Ever since the Supreme Court’s Citizens United decision in 2010, it’s been fashionable to deplore (with full-on How dare they? indignation) the power of big business in our political process. But judging from recent events, I’m more inclined to regret that corporations don’t have a greater say in our civic life.

Seriously. Think about the recent rash of exhilarating triumphs for once-marginalized minorities: the U.S. Supreme Court legalizing gay marriage across the land; South Carolina hastening to lower the Confederate flag of sedition and racism; a Republican presidential candidate being ostracized for bashing Latino immigrants. One of the threads connecting each of these stories is the presence of corporate America flexing its muscles, taking a stand against the bullying and discrimination of minorities.

In the landmark marriage case, a Who’s Who list of blue-chip companies from Procter & Gamble to Goldman Sachs signed onto legal briefs urging the justices to strike down all bans on gay marriage. They argued that such bans conflict with their own anti-discrimination and diversity policies, and that you can’t have a country (and cohesive marketplace) where fundamental rights—like the right to marry—vary from state to state.

Even more impressively, big business mobilized in a number of states over the past two years to defeat or roll back proposed “religious freedom” laws seen as disingenuous efforts to legitimize the discrimination of gays. No single company has been more identified with the effort to stand up to such laws than Walmart, which was credited with singlehandedly defeating a proposed measure in its home state of Arkansas. The retailer also joined other prominent businesses in attacking another such law passed in Indiana, which was subsequently altered.

Business interests were also instrumental in turning the tide against the Confederacy. The New York Times story on South Carolina Governor Nikki Haley’s decision to call for the removal of the Confederate flag from the State Capitol grounds in the aftermath of the racially-motivated massacre at the Emanuel Church credited “intensifying pressure from South Carolina business leaders to remove a controversial vestige of the state’s past” as one factor leading to the governor’s reversal of her previous position.

Arizona is another state where businesses leaders fought against, and defeated, a religious freedom law that would have otherwise prevailed. In addition, establishment Republicans and corporate leaders in the Grand Canyon State have been in full damage-control mode since the state legislature passed SB 1070, a controversial anti-immigration measure which proved disastrous to the state’s brand as a tourism and investment destination. Subsequently, the business community mobilized to defeat a number of other, ever more radical, anti-immigrant proposed laws in the state, and to take on the Tea Party Republicans responsible for them.

At the national level, the U.S. Chamber of Commerce and other business groups have led the charge for sensible immigration reform—though this effort can’t yet be checked off as a victory. If only the business lobby had as much power as we often assume it does! In the meantime, it was gratifying for Latino activists aligned with business on immigration to watch Donald Trump be fired by corporate partners like Macy’s, Comcast, Univision, and Disney over his hateful comments about Mexicans. Turns out, vicious speech denigrating immigrants may be acceptable speech in certain political circles, but not in the corporate realm.

Some politicians eager to cater to local prejudices, and capitalize on them, are clearly chafing at the activism of corporations on behalf of a healthier business climate. This spring, while pushing for his own religious freedom law, Louisiana Governor Bobby Jindal practically whined in a New York Times op-ed: “As the fight for religious liberty moves to Louisiana, I have a clear message for any corporation that contemplates bullying our state: Save your breath.”

It’s an interesting line, not only because he ascribed “breath” to companies, doubling down on the much-mocked pronouncement of then-candidate Mitt Romney that companies are essentially people, too. Jindal’s choice of the verb “bullying” is deliciously hypocritical, because in this case (as in the others described above), it was business rising up to oppose the bullying of people by small-minded politicians.

And this is the key issue on which I differ from many of my friends and colleagues in journalism and academia who hold to a reflexively anti-corporate worldview. They see large, distant corporations as the source of much bullying. I tend to see the worst forms of bullying arising closer to home: at the hands of local or state governments, or dominant business interests rooted in one place.

No, there isn’t anything inherently virtuous about business leaders. As cynics are quick to note, the political fights I’ve described here are all about business wanting what’s best for business. Companies need to avoid offending existing or potential customers and they need to be seen as being inclusive and diverse employers to the best and brightest potential hires out there. I’ll still take those selfish impulses: If only more governments were similarly motivated, instead of being willing to marginalize minorities.

Most business lobbying is admittedly not focused on civic or “business climate” issues like the ones I am raising, but rather on narrower, self-interested agendas of particular companies or industries—say, to influence the drafting or application of regulations, or tax laws. Critics resent the billions spent by corporations and their trade associations in trying to influence the political process, especially since the amounts they spend dwarf the lobbying expenditures of everyone else. But lost in the depiction of a monolithic corporate America pitted against the rest of us, getting its way behind closed doors, is the fact that a significant portion of those business lobbying efforts and dollars are essentially engaged in an intramural corporate contest. It’s about one industry or company seeking to gain advantage (or a level playing field, they might say) against a competitor. Those dollars often cancel each other out. But when the business community does come together to speak with one voice, on broader issues affecting us all, it tends to play a powerful and positive role.

Big business tends to be more enlightened than smaller business interests rooted in only one place, because the broader your perspective, the bigger your market, the less tolerant you can afford to be of idiosyncratic regional prejudices. A company with customers and employees across the country or around the world won’t be comfortable choosing as its home a state that embraces symbols associated with the cause of slavery, or one that passes laws that treat gay couples as second-class citizens or one perceived to be harassing foreigners. It’s no accident that commerce across state lines has always been one of the great motors of progress in this country, and not just economic progress.

That is also why trade agreements that seek to harmonize norms across borders are as beneficial to individuals as they are to big multinationals. The prospect of joining the European Union (and attracting investment by large foreign companies) forced governments across Eastern Europe to protect the rights of long-oppressed minorities. As much as Elizabeth Warren and her protectionist allies have attacked President Obama’s proposed trade deal with Asia as a sop to big business, the agreement will help strengthen civil society and individual rights in these countries for precisely the reasons these critics attack it—by standardizing norms of behavior across jurisdictions.

Bigotry, and the disregard of people’s rights and dignity that comes with it, don’t travel well. And they’re bad for business.

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A Court decision that relies on our federal constitution to legalize gay marriage across the country would be a triumph for individual liberty, common sense, and human decency. It would also amount to a well-deserved blow against that most persistent of villains throughout American history: the destructive creed of state rights and state sovereignty.

That same creed is at issue in the Obamacare case that is also expected to be decided this month, as the Court concludes its current term. At first glance, the Affordable Care Act and the institution of gay marriage don’t seem to have much in common as litigation subjects, but this case, too, is as much about the proper relationship between the states and the federal government as it is about anything else—which is true of so many of our political and legal fights these days.

King v. Burwell, the Obamacare decision, is a fluke of a case, an opportunity for opponents of the law to take another swing at the piñata (which they damaged, but did not break it in an earlier challenge) by capitalizing on some careless legislative drafting. The law allows the federal government to provide subsidies to lower-income insurance customers who sign up for coverage on the new exchanges “established by the state.” Trouble is, pursuant to other sections of the law, it was the federal government that ended up establishing an exchange for those states that refused to establish their own—and no one involved in drafting the law intended for its patients to be denied the same subsidies available to people signing up for coverage on a state-created exchange. Now, in their feverish desire to interfere with the relationship between American citizens and their national government, opponents of the law are hoping the Supreme Court will cut off millions of people from the support and coverage they are receiving.

As we await these landmark decisions that are so of the moment, it’s worth reading Joseph J. Ellis’s new book, The Quartet: Orchestrating the Second American Revolution 1783-1789. It’s a masterful reminder of how timeless this tension is between the concept of the United States as a singular nation and the United States as merely a confederation of sovereign states.

Ellis chronicles how four of our more visionary Founding Fathers—George Washington, John Jay, Alexander Hamilton, and James Madison—recognized from the earliest days after independence that the individual states, and the excessive power retained by them under the loose Articles of Confederation, were a serious threat to the promise of the American Revolution.

Hence this influential “quartet” pushed for the 1787 Constitutional Convention in Philadelphia. Washington’s greatness lay in the fact that, from his earliest days leading the Continental Army, he transcended his narrow identification with Virginia, to think more broadly in terms of an American nation. He came out of self-imposed retirement to lend his enormous credibility to the Philadelphia proceedings. Washington wrote at the time (in what can be read as a challenge to pro-confederation Virginians then, but also to Virginia Confederates who’d secede from the Union in the following century): “We are either a United people or we are not. If the former, let us, in all matters of general concern act as a nation … If we are not, let us no longer act a farce by pretending to it.”

Ellis captures the rare brilliance and admirable foresight of Washington’s three intellectual partners in this quest—Jay, Hamilton, and the first president’s fellow Virginian, Madison. All three men had a clear vision of an America destined to be a unique power in the world, defined by its collective sense of purpose and its citizens’ liberty. They understood that to survive, and thrive, as a continental power, the United States needed a stronger national government representing, and protecting, all of its people.

Madison, often cited as the father of the Constitution, lost plenty of battles at Philadelphia, starting with his bedrock insistence that sovereign power be shifted entirely from the states to the central government. Madison gave up on what he initially considered his non-negotiable demand for a federal veto power over state laws, as he would later have to surrender on his proposal that some of the Bill of Rights also limit the power of states. Though the closest of political partners at other times, Madison and Jefferson disagreed vehemently over whether it was state governments or the new federal government that would be the biggest threat to individual liberty and rights, and history has proven Jefferson spectacularly wrong in that debate. It’s hard to blame him: Madison’s (and Hamilton’s) belief that the larger, more distant national government could be a more representative embodiment of “We the People” was a very modern concept.

But being so ahead of their time limited The Quartet’s contemporary success. They were able to remedy the immediate flaws of the Articles of Confederation, bind the new nation closer together and set it on the right course, but their new Constitution, by political necessity, was riddled with fraught compromises – such as the electoral college and the equal vote of each state in the Senate—whose underlying tensions would define much of American history.

Abraham Lincoln ratified and reinvigorated the Quartet’s accomplishment to the point where he deserves to join Ellis’ crew, and make it a Quintet. The Civil War and its aftermath—especially the 14th Amendment on which the gay marriage case should hinge—delivered on the Madisonian concept of a federal government empowered to protect citizens—especially minorities—from the bullying of local and state authorities (i.e., majorities). But that doesn’t mean the fight is over.

Nowadays we don’t often think about these federalist debates that have haunted our history, because we are too busy—and this goes for both conservatives and liberals—gaming the tension between Washington and state capitals. Even within the gay marriage legal fights over the last decade, both sides have taken turns, depending on the prevailing winds, arguing in favor of a state’s right to define marriage for itself, damned what the rest of the country thinks.

Too rarely do we ask ourselves the more fundamental question of whether we are citizens of California or Texas—or the United States? If the Quartet had invented a time machine and paid us a visit, they’d be astonished at the resilience of the state sovereignty creed, despite all we’ve been through as a nation. Too many Americans stubbornly cling to the belief that the United States is a confederation in which citizens’ fundamental rights—on issues like marriage, access to baseline health care, and what is taught in their public schools—can and should vary across state lines, to accommodate local biases.

Let’s hope in the coming days and weeks that five such Americans aren’t sitting on the Supreme Court.

The post What Do Gay Marriage and Obamacare Have in Common? appeared first on Zócalo Public Square.

The debate over gay marriage pits two visions of America against each other, and I worry that the least enlightened one, bolstered by President Obama, is carrying the day.

I am not talking about the issue of whether marriage should be limited to heterosexual couples, mind you, but about the timeless question of whether we are to be one cohesive nation whose citizens enjoy the same “privileges and immunities” throughout–or whether, by contrast, we are to be a patchwork of states and communities whose residents’ individual rights vary according to their local community’s prevailing “standards.”

Earlier this month, the president told ABC News that he is personally in favor of gay marriage but wants the issue resolved by states. That’s deeply unsatisfying. It’s illogical for the nation’s first African-American president, a former Harvard Law Review editor and constitutional law professor at the University of Chicago, to say that the right of gays to marry whomever they want is a clear matter of equality and due process but then leave it up to the states to go their own ways. Good luck with that, if you’re a same-sex couple wanting to get married in Alabama.

President Obama was quick to say in his interview that the definition of marriage (like the issue of slavery in the first decades of our nation, I might add) has historically been a state prerogative. Never mind that in 1967 the Supreme Court struck down Virginia’s ban on interracial marriage, holding that the ban violated the Equal Protection and Due Process clauses of the Fourteenth Amendment. Writing for a unanimous majority, Chief Justice Earl Warren wrote, “Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.” The Constitution, Warren added, required that “the freedom of choice to marry not be restricted by invidious discriminations.” In other words: Buzz off, states.

Both competing visions of social cohesion–the national one and the communitarian one–have long co-existed in tension (“tension” being a polite euphemism to cover a brutal civil war as well). Our Founding Fathers subscribed to the belief that being an American transcended one’s narrower state identity while still bequeathing us a nation in which some states outlawed slavery and others allowed it to flourish.

The Civil War’s outcome, enshrined in the Thirteenth, Fourteenth, and Fifteenth Amendments of the Constitution, appeared to have settled the matter for good. We would no longer remain what the Chinese in a far different context have recently called “one country, two systems.” Liberty, freedom, equality, and the pursuit of happiness were now going to mean the same thing in Alabama as they did in Vermont.

The South’s states’ rights mantra proved more resilient than anticipated, however, and it took a concerted effort by liberals, leveraging the power of the Supreme Court and the Congress, to restore a sense that we are one nation, undivided, whose citizens should enjoy the same rights and protections, regardless of state boundaries.

The Warren Court’s jurisprudence was the highest expression of national cohesion, and it was echoed at the time by the muscular nationalism of Lyndon Johnson’s Great Society. “There is no issue of states’ rights or national rights,” President Johnson declared in a stirring televised pitch for his Voting Rights Act on the heels of violence in Selma, Alabama, in March of 1965. “There is only the struggle for human rights.”

Included in the speech was a nationalistic sentiment that encapsulated the era’s progressive quest to forge one America. “This is one nation,” Johnson said. “What happens in Selma and Cincinnati is a matter of legitimate concern to every American.”

Today, such a declaration rings more hollow. President Obama’s hesitation to call for a national push to enforce equality for gays–his instinct that this is a matter best left to the states–is considered sensible and wise by plenty of leading progressive thinkers and activists. States’ rights have gone bipartisan.

Today’s revitalized, bipartisan federalism is fueled by two factors. The first is the political “sorting out” of the last few decades. The nation is increasingly split into red and blue states whose politics and cultures overlap less and less. Americans self-segregate into left and right communities, consuming only one or the other’s media and entertainment, careful to filter out “the other.” Liberal Republicans and conservative Democrats are endangered species. Blue states, red states; you know who you are.

As more and more Americans live surrounded by like-minded neighbors, the urge wanes to care about the prevailing norms in a community halfway across the country. If someplace else wants to round up immigrants to deport, ban gays from getting married, or allow residents to carry concealed weapons, what’s it to us? By the same token, if we want to welcome illegal immigrants, allow gays to marry, or ban guns, what’s it to them?

California is at the forefront of progressive federalism. Throughout the Bush years, California was regularly doing battle with Washington to forge its own separate path on any number of issues, from consumer protection laws to medical marijuana and environmental regulations.

That’s why an expanding range of issues, including educational standards and immigration policy, is now seen through the same prism that long defined obscenity: that of community standards. Forget about Cincinnati. Why should people living in West Hollywood concern themselves about the rights of people in Selma, or vice versa? Isn’t that a fool’s errand, whose best-case scenario will be an embrace of the lowest common denominator? Better to live and let live.

The second cause for the rise of a progressive federalism is the widespread exhaustion and unease with the role of the judiciary in enforcing constitutional rights and national standards. It’s now fashionable in liberal circles to believe that Roe v. Wade may have backfired by provoking, galvanizing and strengthening the far right for a generation to come–unnecessarily so, the theory goes, given that state legislatures were working their way, if at different speeds, towards legalizing abortion across the country. Even Ruth Bader Ginsburg, the liberal justice, has made this claim. Recently, Eric J. Segall, a law professor at Georgia State University, applied this argument to the 1954 Brown v. Board of Education decision ordering the desegregation of schools; Segall claimed that, because the Court was too far ahead of society, the decision backfired politically. So it’s not surprising that many leading gay rights activists share a preference for legislative triumphs over courtroom wins.

To my read, though, the constitutional rights of individuals should never be compromised by political expediency or convenience or by polling of majorities to see if they are ready to stomach the protection of another’s rights. Courts don’t, and shouldn’t, have the option of avoiding judicial review because it’s politically messy.

Besides, counterfactual history is more art than science. Who knows how less polarized the abortion issue would be had the courts stayed out of it and the struggle been confined to the political arena? And, I would add, who cares? Progressive federalism may be in fashion, but it’s a sad historical retreat. The American constitutional system is built on a non-negotiable belief that there are certain inalienable rights we possess as individuals and citizens that the state, or the prejudices of a majority, cannot wrest away from us.

Fortunately, those pesky courts are unlikely to allow this “let’s let each state decide for itself” stalemate to last indefinitely. The infamous Defense of Marriage Act (an example of conservatives tactically ditching their states’ rights fervor to advance their social agenda through Congress) is under assault in the courts, and California’s own Proposition 8 banning gay marriage has been struck down by the Ninth Circuit Appeals Court (on admittedly narrow grounds that don’t seem to apply to states that never have allowed gay marriage).

President Obama has been commended, and rightly so, for “evolving” in his thinking on whether gays should be able to commit to loved ones in marriage. Now, hopefully, he will evolve in his thinking about whether he wants to preside over one country, or two.

Andrés Martinez is the editorial director of Zócalo Public Square and a vice president at the New America Foundation.

*Photos courtesy of Jason DeFillippo cliff1066.

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