In the 1970s it was routine for conservatives to be vociferously in favor of the death penalty. Crime was high, Democrats were against it (and on the wrong side of public opinion) and courts – despite the clear language of the Bill of Rights, which contemplated capital punishment — were deciding they could judicially extinguish the practice. In 2014 crime is low, most Democrats are not willing to publicly support its repeal and the courts have said the practice per se is not constitutional. Moreover, the hassle — the expense of endless appeals and the problem of obtaining a technique that is fast and humane — and development of DNA testing that has freed some death row inmates have made the death penalty a whole lot less attractive. Add to all that the political reality that some 30 governors are Republicans who must struggle to apply the death penalty in a way that meets muster in the courts and the court of public opinion. You then must wonder how much longer the death penalty will remain the default position even for conservatives.
Conservatives can maintain their constitutional argument that the death penalty is permitted. Pro-life conservatives can maintain the moral distinction between innocent life and execution of heinous criminals, thereby preserving “pro-life/pro-death penalty” as an intellectually honest position. But they can also say in practical terms the death penalty just isn’t worth the hassle.
In some states the death penalty is politically popular and runs rather smoothly. Texas Gov. Rick Perry said on Sunday on “Meet the Press”: “I think we have an appropriate process in place from the standpoint of the appeals process to make sure that due process is addressed. And the process of the actual execution, I will suggest to you, is very different from Oklahoma. We only use one drug. But I’m confident that the way that the executions are taken care of in the state of Texas are appropriate.” He also made a sound point in taking issue with the president’s decision to take a “pause” on executions: “He all too often — whether it’s on health care or whether it’s on education or whether it’s on this issue of how states deal with the death penalty — he looks for a one-size-fits-all solution centric to Washington.”
That is not only a valid criticism of the president, but points to the degree to which issues that once dominated national politics — death penalty, drug laws and gay marriage — can increasingly be seen as state matters. Conservatives resist calling a “truce” on social issues, but in fact a geographic truce of a sort is emerging. Texas can have the death penalty, tough drug laws and outlaw gay marriage; Massachusetts can select the reverse on each issue. It is not ideal for advocates who see these issues in strict moral terms (e.g. the death penalty is itself murder; gay marriage is everyone’s fundamental right), but it is a way of managing increased polarization in our political system. And it does allow changes in public sentiment to happen gradually over time and therefore attain greater political legitimacy.
This process fails, of course, when federal courts take the decision out of the states and nationalize the issue. No state can outlaw and severely limit abortion, says the Supreme Court. The court invalidated every state death penalty statute in the 1970s. In the case of gay marriage, the Supreme Court took a decidedly different approach. And whatever you think of the muddled jurisprudence of Supreme Court Justice Anthony Kennedy, the Supreme Court said the federal government was neither going to insist on gay marriage everywhere nor deny federal benefits everywhere to gay couples. The states were going to work it out, and they are — with more states adopting gay marriage by legislative action or referenda. Likewise, the Supreme Court in the Voting Rights Act case said the federal government did not have the factual predicate necessary to federalize voting rules in the pre-clearance states. If Congress is going to micro-manage state voting procedures, they’ll have to find real evidence of continued deprivation of voting rights.
If conservatives truly believe in the 10th Amendment, the resurgence in pro-federalism sentiment should be welcomed with open arms. If liberals think the public is on their side in these issues, they should be grateful for the opportunity to put issues into the political arena and let states register approval with them. And if we want to reduce gridlock, paralysis and vicious partisanship at the national level so as to focus on huge national challenges (e.g. growth, debt, national security), federalism is a welcome safety value.
Once again it turns out that the Founders had a pretty good grasp of political “factions” and how to manage them in a diverse democracy. We’d be wise to encourage the federalism fad; it is a crucial aspect of our system for very good reasons.