Gongol.com Archives: January 2022
Supreme Court Justice Stephen Breyer has announced his intention to retire when the court takes its 2022 summer recess. His colleagues have wished him well in the same kind of way that most Americans probably wish that the officials of the elected branches of government would treat one another. But it's hard to imagine that the process of replacing him on the Court will be nearly so amicable. ■ Despite despite having served on the Court since 1994, Breyer is curiously the least-known of the jurists presently serving. It's neither a mark of success nor failure for a justice to be a household name, but their work -- whether in a majority or in dissent -- has a long-term impact on the country, and not just in the way the laws are set. ■ That influence has of course been exceptionally good when it has served to preserve liberties and keep the government from overreaching. But some of its effects have been lamentable. Because its opinions are typically read in full only by a few, but widely circulated through news reporting, we often take away only a small nugget of what was said. And sometimes those nuggets are spoiled. ■ Few Americans have likely read Justice Louis Brandeis's full dissent in New State Ice Co. v. Liebmann. But many are familiar with the idea referring to states as "laboratories of democracy". Brandeis speifically wrote, "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." ■ Clever writing it is, and in a sense, not incorrect -- states are indeed free to experiment largely without threatening one another. But the corrupting effect of the idea has been to put the idea into the minds of Americans that the states are lesser entities. ■ The states are not laboratories of democracy; they are the fundamental units of democracy itself. They aren't sandboxes in which we can play without doing damage to the whole; they are where the overwhelming amount of democratic work must necessarily be done. The federal system is like a layer cake -- the states are the real substance, while the Constitutional government headquartered in Washington is supposed to be much more like the frosting. The states are both the origins of municipal law (the Constitution says nothing about city or county governments, but you'd have a hard time incorporating one without a state government), as well as the authorities that create the federal or national government. The states abandoned one faulty government under the Articles of Confederation and adopted the Constitution -- but they remained states throughout. ■ It's hard to avoid wondering whether America would seem more stable and self-confident a place today if we were to resist the urge to nationalize so much about our politics. Interests are different in different places, as they ought to be. What matters in Oregon often doesn't need to bother anyone in Kentucky, or vice-versa. On those matters where unanimity is critical, like defense and statecraft and preserving smooth relations among the states, the government in Washington ought to take things off the plates of the individual states. But much of the rest of the time, it's asking too much of us to try to enforce conformity among 332 million people living across a continental-scale country. ■ It doesn't make the states "laboratories" that they can choose policies differently from one another -- it makes them workable, in scale and in ambition. Let's not forget that the entire United States had only about 4 million people when George Washington took office, and even then there were vast differences among the states. The Federal system is designed to work by escalating only what is necessary to the national level, while reserving all else to the state level (or to wherever the states delegate). ■ For as much as we need to cool off the mood of the country, it would serve us well to put our energies into what's really in our immediate back yards. Replacing a Supreme Court justice will inevitably focus the attention of the entire country. But it would be good for us to remember that the disputes that rise to the level of nationwide attention ought to be few. As Dwight Eisenhower once noted, "A family squabble is always exaggerated beyond its true importance." Perhaps one of the best ways to stick together is to refrain as much as possible from sticking our noses into one another's business.