The Controversy Over Sanctuary Cities

Although progressives hate to admit it, the rise of Sanctuary Cities (that is, cities that refuse to cooperate in enforcing federal immigration law) is a legacy of the states’ rights movement.  A city that declares itself a “sanctuary” is exercising its right of “interposition” — that is, the right of state and local governments to refuse to administer federal laws.   The Supreme Court has repeatedly recognized that the federal government cannot force the states to do its bidding.

The question for progressives is: why can’t states like Arizona exercise their freedom to reinforce federal immigration laws?

Great Review of A Less Perfect Union in the WSJ

The Wall Street Journal has a great review of my new book, A Less Perfect Union.  Legal scholar Michael Greve praises my book for making the case for federalism “well and entertainingly.”  Some highlights:

  • “Consistently insightful”;
  • “Telling and often hilarious examples.”
  • “A more decentralized, diverse and democratic politics, Mr. Freedman argues compellingly, speaks to ‘modern sensibilities.'”

The review is here (but subscription required to read the whole thing…)

Talking With Dennis Prager about A LESS PERFECT UNION

I was honored to be a guest on Dennis Prager’s always-great show.  We talked about my latest book, A Less Perfect Union, which he called “important,” states rights, and living in Brooklyn (DP is originally from Brooklyn).  He also agreed with my recent City Journal piece which, as he puts it, shows how the Obergefell decision “makes a mockery of the Founders’ concept of states’ rights.”

Obergefell’s Assault on Liberty and Federalism

Despite what the newspaper headlines say, the U.S. Supreme Court’s ruling in Obergefell v. Hodges did not “legalize” same-sex marriage. It mandated same-sex marriage, something very different. States were previously free to recognize gay marriage, but now they are compelled to do so. From now on, it is illegal—unconstitutional—for any state not to issue marriage licenses to same-sex couples.

Many tout Obergefell as a victory for civil rights, but it is anything but. By turning same-sex marriage into a constitutional “right,” the Supreme Court has denied the people of all 50 states the most important civil right of all—the right to govern themselves. A mere decade into the political deliberation on same-sex marriage, the Court has taken the issue away from the voters. According to the narrow 5–4 majority, there has already been more than enough “legislation, litigation, and debate,” as Justice Anthony Kennedy put it.

The damage to democracy is bad enough, but it is greatly compounded by the damage to American federalism. The federal government has no constitutional authority to regulate marriage, nor does it have a roving license to promote “dignity,” “autonomy,” or any of the other amorphous phrases contained in Justice Anthony Kennedy’s majority opinion. If the Constitution granted anything like that kind of authority to the central government, the document would never have been ratified. In Federalist No. 45, James Madison assured readers that, under the proposed Constitution, the states would remain sovereign over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people” (emphasis added).

By jettisoning federalism, the Court has put other civil liberties at risk. When the definition of marriage was a matter of state policy, voters and politicians could balance competing interest—particularly the rights of religious organizations that adhere to the traditional definition of marriage—based on local preferences. That kind of balancing is scarcely possible in federal courts, which are, as Chief Justice Roberts pointed out in his dissent, “blunt instruments when it comes to creating rights” because “they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right.

You can read my longer analysis over at City Journal.

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