Recently, I thought that I had discovered a ghost in the most unlikely of places. I was reading through the syllabus for the Supreme Court opinion in the case of United States v. Windsor. I was expecting to find a lot of reference to the Equal Protection Clause, and that was certainly in the opinion. The progressives on the Court did not disappoint in that regard.
Also of interest was Justice Kennedy’s appeal to Federalism, an appeal I was pleasantly surprised to see. I have to assume it was Kennedy, because the progressives on the Court who concurred with him in this decision have little concern for Federalism by and large. For them, the highest level of government is a very good place to park lots of authority (and the more the merrier), which is why the Commerce Clause has been interpreted such that federal regulations apply to intrastate commerce in addition to interstate commerce, for example.
I had thought Federalism long dead in an American political sphere inhabited by folks whose baseline assumption is that the federal government is for doing pretty much everything and the states are for doing only a few things that states do. I enjoyed the brief visit from the ghost of Federalism past, and I hope to see that ghost more often.
I was also heartened by the fact that no new rights were woven into the Constitution by judicial fiat and no new powers were granted to the federal government. Not only do I agree with the outcome from a civil liberties perspective, but I like the way this played out far better than the other ways in which it would have played out had the progressives or the conservatives on the Court gotten what they wanted or gotten it more in the way that they would prefer to have it.