Heartache With Hard Work

Writing about Kagan and Breyer’s apparent decision to strategically join the majority on limiting Congressional spending power, Scott Lemieux is quite reasonable that such strategic voting is inevitable and even (marginal) desirable.  The Court is a political institution, and it’s silly to pretend like it’s not. However, ‘political’ is not an intrinsically dirty concept. If judges recognize their political responsibilities, they will be more likely to render good decisions. That is: decisions which reflect the unique TYPE of decision-making that judges are tasked with.

However, I don’t want to let this go too far. Just because judges are political doesn’t mean they are precisely the same as all other actors in the political process.

Or, to be more precise, I think politics ought to include a balance between genuine responsibility to constitutional/normative values and the strategic calculation that goes into the rough-and-tumble of coming to actual decisions. And right now the closest thing we’ve got to that is the normalized process of judicial rulings.

I think there is something unethical (though I don’t necessarily love the language of ethics to describe it) about reaching a decision that you fundamentally disagree with, just because it obtains other political benefits. I just ALSO think it’s unethical to hold fast to your personal convictions about one specific issue when doing so imperils your sense of the broader structure of what is politically right.

Part of what it means to be a political actor is to face the difficult necessity of resolving these problems. As I’ve said many times, I identify very strongly with Rawls, and get a lot out of his idea that liberalism is defined primarily by your capacity to give decisions that can be justified via public reason.

However, that only sets a minimum threshold. In this case, there is no doubt that finding against Congressional power to tie the hands of the states CAN be justified. This concept of public reason only works if we have reason to believe that the reasons people give are ones that they can actually support. If judicial decisions are wholly ciphers for a separate political will, then there is no reason to pay any respect to the system of law as a whole. What it produces would be pure artifice.

I have a great deal of respect for the Madisonian system, but that respect runs far deeper than the surface level. While political factions fighting with one another is the apparent nature of the system, the argumentative, combative, self-interested exterior is only possible because of some deeper shared commitments.

While pragmatic politics may require many compromises of principle, we should not lose sight of the fact that these ARE compromises. There IS something going on underneath. And we should never simply accept the premise that ‘politics’ is identical with strategy.

So the Supreme Court finally gave us a decision on health care. And it was about as confused as it could possibly be. Here are some thoughts, somewhat organized, mostly scattered:

* Roberts’ opinion is particularly crazy. Not in its terminal result. It was always pretty obvious to me that the mandate IS a tax, and so it being upheld for that reason is perfectly reasonable. No, the crazy part is Roberts’ judgment of the Commerce Clause and Necessary and Proper Clause. He has decided, apparently, that the activity/inactivity distinction is a valid reason to reject the ACA. But he hasn’t decided to actually reject the ACA.

But, if we remember, the inactivity distinction was invented out of whole cloth just a couple years ago. I know there are a few true believers, but those people all seem to universally agree that this was just the wedge to start overturning the whole corpus of Commerce Clause law from the last 70 years. For most of the rest of the people, the distinction was constructed solely to allow overturning the ACA without stepping into the dangerous waters of directly taking on Wickard, et al.

That is to say: the ONLY point of this distinction was to allow overruling the ACA. It has very little meaning otherwise.

It’s truly bizarre that this stupid distinction, which was invented just to distinguish the ACA out of existence without actually implying an end to the broad Commerce Clause, has now been used to ALLOW the ACA but potentially undermine future cases.

* What does this mean for future cases? Well, it’s pretty unclear. There has been some talk that this was a sly bit of trickery from Roberts much like the wily John Marshall, who famously sacrificed individual decisions in order to cement a broader precedent in Marbury v. Madison.

That said, there are a couple reasons to reject this claim.

First, given what I just wrote above, I’m fairly sympathetic to the argument that the apparent 5-vote-majority for rolling back the Commerce Clause is all a bit of sound and fury without much real effect. There just aren’t likely to be many cases where Congress tries to ‘regulate inactivity,’ especially now that Congress knows they aren’t allowed to do it.

Second, the Marbury case involved giving up a completely irrelevant issue (whether a minor functionary got a job) in exchange for a very large issue (judicial review). In this case, the left gets to keep the single biggest piece of Commerce Clause legislation since the Civil Right Act. While I won’t be happy if the Court goes after some other things in the future, if it’s a forced choice about what to hold on to, the ACA is pretty huge.

* However, I don’t want to minimize the risk too much. While the inactivity distinction itself doesn’t really mean much, the WAY that Roberts went about affirming it is more worrisome. In effect, there is now a clear majority committed to the idea that the Necessary and Proper Clause is effectively meaningless. If they were to apply that logic in future cases, it could mean finding all kinds of spurious reasons (similar to the inactivity distinction) to roll back the Commerce Clause.

In effect, we might look back on Raich as a blip, and see the Health Care Cases as part of a broader effort going back to Lopez to limit Congressional power.

* Another concern is the Medicaid portion of the ruling. This was actually the most surprising bit to me. I thought it was a pretty open-and-shut case for allowing Congress to do this. So the resounding majority against it took me by surprise. Now, the requirement seems transparently possible to evade the requirement (by removing all funding in one line and then restoring it in the next one, conditional on implementing the policy). But presumably the Court would not be amused by such shenanigans.

If the Court is serious about this line of reasoning, it could imperil a lot of Congressional acts, which rely on the coercive force of removing federal funding to force states into action. We’ll have to see whether they are amenable to something a bit less nuclear but still forceful before we can really judge that.

* Finally, regarding EVERYTHING I’ve written so far, I want to stress that precedent (especially in cases like this that seem a bit muddled) isn’t necessarily all that important. The ruling here wasn’t so clear that it will force lower courts to do anything in particular. And anything that can be justified now could already have been found in other law if you were motivated enough to see it.

The case may end up mattering more for the way it draws lines and motivates people in future cases more than anything else. And we just really don’t have any good sense about how that will play out yet.

Julian Finney / Getty Images

It’s been a pretty great tournament so far. Lots of good games, a fair amount of goals, and all of the groups are still poised beautifully.

Group A
Russia has looked pretty good, Greece has been terrible (with some flashes of quality after they fall behind, Poland and the Czechs have showed flashes, but seem to clearly lag behind Russia. Greece is not technically out, but they’re probably going to get stomped by Russia. Which means it’s a win-or-go-home game for the Polish against the Czechs. I’d make them marginal favorites, but that could really go either way.  For Russia, Arshavin has been REALLY good, just like he was four years ago in this tournament. Apparently, he only truly shows up for the Euros. It seems like he’s put in more work in these two games than he did his entire Arsenal career.

Group B
Germany haven’t looked fantastic, but have certainly got the job done. They’re the only team with 6 points in the tournament, and seem quite likely to make it 9 in their final game against Denmark. They outclassed the Dutch, and did the necessary job against Portugal. While they haven’t really impressed like we might have hoped, they’re likely to win the ‘Group of Death’ at a canter. So you wouldn’t want to bet against them winning the whole thing. Denmark has been good, but probably not quite good enough. They really needed a point from Portugal. Portugal are clearly the best-placed to finish second in the group, but the Dutch aren’t out of it yet.  The Portugal-Netherlands match promises to be incredibly tense.

My pre-tournament prediction for Van Persie to win the Golden Boot is not looking good. He’s been incredibly wasteful. Still, he picked up one goal against Germany. And if the Dutch do get out of this, it will probably be because he turns in a performance like he’s been giving Arsenal. My other pre-tournament prediction was Ozil as the player of the tournament. That one is still looking plausible. He was magnificent in the first game and decent in the second.

Group C
Spain are still Spain. They can frustrate a bit, when all the passing seems to produce very little. Still, Italy was very good against them, and still only got a point. And they just dismantled Ireland, which was not that surprising but still was a pretty good performance. Italy and Croatia played a very intriguing game, one in which both sides seemed torn about whether to try for the win or settle for the draw. Italy are probably the slight favorites to advance. You’d bet on them to also beat Ireland, which would mean Croatia would need at least a draw from Spain. And even a draw might not be enough if Italy can beat Ireland by 3 goals. I’ve been impressed by all three of the non-Irish teams in this group. Croatia has looked very threatening and deft with the ball. Italy’s 3-5-2 formation has been solid and given them some fluidity. Spain are Spain.

Group D
France are in control, only needing a point from the eliminated Swedes to go through. In fact, there’s a very good chance this one will finish in exactly the order I predicted (France, England, Ukraine, Sweden). For England, it’s hard to see them advancing past the quarterfinals unless they can tighten up their defensive arrangement. But with four points, they only need a draw against Ukraine to guarantee going through. And they’ll have Rooney back. So it’s still possible.

Best games:

Poland 1 – 1 Greece
Potentially ruined by a terrible referee, who sent off a Greek player for two ‘fouls’ that shouldn’t have produced one yellow, much less two. It looked at that point like Poland was going to cruise to a victory, but instead Greece came roaring back. The keeper being sent off and his replacement immediately saving a penalty was a fantastic moment. Poland were a bit bipolar in this one, showing some serious quality in the first half and looking like a pub team who stumbled onto the field in the second half.

Spain 1 – 1 Italy
Wonderful skill on display in a very cagey match. Italy showed that Spain can be challenged effectively without simply parking the bus. And Spain showed that even against good competition playing well, they are still a serious force.  Probably the most skillful game of the tournament so far.

Denmark 2 – 3 Portugal
Some beautiful goals in this one. The Postiga goal was just lovely, the Bendtner efforts were nice.  Even (grrr) Pepe gave a good showing.  Denmark recovers from being down two goals, and then Portugal put them away in the final couple minutes. Riveting stuff.

England 3 – 2 Sweden
Not a particularly well-played game, but tremendously entertaining. England conceded two very silly goals, but scored a couple beauties. Walcott decided to turn up and be the good Walcott in the game against Sweden, rampaging through the Swedish defense, scoring goals and setting them up. Overall, it was just end-to-end madness.

Surprises:
– The revenge of the overpriced Premier League strikers. Torres had a couple classic Torres miscues in his first game, but has looked incredibly dangerous throughout, and added a couple goals against Ireland.  He’s looking much more like the Torres who was arguably the best striker in the world and much less like the guy who couldn’t score for 1000 straight minutes this year.  Meanwhile, Andy Carroll was a serious handful in his game, and notched a very solid goal. And in a serious blast from the past, Shevchenko got a brace in Ukraine’s opener.
– The Netherlands. They haven’t been terrible, but they really haven’t been good, either. They could still get out of the group and turn on the afterburners, but they have really dug a hole for themselves. I suppose Denmark counts as a surprise, too, as the reverse of this. But they did get outplayed and still probably won’t make it out of the group.
– My predictions. While I’ve gotten a fair number of the individual games wrong, it looks reasonably likely that every team I predicted to top the group will do so, and all the teams I predicted to finish last to do so. And it’s still not particularly unlikely for all four groups to finish precisely as I guessed. Considering how poor I often am at this stuff, that would be a real shock.
– GOALS! No 0-0 result so far, and it’s just been a pretty open tournament in general.
– Zlatan. Not a ‘surprise’ really, but he has been really good. He never quite became the world-class player that he was supposed to be, but he’s really not far off. Sweden are out, but it has nothing to do with him. He was just immense in both of their games.
– Ribery is an incredibly aggravating player. Oh wait, that’s not remotely a surprise. I freaking hate Ribery.

Perfect Day – Lou Reed
Perfect Lovesong – The Divine Comedy

My friend Ben wanted to see a game this week, so we talked about the Wednesday night one or the Thursday afternoon one. The Thursday one had the advantage of being unlikely to freeze us to death. But then he said, ‘rotation looks like it puts Cain on Wednesday night. I’d rather see him than Zito.’ Talk about good calls.

We got 5 buck tickets on Stubhub, grabbed some burritos in the Mission, and made our way over. Caroline and one of her friends met us there and we settled in for the game. About five minutes before the game started Ben predicted a 15 strikeout game. When Cain struck out 5 of the first 9 batters, I told him we were on pace. And in the back of my mind I thought ‘9 up, 9 down, and he’s dealing…’

By the fifth inning we started to give each other knowing glances. And we had serious difficulty trying to explain the magnitude of the situation to Caroline and her friend without violating the code of silence about such events. She got that he hadn’t allowed any hits, but didn’t really understand that this was actually far more impressive than just that.

We were really starting to worry about his pitch count. The Astros had fouled off a lot of balls, and those strikeouts really add up. So we started to speculate about a 130/140 pitch game.

In the sixth inning, the Giants were already up like 15-0 so they started subbing in defensive players. Cain struck out Bogusevic for his 10th K. Then Snyder gave the ball a serious ride out to left. From our vantage point, it looked like a HR. But no, the catch was made right at the wall! And Cain struck out some guy I’d never heard of for his 11th K to end the inning.

The seventh inning led off with that magnificent catch by Gregor Blanco. Full stretch, laid out in deep right-center. From our perspective way on the other side of the field, it looked like the ball was jarred loose when he landed, so when the ump raised his right fist we went totally bonkers. Then Cain got two more Ks and that was that.

The Giants halves of these innings were torture. People clearly still wanted to support the team, but given the massive lead, there was really no doubt about the win. So we really just wanted Cain back out there. It seemed like the Giants hitters were on board with this, as they started swinging at most anything close.

At this point, Caroline said something to the effect of: “Is this what it’s like to actually care about sports? I never really understood.”

In the 8th, Cain seemed totally pumped with adrenaline, overthrew a few pitches, and looked like he was in danger of giving up a walk or even hitting a guy. Never really seemed like the Astros would get a hit, though. When he went to three balls on Brett Wallace, my heart was pounding. After my teams having some very unpleasant losses to the other Brett Wallace, I wanted no part of THIS one ruining the perfect game. Fortunately, Cain rung him up on a full count pitch.

Up until that point I was incredibly nervous. When he came out for the 9th, though, I started to get a lot more calm. Given the quality of the hitters and Cain, it was more likely than not that he’d get them. And it just seemed clear it was going to happen. They hit a couple of weak fly balls to left, which was directly below us. Caroline was freaking out, but these were routine plays and were put away easily. Then, for the final out, it was a weak roller to third base. Fortunately, they had subbed out Sandoval. Arias double-clutched, but then made a strong throw. And it was over. Pandemonium. Jumping up and down. Screaming. Hugging.

I’ve never been to a playoff game, but the atmosphere at this one felt like game 7 of the World Series. On a 1-1 count in the 7th inning, a close pitch would get called a ball and the boos echoed around the stadium. People were standing and cheering for just about every 2-strike pitch from the 6th inning onward. Strangers were looking at each other and saying ‘can you believe this is happening?’ Someone near us tried to get up to go to the bathroom in like the 8th inning and their friends yelled at them to hold it.

I’m still sort of in awe. Tied for the most strikeouts ever in a perfect game. Second-best nine-inning game score in major league history (trailing only the Wood game). Of the tens of thousands of games in history, this was probably one of the 4 or 5 most dominant pitching performances. And I was there. On a five dollar ticket purchased on a whim a couple days ago.

I love baseball. And I’ll be a huge Matt Cain fan for the rest of my life.

You Decide – S

Kevin Drum points out an interesting conflict in conservative values. They desperately want the Keystone pipeline, but making it happen requires using eminent domain for private interests. Which was the issue at stake in the Kelo case, which probably provoked as much conservative outrage as any Court case of the last couple decades. Drum asks:

So here’s the question: is it hypocritical for them to support the pipeline anyway? Or is their sole obligation to argue their position in front of the Supreme Court and then, if they lose, work within the court’s rules to their best advantage? Generally speaking, I’d say the latter. Just because the government passes a law you don’t approve of doesn’t mean you can’t — or shouldn’t — exploit the law to your full advantage. Once it’s passed (or handed down), the law is the law for all of us, even those of us who don’t like it.

This is a tough matter. I get where Drum is coming from, but I sort of disagree. This is because I don’t see the Constitution as a matter for (solely) judicial interpretation. I think political actors (which doesn’t just include legislatures or executives, but includes all of us as the citizens of a constitutional order) have a serious stake in the process of public reason and justification.

The Court plays a very important role, as the actor who settles (at least tentatively) major constitutional questions within the larger political structure. But the word of the Court should absolutely not be assumed to be definitive. To abandon our own capacity for constitutional judgment, by simply deferring to the Court, is anathema to meaningful constitutional law. Obviously, most people agree with this at some level—anyone who says the Court got any case wrong is asserting a personal interpretive capacity and denies the premise that the law simply IS whatever the Court says. I think if we take this responsibility seriously, it means continuing to affirm principles in some cases, even if the Court says otherwise.

I don’t, however, think that this means you are obligated to completely give up on the benefits of a Court judgment with which you disagree. Drum cites one legitimate reason, a strategic one. The metaphor of unilateral disarmament (cited often by liberal commentators on the issue of Citizens United and Obama’s willingness to use the funding sources unlocked by that decision) has something going for it.

There is also a second argument: while we shouldn’t simply defer to the Court automatically, that the Court DOES play its very important role in terms of structuring what is politically permissible at any given time. If we accept the premise that the Court produces genuine political value as the arbiter of these matters, we do owe something to its decision. It is the legitimately designated decider of a certain set of matters. Because the law is intersubjective, it doesn’t really possess any meaning outside of its collective affirmation. We can’t simply rely on our personal interpretations, because those interpretations only work assuming a background condition of collectively validated law.

Short version: people should affirm the law in the manner that reflects the values intrinsic to that law. One of those values is determined by your personal judgment of what the law really demands. Another value, however, is determined by the need for a social process of agreement. When those values balance against each other, there is no clear answer. And it’s a mistake to develop categorical responses: neither pure deference to the court setting ‘the law of the land’ nor intransigent commitment to one’s own view of the law in the face of judicial disagreement.

Part III – Same sex marriage: federalism as a wise strategy?
(Part I of this series is here, Part II is here)

When the question of federalism comes up, my progressive friends have consistently cited gay marriage as an example of the value in federalism. It seems like a good case for a number of reasons. If same-sex marriage were simply up to a national vote, it wouldn’t pass – so state-by-state certainly means more people having access to it than otherwise. Even more, one of the big hurdles for spreading same sex marriage seems to be the fear of the unknown. Now that we have some states were folks can get married and no evidence of negative consequences, it’s a lot harder to prey on that fear. Basically: once it’s normalized in a few places it ceases to seem so odd, and there frankly is nothing else blocking it.

I don’t disagree with that argument, but I do want to push back on it a bit.

While I am emphatically in favor of at least some people getting the opportunity, I do wonder whether the snowballing argument really is true. Is the general shift in favor of same sex marriage really driven by the fact that it’s happening in some places? Or is that simple correlation, not causation? I think it’s much more the latter. There is a broad trend in society of acculturation, acceptance, tolerance, etc. Would that not be true in a world where the national government was empowered to restrict same sex marriage? I very highly doubt it. In fact, if the national government had sole discretion on the matter, I think there is a case to be made that the national elite consensus would grow just as strong, if not stronger. I’m not one who is enthusiastic about ‘heighten the contradictions’ arguments, but I do think there is something to it.

Again, I’m not saying that things would be better on the specific matter of same-sex marriage in world of simple national control. It certainly wouldn’t. I’m just saying that it’s not quite so cut and dry, even on the issue that seems like a powerful case in favor of the progressive nature of federalism.

But really there is a larger issue going on here. Namely, it’s sort of silly to think that same-sex marriage is a local issue just by nature of it being a matter of equality. Maybe the decision to get involved in marriage at all is a local decision. But one powerful argument for same sex marriage is an Equal Protection argument. If states are going to be in the business of marriage, they can’t arbitrarily bar one class of people from receiving them. That is: same sex marriage is a right insofar as the opportunity for ANYONE to marry is offered.

The fact that it’s framed as a right is, of course, important. And it really suggests that framing this as a matter of ‘federalism’ doesn’t really make sense. In fact, one of the ways that federalism is potentially more friendly to progressive goals (which I often forget about when I bash federalism) is that it often creates floors of guaranteed rights without setting any constraints on the ceiling. That is to say: gay marriage can’t and won’t be nationalized in the wrong way—a national ban is unlikely to pass, of course, and would face serious judicial challenges if it did. It can only be nationalized in the right way: if it comes to be seen as a fundamental right, which would simply overwhelm any concern for state rights.

Still, that isn’t really an argument FOR federalism so much as it’s an argument for an active and energetic enforcement of constitutional rights.

And, in fact, this is really my point. As much as I dislike the structure of federalism, I’m not proposing constitutional amendments to restructure our system. What I really want is for all the other parts of the Constitution which empower the national government to be empowered in the broadest possible terms. The Equal Protection Clause should be interpreted to secure the rights of minorities against state encroachment. The Commerce Clause should be interpreted to enable Congress to pass sweeping regulations (like the ACA). Preemption should be interpreted broadly to restrict state intrusions into national issues. And so on.

Part II – Federalism in the 21st century
(Part I of this series is here)

In the last few months I’ve had several fairly drawn-out conversations about federalism with some friends. I have taken the position that it is essentially anachronistic – a relic of the political compromises necessary to construct a union in the 18th century. That isn’t necessary a critique of federalism writ large; I am actually somewhat torn on whether it was a useful compromise in its context. On the one hand, I think there is a wonderful beauty to the Madisonian system, and it’s possible that the US would never have risen nearly as high or survived at all if they had adopted a more centralized government. On the other, federalism in its 18th and 19th century form was more than anything else a mechanism for the preservation of slavery. And it is not difficult to argue that the true boom in this country corresponds roughly with the post Civil War restructuring that massively boosted the power of the national government.

All that aside, I really see very little value in federalism in the 21st century. The post-modern form of politics requires ever-expanding zones of coverage to really work. As a result of federalism (and the broad sweep of checks and balances in general) we’ve got a system strong on veto points but weak on actual capacity to deal with the fast-moving crises that define the modern world.

Note that I don’t mean to denigrate localism as such. Clearly, it makes very little sense to expect Congress or the President to make local bond decisions for every little town in the country. I would be perfectly happy to support a system that retains a great deal of local control over most matters (and maybe even cedes a bit more local control), but which does so via delegation. That is: the national government lets most things run on their own, but when there is a conflict, the national side wins.

The arguments in favor federalism seem to fall into a couple general categories. 1) States are meaningful political/social entities that deserve their own sovereignty. 2) States are laboratories of democracy, which let us experiment. 3) There is value in checks and balances. Taking these on one by one:

1) While this was certainly true in the 18th century, it is far less true now. People are far more transitory these days, politics is far more nationalized, etc. States are actually a very weird entity these days – big enough that they aren’t really that ‘close’ but small enough that almost everyone in the country could drive for a few hours and cross into another state. This possibility of travel and movement also puts states in an awkward border space. If movement was genuinely free, states would matter again a LOT, because everyone could simply ‘vote with their feet’ and go somewhere else. However, while movement is much more free than 200 years ago, people are also still fairly closely tied to their location, particularly the poor.

2) There is certainly some force to the ‘laboratories of democracy’ argument, but I think it is also far less compelling than it once was. As politics is increasingly nationalized, there is far less room for this style of experimental democracy. On any issue that rises to national scrutiny, the vast majority of people will determine their position based on their national alignment. On far less politicized issues, there may well be some willingness to see what others do and adopt successful approaches. However, these are precisely the sorts of things that a governmental structure organized around delegation rather than federalism are most likely to still allow. If there is no macro-level fight, localities will often be free to experiment without national interference.

3) Checks and balances. This is the crux of the debate. I won’t really develop the point too much here, but I generally think that while there is of course some value in checks and balances, treating this as an intrinsic political good is thoroughly anachronistic. That is: checks and balances must serve specific and useful purposes, not be taken as a good in and of themselves. Our Constitution was written to replace the weak and crumbling Articles of Confederation, which lacked the power to achieve its national goals. While the 21st century Constitution is not in quite so dire straits, the analogy is a useful one.

Communication technology, speed of travel, growth of global trade, global war, global business…these things are problems on a scale that individual states simply cannot solve.

I don’t mean by any of this to deny that there are specific cases where state sovereignty produces clear positive results. I am very happy, for example, that at least a few states permit gay marriage. I love that California pushes beyond federal emissions standards. And so on. I just think that on balance, these positive results need to be weighed against the serious negatives.

In part III, which will probably be up tomorrow, I’ll return to gay marriage and federalism in particular.

An informal poll:

Q1: if you could restructure our constitutional system slightly, so as to remove the decision over gay marriage from the states and place it solely in the hands of the national government, would you do so?

Q2: what are your feelings about Obama’s claim that he personally believes gay marriage should be allowed, but that each individual state ought to make the decision for itself?

Obviously, I’m poking at something here—my guess is that there are a fair amount of people who would give a firm ‘no’ to the first question, while simultaneously being annoyed with Obama for stating much the same thing—but I really am not trying to frame this as a ‘gotcha.’ For one thing, there are clearly some different elements at stake in the two questions. One is strategic and the other is more about what is ‘right.’

In fact many people likely feel that precisely because there is basically zero chance of gay marriage actually falling into the hands of the national government (or rather: in the hands of the political branches), Obama ought to take the principled stand and just say ‘it’s a right and ought to be protected.’ And that’s perfectly reasonable.

Still, I think there is something strange about this. Folks seem to want the benefits of federalism (going slow acculturates people to the idea, demonstrates that it causes no catastrophe, preserves enclaves of rights when the nation as a whole might not protect them) without having to admit that this is really what they’re up to. Again, I don’t say this in an accusatory fashion. This is precisely the sort of very-light hypocrisy that really doesn’t bother me. I’m just interested in what it says about federalism and gay rights in the broader sense.

I will elaborate in post #2 on this subject, coming soon…