Federalism had a big week at the U.S. Supreme Court last week. On Tuesday, the court struck down Section 5 of the Voting Rights Act that required ex-Confederate states to clear changes in their voting laws with the Justice Department.
“Sec. 5 ‘imposes substantial federalism costs’ and ‘differentiates between States, despite our historic tradition that all the States enjoy equal sovereignty,’” Chief Justice John Roberts wrote in his majority opinion.
The next day, the court declared unconstitutional the Defense of Marriage Act, which prohibited the federal government from recognizing same-sex marriages. In his majority opinion, Justice Anthony Kennedy also invoked federalism, concluding that granting marriage licenses is a state function, in which Washington has no right to interfere.
“The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens,” Kennedy wrote.
Since this Supreme Court is so solicitous of states’ rights, maybe Attorney General Lisa Madigan should ask it to reconsider the 7th Circuit Court of Appeals decision in Moore v. Madigan, which invalidated our state’s ban on the carrying of concealed weapons. After all, one of Judge Richard Posner’s arguments was that Illinois should not be allowed to maintain the nation’s only conceal carry ban:
Remarkably, Illinois is the only state that maintains a flat ban on carrying ready-to-use guns outside the home, though many states used to ban carrying concealed guns outside the home...There is no suggestion that some unique characteristic of criminal activity in Illinois justifies the state’s taking a different approach from the other 49 states. If the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it.
By that logic, a state has the right to determine its own laws -- unless one of those laws is unique among the states. Then it has to fall in line with the rest of the union. That seems like a clear contradiction of federalist principles. Maybe the Supreme Court would agree.
Published at 11:41 AM CST on Jul 2, 2013