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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