What hath federalism to do with Christianity?

This post is not against John McCain or for Obama. McCain has called himself a federalist, but I doubt that's the main issue on anyone's mind, except as it might apply to Roe vs. Wade. This post is not exactly about Roe vs. Wade either, although it is a related issue.

This post is about these questions: What is driving rhetoric of "strict constructionism" in the interpretation of the Constitution among certain Christians? and How has federalism--which strangely has come to mean the idea that individual states should have maximum autonomy--somehow come to be connected to the Christian cause?

The surface answer to the first question--what's up with strict constructionism--is Roe vs. Wade. People might say that Roe vs. Wade represents judges "making law" rather than judging according to law. So they would say we need to get back to judges only judging according to close, literal readings of the law.

The surface answer to the second question--what's up with federalism--is that it has become the anti-abortion strategy. In other words, Christians have given up on a Constitutional amendment against abortion because they have in one way or another admitted that they will never succeed. So the next strategy is to kick the issue back to the states where they will succeed in four or five states.

Federalism
I suspect that the United States is one nation. I have been known to say that in some pledge or another from time to time. I did have a roommate once in seminary who made it clear to me that Texas could fly its flag at the same height as the U.S. flag. And I went to college in South Carolina and seminary in Kentucky where it surprised me to find that not everyone in America thinks the north was in the right in that whole Civil War thing.

But the social contract that is the Constitution is a national one. That means that on fundamental issues, we should have laws in common.

Take the issue of abortion. I more and more suspect that the anti-abortion tactic of repealing Roe vs. Wade won't do much of anything to stop abortion. Very few states will pass anti-abortion laws. And these will be repealed within a decade. In the meantime, certain organizations will buy buses and drive people once a week across state lines. In short, the vote for the guy who will appoint judges to overturn Roe vs. Wade strategy is probably the biggest red herring of the last 30 years in evangelical politics.

We should remember the Dred Scot case of 1857, for when we seek to appoint federalist judges to the bench we are pursuing judges who would rule somewhat like the Supreme Court did in this case. In this case, the Supreme Court ruled that the nation did not have a constitutional basis for prohibiting slavery on a nation wide basis. It was up for individual states to decide. For this reason, the fourteenth amendment was necessary to ban slavery on a national level.

If abortion is wrong, then it is wrong on the federal level. That means the "constitutional amendment" strategy was the appropriate strategy, even if also an impossible one. What all this means is that Christians against abortion should rather be investing their energies in diminishing the number of pregancies and encouraging adoption. The other option will prove to be a decades long waste of time. I may be wrong on these things, but those are my hunches.

On off shore drilling--the topic under discussion when McCain said he was a federalist--I have no problem with letting individual states decide what they do. At the same time, Anwar is a good test case for federalism versus the national social contract. I think it is legitimate as part of the national social contract for Congress to be concerned about the environmental impact of what individual states do and about the maintenance of natural preserves. Yet it is the right of Alaska to generate capital from its territory too.

So it all comes back to the weighing of priorities. It simply isn't a "one trumps the other" kind of thing. It is a matter of weighing values against values, and both values are legitimate.

I think pursuit of a Constitutional amendment against gay marriage is also doomed to failure. Any state laws passed against it will also be repealed within the next 20 years. You watch. It is another colossal red herring like Prohibition.

We should be investing our energies reaching out to people, trying to change attitudes, trying to woo people into the kingdom. The "rules" approach to righteousness is the lowest level of moral development (cf. Kohlberg).

Strict Constructionism
I have a hunch that, particularly in the South, the whole "strict constructionism" thing is not really so much about Roe vs. Wade, although that's a safe ruling to pin it on. It allows a person to avoid the underlying issues. But my hunch is that the real anger underlying advocacy of this abstract theory of constitutional interpretation is more desegregation and the humiliation the south felt during the era of civil rights. This banner, "strict constructionism," is a way to legitimize revenge for being forced to integrate.

Now I recognize that this question of constitutional law is not a slam dunk issue. The court system is there in the Constitution to weigh the intent of those who make law. But the Constitution was not perfect. Even inspired Scripture includes teaching that Jesus himself said was an accommodation to the hard heartedness of its people. So the Constitution doesn't stand a chance. A slave, 3/5 a person, really?

So I agree, judges should stick very close to being interpreters of the intent of the Constitution and lawmakers. But again, there are complicating factors. A congress is a collection of sinful individuals. If a culture has a popular sin, then the laws Congress passes will enshrine that sin. If a collection of representatives accurately represent a racist state or country, then they will enshrine racism in its laws. On such issues of the overall social contract, states cannot be allowed to decide the issue for themselves. Racism cannot be allowed in any part of the American social contract.

When fundamental principles of the Constitution conflict with cultural sins, it is very appropriate for the courts to point out the contradiction. Certainly there are aspects of the thinking of the original signers of the Constitution that we are in a better position than they to see are contradictory. The existence of slavery or the prohibition of women from voting in a nation whose Declaration of Independence holds that "all men are created equal" is a glaring contradiction to us (I recognize that the D of I is not a part of the Constitution).

I don't favor legalistic readers of the Constitution on the bench any more than I would want a Pharisee or a Judaizer interpreting the Old Testament for me. I favor judges whose thinking thoroughly embodies the values of the Constitution--equal justice for all--and thus who make rulings accordingly. That's the approach to law of Jesus and Paul. Sounds Christian to me.