The problem with Federalism

is that that it is, well you know, problematic. (I have ran out of profound things to say)

To illustrate let us take example of USA, which arguably has the most robust tradition of federalism, where Fred Thompson is running as the federalist candidate. Now I do not exaggerate when I say that there is no issue that Thompson would not rather be decided by state. Whether that is gay marriage or abortion, while he professes conservative position, nevertheless his argument is that it is the states which should be deciding upon the issue.

Earlier I believed that this was a cop out, however I have reasons to believe that he might be sincere in his position. Sincerity notwithstanding there is problem with this strict Constitutionalism which is basically position of Fred Thompson.

Given a certain moral, (and social) context the governance is dependent on the soundness of the constitution, therefore strict adherence to constitution makes sense. However the moral considerations and assumptions, on which constitution stands and hence can be said to act as an instrument to achieve the goal implicit in the moral context, are far from settled, in fact, evolving over a period.

To revisit our example , American Constitution is certainly one of the most enlightened document in history. But its writers who proclaimed that freedom of the man is to be derived from God and not the king, had no problem with slavery. A consequence of this was slavery was a state subject. However with the advent of 19th century Industrial North, which was more populous than Agrarian South, took a turn towards strong abolitionism, and demand to abolish institution of slavery became more vociferous .This was resented by South which took it for cultural assault by North using federal government (along with the little matter of protectionist tariff). Ultimately there was a constitutional breakdown and it took a civil war to settle the issue that whether US as a nation could allow slavery.

Here it must be noted that although there are provisions to amend American constitution, the requirements are so stringent that it was impossible to resolve the issue within constitutional framework of the division of rights between federal government and states in view of power dynamics of that time.

Now cut to the present, I am all right if it is state which legislate on issue of gun control, or abortion, or gay marriage*. However to others these issues may present with same moral standing as slavery did to Americans of earlier period. If percentage who is particularly passionate about some issue becomes significant enough, politics may be subjected to same stress.

How federalism can take account of evolution of morality, and even more pertinent how closely national identity is bound to moral assumption is not clear to me.

*There is one line of argument. If abortion or gay marriage is subject to state, than it may create a problem when, for example, some gay couple moves from a state which recognizes gay marriage to one which doesn't. Similarly it is possible for a woman who resides in a state which disallows abortion to abort child in a state which allows abortion. I think it is possible that interstate commerce clause comes into the picture. (Update: Of course there is no love lost for this clause. Is there any community in Orkut, "I hate interstate commerce clause", hmmm)

Update: Jefferson's view on constitution is instructive

"The earth belongs in usufruct to the living," (4) Jefferson wrote to Madison in 1789. "[T]he question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water," even though "it is a question of such consequences as ... [to] place ... among the fundamental principles of every government." (5) Jefferson's answer to the question was no: "We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation to another." (6) Therefore, Jefferson said, "[e]very constitution ... and every law" should "naturally expire[] at the end of 19 years." (7) (Jefferson elaborately calculated, on the basis of life expectancies at the time, that a majority of people twenty-one and older would die within nineteen years and concluded that was the best measure of a generation's life span.) (8) If any law "be enforced longer, it is an act of force, and not of right." (9)