If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.--James Madison, Federalist #10
In an increasingly diverse and growing nation of over 300 million citizens of varying religious, ethnic, and cultural backgrounds, this benefit has only grown in significance and impact since the Founders contemplated and implemented federalism. From marriage to prayer, from zoning laws to tax policy, from our school systems to health care, and everything in between, it is essential to our liberty that we be allowed to live as we see fit through the democratic process at the local and state level.—Rick Perry, Fed Up!, p. 27
Though Governor Perry clearly has other political issues in mind, his words have an eerie resonance with the stance that most Southern states—including Texas—took against civil rights for African-Americans for most of the 20th century. On the issue of marriage, for example, the State of Texas had one of the nation’s strictest laws against interracial marriage until the Supreme Court’s Loving v. Virginia decision overturned all such laws in the United States. Schools, health care facilities, public transportation, and most other state-controlled services were similarly segregated throughout the South until the federal judiciary forced states to comply with the Fourteenth Amendment and grant all people within their borders basic civil rights. But we need not go back to the Civil Rights Era to see the rights of minorities being invaded “through the democratic process at the local and state level.” A Pew Research Center report released on August 30, 2011 documents 37 challenges to proposed mosques and Islamic Centers in the United States between 2008 and 2011, nearly all of which included some element of community discomfort with the Muslim religion. Most of these construction projects have been allowed to proceed, but often only with some pressure from the federal Department of Justice, which launched 16 investigations of Religious Land Use violations between May 2010 and August 2011. Without some federal check on the power of state majorities to "live as we see fit," I suspect that American Muslims would have a difficult time securing the right to worship freely in a number of state and local jurisdictions.
Perry’s assertion that states “allow us to live with people of like minds” posits a world that simply does not exist—a world in which every citizen of a particular state has made an affirmative decision to live among people who share his or her values and perceptions. In this world, people are not constrained to live in certain places by economic circumstances, family ties, job opportunities, health-care needs, etc. Those who don’t like a certain political climate can simply move around until they find a more suitable one.
This is not how life works for most of us. We live where we live for all kinds of reasons, most of which have very little to do with whether or not our governor packs heat on his morning jog. Conservatives live in Massachusetts, liberals live in Texas, Mormons live in Alabama, Catholics live in Utah, and everybody has certain fundamental rights that are not subject to the whims of the people around them. While majorities will generally get their way on most political issues, they cannot get their way all the time, or our society will cease to be free. The Founding Fathers who supported the Constitution, and wrote the Federalist Papers, understood this clearly.
But Perry, too, is making an argument about what the Founding Fathers supposedly believed. In the fashion of a true proof-text patriot, he closes out his “states allow us to live with people of like mind” argument with a quote from a bona fide member of the Founding Era:
But Perry, too, is making an argument about what the Founding Fathers supposedly believed. In the fashion of a true proof-text patriot, he closes out his “states allow us to live with people of like mind” argument with a quote from a bona fide member of the Founding Era:
As one pro-states Revolutionary-era politician writing under the pseudonym of Agrippa said, “The idea of an uncompounded republic [with millions of] inhabitants all reduced to the same standards of morals, of habits, and of laws is in itself an absurdity, and contrary to the whole experience of mankind.” Just as each individual is unique, so, too, do we come together to form unique communities with differing needs. (27)
To spell out what nearly all observant readers will have already guessed, “Agrippa”—also known as James Winthrop, a minor state official in Massachusetts—was one of the Constitution’s most dedicated opponents.
