In a controversial 1992 free-speech case, Justice Antonin Scalia famously proclaimed that the government may not “license one side of a debate to fight freestyle, while requiring the other to follow Marquess of Queensberry rules.”
That is exactly what 21st-century political discourse looks like: One side is fighting freestyle—punching below the belt, biting, doing anything to win—and the other side is lying on the canvas, bruised and bludgeoned, but still holding up the rule-book as a moral triumph of punctilious compliance.
That is the dilemma that so-called sanctuary cities present for the president-elect: Do conservatives choose to follow principles of federalism and permit these cities the sovereignty to flout federal law? Or do conservatives push against sanctuary cities, abridging one of their most sacred constitutional principles in the process?
Socrates’ decision to drink hemlock or flee Athens may have been easier.
As some leading conservative and libertarian scholars recently have pointed out, the Constitution limits how the Trump Administration may go after sanctuary cities, and this illustrates how federalism actually helps to protect vulnerable minorities from majoritarianism. Many progressives are joining the chorus, explaining that while they generally detest federalism, it should be preserved when state and local governments are using their sovereignty to protect ethnic minorities from what they perceive to be federal discrimination and persecution.
This suggests to some conservatives that progressives are now going to join them in following Marquess of Queensberry rules, even when it hurts them. These conservative scholars are the nerds of high school, rejoicing that the most attractive cheerleader asked for help with her homework. “Maybe she finally sees something special in me?”
Not a chance, pal.
Sanctuary Cities and Constitutional Doctrine
Limiting the Trump Administration’s authority over sanctuary cities are two sets of Supreme Court doctrines: (1) the court’s spending power cases limiting the federal government’s authority to impose conditions on federal grants, and (2) the court’s 10th Amendment cases limiting the federal government’s authority to compel state execution of federal programs.
As for the spending power, the court has interpreted this to mean that if the federal government imposes conditions on how state or local governments use federal funding, those conditions must be, among other things, clearly defined, relevant to the purpose of the funding, and non-coercive.
All of these factors would be at issue if the Trump Administration sought to withdraw all federal funding from sanctuary cities, because most federal grants are not clearly conditioned on compliance with federal immigration law. Also, such compliance is not relevant to the purpose of most federal funding. Finally, the threat of a significant withdrawal of funding would likely be deemed coercive, tantamount to the proverbial “gun to the head” bargain.
Although the administration could certainly condition some federal grants on enforcement of immigration law, this would likely not amount to a sufficient loss of funding to induce compliance in many major sanctuary cities like New York, San Francisco, and Chicago. To induce full compliance in these cities, the administration would likely need to withdraw a hefty amount of federal funding. And the court’s precedents pose a substantial obstacle to that course of action.
Likewise, the court’s interpretations of the 10th Amendment bar the administration from requiring state and local officials to report undocumented immigrants. The so-called “commandeering doctrine” prohibits the federal government from enlisting state and local agents to perform the handiwork of the federal government.
These are of course salutary Rehnquist court doctrines, beloved by conservatives, but despised by progressives, who generally loathe federalism and decentralization. The question is whether the Trump Administration should meekly follow these doctrines now, when such a fundamental policy issue is at stake and despite the fact that the other party would never constrain itself in pursuing its own policy goals.
Do you start free-styling or do you continue to follow Marquess of Queensberry rules?
Progressive Inconsistency
In a normal polity, in normal times, where political parties and competing ideologies disagree on particular policies but fundamentally agree on the legitimacy of the rules of combat (i.e., the Constitution), this would be an easy question: conservatives, in that case, would and should honor these spending power and 10th Amendment doctrines.
But this is not a normal polity, and these are not normal times. This a polity where, after a significant number of people claimed to be “literally terrified” that the Republican nominee would not accept defeat, those very people then turned around and refused to accept defeat themselves. These are times when the people who have complained endlessly about federalism now conspire to secede from the union and wage a coup.
This is a polity where fears of white nationalism run rampant, partly because a Jewish man and an Asian pornographic actress made an obscene racist gesture out of a desperate need for attention, apparent mental disability, and an obviously demented sense of humor. And because of this obscene gesture performed privately in a room far from Trump’s cognizance, the president-elect was somehow painted as responsible and compelled to disavow people he doesn’t know and clearly has no interest in ever knowing. Yet when the other party considers making an outspoken black nationalist and anti-Semite its chairman, there is no such outcry.
It has come to this: A lack of a connection with white nationalism requires condemnation and disavowal, but a direct connection with black nationalism and anti-Semitism warrants praise. Got it. Freestyle, meet Marquess of Queensberry.
This is a polity where an actor harangues the vice president-elect and his children for graciously attending the actor’s overpriced, propaganda filled rap-musical. And not only that, but the actor did so condescendingly on behalf of the entirely non-white cast (except for the actor playing the English tyrant, George III) that he introduced to the vice president-elect as “the diverse America” (apparently, “diverse” means “non-white”). Vice President-elect Mike Pence, after years of playing by Marquess of Queensberry rules, claimed he “wasn’t offended,” because apparently condescension and self-entitlement are, in Pence’s words, “what freedom sounds like.”
Freedom also apparently was ringing when this particular actor, this ambassador of diverse America, tweeted that St. Patrick’s Day (a celebration of the patron saint of Ireland) was a sort of Merry Christmas (a celebration of the birth of Jesus Christ) for “black dudes” who enjoy assaulting drunk white women (how is that for cultural appropriation?). This culturally sensitive actor who urged Pence “to uphold our American values” also approvingly had tweeted a call for sexual violence against white mothers as retribution for the tragic death of Trayvon Martin at the hands of an Hispanic male. Again, no outcry from the party of progress, and no apology from the author of these violent and deplorable statements.
Secession, coups, ethno-states, race-and gender-based violence. This is the Democratic Party of 1861. And it is, apparently, still a feature rather than a bug of the Democratic Party of 2016. Another day, another non-disavowal.
But this is not yet another “liberals contradict their own liberal principles” piece. Liberals have been doing that for decades. And conservatives keep pointing it out. And no one cares.
Don’t get me wrong—it is supremely satisfying to point out inconsistency. That is largely what makes watching Fox News so pleasurable for conservatives. You go after those hypocrites Tucker Carlson!
Despite being satisfying, however, nothing is accomplished from such finger-pointing, other than further subjecting conservatism to the constraints of progressivism. Indeed, when conservatives do this, they are implicitly seeking the praise of their opponents—to prove to progressives that they can serve their constituencies better than they can, because conservatives, after all, are the real progressives.
Wait, what? If conservatives are truly progressives, then who are the conservatives? That’s exactly why the current crisis of ideological identity has emerged.
So long as conservatives defend principles such as federalism on decidedly non-principled grounds—for example, by claiming that federalism is really about benefiting Democratic voters—conservatives will lose. And progressives will win because they have no interest in doing this in reverse. Just imagine House Minority Leader Nancy Pelosi (D-Calif.) defending her party’s various positions on the ground they would benefit rural Republican voters. (Once you stop laughing, please continue reading.)
My overriding concern, as a legal scholar and political scientist, is not with the question of which side wins or loses, but with what will happen to American political and legal discourse in the long-run if the only way that conservatives make arguments is by appealing to how their principles favor progressive outcomes. Indeed, there were precious few appeals to federalism when the Obama Administration sought to regulate, for example, public school bathrooms, community residential demographics, and local school disciplinary policies. But some conservatives are now eager to burden themselves with federalism constraints in the arena of sanctuary cities to prove just how much federalism favors progressives. Again, these are nerds offering to do homework for cheerleaders, with the hope it will score them a prom date.
This pattern, I worry, will lead the next generation of conservatives to give up on Marquess of Queensberry rules. Which would not only be a shame for the cause of civility, but a disaster for civilization itself. Is there a way out of this conundrum?
Three Steps to Get Back to Marquess of Queensberry Rules
This problem may very well be too far gone to resolve with easy solutions, but taking the following three steps may go a long way toward rehabilitating our crumbling discourse.
First, stop playing the progressive “find the racist” shell game. Because of the way our cultural landscape is currently configured—in terms of media, entertainment, and academia—there is no way conservatives will win this game. So stop playing it. Calling Keith Ellison a litany of names will do nothing to protect Jeff Sessions. It is foolish to think it will.
At the same time, conservatives should feel less obligated to renounce and disavow every person upon command. Of course, any reasonable and good person should condemn hateful statements and sentiments, but that is different from being at the moral mercy of your opponents, especially when playing that game serves to entrench and institutionalize rules that hurt only conservatives.
Second, conservatives should consider accepting federalism limitations for sanctuary cities, so long as doing so corresponds with empowering states like Arizona and Texas to impose stricter immigration requirements than federal law mandates. Federalism must go both ways. Progressives often advocate federalism only when it favors strengthening civil liberties for particular minority groups. But federalism does not work when it is so narrowly tailored to particular ideological causes.
Rather, federalism works to diffuse intense political polarization only when it permits a broad range of regional disagreement, in both conservative and progressive directions. This means that the Trump Administration should make it a priority to overrule cases like Arizona v. United States (2012), which denied the states the authority to impose stricter immigration requirements than federal law requires. If sanctuary cities can exist, so can Sheriff Joe.
Finally, stop framing federalism and liberty arguments in narrow egalitarian terms. Over the past 25 years, the Republican Party has become preoccupied with framing its agenda to appeal to Democratic voters—for example, in making school vouchers for urban low-income residents the core of its education policy.
But what about school choice for middle-class residents, who overwhelmingly vote Republican, and who are chased out of cities into suburban school districts because they are not eligible for voucher programs and cannot afford the fancy private schools that cater to progressive urban elites? Part of making American cities great again involves diversifying them, ideologically and economically, so that they do not simply represent the Democrats’ barbell electorate, consisting of extreme wealth and poverty. This means framing federalism and liberty arguments in terms of many different causes. Conservatives should fight for tax incentives for homeschooling and private education with the same intensity as they have been fighting for voucher programs over the last 25 years.
I cannot say for sure whether these approaches will resuscitate political civility and ideological fairness. But at least it will mean not lying on the canvas, bruised and bludgeoned, clutching your precious rules in defeat.