Raich and Liberty
At the end of the day, I suspect the evidence is very murky on whether federalism or nationalism best promotes liberty, even if we could agree on what promotes liberty. With respect to race segregation, the impact of the national government seems to be liberty promoting (but not with respect to the fugitive slave law). With respect to the Drug War, individual states may be more liberal, though I suspect some research may show federal policies tempering some more extreme states. No doubt there is room for general theory, but the general liberty is not likely to focus on gross concepts of liberty (see Ian Shapiro’s wonderful piece in Political Theory), but on the various contigent historical conditions under which federal power is likely to be more protective of certain understandings of liberty than states.
In seems also worth noting that although the framers clearly did not want the national government to swallow the states (Hamilton, perhaps aside), the framers did not want the judiciary to be the institution primarily responsible for patrolling the border. Seems to me if you are going to be an originalist on meaning (and it is far from clear whether Thomas or the dissent is right on meaning), you ought to be an originalist on institutional responsibility
I confess I don’t understand why an originalist approach to a Constitutional text should necessarily imply an originalist approach to institutional interpretation, unless you mean to be suggest that under an originalist methodology something like the judicial power clause or a non-textual consensus implied that the enumerated powers were non-justiciable. That’s pretty clearly inconsistent with a lot of the founding-era statements about the judiciary, and implies, as you surely know, that an originalist ought to be against almost all judicial review of federal law since there was only Marbury for a very long time after the Constitution was adopted. That, again, seems odd.
Comment by Will Baude — June 6, 2005 @ 11:22 pm
Also, I take it almost nobody doubts that the national government promotes liberty in some cases, or even that having some national government is probably better (and more liberty-promoting) than having none. I had thought that the argument for federalism was that liberty is best preserved by having power divided between local and national institutions, in other words that the optimal amount of national government was neither All nor None.
I suppose if one doesn’t believe in most of the arguments for divided government, these arguments will be implausible, but if one does it seems pretty unlikely that the optimal degree of local government is zero.
Comment by Will Baude — June 7, 2005 @ 2:41 am
Indeed, it’s clear from the Federalist Papers that the Framers expected the metaphoric border to be maintained by the tension between two roughly equal powers. That institutional structure was dead dead dead as of 1865 if not before.
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