Five-to-Four for Federalism
Jude Wanniski
June 24, 1999


Memo To: Chief Justice and Associate Justices of U.S. Supreme Court
From: Jude Wanniski
Re: Equality and Diversity

Count me in the majority on your decisions announced yesterday that tilted toward states' rights and the political system of federalism that undergirds the strength of the nation. By leaning toward the states against the power of the central government in several relatively unimportant but significant cases, you weighed in on the side of diversity over equality. The central government of course wants the states to have as little power as possible. Indeed, I recall a few years back that one of the most distinguished American journalists, R.W. Apple, Jr., of The New York Times, blithely threw out the proposition that we have progressed sufficiently in the homogeneity of the nation that we could do without the 50 states as independent political jurisdictions. As Apple is a political correspondent, he probably had in mind the messiness of the Electoral College and the efficiency of electing a President by popular vote. The NYTimes, though, is after all the nation's "Mommy Paper," in that its editorial page likes the idea of having all Americans treated as equally as if we were identical in every way.

The ancient Chinese had it right in figuring out that all political divisions come down to the proper tension between yin and yang. "Yin" is negative, dark and feminine, while "yang" is positive, light and masculine. When they are in perfect balance, there is perfect harmony in whatever human institution the concept is applied. There is discord when the one trait overtakes the other. Femininity is associated with "negative and dark" only in the sense that Mother is more cautious than Father, less inclined to risk-taking, more protective about the security of the family as a unit. Ask a mother which of her children she loves the most, and she invariably replies that she loves them equally. Ask a father, and he will be inclined to pick a favorite, as he has had the assignment from way back to picking out his successor. Sometimes it would be the oldest, sometimes the strongest, but there had to be differentiation in choosing one over the others. Democracy failed in Ancient Greece for a variety of reasons, but the idea of having each citizen take turns at serving in the legislative body probably was the worst of the ideas.

Our democracy gets very messy at times, but because of the wisdom of the Founders in constructing the basic mechanism of governance, there always seems to be a self-correction process that nudges the nation toward harmony of yin and yang. There must be a balance between the rights of the individual and the rights of the community. The 50 states are like 50 different children, each with an individuality that must be respected by the central parents. In your opinion for the majority, Justice Kennedy, you reminded the Mommy minority something they prefer not to hear:

Although the Constitution grants broad powers to Congress, our federalism requires that Congress treat the states in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the nation. The founding generation thought it "neither becoming nor convenient that the several states of the Union, invested with that large residuum of sovereignty which had been delegated to the United States, should be summoned as defendants to answer the complaints of private persons." The principle of sovereign immunity preserved by constitutional design "thus accords the states the respect owed them as members of the federation."

In a family unit, the Court is saying that the grandparents do not have an automatic right to intervene when their grandchildren bring complaints against their parents. The parents have their own problems trying to raise the kids without their parents butting in to announce that their grandchildren are in the right and their children are in the wrong. We understand that well enough at the family level, which is why it is practically unthinkable for children to appeal to their grandparents to overrule their parents. In its lead editorial today, "Supreme Mischief," the NYTimes chastises the High Court, essentially for not permitting children to sue their parents. The Times unhappy with the Ten Commandments being posted in public places, but joins with Hillary Clinton and other extreme feminists in backing lawsuits for kids against their parents. The WSJournal, which is the nation's Daddy paper, ridicules that idea, and I'm sure agrees with your majority on these decisions in favor of modest diversity over manic equality. (Mommy in the extreme is Communism; Daddy in the extreme is Fascism.)

Striking the right balance is a hard job but somebody has to do it to keep the nation on track. The 5-to-4 decisions indicate close calls, and in these cases I agree with the majority. I also agree with the 7-to-2 decision that rejects the argument of disabled workers that they can sue their employers for discrimination under the Americans with Disabilities Act even if their physical impairment has been corrected by treatment. Hey, if you are near-sighted but wear glasses, you ain't impaired. If you have diabetes, but take insulin, you ain't impaired. The Mommy laws protecting the disabled against employment discrimination get to the point that a majority of all Americans could be classified as "disabled," for the purpose of suing their employers. This makes a mockery of the original idea. A political backlash would be the only corrective if you do not strike the balance. You did not make "mischief" this week. You made sense.