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Is Federalism Tainted?:
Over at BloggingHeads.tv, Ann Althouse and Jonah Goldberg have a very interesting video discussion of a question raised by a recent Liberty Fund conference about Frank Meyer: Can you detach constitutional doctrines and principles from the history of the political environment in which such doctrines and principles were used? They focus on federalism and states' rights, which 50 years ago often were used by racists in the South to defend Jim Crow. Does that history mean that federalism is now tainted? Should proponents of federalism atone for the past associations of their ideas? Or should ideas stand on their own merits, without regard for who has used them in the past?
SKlein:
It seems to me that federalism is not an idea that has its "own merits," It is strictly an instrumental doctrine that must be judged by its outcomes. The fact that important federalist theorists believed that the doctrine mandated tolerance of Jim Crow is a serious strike against the doctrine.
12.25.2006 11:39pm
Respondent (mail):
Ilya Somin has made a good case that slavery would have lasted in the US even longer (and certainly longer in the free northern states)had we not had a federalist system of government. This is a serious strike against any Supreme Court decision like Raich (slavery banned in northern states because southern states accepted the decision being made on a state by state basis, knowing full well that congress couln't ban slave possession in southern states as "necessary and proper" to prevent slaves from being moved in interstate commerce). And federalism is the only control we have against abusive government laws in the absence of a robust substantive due process doctrine. A state can ban medical marijuana, but one who really needs it can move to another state as long as the limits on the commerce clause are properly enforced, and the feds are prevented from regulating possession of marijuana, alcohol, guns, or anything else.
(P.S. I say guns because Justice Alito made a comment during his nomination hearings strongly implying that the only limits he believes are placed on the ban of gun ownership are the Article one limits that constrain Congress. So much for Bush's promise to appoint justices like Scalia and Thomas, both of whom have gone on record as being second amendment friendly in the past. Not to mention Apprendi, where there is little doubt Justice Alito (and Roberts, who is also 2nd amendment friendly) has his sympathies with the dissent.
12.26.2006 12:12am
Ty:
SKlein: I read your post as I was about to write a much longer one that expressed the same sentiment far less clearly. Thank you for saving me the time.

-Ty
12.26.2006 12:28am
jgshapiro (mail):
Jim Crow may have flourished under federalism, but slavery flourished under democracy and republicanism until the Civil War. If you're going to call federalism an instrumental doctrine that has to be judged in light of its outcomes, don't you have to do the same for such broader doctrines as (small-d) democracy and (small-r) republicanism?

Seems to me you can have good or evil under any system of democratic government. Is there any reason to believe federalism is more likely to lead to evil, on the one hand, than a strong national government with states as mere appendages of that government, on the other?
12.26.2006 12:39am
Lev:

Can you detach constitutional doctrines and principles from the history of the political environment in which such doctrines and principles were used?


So. Under the Constitutional doctrine of "equal protection" wasn't "separate but equal" ok? And if so, why was such an abomination ever used to justify the "opposite" of "separate but equal"?
12.26.2006 1:23am
txjeansguy (mail):
jgshapiro, I would classify both democracy and republicanism as structural schemes that find their power in the values of the peole, not instrumentalist doctrines that can be arbitrarily discarded if they don't produce the most utils. In other words, democracy and republicanism aren't judged by its outcomes but rather by how well they express the will of the people. There's no such rock-bottom moral aspect to federalism, as long as the centralized or decentralized government represents the people. Of course, protection of minority rights is a necessary component, as has been discussed on this board with regard to the centralized German Socialist government. The necessity of protection of minorities, I believe, has sufficiently been incorporated into these notions to differentiate them from simple instrumental theories.

Maybe that's splitting hairs, but the question seems to already have done the splitting.
12.26.2006 5:07am
txjeansguy (mail):
Clarification: the "question" that I believe has highlighted the differences between democracy and republicanism, on one hand, and federalism and other "instrumentalist doctrines," was jgshapiro's, not Prof. Kerr's. With regard to the question raised by the conference, I suppose my previous post does try to separate democracy and republicanism from their historical roots. I believe the separation is conceptual as well as historical. Also, please excuse my typos.
12.26.2006 5:12am
Henderson (mail):
First, the posters above rightly point out that the association between federalism and racism is just as accurate as the association of Hamiltonian strong federal government and slavery, war, etc., etc. Second, do we have any statistical or empirical (or non intuitive) evidence that segregated schools do not work as well as or better than integrated schools? I understand the problems that racism creates, just like I understand the problems hate and crime create. But I don't understand why having segregated schools whether it is male/female, or science/literature, or by color, religion or culture, would NECESSARILY create lower societal utility. I have no doubt that integrated schools MAY work better, but I have to wonder why someone is so quickly dehumanized and despised for suggesting that segregated schools might work better. It seems like an empirical question to me, so intuitive responses don't really interest me here. Is Anne freaked out because a strong supporter of federalism was also a racist? A majority of early presidents and members of the constitutional convention owned slaves; does that impugn democracy? Third, Anne says that Jonah needs to apologize for being a federalist, as though he needs to apologize for racism and Jim Crowe. Does this make any sense to anyone? Jonah is saying over and over that he isn't racist and hates the idea of segregation. What on earth should he have to apologize for? If he has to apologize for that, then Anne should have to apologize for Iraq, which was the result of a strong, cohesive federal government. Plus, she talks about 70% of the time, and says less than he says in 30% of the time; and she keeps using information-lacking pejoratives like "scary" and "cultish" and "republican cacoon"... these terms have no meaning; they only imply intuitive reaction, which we all know is worthless when making complex decisions. I am glad she does not teach at my law school.
12.26.2006 5:27am
Ted Frank (www):
"Federalism" and "states' rights" are different doctrines. So (while not wanting to sit through a bloggingheads video) I don't understand what the post is asking. Nothing about federalism inherently requires or prohibits discrimination against African-Americans any more than having a flag with the color blue in it does.

It's important to define the terms. NAAG uses the concept of "federalism" to rationalize regulation of the national economy by state attorneys general and argue against federal preemption of such regulation, but that just speaks to NAAG rather than to the merits of "federalism," since other federalists would argue (more plausibly) that such regulation belongs if anywhere in the province of the federal government.
12.26.2006 6:09am
markm (mail):
IIRC, up until 1861 the only major impositions of federal power over the states were excise and customs tax collections and the Fugitive Slave laws. Federal taxation was specifically allowed by the Constitution and obviously necessary for the maintenance of a federal government and the common defense. Forcing officials of free states to help re-capture runaway slaves was not a specifically granted power.

It looks to me like the first violation of state's rights was in aid of slavery. Does this mean that federal power is tainted?
12.26.2006 6:16am
PersonFromPorlock:
It sometimes helps test the logic of an argument to change the nouns, so: do Scott and Plessy show the judicial system is tainted?
12.26.2006 8:11am
Richard Aubrey (mail):
If federalism is an idea not tainted by its opponents for its past uses, it would be the first.
Pointing to past uses is a common tactic of dishonest disputation.
12.26.2006 9:27am
Justin (mail):
Without getting into a debate about the legal merits of Plessy or Scott, or to blame federalism or democracy on racism and discrimination in our history, let me say that I agree with the first commenter that

"It seems to me that federalism is not an idea that has its "own merits," It is strictly an instrumental doctrine that must be judged by its outcomes."

Those people whose determination to counter national will is immoral will turn to federalism, as well as those whose determination to counter an immoral national will.

It is sufficient to point out that both of those who supported and opposed slavery, and those who supported and opposed Jim Crow, and those who have supported and opposed the various wars in our society, have thought their position the "moral" one.
12.26.2006 9:30am
Scott Wood (mail):
==>
12.26.2006 9:42am
Scott Wood (mail):
-->...The fact that important federalist theorists believed that the doctrine mandated tolerance of Jim Crow is a serious strike against the doctrine.<--

In the same way that Eric Rudolph and Muhammad Atta are serious strikes against the First Amendment.

What happens in the non-Federalist worlds when the central government favors Jim Crow but a handful of states don't?
12.26.2006 9:49am
WillbBKing (mail):
It seems to me that any discussion on Federalism today is lacking if the subject of the 17th Amendment is left out as it has destroyed what the Founders intended as a major check on the Federal gov. As it stands now Estonia, Congo, Sri Lanka and the Vatican have a representative of their govmts in DC and yet none of the 50 states do. W/O such representation the states have no way to prevent being saddled with unfunded mandates or political blackmail (do what the Feds tell you or your fed funds will be held back!). Consequently, it is not suprising that since this law was passed the Federal govt has ballooned and its reach has crept into every nook and cranny of our lives. As for slavery, I would look to the failed nature of us humans, not to a theory of govt for its cause.
12.26.2006 10:03am
JB:
Anything can be twisted to justify anything. Witness killings in the name of Christ, the extension of the commerce clause...we should no more abandon Christianity because of the crimes committed by christians, or the federal government's ability to regulate true interstate commerce because of its absurd overstretching, than we should abandon federalism because many states used it as a shield to protect odious policies.

Or maybe that's an argument for abandoning all three.
12.26.2006 10:37am
Elliot Reed:
They focus on federalism and states' rights, which 50 years ago often were used by racists in the South to defend Jim Crow. Does that history mean that federalism is now tainted? Should proponents of federalism atone for the past associations of their ideas? Or should ideas stand on their own merits, without regard for who has used them in the past?
Talk about a loaded question! Let's put the same issue a different way:
Should supporters of a weaker federal government relative to the states be able to ignore the disastrous and evil consequences that would have followed if their ideas had been applied to Jim Crow fifty-two years ago? Or should the merits of an idea be judged on all the evidence?
12.26.2006 11:04am
Anderson (mail) (www):
Or should ideas stand on their own merits, without regard for who has used them in the past?

Look for my rehabilitation of National Socialism in 2007. Nationalism's good ... socialism's good ... what's not to like?

More seriously ... Henderson writes:

I have to wonder why someone is so quickly dehumanized and despised for suggesting that segregated schools might work better.

Well, if you're a Martian, you might wonder that. In America, we recall that schools were segregated because white people despised black people and didn't want their children educated together. That tended to have a bad effect on funding for the black schools, among other things. So, if you're *really* puzzled why people react badly to segregation in the abstract, maybe knowing some history would help.

When I moved to Miss. in 8th grade, I went to a jr. high that had been the "black school" in days gone by. What a dump, even with the obvious attempts at post-integration refurbishment. It's now been literaly razed to the ground and built up from scratch.
12.26.2006 11:19am
Anderson (mail) (www):
Separate comment on federalism:

The problem for federalism is not so much the misuses that have been made of it in the past, it seems to me, but rather the (perceived?) lack of any forthright explanation of why those misuses really were misuses, and not inherent in the theory.

I say "perceived" because I'm frankly not up on the academic discussion &debates, but it seems clear enough that any such explanation hasn't descended to ground level from the ivory tower.

A principal problem would seem to be the incorporation-or-not of the Bill of Rights in the 14th Amendment. What do present-day federalists think of that?
12.26.2006 11:23am
gahrie (mail) (www):
I actually wrote quite a long post on this subject early this morning on my blog

Short answer? No.
12.26.2006 11:25am
Ken Arromdee:
Look for my rehabilitation of National Socialism in 2007. Nationalism's good ... socialism's good ... what's not to like?

Even assuming Naziism is a form of socialism (some points can be made for it, but it's debatable), it's still a lot more specific than "anything which is nationalist and socialist".

If you were to try to rehabilitate it by starting a movement that was just nationalist and socialist, there would be nothing wrong with that (other than the bad public relations from using the name). It's not as if the other aspects of Naziism were a necessary consequence of being nationalist and socialist.

(And Jim Crow isn't a necessary consequence of being federalist, either.)
12.26.2006 11:44am
CJColucci:
The entire debate strikes me as phony. What is "federalism?" There is a hard core of actual law divvying up federal and state functions. Then there is a vast area where reasonable people can differ about which level of government CAN do a certain job. Then there is an even vaster area where reasonable people can differ about which level of government SHOULD do the job. I imagine that our seminar rooms have some people with genuinely principled views on each of these issues. In actual life, however, I suspect that most of us are thoroughly unprincipled about federalism, favoring whatever views -- however inconsistent -- seem to us to protect whatever substantive interests we care about. The slave states, for example, bawled for federal action the instant it seemed to offer their peculiar institution more protection than their former insistence on states' rights did. In that context, it's fair game to point out that the recent uses of federalism have put the doctrine in somewhat bad odor.
12.26.2006 11:52am
JosephSlater (mail):
As to the original post, let's separate two meanings of "tainted": (i) on the merits, the theory is flawed, as the history of Jim Crow shows; and (ii) federalists have a political problem independent of the merits of the idea.

Clearly, (ii) is true. Proponents of federalism or "states' rights" ignore at their political peril the fact that for decades, their political/legal theory was used as a codeword and strategy to promote racial segregation and racism. It is, as Althouse says, like folks who call themselves Marxists or socialists needing to address the horrors of Soviet communism. Maybe it's unfair (Social Democrats and European Socialists believe in pluralist democracy and are far from Stalinists). But that's what happens when some other group has perverted your ideas or taken the same name and done something awful.

The first question is the more interesting one, especially if you think any significant number of people value "federalism" or "states' rights" principles more than they do the merits of any given issue. I personally don't believe that's the case. Goldberg says he thinks abortion and gay marriage should be decided by the states, but I doubt many people on either side of those issues agrees with that. People either think abortion is murder, or it's a vital right of women; people think gay marriage is a fundamental civil right (as in Loving v. Virginia), or it's immoral/will undermine marriage. I would be surprised if most people really felt that either issue should be "left to the states."

For those that want to deal with the merits, Anderson raises the key issue, the "(perceived?) lack of any forthright explanation of why those misuses really were misuses, and not inherent in the theory.

I guess a federalist could say, "well, I guess at least some of us didn't understand what Equal Protection really required, ..."
12.26.2006 12:18pm
Eli Rabett (www):
While any such discussion has to be at root a what if, we can simply note that unitary governments, the British and French abandoned slavery well before the US, perhaps because the antislavery campaigners only had to work at a single level of government. If one opposes free trade, you can point to the US states individually banning the importation of slaves from other countries by 1800. There were still plenty of abuses.
12.26.2006 12:29pm
Eli Rabett (www):
Is this not McConnel and me vs. Breyer continued?
12.26.2006 12:43pm
paulhager (mail) (www):
markm says:


Forcing officials of free states to help re-capture runaway slaves was not a specifically granted power.



Here's what the U.S. Constitution, Article IV, Section 2, clause 3 said:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due


The federal fugitive slave laws were written pursuant to this section so, in fact, there was a "specifically granted power" of the federal government.

The constitutional problem with the Dred Scott decision was not its holding that just because the owner of a slave traveled through a free state, the slave didn't become free. That part of the decision was in keeping with what the Constitution actually said. The problem had to do with other parts of the decision: the idea that (1) slave status could never be changed and applied to all a slave's progeny and that (2) slavery could not be prohibited by new states carved out of the Western territories. This effectively shot down Stephen A. Douglas' Popular Sovereignty solution. Popular Sovereignty was a logical compromise position and it was also constitutional. It would have allowed - in fact, guaranteed - the slow, peaceful death of slavery. Douglas' was an evolutionary, rather than a revolutionary solution. Like any compromise, extremists hated it. Radical abolitionists wanted slavery to end immediately so Popular Sovereignty was too slow; pro-slavery plantation owners rightly saw Popular Sovereignty as making the slave states a smaller and smaller minority over time, leading inevitably to the adoption of a constitutional amendment banning slavery.
12.26.2006 12:47pm
Don Meaker (mail):
It is rare that any level of government can do a job more effectively than the private sector. The Government does have advantages in that it can use coercion to collect money, but the disadvantages associated with coercion are very real, and are felt long before the results of the spending can give a good effect.

Slavery depended on government power. Though justification for the fugitive slave law was written into the constitution, one of the first applications of states rights was when a northern state (Wisconsin IIRC) used the states rights doctrine to forbid enforcement of the fugitive slave law within that state.

Judging by outcomes is a horribly subjective way to evaluate any doctrine. What federalism does, and is supposed to do, is to align state actions to the desires of the state electorate. That does not necessarily meet your definition of virtue, nor will it secure rights or priviledges to those (such as slaves, children, illegal aliens, terrorists) who are not well represented in the electorate.
12.26.2006 12:49pm
Mark Field (mail):

one of the first applications of states rights was when a northern state (Wisconsin IIRC) used the states rights doctrine to forbid enforcement of the fugitive slave law within that state.


The events of Ableman v. Booth occurred in 1854, too late in the day to be called "one of the first applications of states rights". See, for example, Prigg v. Pennsylvania (1842) for another fugitive slave/states rights issue, and of course there were "states rights" issues raised even before that.

This nitpicking on dates aside, I do agree with your last two sentences.
12.26.2006 1:08pm
Don Meaker (mail):


The above link has a wonderful interchange between Ann Althouse and Jonah on federalism.

My notion on how Slavery could have been stopped by the National government despite the wishes of a given state electorate: By using the clause that federal government guarantees each state a republican form of government. Essential to republican government is the limitation of state power. Using state power to enforce involuntary servitude (when no crime has been committed) would be an excessive use of state power, which could have been opposed. In like manner, the use of state power to enforce racist laws can be opposed by the national government as contrary to republican government.
12.26.2006 1:12pm
Hale Adams (mail):
Another point in favor of federalism, and of decentralization generally, which I think only one other poster barely touched on:

Under federalism, with the states having a lot of autonomy in matters that are not truly national in scope, means that if a state has policies (like Jim Crow, or bans on abortion, or socialized medicine) that you don't like, you have the option of moving to some other state that does have policies you like.

Some hypothetical examples:

Don't like Jim Crow in Alabama? Move to Minnesota.

Do you live in Utah and need an abortion and can't get one? Hop a flight to Massachusetts.

Don't like socialized medicine in Minnesota? Make a trip to free-market Mississippi.

And so on and so forth.

The point is that you can, under federalism or decentralization or what-have-you, do these things. Under an overmighty central government, you can't do these things. You can't do these things and still be an American because there's no place you can "get away" from burdensome rules without leaving the country and/or giving up your American citizenship.

I think that's the whole point of embracing federalism-- it's pro-freedom. Will some people and polities abuse that freedom? Of course. But under federalism, you can opt out by moving to another state, something that's hard to do under the present system erected in stages over the last century or so.
12.26.2006 1:17pm
Mark Field (mail):

The federal fugitive slave laws were written pursuant to this section so, in fact, there was a "specifically granted power" of the federal government.


There was still a states rights issue, because the claim was made that states were obligated to enforce this clause, not the federal government. See my link to Prigg v. Pennsylvania, above.


slavery could not be prohibited by new states carved out of the Western territories.


This is not quite correct about the Dred Scott case. What the Court held was that slavery could not be prohibited in the Territories. The argument was that once they became states, they could then prohibit it. The concern about the decision was that the reasoning seemed to justify what you said; the Court just didn't get quite that far in Dred Scott.


Popular Sovereignty was a logical compromise position and it was also constitutional. It would have allowed - in fact, guaranteed - the slow, peaceful death of slavery.


Popular sovereignty wouldn't have "guaranteed" the death of slavery, it would have left the issue open for each new state. There was general agreement that more northern states in the LA purchase (e.g., IA) would be unsuited for slavery, but that was not a "guarantee".
12.26.2006 1:18pm
Jam (mail):
The question is whether the united States is a compact among soverign States? Yes it is.

Abuses by the States are bad. Abuses by the Federal Agent are worse for the agent is usurping authority.
12.26.2006 1:38pm
AblueSilkworm (mail):
It seems to me this isn't a question of rightness but of usefulness and workability, as it is a question of structural framework. I can murder an innocent person with my .44. Should the government ban guns? The smarter discussion would be on whether the structure's possible benefits outweight its likely abuses. I agree with one of the previous posts, which states that strong emphasis on states rights mean that I can vote with my feet, and at least have some chance at living under a government I find reasonable. The most important argument I can find against it is that the states might run rampant in violating rights, but I do not find that to be prohibitive. That would be unsuferable if we did not have a national Bill of Rights, but we do have one of those, no? It'd be the federal government's job to hold the states accountable for egregious Bill of rights violations, without having any further powers to regulate our lives. Negative power, if you will. And once a state saw everyone fleeing en masses from their horrible policies, they'd have a major incentive to change.
12.26.2006 1:51pm
codemonkeyoverlord (mail) (www):
My response is here. It was too long to post in the comments section here.
12.26.2006 2:06pm
markm (mail):
"While any such discussion has to be at root a what if, we can simply note that unitary governments, the British and French abandoned slavery well before the US, perhaps because the antislavery campaigners only had to work at a single level of government." More to the point, these countries were in a climate not conducive to cotton and tobacco growing, the crops they grew were mostly less labor-intensive, and very few people in the home countries would suffer economic hardship from ending slavery. There wasn't any particular reason for British and French politicians to spend their entire careers defending slavery.

Slavery in the form of serfdom had already been abandoned in western Europe as it was proven to be less efficient than free farmers. The plantations of the southern US and the West Indies were the last place where slavery was economically viable. France didn't choose to end slavery in it's colonial plantations on principle, but lost them when the British fleet cut them off during the Napoleonic wars. The USA could buy Louisiana at a bargain because Napoleon could neither ship it's wealth home nor protect it from the British. The only succesful slave revolt in history, AFAIK, was in the French colony of Haiti, and it succeeded because of a British blockade of military reinforcements. Somewhat later, the British did end slavery in their West Indian colonies, but by that time the factories of their home island would keep running on American slave-grown cotton whether or not the West Indies managed to grow crops without slavery. I doubt that the planters out in the West Indies had any more representation in Parliament than the American colonists had in 1776.

In contrast, slave plantations were a major part of the American economy right up until the Civil War, and the slaveowners could vote. In the 1780's, there was hope that the economic importance of slavery would fade until a gradual end to it was practical, but the cotton gin made inland cotton production possible. A third to a half of white Americans lived in the South, and while most of them did not own slaves, in most of the south it was obvious that ending the plantation system would have an economic impact that affected everyone. Southern politicians were not a majority in Congress, but they were willing to make deals on any other issue to buy the extra votes needed on slavery. I think that if there had been a unitary government, slaves would have been cutting Michigan timber in 1860, and Lincoln wouldn't have had enough support to put together a Presidential run, let alone win.

Of course, in the end Sherman's march and other military invasions cost them far more than just freeing the slaves would have.
12.26.2006 2:16pm
JosephSlater (mail):
CodeMonkeyoverlord:

Your link contains this nugget: Where is the outcry over the fact that the average member of the Democratic or Green parties today shares an extraordinary degree of ideological common ground with various totalitarian movements such as Communism?

Interesting use of the word "fact." Speaking as an average member of the Democratic Party, let me reassure you that we won't be sending you to any gulags.
12.26.2006 2:25pm
Elliot Reed:
re average Democrats having ideological common ground with Communists, let's look at the issues:

Should the state nationalize all forms of industry and commerce?

Communist: Yes
Average Democrat: No

Is a worldwide proletarian revolution inevitable?

Communist: Yes
Average Democrat: No

Is there a God?

Communist: No
Average Democrat: Yes

etc. etc. etc.
12.26.2006 2:34pm
Jason (www):
obviously ideas with a disastrous history when applied in the real world require some level of atonement, but a mature and reasonable intellectual environment should recognize the proper place and appropriate shelf life for that atonement. as far as federalism and jim crow goes, i think we all get it by now. rather than spending all of our breath apologizing for whatever happened, before the younger generation of intellectuals was even alive btw, shouldn't we just recognize it as a limitation of the ideal and not necessarily something that completely invalidates it? otherwise we're limited to ideas that don't have any historical blemishes. and those ideas would be...? seems to me the fact that federalism has created such a large societal taboo based on it's main historical crime, means it's a great idea that is properly constrained to it's limitations at the moment.
12.26.2006 2:53pm
Thorley Winston (mail) (www):
I think that's the whole point of embracing federalism-- it's pro-freedom. Will some people and polities abuse that freedom? Of course. But under federalism, you can opt out by moving to another state, something that's hard to do under the present system erected in stages over the last century or so.


Agreed, federalism is the compromise that allows Nancy Pelosi and Newt Gingrich to both call themselves Americans.
12.26.2006 2:58pm
Thorley Winston (mail) (www):
Today a black man may not legally face discrimination, but in many areas he may not legally carry a weapon to defend himself, his home may be violently invaded with military-level force over a small amount of marijuana, his children can be taken away from him easily on specious grounds ranging from his wife making half-baked claims of abuse to a number of things which may upset social services, half of his money may be claimed in taxes, his due process rights under many areas ranging from drug crimes to tax laws are a joke, he can be spied on in a myriad number of ways and many more. The wheel has shifted, and the centralized state that the fourteenth amendment gave us has simply taken one form of tyranny and replaced it with a more virulent, less obvious one. My, how things do change...


Good point, the injustices of Jim Crow were at least limited to relatively few States and municipalities. The ones committed by a federal government usurping powers that were reserved to the States and people permeate throughout the entire nation.
12.26.2006 3:03pm
JosephSlater (mail):
federalism is the compromise that allows Nancy Pelosi and Newt Gingrich to both call themselves Americans.

So, would Gringrich's recent and repeated calls for the Federal government to restrict what are currently considered First Amendment freedoms be considered pro- or anti- "federalist"?
12.26.2006 3:12pm
codemonkeyoverlord (mail) (www):

Interesting use of the word "fact." Speaking as an average member of the Democratic Party, let me reassure you that we won't be sending you to any gulags.


I never said you would, and that's a cheap way to jump away from the topic. Redistribution of wealth, guaranteed social safety nets, strong centralized government, control of the economy by the state, these are things that Italian Fascism, all forms of Socialism and Communism share in common and that are largely the end result of "liberal" Democratic and Republic policies. The reason why an institution is made is only tangentially important when discussing an end result.

My point is that you and those like you may not be of the mind to ever support gulags and other such things, but you share a lot of common ground on policy with the movements that did in the 20th century. If Jim Crow condemns federalism by association with segregation, then Communism condemns American liberalism by association.
12.26.2006 3:17pm
Mark Field (mail):

The plantations of the southern US and the West Indies were the last place where slavery was economically viable.


And South America, especially Brazil. Serfdom continued in Russia until 1861.


obviously ideas with a disastrous history when applied in the real world require some level of atonement, but a mature and reasonable intellectual environment should recognize the proper place and appropriate shelf life for that atonement.


I'm not aware of any "atonement" by the former slave states or even the majority of voters in those states. Indeed, their reaction was segregation, which they continued to justify on "states rights" grounds. What sort of "atonement" do you think has been performed by the states which practiced segregation? What sort of atonement would suffice for the twin crimes of slavery and segregation?
12.26.2006 3:24pm
JosephSlater (mail):
CodeMonkey:

In my view, claiming that "average Democrats" and communists share an "extraordinary degree of ideological common ground" is not only a better example of a "cheap way to jump away from the topic" than was my post, it's also absurdly slanderous. Or maybe slanderously absurd. Anyway, not a good way to get serious folks to read and comment on your blog. And your new link between American Democrats and Italian fascists is a step in the wrong direction. It's exactly the same move as the "Bush = Hitler!" folks.

A better way for you to make your point might be this: folks that call themselves Marxists, at least as a political matter, need to account for Soviet atrocities. Even though, as I said earlier, European socialism has little in common with Soviet Communism.
12.26.2006 3:27pm
JimT (mail):
Hale Adams:

The point is that you can, under federalism or decentralization or what-have-you, do these things. Under an overmighty central government, you can't do these things. You can't do these things and still be an American because there's no place you can "get away" from burdensome rules without leaving the country and/or giving up your American citizenship.


My youngest son lives in China for exactly the reason quoted. He is freer to practice capitalism there than if he had stayed home. As long as he is not outspoken about the Chinese government, they will leave him alone.

Contrariwise, if he stayed here, he could scream his lungs out about the iniquities of the government, should he choose to do so. What he couldn't do is hire an employee without the Federal government being all over his case, or succeed in business without having to spend a substantial fraction of his time working for that government without compensation.

I sympathize with him. I'm not about to move to China, but I am not going to start another business, either.
12.26.2006 4:08pm
Anderson (mail) (www):
My youngest son lives in China for exactly the reason quoted. He is freer to practice capitalism there than if he had stayed home.

You know, I was about to comment on this, but I'm actually at a loss for words. Even snarky ones.
12.26.2006 5:22pm
Thorley Winston (mail) (www):
So, would Gringrich's recent and repeated calls for the Federal government to restrict what are currently considered First Amendment freedoms be considered pro- or anti- "federalist"?


The last time you tried to thread jack with this claim, when asked to provide any specific details you balked. Do you have any this time or is this just another cheap smear on your part?
12.26.2006 5:34pm
JosephSlater (mail):
The last time I pointed out that it was all over the internet, which it already was. And it still is. Try this search on Google: "Gingrich and free speech." It turned up numerous results for me literally within seconds. Pick one you think is trustworthy, read it, and I'll be waiting for your apology.
12.26.2006 5:50pm
JosephSlater (mail):
Thorley:

Cat got your mouse? Anyway, I'm going home now, so I'll have to get your apology later. If you're still searching, here's something from the Manchester Union Leader:


MANCHESTER -- Former Speaker of the House Newt Gingrich last
night defended his call to limit freedom of speech to combat terrorism, comments that last month provoked strident criticism from liberal groups.

Gingrich said the threat of biological or nuclear attack requires America to consider curbs to speech to fight terrorists, if it is to protect the society that makes the First Amendment possible.

"Our friends at the 'ACLU left,' of course, were staggered at this concept," Gingrich told an audience of Republicans at a Christmas banquet. "How could we talk about anything less than 100 percent free speech? How could we consider in any way thinking about this issue?"


...

On Nov. 27, he said the First Amendment may require a "different set of rules" for terrorists, comments made while he addressed a free speech award dinner hosted by the Nackey S. Loeb School of Communications.
12.26.2006 6:29pm
SKlein:
This thread is below the usual standards of this crowd. It is either sloppy or dishonest to frame the issue as Jim Crow and slavery being "associated" with "federalism," as if it was just a happenstance temporal association. The theory of federalism espoused by Frank Meyer (which, recall, is the subject of the post) concluded that things which are self-evidently evil were good. A political or moral theory that can't distinguish good from evil is a bad theory.

Now, it is possible to argue that the bad version of federalism can be fixed or that it is better than the alternatives. But those things need to be argued, which they haven't been.
12.26.2006 7:51pm
Fuz (mail) (www):

The most important argument I can find against it is that the states might run rampant in violating rights, but I do not find that to be prohibitive. That would be unsufferable if we did not have a national Bill of Rights, but we do have one of those, no?


Is this not the "dual sovereignty" argument that appeared oh so briefly in a recent SupCt ruling?

I'd like to have the kind of 'vote with my feet' federalism that Hale Adams alludes to above. But I know there are tradeoffs. Any state (not State, but any formal instantiation of government) can violate my rights. I want the tension between State and Federal governments because I stand a better chance of enjoying my rights if two governments were fighting about them.

Instead, we have Gonzales v Raich, where States are trying to push the Fed back into a narrower reach so they can legislate, or not legislate, as their communities direct.
12.26.2006 7:59pm
Hale Adams (mail):
To Code Monkey:

Elliot Reed is right: To mention the Demopublicans (or is that "Republicrats"?) in the same breath as Communists is rather a cheap shot.

To Elliot Reed:

Code Monkey is right, to the extent that the two major parties in this country are infected by the disease ravaging too many leftists-- something I call "political Taylorism".

To everyone else:

To make a long story short.... Take a look at American industry as it was in, say, 1875, and compare it against what it was in 1925. And the one man perhaps most responsible for that transformation of industry from something like proprietorships writ large, staffed by quasi-craftsmen, into vast mass-production enterprises (think Ford's River Rouge plant) overseen by "suits" and staffed by men looked on as little better than flesh-and-blood robots? Frederick Taylor, whose name is often a curse in the mouths of trade unionists.

Love him or hate him, Taylor's ideas and methods transformed American industry. The results were so astonishing that social thinkers of the day dreamed of applying his methods to human societies, the better to bring about a paradise on Earth by applying to society a perfect plan of organization.

http://www.reason.com/news/show/30464.html

The only problem is that We the People get reduced to mere raw materials in the service of The Plan. Not a very, uh, liberating fate, is it?

And that is what I think Code Monkey alluded to in his remark about the similarity of Democrats to Communists.

And the heck of it is that both major parties nowadays argue only over who gets to apply The Plan to whom and to what extent. Never does either party stop to ask just why The Plan exists in the first place.

That's why I favor "federalism" or "decentralization". It's hard to impose The Plan on the whole country when the central government's powers are severely limited.
12.26.2006 9:29pm
junyo (mail):
I don't think the crux of the argument is as presented, one of 'Is the history of federalism tainted?' The question is rather, since it pretty much is tainted (Goldberg acknowledged as much), how do proponents of the philosophy address the aberrant results? As many have said, almost any system will produce less than optimal outcomes; but if the system is valid those should be explainable or adherents acknowledge that the philosophy is fallible. Althouse has specifically said on her blog that she has no real issue with people that accept that their personal philosophy can create undesirable outcomes. Unfortunately, in Althouse's view, in this discussion those failings weren't addressed in enough depth, and the tendency to merely dismiss the problems as imperfect application of the principle is a cop-out without detailing how a proper application would've resolved the issue. And specific to the discussion of Meyer, that would've been a tall order since Meyer made the federalist case for the states use of force to resist US government legislated desegregation. Of course you could take Henderson's above tack and argue that government sanctioned/enforced segregation wasn't actually a bad thing, but I doubt you'd gain much traction that way. I'm not cheer-leading for Professor Althouse, merely pointing out that a lot of the arguments being made are actually tangential to the actual point of contention.
12.26.2006 10:54pm
Hale Adams (mail):
No, Junyo, they go straight to the heart of the matter.

Is federalism "tainted"? Of course it is. So is every other political idea. Welcome to the real world.

Are the results of federalism ugly at times? Yes. But federalism means being able to opt out of a bad situation, as I noted above. Try doing that in a highly-centralized state, whether it be the People's Republic of China or the present-day over-centralized United States.

Or to put it more concretely, if you're a black and you're living in a "Jim Crow" state when you could be living in a state without Jim Crow laws, it's your own darn fault for not hopping on a bus and leaving.

And so the "taintedness" of federalism ceases to matter.
12.26.2006 11:24pm
Ken Arromdee:
Hale Adams:

But under federalism, you can opt out by moving to another state, something that's hard to do under the present system erected in stages over the last century or so.

This doesn't sound too bad, but judging from the examples you used--which all have gratuitously large separation of states--you're being an agent provocateur in order to falsely represent the federalist position, not genuinely supporting federalism.

As has been repeated, but as you don't seem to understand, nobody supports 100% federalism; it's a matter of degree. So you really have no reason to state that under a federalist position, anyone would have to avoid Jim Crow by moving at all, let alone from Alabama to Minnesota.

You're also ignoring the possibility that the situation might be worse without federalism; if there's so much anti-abortion sentiment that you need to fly from Utah to Massachusetts, there's so much anti-abortion sentiment that a single government making abortion laws for the whole country would prohibit it in Utah, Massachusetts, and everywhere else.

I find your argument very deceptive.
12.26.2006 11:59pm
jam:

I'm not aware of any "atonement" by the former slave states ...


Obviously you are not including the slave States in Union at the time.

What about the Invasion itself and Reconstruction and the Union League and the Freedman's Bureau and forced re-constitutions, etc. All the way to today's complete Federal disregard for the piece of paper that supposedly limits them.
12.27.2006 9:20am
just me:
Hitler was elected. Thus, elections are bad. (Yes, I tripped the Godwin wire. But here, it's needed to prove the point. Stalin wasn't elected. And sure, Hitler may have maxed at 44 %, but Clinton got in on 43 %, so at a minimum, plurality elections are "bad.")
12.27.2006 10:40am
Anderson (mail) (www):
Hitler was elected. Thus, elections are bad.

Well, it's not a ridiculous argument.

And sure, Hitler may have maxed at 44 %

That's not how it worked. The Nazis were the biggest party, &could construct a majority coalition. But there was no obligation to allow Hitler to become Chancellor; Hindenburg could've refused, but was persuaded (against his better prejudices) by a cabal that thought they could control Hitler. Oopsy!
12.27.2006 11:38am