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Cultural Federalism: The U.S. Supreme Court’s Reluctance to Unbalance the U.S. Federal System

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Abstract

Cultural Federalism: The U.S. Supreme Court’s Reluctance to Unbalance the U.S. Federal System Although centralization and expansions of federal power have been the overall trends in American federalism since the late 1960s, there has been one important exception to this trend, namely, the reluctance of the U.S. Supreme Court to nationalize significant cultural issues. In its famous ruling of 1954-55 ordering the desegregation of segregated schools in the United States, the Supreme Court triggered the start of what later became known as the “culture wars” in the United States. Although history ultimately vindicated the Court’s 1954-55 ruling, this decision sparked massive resistance and even violence during the 1950s and 1960s and precipitated a realignment of the regional bases of the political parties. The South became predominantly Republican while the Northeast and Far West became predominantly Democratic. Then, in 1973, the Supreme Court legalized abortion nationwide, recognizing abortion as a fundamental right under the Fourteenth Amendment. This ruling sparked a political cultural firestorm, and, unlike the Court’s desegregation ruling, the abortion ruling has not been vindicated by history. Instead, the ruling continues to be divisive. Since, 1973, however, the Supreme Court has retreated from such culturally controversial issues. For example, shortly after 1973, the Court temporarily suspended capital punishment but then allowed states to reinstate it. In 1986, the Court declined to strike down state sodomy laws, waiting to do so only in 2003 after all but 13 states had already abolished their sodomy laws. In 1996, the Court refused to recognize physician-assisted suicide as a fundamental national right, instead leaving it to the states to decide this question. Currently, the Court has displayed no eagerness to address the question of same-sex marriage. Although the Court has otherwise participated wholeheartedly in the centralization process, it has not centralized key cultural issues for a number of reasons, which will be explored in the paper. As part of our analysis we look at some of these key cultural issues and how the public’s policy position on these issues, as well as the public’s views of which order of government should best address the issues, has changed over time. We speculate on how these changes may effect court decisions.