Wednesday, April 8, 2009

Is federalism divinely inspired?

One passing comment from the last J. Reuben Clark Law Society broadcast that caught my attention was a reference to federalism. Elder Quentin Cook mentioned that Elder Dallin H. Oaks has opined that the federal structure set forth in the U.S. Constitution were divinely inspired. I did a bit of searching, and came up with an Ensign article entitled "The Divinely Inspired Constitution" from February of 1992. This seems to be the source for Quentin Cook's reference. In the article Dallin Oaks states in relevant part:
Unlike the inspired adaptations mentioned earlier, this division of sovereignty [federalism] was unprecedented in theory or practice. In a day when it is fashionable to assume that the government has the power and means to right every wrong, we should remember that the U.S. Constitution limits the national government to the exercise of powers expressly granted to it. The Tenth Amendment provides:

“The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively or to the people.”

This principle of limited national powers, with all residuary powers reserved to the people or to the state and local governments, which are most responsive to the people, is one of the great fundamentals of the U.S. Constitution.

I think this is a pretty interesting claim. It seems like a no-brainer to say that Constitutional provisions such as the Free Exercise Clause would be inspired by God, since religious freedoms would facilitate worship and proselytizing. It is another thing entirely to claim that a specific structure of government is not only better, but actually inspired by God. Elder Oaks elaborates on his assertion:
The particular powers that are reserved to the states are part of the inspiration. For example, the power to make laws on personal relationships is reserved to the states. Thus, laws of marriage and family rights and duties are state laws. This would have been changed by the proposed Equal Rights Amendment (E.R.A.). When the First Presidency opposed the E.R.A., they cited the way it would have changed various legal rules having to do with the family, a result they characterized as “a moral rather than a legal issue.” I would add my belief that the most fundamental legal and political objection to the proposed E.R.A. was that it would effect a significant reallocation of law-making power from the states to the federal government (Emphasis added).

So not only is the federal system divinely inspired according to Elder Oaks, but this is apparently the grounds for which the First Presidency opposed the Equal Rights Amendment. Contrast that, however, with the Church's recent position on a federal constitutional amendment defining marriage between one man and one woman. Such an amendment would likely represent "a significant reallocation of law-making power from the states to the federal government."

I should point out that I am a firm believer in federalism. But I don't know if I consider it the product of divine revelation. I believe it to the the best governance system thus far conceived, but I don't consider federalism to be gospel truth. The LDS Church's inconsistent positions with respect to federalism seem to bear this out. Unfortunately, I wish the First Presidency had stuck to their guns on this one, because a federal marriage amendment presents quite a few legal problems. (For further reading on this issue, see Nate Oman's excellent post "A Legal Analysis of the 'Marriage Protection Amendment'".)

Photo credit: PBS.