Tragic error at The Guardian

The Roberts court redefines judicial activism: it is pursuing a states\’ rights, anti-federal agenda, reckless of the constitution

That\’s the subs getting it wrong of course.

A State\’s rights agenda is a pro-federal agenda.

For that\’s what federal means, that there are multiple sovereignties and a division of powers between them.

The opposite to State\’s rights is not federal, it is unitary state.

As to the actual piece by Scott Lemiuex, it\’s basically, sure, I like the Constitution too but not when it stops some project that I\’m in favour of.

Which rather misses the point of having a constitution, which is a set of rules that all must obey. Yes, your friends as well as your enemies.

10 comments on “Tragic error at The Guardian

  1. You could try looking up “federal” in the dictionary, Tim:

    relating to or consisting of a treaty or covenant; confederated, founded upon mutual agreement; (of a union or government) in which several states, while independent in home affairs, combine for national or general purposes, as in the United States …; of or relating to the national or central government in such a union, as opposed to any regional or state government.

    The subs have got it right, unexpectedly enough.

    And the article is right that many US Supreme Court decisions are blatantly political, as demonstrated by the 5-4 party-line vote in Bush v Gore (which pre-dates Roberts).

    However, I disagree that the Court is anti-federal in the sense the article suggests. In fact the Court is in favour of States’ rights to do things the Court likes, and against them otherwise. See for example Gonzales v Raich in which the Court decided the Commerce Clause should be interpreted broadly.

    Tim adds: “in which several states, while independent in home affairs, combine for national or general purposes, as in the United States …; of or relating to the national or central government in such a union, as opposed to any regional or state government.”

    Err, yes, that’s exactly my point.

    In this particular case over Obamacare no one at all doubts that the States, individually, can compel people to purchase health insurance. The argument is over whether the Federals can do so or not.

    So the question being decided is indeed, if the Feds cannot so compel, that we have a federal system. One in which there is a division of powers between sovereigns, or whether we’ve a unitary system where the top level gets to do whatever it wants.

    Arguing or deciding in favour of State’s rights is arguing in favour of the federal system. Even if not in favour of the wishes of the people who currently run the federal government.

  2. Historically (c. 1783-1815) the Federalists were in favour of greater powers for the central government; people like Washington, Hamilton and Adams.

  3. I think they mean “anti-federalist” in the sense that the court disagrees with the position of the Fed.

  4. Tim, you seem to have stopped reading half way through the dictionary definition.

    of or relating to the national or central government in such a union, as opposed to any regional or state government.

  5. It was because the southern states wanted more states’ rights that they seceded as a CONfederacy and not a federation. ‘Confederate’ implies less central control than ‘federate’ – cf the Swiss cantonised setup of the Confoederatio Helvetica (pedantry: the modern Swiss constitution is actually federal but the name harks back to the Old Swiss Confederacy, which lacked many features of central government altogether). Of course there’d be more central power in a unitary state (cf the Napoleonic Era ‘Helvetic Republic’) but there’s never been a strong anti-federal movement in the USA arguing from the unitary position. If there were your point would have been more arguable.

    As you’re a ‘Kipper I was expecting you to get this one right Tim – think what ‘Eurofederalism’ means. I know ‘better off out’ is your first choice, but you’d still cheer an ‘anti-federal’ decision a the ECJ.

  6. For Americans, most of the time “Federal” means “of or pertaining to the Federal govt.”

    As an aside, Ronald Dworkin argued in a
    recent article that the distinction between the Feds stopping you from doing something and compelling you to do something is wholly artificial. Further, the fed govt already requires people to do things. In particular, it mandates hospitals
    to treat people in certain circs without checking if they have insurance (eg emergencies).

    That results in a degree of free-loading by the uninsured on the insured, since plenty can’t pay the bill, even if they could have afforded insurance (one of the named plaintiffs bankrupted herself to avoid a hospital bill). That puts up the cost for
    everyone, and is one of the evils the bill is meant to cure. So the stuff about “could the Feds me eat broccoli ?” is a red herring – it already requires people to do things. Hard to see the court isn’t politically motivated – but isn’t the point of presidential appointment that the court has to make inherently political decisions?

  7. Luke – “As an aside, Ronald Dworkin argued in a
    recent article that the distinction between the Feds stopping you from doing something and compelling you to do something is wholly artificial.”

    Then he is a fool. As it is not. And pretty much all the Western discourse on morality would have to be wrong for it to be true.

    “Further, the fed govt already requires people to do things. In particular, it mandates hospitals
    to treat people in certain circs without checking if they have insurance (eg emergencies).”

    So they require you to pay taxes. This we know. That is a long way from requiring you to eat broccoli. What is more the Constitution has a specific clause enabling Congress to levy taxes. It does not have a specific clause enabling anyone to make you buy health insurance. Or eat broccoli.

    “So the stuff about “could the Feds me eat broccoli ?” is a red herring – it already requires people to do things.”

    Such as?

  8. PaulB (#4), I think you are not reading the “in such a union” part of your definition.

    Yes, ‘Federal’ can mean the central government, but only in a ‘federal’ system.

    And that means it only means a central government that has limited powers, other powers being constitutionally reserved to the lower tier state governments.

  9. MyBurningEars (#5), in the ’80s (up to ’92) one could argue that the EU was a federal system that would be less bad if it were a confederation.

    From ’92 to ’09 it was a federal system, but with such a strong federal government that one could argue for more “states’ rights” while still remaining federal.

    But now? I’d say it’s now almost a unitary state, and so a more federal system would actually mean more powers for the individual countries.

    Having said that, the line between federation and confederation seems less absolute – more a question of degree. The line between a federation and a unitary state is clear – the lower levels must have powers reserved to them that the higher level cannot take away.

  10. Richard: I think you have forgotten the subject of the discussion, which is the proper use of the term “anti-federal”. It is clearly consistent with the dictionary definition I quoted (which comes from Chambers) for “anti-federal” to mean exactly what the Guardian used it to mean. Tim is entirely wrong to describe the usage as an error.

    It’s not relevant to the point I was making, but are you really saying in #9 that the central government in the EU has more power than in the USA?

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