December 27, 2006

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.

23 comments:

Anonymous said...

Ann, do you really think slavery would have ended any sooner had the federal government, from the beginning, governed on the issue?

And if you think that federalism actually helped the cause of freedom at one point, do you also demand liberals "account" for what their lack of support of federalism and what it would have resulted in had those views prevailed in, say, 1790?

Wasn't slavery legal in almost every state when the Constitution was ratified? It seems that federalism is precisely the mechanism that led to a free majority (states could decide for themselves to go with freedom).

And let's be honest, Ann, you did more than demand that conservatives account for civil rights abuses in their theories of federalism (something I agree is quite resonable), you accused a particular group of conservative federalism enthusiasts of acting like "highly intelligent white supremacists." Earlier in this spat I thought Jonah had misread your intentions. Unfortunately, Jonah's defensiveness seems to have been justified.

Tim said...

"Perhaps one can argue that the states are "more" tainted because they supported slavery, the single biggest human rights violation in American history."

The Native American Indians would beg to differ, with good cause. And I'm pretty damned sure their primary grievance isn't against individual states comprising the Union, but rather the U.S. Federal government.

If one weighs near-genocide, ethnic cleansing and elimination of civilizations as morally abhorrent as slavery, Jim Crow laws and racial discrimination (I think we can all concede the latter is actually worse than the former, but no matter...), centralized government power in America has an equally bad record as do state governments.

But liberals need an argument to centralize power at the fed; so lets all conveniently forget about the decimated Indians (damn them and their casinos...) and talk about the much greater white man's sin of slavery, Jim Crow laws and racial discrimination.

Power over principle, with an assist to forgetting history.

Richard Dolan said...

To the extent there is any disagreement between Ann and the Volokh guys here, it is only one of relative emphasis. As Ann says, the issue is one of "historical resonance." Thus it will be "resolved," as most historical issues ultimately are, by the passage of time and the change of circumstances.

Ann notes that "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" -- referring to Eugene Volokh's notion that "the question isn't whether the institution will ever help bring about bad results, but whether on balance it's better than the alternatives." Here, I think Ann is losing sight of the historical nature of the issue even though she (quite rightly) framed it in those terms.

The judicial revolution capped by Brown v. Board is now more than 50 years in the past. The legal institutions that led to Brown are long gone, as is the nearly uniform kinds of racial discrimination that characterized that era. For many Americans today, those civil rights struggles are entirely a thing of the past; whatever vestiges of racial discrimination may remain are a faint and continually fading echo of what was once an imposing and legally enforced system of subjugation. That reality has "historical resonance" too -- after all, it describes life as it is lived today -- and, by its nature, tends to reduce once-pressing issues of de jure segregation into historical matters. That some once tried to rely on states' rights in an effort to prevent the federal gov't from attacking the vestiges of officially sanctioned discrimination is both true as a matter of historical fact, but also fading as a matter of "historical resonance" today.

Among the changes to the original notions of federalism and states rights brought about as a result of the "terrible history" that Ann describes were the 13th, 14th and 15th Amendments. Those amendments (especially the 14th) changed the nature of American constitutional federalism, by expressly granting to Congress powers that, theretofore, had been the exclusive prerogative of the states. Thus, even at the level of constitutional text, federalism/states' rights were hardly static.

Ann is certainly right that the stain of slavery and racial discrimination colors how federalism and (especially) states' rights are viewed today, just as the Three Fifths Compromise colors how we look at the Framers' achievement. But like the Three Fifths Compromise, time has a way of sanding down the rough edges, so that (as Eugene Volokh says) in considering federalism and states' rights, we can focus on "whether on balance it's better than the alternatives."

Anonymous said...

"just as the Three Fifths Compromise colors how we look at the Framers' achievement."

This has to be one of the most non-sensical talking points around. It is the slave-owning South that wanted to count every slave as a full person, because it would have given them greater representation in Congress.

It is the North which did not want to count slaves (counting them meant giving slave-owners more power).

Sure, one can fault the Framers for not banning Slavery in the Constitution, but I'm not sure that was at all feasible as it would have fractured an already delicate union. But this 3/5ths talking point really needs to be put to rest.

Smilin' Jack said...

Federeralism schmederalism...all this high-falutin' talk about states' rights etc. just obscures the fact that states are now just an arbitrary, pointless and useless layer of bureaucracy, and the only thing worse than a federal bureaucrat is a state bureaucrat.

We need a federal government and local governments to do specific tasks on the national and local levels. State governments are worthless, and if we can't get rid of them, at least let's stop talking about them as if they were worth taking seriously.

Mortimer Brezny said...

I found interesting Ilya Somin's refusal to answer Greedy Clerk over why he assumed that most blacks would fail and most whites would pass neutrally applied literacy tests administered around the turn of the century. At least 70% of blacks in the South, i.e., where most slaves resided, were literate by the 19-teens. I found Ilya's failure to respond to that error in the course of responding to criticism of the various factual errors he had made particularly startling and perhaps proof of Ann's point that libertarians do not critically engage with the racist legacy of their chosen viewpoint.

Gahrie said...

For all of you so easily dismissing federalism:

Would you blue staters like to live under the laws of the red states?

I know the red staters would hate to live under the laws of the blue states.

Anonymous said...

I found interesting Ilya Somin's refusal to answer Greedy Clerk over why he assumed that most blacks would fail and most whites would pass neutrally applied literacy tests administered around the turn of the century.

I didn't respond to the criticisms of this "error" for the good reason that I never said any such thing. What I said was that "Even completely neutral application of literacy tests and poll taxes, among other laws, would have denied the majority of blacks the right to vote in the early twentieth century." It was the COMBINATION of literacy tests, poll taxes and other laws that would, even if neutrally administered, have denied most blacks the right to vote in the early 20th century. Moreover, as I point out in a later comment on my post, the literacy tests administered by many southern states went far beyond very basic literacy, but actually required voters to interpret the state constitution and the like

Anonymous said...

Actually, he addressed Greedy Clerk's point (unfortunate that people actually feel it needs to be "addressed").

First, Somin said that the literacy test COMBINED with the poll tax would have probably disqualified a majority of blacks, even if neutrally applied.

Secondly, the literacy tests did more than test essential literacy, they were DESIGNED to disqualify as many blacks as possible. I mean, that is why they were bad, right? Your view is that they were bad but they would not have disenfranchised many blacks had they been "neutrally applied"?

Which, I suppose means that you wouldnt necessarily strongly oppose new literacy tests, aslong as they were "neutrally applied"?

So, essentialy, the liberal view of this is: Literacy tests are bad because they disenfranchise miinorities disporportionately, yet it's racist to say that minorities would disproprotionately fail.

Anonymous said...

Richard Dolan:

Your contribution is a wondrously beautiful piece of writing! Not to belabor a term that you used to great effect and, I imagine, some care, it resonated from beginning to end. Indicative of exceptional ability in both argumentation and rhetoric, I assume. Your clients are fortunate, I think.

JNoV said...

Ann --

It seems you are attacking a straw man here. Who "embraced" federalism "blindly"? I don't think this is a fair reading of Meyer, nor of the overall discussion at the conference.

Meyer's view of federalism was certainly peculiar, particularly insofar as it owed less to Madison than Calhoun (a point I noted at the conference). Yet Meyer also articulated a defensible (but surely contestable) rationale for his position: The need to decentralize power and create tension between the federal and state governments so as to reduce government power over the individual.

Meyer certainly got some contemporary civil rights questions wrong, but he was hardly an apologist for segregation. Again as I noted at the conference, he repeatedly acknowledged the "profound wrongs" suffered by African-Americans, criticized segregationists and their apologists (like Wallace), and supported greater Congressional enforcement of 15th Amendment.

There's surely nothing wrong with criticizing Meyer or anyone else for their views on federalism or civil rights, but placing structural constitutional concerns above specific policy outcomes does not necessarily make one a segregationist, nor is taking such ideas seriously tantamount to acting like a "highly intelligent white supremacist."

Jonathan H. Adler

Mortimer Brezny said...

Ilya Somin: It was the COMBINATION of literacy tests, poll taxes and other laws that would, even if neutrally administered, have denied most blacks the right to vote in the early 20th century.

I realize that the coordinate conjunction "and" could imply (1) any of the laws you cited taken independently or (2) all of them collectively, but not both. The reason why the latter makes no sense is that you used the term "application," not "administration". You can administer a program that consists of a battery of laws, but to apply a law -- as you well know -- is to specifically enforce it, which suggests (1). If you had meant (2), you could have easily written "Even completely neutral application[S] of literacy tests and poll taxes, among other laws, would have denied the majority of blacks the right to vote in the early twentieth century."

Even if you do not see the difference between "application" and "applications", the fact of the matter is that one cannot neutrally administer a program consisting of a battery of laws designed to target and disenfranchise a specific group. It would not be possible to neutrally administer the Nuremberg laws, even had they not specifically mentioned Jews, because the Nuremberg laws are a program designed to impact Jews and only Jews. There is nothing neutral about such a program. By contrast, one can neutrally apply a law that is a part of such a program -- but this would imply (1), not (2).

In other words, your defense contradicts itself.

Ilya Somin: Moreover, as I point out in a later comment on my post, the literacy tests administered by many southern states went far beyond very basic literacy, but actually required voters to interpret the state constitution and the like

Are you now suggesting that literate African-Americans would be less capable of interpreting a state constitution than literate white citizens? It is very little defense to the charge that you underestimate the capability of blacks to learn to read to concede that blacks can learn to recognize words but lack the capacity to interpret them.

Johnathan Adler: There's surely nothing wrong with criticizing Meyer or anyone else for their views on federalism or civil rights, but placing structural constitutional concerns above specific policy outcomes does not necessarily make one a segregationist, nor is taking such ideas seriously tantamount to acting like a "highly intelligent white supremacist."

What about insisting blacks are incapable of sophisticated hermeneutics?

Anonymous said...

The conflict I see here is not just about Federalism vs. state's rights-- it is about those who see the whole of morality and right as unchanging through the centuries. Of course that is itself garbage-- for example, the Romans were in some ways 'progressive' for their time, just by acknowleging that there was such a class as 'freedmen,' i.e. former slaves who now had certain rights. Likewise, early Americans (including northerners, southerners and Federalists), if not universally endorsing slavery, condoned it as something which existed and was likely (as they saw it then) to continue. One could argue that by the mid 1800's our outlook had progressed to the point where slavery was a moral evil (at least in the minds of many in the north), and if John Brown in the 1850's was a murderer by the 1860's there was no compunction at all about burning down whole cities and slaughtering thousands in order to expurgate it from the American landscape.

Similarly, we have continued to evolve. Segregation, the successor to slavery, was accepted in the late 1800's, criticized in the 1900's and finally done away with as unacceptable. In both of these cases (slavery and segregation) Federalism was brought to the fore, in that the will of the majority of Americans, who lived mostly outside of the region where these were mostly practiced, was imposed via the use of a strong Federal government, on the region where both were mostly practiced (I say, 'mostly' because there were a few cases of segregation in the north).

In this context, one could argue that a court decision is a stronger precedent if it was made recently than if it is a century old.

This is one reason why as I posted on one of Ann's boards the other day, I strongly suspect that in 30 or 40 years it will be those who fight to restrict the rights of gay people who won't want anyone to remember where they stood today (because gay rights is on the frontier of societal evolution right at the moment.)

Further, to follow up on something that Richard said, the 'vestiges of racism' are all too real today. There are still many people who don't have the same opportunity in America that most of us have. It is not true that they are all minorities, nor is is true that all minorities are so deprived, but to deny the correlation of poverty with race is to deny fact.) Add to this the fact that in these communities those 'vestiges' (including rampant violence, homelessness, poor schools and poor services) perpetuate themselves from one generation to the next and there is a strong argument for the Federal government to push for affirmative action plans (say, based on income rather than race) in order to end it. I would add, however, that given the original promise made to freed slaves of 'forty acres and a mule' which was never kept, if compounded using prevailing interest rates is so high that maybe we should consider the bill that has been brought up periodically in Congress to pay reparations-- though I would favor, rather than direct cash payouts, a program that included things like college scholarships, start up money for small businesses and partially subsidized housing loans.

I would also point out on the specific matter of native Americans-- and I have a lot of friends on the Navajo reservation who are native Americans-- that today they see states increasingly trying to assert themselves on reservations in violation of tribal sovereignty issues.

Further the question of the Federal government being involved with past crimes against native Americans was largely because almost all of the issues involving native Americans were in areas designated 'territories' i.e. under the direct governance of the Federal government (with a few notable exceptions, such as the 'five civilized tribes'). And where states were involved, they often called on the Federal Government to do their dirty work (i.e. the above counterexample.)

Someone mentioned the nineteenth century persecution of Mormons as an example of the abuse of Federal power. I am a member of the Church of Jesus Christ of Latter-Day Saints. The nineteenth century persecution of the Church involved both Federal and state components. For example, Missouri Governor Lilburn W. Boggs was the one who issued an 'extermination order' requiring all Mormons who did not leave the state of Missouri to be killed.

Anonymous said...

I was also going to include the following in the preceding post, but because the post was so lengthy and I wanted to highlight it I am including in seperately:

I go to a chapter on the Navajo reservation about twice per month. There are several hundred people there who never were hooked up to the electric grid.

Some history here: The Rural Electrification Administration was created in 1935 for the express purpose of extending the electric grid to everyone, since it would only have been profitable for electric companies themselves to do it in large cities. In 1986, the Reagan administration announced it was phasing the program out because it was '99% complete.' Of course the 1% is mostly on reservations.

I mention this because conservatives at the time congratulated themselves at eliminating 'waste' in government. That included a lot of rural conservatives. This was tragic. Native Americans (who pay taxes to the tribe instead of the state, but who pay federal income taxes just like anyone else) helped pay for their electricity, but then they were willing to go along with pulling the plug on the REA to 'save' a few dollars before the job was done. Not only was this another example of a broken promise made by the Federal government (native Americans seem to be the ones who always get hit by that) but the hypocrisy and the 'I got mine, now all of a sudden I'm against you getting yours' mentality was stomach turning.

I brought this up on a conservative blog once and someone said that it was 'their choice' for living there. Never mind the fact that this community exists where their ancestors have lived for decades, the mindset was that it was 'their choice.'

So where Federalism was needed in this case, it was not implemented-- and the result is that yes, in America we still have whole communities of people who have to go to the outhouse in the dark with a flashlight (no electricity, no way to drill a well) and go to bed by Kerosene lamps. To add insult to injury, we spend quite a lot of money to electrify communities in third world countries while ignoring it in America.

Yeah, such a triumph for 'small government.'

Bruce Hayden said...

When I showed up to work at the Bureau of the Census in the mid-1970s as a programmer, one of our supervisors was Black. She had been there when there were segregated restrooms, and could (and did) point out which restrooms at Census had been for which races.

Yes, it was in MD, but it was still the federal government that was implementing separate but equal facilities.

My point, somewhat along the line of some of the Volokh Conspirators, is that the federal government doesn't have all that great a record when it comes to race either. I think that it is also telling that the Fugitive Slave Act was one of the early instances of federal supremacy.

Ilya Somin said...

Mortimer Brezny writes:

Are you now suggesting that literate African-Americans would be less capable of interpreting a state constitution than literate white citizens? It is very little defense to the charge that you underestimate the capability of blacks to learn to read to concede that blacks can learn to recognize words but lack the capacity to interpret them.

One hundred years ago, and to a lesser extent today, the average quality of education received by literate blacks was far lower than that available to literate whites. THere is nothing racist about suggesting that people with lower levels of education would be less likely to interpret a complicated document such as a state constitution correctly.

The rest of Brezny's arguments are sufficiently weak that I think they fall of their own weight. This one is extremely weak as well, but I have chosen to answer it because of the of the accusation of racism it implies.

Derve said...

One hundred years ago, and to a lesser extent today, the average quality of education received by literate blacks was far lower than that available to literate whites. THere is nothing racist about suggesting that people with lower levels of education would be less likely to interpret a complicated document such as a state constitution correctly.

Like all those highly educated folks from our liberal-dominated towers are more likely to "correctly" interpret a complicated document like a constitution... ;)

Al Maviva said...

libertarians do not critically engage with the racist legacy of their chosen viewpoint.

Jeebus, Mortimer. The fact that scoundrels hid behind an otherwise relatively neutral facet of governmental architecture no more makes that facet of government racist, nor gives it a racist legacy, than does the use of a 2x4 in a hatecrime make structural timber racist. Both federalism and a 2x4 can be used for racist purposes. This does not make either an instrumentality of racism, the way you appear to be defining it, as an item that carries with it racist baggage.

If federalism has this indefensible unanswerable legacy of racism, when can we expect the supporters of centralized government, especially socialist programs, to start addressing the apparently inevitable tendency of strong central governments to commit genocide and mass murder and innumerable petty abuses?

Sloanasaurus said...

I think Federalism really only works as a check and balance to decentralize government power in America. It is one of the reasons why America has been so successful. If the states become too powerful, as in slavery, the feds can step in and check this power. If the feds take too much power, the states can take some of it back (as in the Michigan affirmative action amendment).

A great benefit of federalism is decentralized control of elections and the local police. It would be difficult to take dictorial control in the U.S. from Washington because the police is controlled locally and is supported by local and state infrastructure.

I don't think it is right to compare the moral actions between state and federal. The moral actions of our government often depends on the evolution of facts and how the future unfolds. For example, if there had not been an industrial revolution in the North, slavery would not have ended in America.

Similarly, if fertility is drastically reduced for some reason among humans in the future, future generations could look upon abortion as the greatest human rights disaster in history.

Anonymous said...

the federal government doesn't have all that great a record when it comes to race either.

You're right about that, Bruce, thanks in large part to Woodrow Wilson, I believe. Wilson was a racist (and a eugenicist, IIRC) and ordered the segregation of the federal civil service.

While we're talking about skeletons in closets, self-described progressives might want to investigate the pre-World War II history of the progressive movement and its leading proponents' attitudes towards race and eugenics. Wisconsin was a hotbed of progressivism in the early 20th century as were most of the Pacific states.

Mortimer Brezny said...

Dear Ilya,

You can call them weak if you like, but I think anyone reading your post at Volokh and your responses here knows that's just a psychological tactic. You wrote a post rife with historical errors that got ripped to shreds. There is no reason to believe you would be any more careful about concealing racist beliefs. If anything, that you are motivated by racism is more plausible than that you are a law professor who makes so many careless errors in public argument.

Mortimer Brezny said...

Ilya Somin: THere is nothing racist about suggesting that people with lower levels of education would be less likely to interpret a complicated document such as a state constitution correctly.

From the Alaska Constitution:

§ 15. Alaska Permanent Fund

At least twenty-five per cent of all mineral lease rentals, royalties, royalty sale proceeds, federal mineral revenue sharing payments and bonuses received by the State shall be placed in a permanent fund, the principal of which shall be used only for those income-producing investments specifically designated by law as eligible for permanent fund investments. All income from the permanent fund shall be deposited in the general fund unless otherwise provided by law.

How complicated. No literate black person could possibly understand it.

Anonymous said...

Sloanasaurus:

if there had not been an industrial revolution in the North, slavery would not have ended in America.

That is an unknowable. However, it likely would have as slavery was ending around the world (except of course for the Saudi royal house) and as much as conservatives would like to believe that foreign events and ideas don't influence what happens in the U.S.A., the plain fact is, they do. Counter-example: slavery was ended throughout Latin America during the nineteenth century, while significant industrialization did not take place until the mid-twentieth in most of Latin America.