HB757 a call for return to robust federalism

In politics, there are few things we can all agree on, but surely we all agree with James Madison that “justice is the end of government.” The problem is there is vast disagreement on what justice is, and such disagreement is dangerous in a country where the people are sovereign. Thankfully, we live in a federal republic where we have two governments which derive their legitimacy from the sovereign people, and federalism allows us to live in peace while maintaining various conceptions of justice.

The debate surrounding HB 757 reveals a deep divide between two conceptions of justice in Georgia that is tearing us apart. Representatives of the majority of Georgians — rightly or wrongly — deemed it prudent to secure in law certain freedoms which the minority call tyranny.

If the majority think they can persuade the minority that the right to discriminate in certain cases is not tyrannical, they are out of touch with the nature of this debate. Likewise, if the minority believe they can persuade the majority that accepting same-sex marriage is not tyrannical, they misunderstand the nature of the inalienable right to freedom of conscience. We are at an impasse, and we are kidding ourselves if we believe that a court or a legislature can force us all peaceably to agree on justice.

We need to recognize that HB 757, which I cautioned against in (“Where Our Freedom Really Comes From,” Opinion, Mar. 5), is a reaction to the U.S. Supreme Court’s attempt to legislate for Georgia while the majority of Georgians were clearly still convinced that legalizing same-sex marriage is unconscionable.

Debate about same-sex marriage is healthy for Georgia; forcing it upon Georgia is not.

Ever since the Supreme Court’s Obergefell v. Hodges ruling, it’s been assumed that the debate is over, and each side has begun resorting to force in the name of justice to get its way. Although the governor has vetoed this bill for now, the divide clearly remains.

Our options seem to be these: either the majority will claim to be tyrannized by the minority, or the minority will claim to be tyrannized by the majority. This is the problem that arises when the national government believes it exists to enforce a common conception of justice across a country the size of a continent.

Our founders understood that you will rarely find even two people who agree on what justice is. They did not expect agreement even among the 13 original states, so why would we expect it among 50? The best solution we have is robust federalism.

Georgia is not a mere county of the national government, existing to administrate policies from Washington D.C. It is a unique political community whose laws reflect the understanding of justice of the majority of Georgians.

The state governments exist primarily to establish justice among ourselves, while the national government exists primarily to protect us from external threats. This distinction is a consistent theme in the U.S. Constitution, expressed in the Preamble, Article 4, and the 10th Amendment. The U.S. depends on both unity and states. Federalism properly understood allows us to have both.

This is not to say that all laws are permissible and justice is relative. But Georgians don’t want California to force its laws on them; likewise, I’m pretty sure Californians don’t want Georgia to force its laws on them.

With issues as divisive as same-sex marriage, it is prudent for the minority in any state either to accept the will of the majority for the time being, or else to relocate to a state where the majority embrace their values. That does not mean that the conversation is over; to the contrary, it allows the conversation to happen. That’s the beauty of federalism, people; that’s freedom.

Hopefully, we can all agree that objective justice exists and that humans comprehend it imperfectly. There are certain things like human slavery that we all agree are unjust, but if we want to retain freedom in this federal nation, we must allow for reasonable disagreement among the various states. The widespread disagreement on the legitimacy of same-sex marriage in various states demonstrates that this is an issue on which we should agree to disagree.

Has not the heated debate surrounding HB757 and the governor’s contentious veto revealed that we are at an impasse that only robust federalism can resolve? Let the states decide, and let us all live as best we can, maintaining various conceptions of justice, in peace and in freedom.

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Clifford Humphrey is a Warm Springs native who’s now a doctoral student in politics at Hillsdale College in Michigan.

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