LAWRENCE — When the United States was in its infancy and the Articles of Confederation — a precursor to the Constitution — were drafted, the founding fathers likely had no idea how that might contribute to the polarized nation we live in today. Richard E. Levy, J.B. Smith Distinguished Professor of Constitutional Law at the University of Kansas, has authored an article exploring four of America’s most divisive issues and how they all become arguments of federalism, or federal government authority versus states’ rights.
In the paper Levy explores the Affordable Care Act, immigration, same-sex marriage and gun rights. He explores the political ins and outs of each issue and how they essentially boil down to questions of who decides the issue — the federal or state government. He will present the research at a conference at Kanagawa University in Yokohama, Japan, in November.
The article builds on a presentation he gave in Japan in 2009 as part of KU and Kanagawa University’s ongoing partnership. The original conference happened shortly after the financial crisis, and its focus was the centralization and de-centralization of government authority in economically developed nations. This paper is for a followup conference that explores the effects of the financial crises on centralization and de-centralization.
“I began thinking about what the effect of federalism is in the United States and how it related to the financial crisis,” Levy said. “As I studied that and many other divisive topics, I realized they were all not only hot button issues, but federalism issues.”
He decided to explore the link between federalism and ideologically divisive issues. While we live in a polarized nation today, the phenomenon is not new. Perhaps the country’s most famous example is the Civil War. The most remembered cause of the war was slavery, but states’ rights and economic issues factored in as well, and even 150 years later, people are willing to argue about the true cause.
“When I realized that the interaction between federalism and polarization was critical for other historical issues such as slavery and the Civil War I thought this might be a topic that transcends issues and eras,” Levy said.
Throughout the paper Levy explores how four divisive issues of today are argued in terms of federalism. In the case of the Affordable Care Act, or “Obamacare,” as it is referred to by those who oppose it, the individual mandate and other provisions are controversial as a matter of policy, but the main arguments focus on overreaching by the federal government. The law was challenged in court primarily on two federalist grounds: Opponents claimed the individual mandate was beyond the scope of the enumerated federal powers and that Medicaid expansion interfered with state sovereignty by forcing them to expand the coverage. In the case of immigration, Levy writes, it is widely accepted that the issue is a federal concern, but inaction at that level has prompted some states to take action to discourage immigration. The question also became one of federalism: whether state and local laws are pre-empted by federal requirements.
Same-sex marriage presents a dispute on grounds of traditional morals that also presents a number of federalism issues, Levy writes. The Supreme Court originally rebuffed the efforts to challenge anti-gay laws, so gay-rights advocates turned to the state level. While they achieved success in some states, in others the responses were prohibiting same-sex marriages and the federal Defense of Marriage Act. Over time, the Supreme Court became more receptive to gay-rights claims, including the recent decision striking down of key components of the Defense of Marriage Act. Nonetheless, the issue of same-sex marriage has not been resolved and has resulted in a patchwork of varying laws by state regarding its legality.
Gun rights are among the most divisive current issues and highlight a key tactic in states opposing federal law. Gun-rights supporters argue the Second Amendment guarantees individuals’ rights to own and carry firearms, prompting many states to oppose any gun control legislation, often before it happens. Several states, including Kansas, have gone so far as to pass legislation stating guns produced and owned within their borders are not subject to federal regulations and make it a crime for federal agents to enforce laws related to them.
Nullification laws, or those that aim to negate federal laws at the state level, have been used in a number of cases, most notably in disputes about gun control and marijuana criminalization.
“I often tell my students that both the left and the right are equal opportunity hypocrites when it comes to federalism,” Levy said. “They are for it when it supports their case and against it when it doesn’t. With nullification laws, when you have ideological polarization, I think you see people more willing to make a statement about the law without intending they will have any real effect.”
Levy notes that federalism has largely magnified the current red-state, blue-state divide in the country by encouraging states to enact more radical policies on each side, depending on the ideological leanings of the geographical area. The tendency to use federalism as an argument to support a cause is both inherent in the system and to a lesser extent human nature, Levy said, but he doesn’t feel it is an unsolvable problem. History shows that polarization is not constant and that moderates have had success at the federal level. Conversely, sometimes one side is so powerful they essentially have no opposition and thus practically no polarization.
The study shows that under present circumstances federalism and ideological polarization are mutually reinforcing, enhancing rather than dampening each other’s effects. The current structure of federalism has also produced a divided federal government, which prevents action on controversial topics, and when the resulting polarization aligns with geographical divides, states are often more prone to enact radical policies, Levy argues. When federalism and ideological divides are not aligned, however, the two may tend to moderate each other. However, just as polarization is not historically persistent, it is not hopeless to expect solutions to divisive issues.
“I tend to think a better understanding of problems promotes better solutions,” Levy said. “I would hope this research would help people understand how the issues become jumbled and how they might be addressed.”