About that tainted federalism.

On Christmas, Orin Kerr weighed in on what I said about federalism on Bloggingheads. Now, two more Volokh Conspirators have taken on the subject. (I'm still waiting to hear what the Conspirators have to say about sex with robots.)

An excerpt from Eugene Volokh (but read the whole thing):

[F]ederalism 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.

True and I agree, but my comments were about the difficulty of convincing people about the value of federalism when it has the historical resonance that it does have. And many liberals feel -- with some reason -- that a Court that shows some willingness to enforce federalism values, will do it erratically and only in service of policies that liberals don't favor anyway.

More from Eugene here:

[A] particular incident in which an institution has yielded bad results -- or, to be precise, yielded results that we think were worse than they would have been in the institution's absence -- is some evidence against the institution's quality. In that respect, it does taint the institution. But by itself each such incident taints the institution only slightly, because the question isn't whether the institution will ever help bring about bad results, but whether on balance it's better than the alternatives.

True enough, but the question of slavery, segregation, and racism is so overwhelmingly important in American history and the connection of states' rights to this terrible history is so close that we cannot be satisfied with this generality.

And Ilya Somin has this:

There is no question that state governments have often oppressed minorities, particularly African-Americans. On the other hand, the federal government also has a far from perfect record in this area. Consider, for example, the federal internment of Japanese-Americans during World War II, and the feds' decades-long persecution of the Mormons during the nineteenth century. The states are "tainted" by their history, but so too is the federal government. Perhaps one can argue that the states are "more" tainted because they supported slavery, the single biggest human rights violation in American history. However, the federal government also played an important role in promoting slavery, for example through its enforcement of the Fugitive Slave Acts. If the history of state repression of minorities taints the argument for federalism, then the history of federal government repression taints the case for unlimited federal power.

Here, you should cite Wisconsin, the state that stood up to the federal government over the Fugitive Slave Act. Remember, I'm not saying federalism is bad per se. I'm asking for it to be defended as a positive force, not embraced blindly.

There's lots more at Ilya's post, so read the whole thing.