Federalism and Liberty

[Hamilton02]

Michael Paulsen makes the point, shared by many, that the 14th Am. realigned
the power relationship between the federal and state governments to the extent
that federalism concerns should not be taken into account when courts are
interpreting Sec. 5.  The record (precedential, societal, or historical) just
does not bear this out in my view.  But, as I have said many times, I don't
think the record of the 14th Am. is particularly clear in any direction.  One
thing we do know is that the concept of a federal government as one of
enumerated powers was not undermined and the 10th Am. was not repealed.  Those
two structural characteristics counsel a narrow (textualist, if you will)
reading of Congress's power against the states under Section 5.

Doug Laycock makes the point that there is more liberty when the federal
government acts presumably because you get one standard than there is when the
states are left to act on their own.  Sandy Levinson agrees wholeheartedly.
This seems to me to oversimplify the path to liberty.  I think there is more
liberty in the world because the United States and Israel both exist than
there would be if only one did.  Similarly, there is more liberty possible
when we have 50 jurisdictions working through these issues than when we have
one solution, handed down from the federal government.  Why should Utah's
handling of religious liberty issues be identical to California's?  I think
our differences are both theoretical and theological.  As a believer, I firmly
believe in the responsibility of  the church to account for its demands on
society and to respect a large number of collectively shared values, such as
historical preservation.  Churches have an obligation to adjust and consider
their views in light of their shared world.  This runs into direct conflict
with the Laycock-Levinson model in which every time there is a conflict
between church and state, the church has a natural right to hold onto its
original position.  Accommodation should not be an obligation solely delegated
to the state.

Marci Hamilton
Center of Theological Inquiry
Benjamin N. Cardozo School of Law