Today in Federalism

April 2, 1788:

Federalist Paper No. 77, the last Paper to appear as a newspaper article, is published. The remaining Papers (78-85) were released in a bound volume containing Papers 37-85, on May 28.

Mark your calendars!

Birthday Festivities Cont'd

The New Federalist asks: '50 Years: The Age of Maturity for the European Parliament?' in a must read article.

Meanwhile, E! Sharp Magazine has a slightly more pessimistic view.

The EU Turns 51

This article from the Independent was actually passed on to me last year, on the 50th anniversary of the Treaty of Rome, but I wasn't able to post it then. But I would argue that most of the points are still valid (especially no. 50), so Happy Birthday Europe!

50 reasons to love the European Union
As the EU celebrates its anniversary, The Independent looks at 50 benefits it has brought, and asks: "What has Europe done for us?"
Published: 21 March 2007

1 The end of war between European nations
2 Democracy is now flourishing in 27 countries
3 Once-poor countries, such as Ireland, Greece and Portugal, are prospering
4 The creation of the world's largest internal trading market
5 Unparalleled rights for European consumers
6 Co-operation on continent-wide immigration policy
7 Co-operation on crime, through Europol
8 Laws that make it easier for British people to buy property in Europe
9 Cleaner beaches and rivers throughout Europe
10 Four weeks statutory paid holiday a year for workers in Europe
11 No death penalty (it is incompatible with EU membership)
12 Competition from privatised companies means cheaper phone calls
13 Small EU bureaucracy (24,000 employees, fewer than the BBC)
14 Making the French eat British beef again
15 Minority languages, such as Irish, Welsh and Catalan recognised and protected
16 Europe is helping to save the planet with regulatory cuts in CO2
17 One currency from Bantry to Berlin (but not Britain)
18 Europe-wide travel bans on tyrants such as Zimbabwe's Robert Mugabe
19 The EU gives twice as much aid to developing countries as the United States
20 Strict safety standards for cars, buses and aircraft
21 Free medical help for tourists
22 EU peacekeepers operate in trouble spots throughout the world
23 Europe's single market has brought cheap flights to the masses, and new prosperity for forgotten cities
24 Introduction of pet passports
25 It now takes only 2 hrs 35 mins from London to Paris by Eurostar
26 Prospect of EU membership has forced modernisation on Turkey
27 Shopping without frontiers gives consumers more power to shape markets
28 Cheap travel and study programmes means greater mobility for Europe's youth
29 Food labelling is much clearer
30 No tiresome border checks (apart from in the UK)
31 Compensation for passengers suffering air delays
32 Strict ban on animal testing for the cosmetic industry
33 Greater protection for Europe's wildlife
34 Regional development fund has aided the deprived parts of Britain
35 European driving licences recognised across the EU
36 Britons now feel a lot less insular
37 Europe's bananas remain bent, despite sceptics' fears
38 Strong economic growth - greater than the United States last year
39 Single market has brought the best continental footballers to Britain
40 Human rights legislation has protected the rights of the individual
41 European Parliament provides democratic checks on all EU laws
42 EU gives more, not less, sovereignty to nation states
43 Maturing EU is a proper counterweight to the power of US and China
44 European immigration has boosted the British economy
45 Europeans are increasingly multilingual - except Britons, who are less so
46 Europe has set Britain an example how properly to fund a national health service
47 British restaurants now much more cosmopolitan
48 Total mobility for career professionals in Europe
49 Europe has revolutionised British attitudes to food and cooking
50 Lists like this drive the Eurosceptics mad

Faith of Our Fathers

The Founding Fathers are getting a lot of love so far this year. First, HBO makes a miniseries about John Adams, now a new book, entitled Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America by Steven Waldman has just been published by Random House.

Sadly, I don't get HBO, and don't feel like changing my cable options (not sure why HBO isn't included, but oh well), so I'll just have to wait for John Adams to come out on dvd. But Nick Gillespie, the editor of reason.tv, has a good review of Founding Faith in the New York Post (founded by Alexander Hamilton!), and I've already added Founding Faith to my want-to-read pile.

Minerva Deadline EXTENDED!

Breaking news:

Thesil has extended the deadline for Minerva entries to April 15th, which means that I might actually be able to finish my piece in time. We'll see.

And MANY THANKS! to Val Schrock for making the button for us! (visible on all of the WFI's pages)

TJ and Soft Power

In Harper's this week, Jefferson anticipates the doctrine of soft power:

I wish that all nations may recover and retain their independence; that those which are overgrown may not advance beyond safe measures of power, that a salutary balance may be ever maintained among nations, and that our peace, commerce, and friendship, may be sought and cultivated by all. It is our business to manufacture for ourselves whatever we can, to keep our markets open for what we can spare or want; and the less we have to do with the amities or enmities of Europe, the better. Not in our day, but at no distant one, we may shake a rod over the heads of all, which may make the stoutest of them tremble. But I hope our wisdom will grow with our power, and teach us, that the less we use our power, the greater it will be.

–Thomas Jefferson, letter to Thomas Leiper, June 12, 1815, in: The Writings of Thomas Jefferson (Memorial ed.), vol. 14, p. 308

Federalist Paper No. 7

Poor Hamilton. He wishes he could just leave the question of what could make the states fight each other, at just: the same reasons every other group of states has ever fought against one another. But he needs to address the particulars of the American situation, so his ink can’t be spared.

The reasons he addresses are:

1. Territorial disputes (par. 2-4)
2. Competitions of commerce (par. 5-6)
3. Public debt of the Union (par. 7-8)
4. Laws in violation of private contracts (par. 9)

As he states, reasons 1 and 2 aren’t unique to America, but he does have reason to argue that 3 and 4 are.

By ‘public debt of the Union’, Hamilton refers primarily to the accumulated war debt. There are two problems he sees with leaving this debt to be dealt with by the single states:

1. The apportionment of debt: The different states accumulated different losses and costs based on their role in the Revolutionary war (heavier losses of human life, destruction of property, interruption of trade), in the pursuit of the common good – independence. How, then should the costs be apportioned – by the ability of each state to pay, by costs that were not paid out at the time, etc? Each state will obviously want to minimize its debt.
2. How to discharge the debt: Apparently, members of some of the states ‘either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question’ to paying ANY of the debt. On the other side, there are citizens who are creditors to the Revolutionary army and young nation, and really want to be paid back. Not to mention, some countries (France) lent the Americans money, and not paying back allies is a sure-fire way to make any support disappear.

The final point Hamilton raises is ‘laws in violation of private contracts’. I don’t follow this quite as easily, but my understanding is that a citizen of one state enters into a contract with a citizen of another state, after which the legislature of the first state passes some law that violates the contract between the two citizens, and injures the citizen of the second state. And since the citizen of the second state’ rights are violated, then his state will have to act to protect him, and now suddenly two states are having a go over this contract and the interfering law. In his example of Connecticut and Rhode Island, it almost seems as if Rhode Island’s legislature passed laws that would harm citizens of Connecticut on purpose, which doesn’t seem like a very neighborly thing to do. Or as Hamilton puts it, a ‘[breach] of moral obligation and social justice.’ (On a side note, no wonder he got into a duel with Aaron Burr)

As always, Hamilton says it better than I. From his conclusion:

The probability of incompatible alliances between the different States or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers…[T]his conclusion is to be drawn, that America, if not connected at all, or only by…feeble tie… [would] be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions… would be likely to become a prey to the artifices and machinations of powers… Divide et impera must be the motto of every nation that either hates or fears us.

.... And We're Back!

Ok, so that was a nice vacation (I wish). We Are Publius has been on hiatus these past 2 months because I've been busy setting up some other blogging projects (the Everyday Idealist, Blogworthy, and The List), and I've been up to my eyeballs in WFI work. I've also been doing some spring cleaning (mental and blog) because I felt I was getting off-topic with WAP (less confusing than calling it Publius, since there was that other guy...), but had nowhere else to go.

My hope is that the EI will solve that problem, and allow WAP to focus better on federalism (US and otherwise) and other issues of international and global law and governance, and therefore less on the US, except as it pertains to the global picture.

I'm also floating the idea of possibly getting some of my friends in the movement (World Federalist Movement, that is) to contribute. We shall see.

In the meantime, Federalist Paper No. 7 (remember those?) will be posted shortly (end of day), and I've got some topics I've been saving to write about.

I'm still growing into both blogging and We Are Publius - both what my intentions are and what it means to have set this responsibility for myself. Expect that I'll continue to make changes to both the format and content. I'd like to bring in more outside links and make a wider range of resources available. And as I develop the WFI's webpages, the resources I find most useful will be linked here.

I'm a little ambivalent about short posts with just links, but I don't see them disappearing. I read somewhere that a really good article is one about which you have nothing further to say. As part of Publius, I want to share those articles, even if I have nothing to add to the debate. But it is easy to substitute them for originial content, and I don't want to do that either. Either way (with or without short entries), I think I'd like my posting to be a tad more judicious.

Final housekeeping details: all old WAP posts are still available and I'm testing a calendar feature to manage Today in Federalism announcements.

We now return you to your regularly scheduled programming.

Today in Federalism, Belated Edition

While I was gone:

March 2, 1788: New York publishing firm J. & A. McLean published the first thirty-six [Federalist Papers] as a bound volume, titled The Federalist.

For upcoming Today in Federalism events, check out the cool new widget by Beautiful Beta.

Federalism 101

Cool video intro from the Forum of Federations.

Hat tip: World Federalist Movement- Institute for Global Policy Facebook group

Minerva Deadline

As a heads-up for aspiring authors of global governance policy, the deadline for Minerva vol. 32 is March 15.

To submit, please contact the editor:

thesil [at] midcoast.com
or

Minerva
PO Box 397
Waldoboro, ME 04572

Thesil is a fantastic person and she puts out a really top quality publication. If you can't submit, but still want to read the journal, either contact Thesil at the above address or read it online in PDF form.

Coming Soon...

... to a tv set near you!

This miniseries looks interesting enough that I might have to make sure I actually get HBO.

Ron Paul, Libertarians, and the Rest of America, Reprise

A much better articulation of my hopes, fears, and misgivings about Ron Paul's candidacy on reason's Hit & Run today.

Pop Culture Is Good for Democracy?

This would make a great thesis project.

It's Friday, I'm in Love

I always love my country, but recently, I haven't exactly been moved to tears by the relationship - or if I have, they've been for the wrong reasons.

Today, however, with 'Obama Wins!' emblazoned across every newspaper, I am beyond moved.

Even Republicans are proud of Obama's victory, and the world rejoices.

American Christmases

The WSJ's Opinion Journal features two good Christmas articles.

First, Washington's Christmas gift to the young America [nitpick - Fleming calls the country the United States of America, although at that time it was still governed by the Articles of Confederation, not the Constitution]

Second, the history of December celebrations, from Saturnalia to the Nativity to Virginia's Santa Claus.

Happy Holidays!

Ron Paul, Libertarians, and the Rest of America

Right now, Ron Paul is the face for libertarianism in this country (which is ironic if you think about the nature of libertarianism). But nevertheless, when Americans think about libertarianism and libertarians, Ron Paul is who they picture. So I'll admit I'm conflicted over his candidacy.

One the one hand, I think he's weak/naive on foreign policy, a little laissez-faire even for me, and more than a little crazy. And his followers definitely worry me.

One the other hand, there's just something about him. I think I have to agree with Eric N., commenting on Matthew Yglesias' recent Ron Paul posting.

A More Perfect Union

While searching my papers for an essay I wrote about Alexis deTocqueville's Democracy in America and Fight Club, I found this article published in the Atlantic Monthly in April 2004. Since the Atlantic requires a subscription to read the article, I've posted it in its entirety here.

A More Perfect Union

How the Founding Fathers would have handled gay marriage
by Jonathan Rauch
.....

Last November the Supreme Judicial Court of Massachusetts ruled that excluding gay couples from civil marriage violated the state constitution. The court gave the legislature six months—until May—to do something about it. Some legislators mounted efforts to amend the state constitution to ban same-sex marriage, but as of this writing they have failed (and even if passed, a ban would not take effect until at least 2006). With unexpected urgency the country faces the possibility that marriage licenses might soon be issued to homosexual couples. To hear the opposing sides talk, a national culture war is unavoidable.

But same-sex marriage neither must nor should be treated as an all-or-nothing national decision. Instead individual states should be left to try gay marriage if and when they choose—no national ban, no national mandate. Not only would a decentralized approach be in keeping with the country's most venerable legal traditions; it would also improve, in three ways, the odds of making same-sex marriage work for gay and straight Americans alike.

First, it would give the whole country a chance to learn. Nothing terrible—in fact, nothing even noticeable—seems to have happened to marriage since Vermont began allowing gay civil unions, in 2000. But civil unions are not marriages. The only way to find out what would happen if same-sex couples got marriage certificates is to let some of us do it. Turning marriage into a nationwide experiment might be rash, but trying it in a few states would provide test cases on a smaller scale. Would the divorce rate rise? Would the marriage rate fall? We should get some
indications before long. Moreover, states are, as the saying goes, the laboratories of democracy. One state might opt for straightforward legalization. Another might add some special provisions (for instance, regarding child custody or adoption). A third might combine same-sex marriage with counseling or other assistance (not out of line with a growing movement to offer social-service support to so-called fragile families). Variety would help answer some important questions: Where would gay marriage work best? What kind of community support would it need? What would be the avoidable pitfalls? Either to forbid same-sex marriage nationwide or to legalize it nationwide would be to throw away a wealth of potential information.

Just as important is the social benefit of letting the states find their own way. Law is only part of what gives marriage its binding power; community support and social expectations are just as important. In a community that looked on same-sex marriage with bafflement or hostility, a gay couple's marriage certificate, while providing legal benefits, would confer no social support from the heterosexual majority. Both the couple and the community would be shortchanged. Letting states choose gay marriage wouldn't guarantee that everyone in the state recognized such marriages as legitimate, but it would pretty well ensure that gay married couples could find some communities in their state that did.

Finally, the political benefit of a state-by-state approach is not to be underestimated. This is the benefit of avoiding a national culture war.

The United States is not (thank goodness) a culturally homogeneous country. It consists of many distinct moral communities. On certain social issues, such as abortion and homosexuality, people don't agree and probably never will—and the signal political advantage of the federalist system is that they don't have to. Individuals and groups who find the values or laws of one state obnoxious have the right to live somewhere else.

The nationalization of abortion policy in the Supreme Court's 1973 Roe v. Wade decision created a textbook example of what can happen when this federalist principle is ignored. If the Supreme Court had not stepped in, abortion would today be legal in most states but not all; pro-lifers would have the comfort of knowing they could live in a state whose law was compatible with their views. Instead of endlessly confronting a cultural schism that affects every Supreme Court nomination, we would see occasional local flare-ups in state legislatures or courtrooms.

America is a stronger country for the moral diversity that federalism uniquely allows. Moral law and family law govern the most intimate and, often, the most controversial spheres of life. For the sake of domestic tranquillity, domestic law is best left to a level of government that is close to home.

So well suited is the federalist system to the gay-marriage issue that it might almost have been set up to handle it. In a new land whose citizens followed different religious traditions, it would have made no sense to centralize marriage or family law. And so marriage has been the domain of local law not just since the days of the Founders but since Colonial times, before the states were states. To my knowledge, the federal government has overruled the states on marriage only twice. The first time was when it required Utah to ban polygamy as a condition for joining the Union—and note that this ruling was issued before Utah became a state. The second time was in 1967, when the Supreme Court, in Loving v. Virginia, struck down sixteen states' bans on interracial marriage. Here the Court said not that marriage should be defined by the federal government but only that states could not define marriage in ways that violated core constitutional rights. On the one occasion when Congress directly addressed same-sex marriage, in the 1996 Defense of Marriage Act, it decreed that the federal government would not recognize same-sex marriages but took care not to impose that rule on the states.

Marriage laws (and, of course, divorce laws) continue to be established by the states. They differ on many points, from age of consent to who may marry whom. In Arizona, for example, first cousins are allowed to marry only if both are sixty-five or older or the couple can prove to a judge "that one of the cousins is unable to reproduce." (So much for the idea that marriage is about procreation.) Conventional wisdom notwithstanding, the Constitution does not require states to recognize one another's marriages. The Full Faith and Credit clause (Article IV, Section 1) does require states to honor one another's public acts and judgments. But in 1939 and again in 1988 the Supreme Court ruled that the clause does not compel a state "to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." Dale Carpenter, a law professor at the University of Minnesota, notes that the Full Faith and Credit clause "has never been interpreted to mean that every state must recognize every marriage performed in every other state." He writes, "Each state may refuse to recognize a marriage performed in another state if that marriage would violate the state's public policy." If Delaware, for example, decided to lower its age of consent to ten, no other state would be required to regard a ten-year-old as legally married. The public-policy exception, as it is called, is only common sense. If each state could legislate for all the rest, American-style federalism would be at an end.

Why, then, do the states all recognize one another's marriages? Because they choose to. Before the gay-marriage controversy arose, the country enjoyed a general consensus on the terms of marriage. Interstate differences were so small that states saw no need to split hairs, and mutual recognition was a big convenience. The issue of gay marriage, of course, changes the picture, by asking states to reconsider an accepted boundary of marriage. This is just the sort of controversy in which the Founders imagined that individual states could and often should go their separate ways.

Paradoxically, the gay left and the antigay right have found themselves working together against the center. They agree on little else, but where marriage is concerned, they both want the federal government to take over.

To many gay people, anything less than nationwide recognition of same-sex marriage seems both unjust and impractical. "Wait a minute," a gay person might protest. "How is this supposed to work? I get married in Maryland (say), but every time I cross the border into Virginia during my morning commute, I'm single? Am I married or not? Portability is one of the things that make marriage different from civil union. If it isn't portable, it isn't really marriage; it's second-class citizenship. Obviously, as soon as same-sex marriage is approved in any one state, we're going to sue in federal court to have it recognized in all the others."

"Exactly!" a conservative might reply. "Gay activists have no intention of settling for marriage in just one or two states. They will keep suing until they find some activist federal judge—and there are plenty—who agrees with them. Public-policy exception and Defense of Marriage Act notwithstanding, the courts, not least the Supreme Court, do as they please, and lately they have signed on to the gay cultural agenda. Besides, deciding on a state-by-state basis is impractical; the gay activists are right about that. The sheer inconvenience of dealing with couples who went in and out of matrimony every time they crossed state lines would drive states to the lowest common denominator, and gay marriages would wind up being recognized everywhere."

Neither of the arguments I have just sketched is without merit. But both sides are asking the country to presume that the Founders were wrong and to foreclose the possibility that seems the most likely to succeed. Both sides want something life doesn't usually offer—a guarantee. Gay-marriage supporters want a guarantee of full legal equality, and gay-marriage opponents want a guarantee that same-sex marriage will never happen at all. I can't offer any guarantees. But I can offer some reassurance.

Is a state-by-state approach impractical and unsustainable? Possibly, but the time to deal with any problems is if and when they arise. Going in, there is no reason to expect any great difficulty. There are many precedents for state-by-state action. The country currently operates under a tangle of different state banking laws. As any banker will tell you, the lack of uniformity has made interstate banking more difficult. But we do have interstate banks. Bankers long ago got used to meeting different requirements in different states. Similarly, car manufacturers have had to deal with zero-emission rules in California and a few other states. Contract law, property law, and criminal law all vary significantly from state to state. Variety is the point of federalism. Uniform national policies may be convenient, but they risk sticking us with the same wrong approach everywhere.

My guess is that if one or two states allowed gay marriage, a confusing transitional period, while state courts and legislatures worked out what to do, would quickly lead in all but a few places to routines that everyone would soon take for granted. If New Jersey adopted gay marriage, for instance, New York would have a number of options. It might refuse to recognize the marriages. It might recognize them. It might honor only certain aspects of them—say, medical power of attorney, or inheritance and tenancy rights. A state with a civil-union or domestic-partner law might automatically confer that law's benefits on any gay couple who got married in New Jersey. My fairly confident expectation is that initially most states would reject out-of-state gay marriages (as, indeed, most states have pre-emptively done), but a handful would fully accept them, and others would choose an intermediate option.

For married gay couples, this variation would be a real nuisance. If my partner and I got married in Maryland, we would need to be aware of differences in marriage laws and make arrangements—medical power of attorney, a will, and so on—for whenever we were out of state. Pesky and, yes, unfair (or at least unequal). And outside Maryland the line between being married and not being married would be blurred. In Virginia, people who saw my wedding band would be unsure whether I was "really married" or just "Maryland married."

Even so, people in Virginia who learned that I was "Maryland married" would know I had made the strongest possible commitment in my home state, and thus in the eyes of my community and its law. They would know I had gone beyond cohabitation or even domestic partnership. As a Jew, I may not recognize the spiritual authority of a Catholic priest, but I do recognize and respect the special commitment he has made to his faith and his community. In much the same way, even out-of-state gay marriages would command a significant degree of respect.

If you are starving, one or two slices of bread may not be as good as a loaf—but it is far better than no bread at all. The damage that exclusion from marriage has done to gay lives and gay culture comes not just from being unable to marry right now and right here but from knowing the law forbids us ever to marry at all. The first time a state adopted same-sex marriage, gay life would change forever. The full benefits would come only when same-sex marriage was legal everywhere. But gay people's lives would improve with the first state's announcement that in this community, marriage is open to everyone.

Building consensus takes time. The nationwide imposition of same-sex marriage by a federal court might discredit both gay marriage and the courts, and the public rancor it unleashed might be at least as intense as that surrounding abortion. My confidence in the public's decency and in its unfailing, if sometimes slow-acting, commitment to liberal principles is robust. For me personally, the pace set by a state-by-state approach would be too slow. It would be far from ideal. But it would be something much more important than ideal: it would be right.

Would a state-by-state approach inevitably lead to a nationwide court mandate anyway? Many conservatives fear that the answer is yes, and they want a federal constitutional amendment to head off the courts—an amendment banning gay marriage nationwide. These days it is a fact of life that someone will sue over anything, that some court will hear any lawsuit, and that there is no telling what a court might do. Still, I think that conservatives' fears on this score are unfounded.

Remember, all precedent leaves marriage to the states. All precedent supports the public-policy exception. The Constitution gives Congress a voice in determining which of one another's laws states must recognize, and Congress has spoken clearly: the Defense of Marriage Act explicitly decrees that no state must recognize any other state's same-sex marriages. In order to mandate interstate recognition of gay marriages, a court would thus need to burn through three different firewalls—a tall order, even for an activist court. The current Supreme Court, moreover, has proved particularly fierce in resisting federal incursions into states' rights. We typically reserve constitutional prohibitions for imminent threats to liberty, justice, or popular sovereignty. If we are going to get into the business of constitutionally banning anything that someone imagines the Supreme Court might one day mandate, we will need a Constitution the size of the Manhattan phone book.

Social conservatives have lost one cultural battle after another in the past five decades: over divorce, abortion, pornography, gambling, school prayer, homosexuality. They have seen that every federal takeover of state and local powers comes with strings attached. They have learned all too well the power of centralization to marginalize moral dissenters—including religious ones. And yet they are willing to risk federal intervention in matrimony. Why?

Not, I suspect, because they fear gay marriage would fail. Rather, because they fear it would succeed.

One of the conservative arguments against gay marriage is particularly revealing: the contention that even if federal courts don't decide the matter on a national level, convenience will cause gay marriage to spread from state to state. As noted, I don't believe questions of convenience would force the issue either way. But let me make a deeper point here.

States recognized one another's divorce reforms in the 1960s and 1970s without giving the matter much thought (which was too bad). But the likelihood that they would recognize another state's same-sex marriages without serious debate is just about zero, especially at first: the issue is simply too controversial. As time went on, states without gay marriage might get used to the idea. They might begin to wave through other states' same-sex marriages as a convenience for all concerned. If that happened, however, it could only be because gay marriage had not turned out to be a disaster. It might even be because gay marriage was working pretty well. This would not be contagion. It would be evolution—a sensible response to a successful experiment. Try something here or there. If it works, let it spread. If it fails, let it fade.

The opponents of gay marriage want to prevent the experiment altogether. If you care about finding the best way forward for gay people and for society in a changing world, that posture is hard to justify. One rationale goes something like this: "Gay marriage is so certain to be a calamity that even the smallest trial anywhere should be banned." To me, that line of argument smacks more of hysteria than of rational thought. In the 1980s and early 1990s some liberals
were sure that reforming the welfare system to emphasize work would put millions of children out on the street. Even trying welfare reform, they said, was irresponsible. Fortunately, the states didn't listen. They experimented—responsibly. The results were positive enough to spark a successful national reform.

Another objection cites not certain catastrophe but insidious decay. A conservative once said to me, "Changes in complicated institutions like marriage take years to work their way through society. They are often subtle. Social scientists will argue until the cows come home about the positive and negative effects of gay marriage. So states might adopt it before they fully understood the harm it did."

Actually, you can usually tell pretty quickly what effects a major policy change is having—at least you can get a general idea. States knew quite soon that welfare reforms were working better than the old program. That's why the idea caught on. If same-sex marriage is going to cause problems, some of them should be apparent within a few years of its legalization.

And notice how the terms of the discussion have shifted. Now the anticipated problem is not sudden, catastrophic social harm but subtle, slow damage. Well, there might be subtle and slow social benefits, too. But more important, there would be one large and immediate benefit: the benefit for gay people of being able to get married. If we are going to exclude a segment of the population from arguably the most important of all civic institutions, we need to be certain that the group's participation would cause severe disruptions. If we are going to put the burden on gay people to prove that same-sex marriage would never cause even any minor difficulty, then we are assuming that any cost to heterosexuals, however small, outweighs every benefit to homosexuals, however large. That gay people's welfare counts should, of course, be obvious and inarguable; but to some it is not.

I expect same-sex marriage to have many subtle ramifications—many of them good not just for gay people but for marriage. Same-sex marriage would dramatically reaffirm the country's preference for marriage as the gold standard for committed relationships. Of course there might be harmful and neutral effects as well. I don't expect that social science would be able to sort them all out. But the fact that the world is complicated is the very reason to run the experiment. We can never know for sure what the effects of any public policy will be, so we conduct a limited experiment if possible, and then decide how to proceed on the basis of necessarily imperfect information.

If conservatives genuinely oppose same-sex marriage because they fear it would harm straight marriage, they should be willing to let states that want to try gay marriage do so. If, on the other hand, conservatives oppose same-sex marriage because they believe that it is immoral and wrong by definition, fine—but let them have the honesty to acknowledge that they are not fighting for the good of marriage so much as they are using marriage as a weapon in their fight against gays.

The URL for this page is http://www.theatlantic.com/issues/2004/04/rauch.htm.

Federalist Paper No. 6

Hamilton begins his second Federalist Paper with a brief review of the “innumerable” ‘causes of hostility among nations’. He also makes the rather snarky comment that

A man must be far gone in Utopian speculations who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other.

In other words, the idea of peace between separate or confederated states is a pipe dream.

I have to say, Hamilton was not the most optimistic guy. He had an unfailing lack of faith in people (and apparently, especially in women: ‘The influence which the bigotry of one female, the petulance of another, and the cabals of a third, had in the contemporary policy, ferments, and pacifications, of a considerable part of Europe, are topics that have been too often descanted upon not to be generally known.’). So, with this in mind, it’s not really surprising that he spends most of this Paper detailing historical evidence for the greed, vagaries and perfidies of people and states throughout history. He also rightly points out that it is not only statesmen who may determine a state’s peace, but the average citizen as well. He invokes recent (for him) history: Daniel Shays and his Regulators, noting, ‘If Shays had not been a DESPERATE DEBTOR, it is much to be doubted whether Massachusetts would have been plunged into a civil war.’

I should also probably note that despite Hamilton’s misgivings about statesmen, he concluded the ideal form of government had represented all the interest groups, but maintained a hereditary monarch to decide policy. In Hamilton's opinion, this was impractical in the United States; nevertheless, the country should mimic this form of government as closely as possible. He proposed, therefore, to have a President and elected Senators for life (surprising, really, that TJ and Madison couldn’t stand him).

I confess that I misread the seventh and eighth paragraphs the first three times. I thought that Hamilton was arguing that despite all of this, however, there is still hope! (which should have been my first clue that I was mistaken). In actuality, he says that visionary men ‘stand ready to advocated the paradox of perpetual peace between the States’ (written eight years before Kant’s Perpetual Peace). They argue that ‘Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other’: the Enlightenment Era version of the ‘Golden Arches Theory of Conflict Prevention.’

Hamilton counters that republics, even commercial republics, are still just as likely to get into wars. Commerce, instead of eliminating causes of war, simply provides other incentives: war as commerce by other means. As evidence, he cites Sparta, Athens, Rome, Carthage – ‘the aggressor in the very war that ended in her destruction’, Venice, Holland, Britain, Austria, Bourbon, France, England and France involved in Austria vs. Bourbon, etc. In essence, if separate, composed as neighbors, states will fight. Here, he doesn’t offer any explicit evidence that states won’t fight even if they are united (and in fact his mentions of North Carolina’s revolt, the ‘late menacing disturbances in Pennsylvania’ and the insurrections and rebellions in Massachusetts makes me wonder that states will become embroiled in violence no matter what), except to quote Gabriel Bonnot de Mably, l’Abbé de Mably:

NEIGHBORING NATIONS (says he) are naturally enemies of each other unless their common weakness forces them to league in a CONFEDERATE REPUBLIC, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors.

The quote sums up the Paper nicely, as Hamilton notes with his final line: “This passage, at the same time, points out the EVIL and suggests the REMEDY,” which I must assume he addresses in the next Paper, as there are only the two on Dissensions between the States.

Laugh or Cry?

Radley Balko's "Predictions for 2008" online at reason.