Federalismo

The debate that's shaping up over the role of government is great; we small "l" libertarians have been waiting for this for years.  But the lawyer in me insists on pointing out the way the argument can conflate the questions of which level of government should handle things, and whether government should handle them at all.

There's a great example.  You hear all the time about the founding fathers, how they put restraints on government through the Bill of Rights.  (Well OK, most of them did - but it wasn't really the framers of the constitution who did it, it was the first Congress and the States - they were Ten Amendments to the constitution, after all, not there from the start.  Side point, but not the interesting point. )

Take the First Amendment.  It has a whole lot packed in there, but one idea I really like is separation of church and state.  So that means the founders - whoever - believed there shouldn't be, say, a state religion.  Right?

Not necessarily.  They didn't think the Federal Government should establish a state religion.  It was OK for States, and some did.  Connecticut didn't toss out the Congregationalists until pretty well into the 1800's.

Changed by the 14th Amendment, as were so many things - but that wasn't until after the Civil War.

The point is, distinguish between what's right for the federal government to do - or, a little more broadly, at which level of government should something be managed - and what's not right for any government to do.

It's a big part of my problem with Roe v. Wade.  That case and its progeny have said a lot, including the idea that the state has no role in the early stages of a woman's pregnancy.  My take is, fine, as to the federal government; I would prefer that it butts out of any stage of a woman's pregnancy.  But States have long had two roles:  defining murder and regulating the practice of medicine and there, from a legal standpoint, is where this issue is addressed.  So leave it to the States.  They could have  - and would have - worked out rules for abortion and the whole issue would have done so much less to wreck the tenor of the national debate.  There would have been differences, just as with divorce.  So what?

Of course it's still a judgment call.  Federal, State, municipal - or neighborhood association, parish, workplace - who makes the rules - or does no one make them at all.  I don't have an all-purpose key.  It's just a way of thinking about it that I think the founders did, and we do less.