Federalism -- the cause and the cure

I greatly enjoyed reading Mr. Will's article on the Second Amendment and the problems posed by the recent Heller decision affirming that it protects an individual right. The problems posed, however, are caused not by the Heller decision, but by the aftermath of the Civil War. When the individual state no longer became the main political force in the Union (roughly when the United States became "is" instead of "are"), our rights became nationalized as well.

The article is correct in that the Founders originally were referring only to the Federal government in the Bill of Rights, and that by an originalist interpretation, the Constitution should not bar state legislators and city councilmen from passing whatever crazed prohibitions fly through their ditty little heads. But that all changed when the national government took over as the protector of citizens' rights. Now we have a hallowed document with a first-order replication error that can only be fixed by democratic means through amendment or a constitutional convention.

Of course, the fact that the solution needs to be democratic guarantees the complete absence of common sense and moderation (much less wisdom) in any attempt to make simple reforms, such as returning these questions to the states. Unintended consequences accumulate in any political body, much like mutations in unstable genomes. That's why Jefferson was in favor of pitching the whole thing overboard every generation or so and starting afresh.


william said...

14th Amendment!!!! Love it!