Blogs > HNN > What Kansas and Baghdad Have in Common

Aug 30, 2005 3:21 pm

What Kansas and Baghdad Have in Common

What is the connection between this Op-Ed about the Iraqi constitution and this story about statutory rape in Kansas?

One possible answer is "women's rights," but the one I have in mind is: "federalism, perils of."

Federalism is an integral part of the U.S. constitutional system, and Americans tend to be inordinately proud of it. I can't count the number of times I've heard federalism touted as part of the "genius of the American constitutional system." I'm very skeptical of that view, but my aim here is less to trash federalism than to cool the ardor for it a bit and offer a few caveats.

First point: federalism only works if it's possible to make, sustain and adhere to a distinction between legal principles that ought to be uniform throughout a nation and legal principles that can safely vary from place to place (cf. Aristotle's similar distinction, Nicomachean Ethics, V.7). The definition of rape--and women's rights generally, and rights generally--would seem to fall into the first category. Blur the two categories, and you're headed for a system that systematically violates rights. This rather obvious point seems to me to go under-emphasized in discussions of the topic.

Second and related point: It's an interesting question to what extent federalism is itself a universal or local principle. In other words, is federalism part of any ideal constitution, or is it just a fix for problems specific to time, place and circumstance? Americans tend, somewhat parochically, to approach this issue via The Federalist Papers, which are often taken to be a universalist blueprint for constitutional design. But arguably, federalism derives in part from Montesquieu's Spirit of the Laws, a text taking a somewhat relativist perspective on politics. This, too, produces some tension in thinking about the subject.

Third: Proponents of philosophical anarchism might want to pay attention to the statutory rape case in the article linked above. The statutory rape dispute is thorny enough when it involves a conflict between the laws of Kansas and Nebraska (and I seem to remember history's serving up another conflict involving those states....), but wouldn't things be worse under anarchy? Those who profess not to care about anarchism might want to ask: is there not a sense in which federalism is itself the thin wedge of anarchy? (I'll leave that one as an exercise.)

Fourth: I wonder whether American students ever get a sufficiently critical view of federalism in their civics, history and political science classes. I don't teach those subjects myself, so I can't say for sure, but I did work for a few years for the National Assessment of Educational Progress (NAEP) and have a more-than-passing familiarity with the Civics and U.S. History assessments. My impression is that federalism is usually touted as part of the"genius of our system" with little attention given to the embarrassing problems it can produce. (The NAEP Civics Achievement Levels are somewhat vague on this issue.) But I'd be interested in some feedback on this from people better positioned to know.

I have sufficiently mixed feelings about the workings of federalism in the U.S. to have more than mixed feelings about its workability in Iraq. But time will tell.

For a previous side-swipe at federalism at"Theory and Practice" click that link.

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Aeon J. Skoble - 8/31/2005

Hi Irfan-
Sorry to post a comment completely unrelated to the blogpost, but the top of the blog says you're now at John Jay - so that means you need to email me your current email address!
Thanks, and congrats,