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Federalism and States' Rights:

I posted below some general thoughts about the limits of "institution X brought bad result Y, so X is bad" reasoning. Let me mention a few more general things about the claim that federalism / states' rights is tainted by its use as a means of advancing segregation.

The terms "federalism" (at least in its the sense it's used in political debates) and "states' rights" are generally relative terms, not absolute ones. When someone says he's in favor of "states' rights" or "federalism," that usually means that he supports more state authority about the topic at hand than his rivals do, or than the status quo provides. It almost never means absolute, unlimited rights for states, whether in general or even in a particular area. For instance, even those who speak of traditional areas of state supremacy, such as family law or education, very rarely oppose some degree of federal regulation, for instance the federal tax code's treatment of marital relations (which surely has vast indirect effects on state-recognized marriage) or the parental rights decisions that bar states from mandating that all children go to public schools.

This is surely true in current debates about the U.S. Constitution. The debate on the Court isn't whether — as a constitutional matter — we'd have 100% federal authority with no limits vis-a-vis the states (but only with limits created by intra-federal separation of powers principles, or by individual rights against federal authority) or 0% federal authority. It's whether we'd have 99.9% federal authority (perhaps with a very few highly uncontroversial examples, such as the federal government's being barred from creating states within an existing state's boundaries without the state's consent) or 95%. Justice Thomas, the one Justice on the Court who takes the broadest view of states' rights, might go for 90% or maybe 80% federal authority. [WARNING: Numbers used figuratively, not as concrete estimates.]

Likewise, the debate in Congress or in other mainstream institutions isn't whether — as a policy matter — we'd have 100% federal authority with no authority for the states, or 0% federal authority. It's whether we'd have, say, 70% federal authority or 30%. Everyone agrees that some things are best done at the state level, though often with some federal input. Everyone agrees that other things are best done at the federal level, though often with some state input.

Let's focus now specifically on segregation: The original Constitution clearly left states with a great deal of authority over how to govern conduct within their boundaries. On the other hand, the Fourteenth Amendment clearly constrained that authority in some significant measure. Likewise, the original Constitution clearly left states with a great deal of authority over who could vote, but the Fifteenth Amendment clearly limited their legal power to discriminate based on race; segregation persisted in many places largely because the Fifteenth Amendment wasn't complied with. One could support state autonomy in many ways but conclude (as a Congressman or as a Justice) that segregation and the right to vote without regard to race is an area where the federal government (acting both through the Court and through Congress) should have broad authority. Conversely, one could support federal power in many ways but conclude that for various practical reasons the federal government ought to have left this matter to the states. (That's not my view, but it's a view that some could and did take.)

So it's not clear that the civil rights era experience even tells us that much about the value of federalism and states' rights. It might illustrate that some calls for state authority rather than federal authority might sometimes support immoral and unconstitutional programs. (There's debate about whether separate-but-equal segregation should have been understood as unconstitutional under an original meaning approach to constitutional interpretation, but separate-but-unequal segregation — which is what segregation usually was — surely was unconstitutional, as was the massive racially discriminatory denial of the right to vote was unconstitutional.) But that just means that the segregationists' proposed state-federal balance as to race discrimination and voting was improper. It tells us very little about others' proposed state-federal balances as to other topics.

In this respect, federalism is rather like individual freedom from government restraint, or government power, or many other concepts. That a particular proposed individual freedom from government restraint (e.g., freedom from government restraint of parents' abusing their children) is improper doesn't by itself tell us much about the propriety or not of other freedoms, or even other parental rights. Likewise, that a particular proposal for state freedom from federal government restraint is improper doesn't by itself tell us much about the propriety or not of other proposals for state autonomy.

ReVonna LaSchatze:
It might illustrate that some calls for state authority rather than federal authority might sometimes support immoral and unconstitutional programs.

Might?

Come now. It sounds like you're historically doubting the clear EVIDENCE of "immorality" in pre-civil rights America.

(Comparatively, they lock folks up for doubting the Holocaust you know. ;)
12.26.2006 5:21pm
ReVonna LaSchatze:
I read on: "improper", eh?

It would be interesting to have the time and finding resources to study how such qualifiers and selected language affects different ears. Subtle distinctions
12.26.2006 5:23pm
ReVonna LaSchatze:
funding resources, rather to to study how such qualifiers and selected language affects different ears. Subtle distinctions that maybe are inaudible to some.
12.26.2006 5:24pm
Justin (mail):
"In this respect, federalism is rather like individual freedom from government restraint, or government power, or many other concepts. That a particular proposed individual freedom from government restraint (e.g., freedom from government restraint of parents' abusing their children) is improper doesn't by itself tell us much about the propriety or not of other freedoms, or even other parental rights. Likewise, that a particular proposal for state freedom from federal government restraint is improper doesn't by itself tell us much about the propriety or not of other proposals for state autonomy."

I disagree. I think the proper framing is, in relationship of certain key political issues, who gets to decide when there is a disagreement over how to proceed. Now certainly this question does miss some of the complexities of concurrent power, or certain dimensions of "decision making," but I believe Somin's original point, and the federalism discussion after it, was whether "good outcomes" arise from the locality having the decisionmaking power or the national government having the decision making power.

Somin originally argued that giving more decision power ("who gets to decide") to the States would prevent totalitarianism. Others came back with the position that giving more decision power to the States would NOT have prevented slavery or Jim Crow, and then in rebuttal there was an argument (by Somin I believe) saying that Slavery would have died an earlier death if the States had more decision power.

I think the historical arguments are all off point as well - I think the question just comes down to whether you agree with the state's position or the nation's position on a particular topic, and having agreed with that position, their winning out creates a "better" outcome.

Now there are certain OTHER advantages ("experimentalism," "voting with one's feet," "escape from the sovereign," to name a few) and disadvantages ("race to the bottom," "political power differentials," to name a few) to federalism. But for the most part, tying "federalism" to "outcomes" is like tying "terrorism" to "political interests," in the sense that "federalism" is a (mostly political) STRATEGY, not a GOAL unto itself, for all practical purposes.

This is far different from liberterianism, which, though in my view unworkable, IS a goal unto itself. Rather than "who gets to decide" amongst government entities, liberterianism asks the question of WHETHER a decision can be made by ANY government entity. And this difference is VERY important in the context of the preceding arguments.
12.26.2006 5:48pm
Justin (mail):
PS I completely agree with your first post on the subject.
12.26.2006 5:49pm
Rich B. (mail):
It seems to me that the universe of people who believe in limiting Federal power to permit states to engage in both liberal and conservative goals can be counted on several hands, and none of them occupy any position of power.

For example, has anyone in public office opposed Roe v. Wade on Federalist grounds, and also opposed the Federal Partial-Birth Abortion Ban on Federalist grounds? Or is everyone just pro-choice or pro-life and will take whatever view on Federalism leads to the desired result?

Did anyone support (federal) court mandated busing based on strong centralized power to enforce civil rights laws, but also feel that the various cities in the current Supreme Court case shouldn't be able to continue the modified-busing program that cities have decided on based on their individual situations without being prohibited by the Court? Or was everyone pro-busing or anti-busing, and take whatever view on Federal oversight that leads to the desired result?

It seems to me that there's a heck of a lot of theorizing going on for an issue that -- as far as I can tell -- don't have any actual practicing practitioners.
12.26.2006 6:14pm
K Bennight (mail):

I think the question just comes down to whether you agree with the state's position or the nation's position on a particular topic, and having agreed with that position, their winning out creates a "better" outcome.

I agree with some outcomes of stronger rights for states and some outcomes of stronger federal powers, but as a matter of principle, I believe we are better off with comparatively stronger rights for states. It gives protection against bad decisions. For example, if New York imposes a 70% income tax rate, I can move to another state. If the feds impose a 70% income tax rate, my options are more limited. If some states keep all children in public schools and some states allow free competition with vouchers, we'll have a better basis to decide which is preferable.
12.26.2006 6:31pm
fishbane (mail):
It seems to me that there's a heck of a lot of theorizing going on for an issue that -- as far as I can tell -- don't have any actual practicing practitioners.

This seems obvious to me, too. I'm sure there are actual Federalists out there, but few of them seem to speak up when disturbing antifederalist actions are underway (cf. Schiavo).

I even like the possible benefits of the theory - let a thousand flowers bloom, and see which ones work, in the meantime devolving decision making closer to the people who have to live with it. But in practice, the Federalism mantle seems like little more than a rhetorical weapon for seeking one's preferred policy outcomes, to be doffed when convenient.
12.26.2006 6:34pm
ctb:
Rich B.
I think you chose a poor example, by using Roe. Federalism may be one reason for opposing Roe, but it is not the only, nor, I doubt, the most prominent. The objections to Roe would be the same whether it was issued by a federal court (which it was) or by a state court. So federalism isn't the issue.

You also said It seems to me that the universe of people who believe in limiting Federal power to permit states to engage in both liberal and conservative goals can be counted on several hands, and none of them occupy any position of power.
Well, I just plain disagree with that. And unless you can provide a better example than Roe, I think I'm right. For example, Many "conservatives" who are opposed to same sex marriage, and support state laws banning it, have opposed a federal amendment concerning it on federalist grounds.
12.26.2006 7:52pm
michael farris (mail):
"Many "conservatives" who are opposed to same sex marriage, and support state laws banning it, have opposed a federal amendment concerning it on federalist grounds."

Probably not the best example as the chances of a federal anti-ssmarriage ammendment showing up any time soon are pretty negligible, so even those who might support it if it were to happen can gain federalist cred by saying they'd oppose it.
12.27.2006 7:57am
Toby:
There is something remakable disengenuous about several of these comments. There are lots of principaled oponents of abortion and gay marriage who feel that they would be happy making laws in their own states, would prefer to let others alone, but feel that an expansive and intrusive federal government will not allow ther to be any local decisions.

RvW, for example, created a naional issue that has deformed national politics for decades by snatching local decision making and making it national. Finally, oponents horrified by abortion turned to national regulations as their only option.

In a similar vein, does anyone really think that the Defense of Marriage Act would have gotten any traction without a concern that the federal courts would extend the most "progressive" rules from one state to all the others?

It is somewhat ironic that people who claim that evangelical participation in US politics is bad have themselves created the primary impetus to such participation by demanding that everyone, everywhere have the same rules. These communities, who had traditionally been non-political and wanted primarily to be left alone thereby got drwn into national politics.
12.27.2006 10:39am
Cornellian (mail):
In a similar vein, does anyone really think that the Defense of Marriage Act would have gotten any traction without a concern that the federal courts would extend the most "progressive" rules from one state to all the others?

Does anyone really doubt that this so-called "concern" that federal courts would extend one state's marriage rules to all other states via full faith and credit, despite the absence any federal case supporting that view of FF&C, was in reality a trumped up issue designed to get the religious right out to the voting booth?

This rather reminds of those state constitutional amendments, invariably sold as a way to "protect" the citizenry from having same-sex marriage imposed by judicial fiat, but invariably worded in such a way as to prohibit the legislature from enacting same-sex marriage. It's a typical bait and switch.
12.27.2006 12:40pm
Fuz (mail) (www):

The debate on the Court isn't whether — as a constitutional matter — we'd have 100% federal authority ... or 0% federal authority. It's whether we'd have 99.9% federal authority ... or 95%.

Highlight the "as a constitutional matter" and let me direct the attention back to the Constitution itself, which was supposed to grant the Federal government its only powers.

If we had to put percentages on it, I'd rather the balance rest at about 20% Federal and 80% State, where the Constituion that binds us together was supposed to have put it.

So what would that doctrine say about BoR 'incorporation'?
12.27.2006 6:40pm
Tim Fowler (www):
Cornellian - Re: "Does anyone really doubt that this so-called "concern" that federal courts would extend one state's marriage rules to all other states via full faith and credit, despite the absence any federal case supporting that view of FF&C, was in reality a trumped up issue designed to get the religious right out to the voting booth? "

I do. Well I don't doubt that some people who don't care much about that specific sub issue, raised it as a political tactic, but it is a real concern for many people, and its a legitimate concern in that such an imposition based on full faith and credit, could happen.
12.29.2006 4:44pm
Robert Lutton:
" Justice Thomas, the one Justice on the Court who takes the broadest view of states' rights..."

If that were really true he would have voted differently in the 2000 election case. He is just another who (as you said);

"When someone says he's in favor of "states' rights" or "federalism," that usually means that he supports more state authority about the topic at hand than his rivals do, or than the status quo provides. It almost never means absolute, unlimited rights for states, whether in general or even in a particular area."
12.29.2006 6:05pm