Federalism

Mark Alexnder of the Federalist Society has an interesting column on the Moore situation.

I very much agree with the following:

Much of the public debate about this case has taken a wide detour around the substantive constitutional question, instead focusing on the Ten Commandments: Are they the foundation of Western law? Should they be displayed in state and local public places? Are such displays promotions of religion or history? While these are interesting questions, they are not relevant to the substance of this case.

Those content to reduce this case to a colloquy on the merits of the Ten Commandments either do not grasp the serious constitutional issue being contested, or they harbor a disingenuous motive to avoid the relevant. The latter group, well represented in the pop media, has framed this case as an insurrection led by a religious zealot and his gaggle of street preachers, thus depreciating its legal significance in order to avoid substantive and instructive discussion about our Constitution.

However, from there he goes on to make some problematic arguments, as his discussion of the 1st and 10th amendments, while interesting, leave out entirely the significance of the 14th amendment, not to mention established case law. Like it or not, agree with it or not, one cannot ignore these things.

Rather, Alexander's argument, like one's recently made by Alan Keyes on this topic, are predicated on the idea that we are still operating under the original federal structure that existed in the nineteenth century. We aren't. Even if one thinks we arrived where we have wrongly, it doesn't mitigate against the simple fact that we are where we are. Instead of taking into account the entire panoply of issues, Alexander and Keyes want to argue from their own idealized position of the way they want constitutional law to work, rather than what the reality on the ground is.