. Yet the decision, clearly, surprised both overconfident conservatives who expected to celebrate the power of a newfound majority, and a shock to liberals sure that conservative politics would trump common sense and basic decency.
That's why I think the decision was a good reminder of a couple of less discussed points: that being a nation of laws actually matters, and that conservatives cannot win a battle based on a failed idea like "states rights."
The concept of States Rights - that the federal government has amassed too much power and control and some of that should return, naturally, to the various 50 states, has its roots in the Civil Rights era, though the concept is older, and reflects the basic tension of founding a country of states bound together by a Constitution and a central government (and a lesson in how not to do this, lately, is the European Union). Fundamentally, States Rights is an argument that variations in governing and laws between the states are okay, so long as certain "basic" functions of government are handled nationally. States Rights was a partciularly attractive argument to white southerners looking for a way to carve out protections first for slavery, then for Jim Crow and voting rights limitations (not to mention disparities in education between the races, and so on).
The idea of states prevailing over the federal government is a dream of the right which has never really won out - in most cases, especially the high profile ones, the Supreme Court has pretty firmly restated the primacy of federal law and national government every time. Even the occasional nibbling at the edges - such as the surprise ruling in the "Guns 500 feet from schools" ruling that placed some limitations on the Commerce Clause (that is, that Congress' power to regulate interstate commerce will generally overcome objections to most laws) - have never really embraced the idea that the States can supersede federal power in siginificant ways.
In this sense, the decision in the Arizona case wasn;'t even close: it was a 5-3 decision, with Elena Kagan recused (remember when liberals fretted that Kagan's appointment would be a disaster for cases where she would recuse, like the Arizona immigration case?), and Kagan clearly would have sided with the majority, making it 6-3 (or 7-2 where Justice Alito agreed with the majority as well). Even with a spate of "conservative" appointments, some of the biggest conservative goals - like significantly lmiting the ability of federal law to trump states - remain almost entirely out of reach. And despite continued liberal handwringing, that still isn't likely to change.
This isn't to say that we're living in a moment where conservatism poses no threat, or to deny that some decisions by the Court clearly set up problems (though I'm not one to see Citizens United as the disaster many want to see it as). But time and again, with each successive conservative appointment, we're told that this one means legal armageddon on the Court. While the reality is that in many ways - this week, most obviously on immigration and children facing life without parole - we conitnue to see that liberal ideas tend to continue to win out.
More pointedly, what we've seen this week is that fears about the Court being solely about the easy political divides of left and right miss the reality that the Justices are still deeply concerned most with the law and interpreting it properly. Our long history as a nation of laws has given us a Supreme Court that tends to favor established precedent, that tends to err on the side of our freedoms, and manages, surprisingly often, to adapt our legal system to the changing realities of the world (as they did this year, when a surprising majority ruled electronic surveillance of a car by GPS an illegal search because placing the GPS device requires a warrant). We would have better politics, and a healthier debate, I'm convinced, if we could stop casting the Supreme Court into a role it doesn't play in our political life. Rather than fear the worst, we could wait, calmly, for the Court to do its best. And realize that extreme, untenable views of the law will be marginalized in the Court even when they can't be entirely marginalized in leglislatures and even society.
A corollary to that thought is that liberals really ought to stop approaching these halthy debates of issues from an endless defensive crouch; we've always been right about rejecting States Rights arguments, and we continue to be right. As long as Republicans chase a dwindling, extreme minority of angry, mostly, white, mostly older, conservatives, they will continue to marginalize themselves into irrelevance. Immigration is a difficult, complicated issue that won't be easy to solve (and the reforms we need, I suspect, are ones that involve controls and restrictions some liberals will not like)... but conservatives will continue to lose, and lose big, favoring a closed nation with fences and guard dogs and random stops and arrests. That's not who we are. And as liberals, we should be confident to say that, and hold to it.
I don't know what the coming days hold in terms of the health insurance mandate and the Court's decisions; I have suspicions, ones that the Arizona case only reinforced, but I admit the possibility that liberals could lose, and lose big. And maybe there is a newfound, newly powerful conservative majority. But if there were, as with Arizona, I'd think we'd see more evidence of it than we've seen thus far. If this Court is serious about our nation of laws, as they seem to be, then the law will guide them to a sensible result. And bad laws can be fixed, too.
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