blogspheric discussion afoot about federalism, whether and how American federalism is tainted by Jim Crow, antidiscrimination law vs. freedom of contract, and the bounds of civil discourse-- strange because somehow it's all come to center around Ann Althouse's judgments about who weirded her out at a conference, which seems not to be the most intellectually productive starting point. (See a roundup and reaction from Ron Bailey; more from Virginia Postrel; Dan on the basic character of the conferences and the oddity of Althouse's reactions;and Orin Kerr, Eugene Volokh, and Ilya Somin on the merits of the question. [UPDATE: See also Julian Sanchez. Or else just skip all that follows and seeThers, on the general pattern of which I was unfortunately unaware when I first posted, or Altmouse, the existence of which confirms that there's a well-known and well-established phenomenon here.]
I've got a discussion of the federalism and Jim Crow questions in my APSR paper, and a much more extensive follow-up in a an article that should be coming out in Social Philosophy and Policy any day now. (Can't be put online for a year, per SPP's copyright rules.) The upshot:
1) Federalism is valuable in a system instrumentally, as a check on overall power-- both a direct check on the power of the center and an indirect check on the power of peer provinces/ states. It is to be valued for its contribution to freedom, not as if it were a freestanding moral principle that might be superior to freedom.
2) By empowering local majorities over local minorities, federalism sometimes, predictably, threatens freedom as well.
3) These tendencies can't be reliably teased apart in practice, no matter how cleanly they can be distinguished in principle. For federalism to have its favorable effects, the provinces/ states must have some substantial power in the political system, and must be able to command some genuine loyalty from their local citizenries. Their ability to command that loyalty and hold onto that power will often come from emphasizing that which is distinctive to the local majority-- at the cost of local illiberalism and threats to local minorities. Provinces and states that are so sharply limited by the center that they could not threaten local minorities are alos likely to be effectively powerless against threats from the center, and may be coopted or may become vestigial irrelevancies. (Remember the discussion from Tocqueville, Old Regime: because the aristocrats lost so much of their effective regional governing power, power which they undoubtedly abused, they were easily coopted by Versailles and eased to be an effective check on the crown.)
4) So in any given federation there is a need for rough estimates, attention to historical context, and balancing calculations; we will lack bright-line rules that can either tell us to consistently favor provinces or to consistently disfavor them.
5) In the American context, slavery and Jim Crow are fundamental facts about American political development and state-building; they and their influence permeate everything in the system, and can rarely be dismissed as a marginal case that's beside the point of some larger political principle.
6) Most of the centralization of the American state had nothing to do with fighting Jim Crow or slavery, and indeed the federal government was itself deeply implicated in them (actively, not just through inaction). We should resist the lazy tendency to equate Washington with antiracism and the states with racism, or centralization with antiracism and federalism with racism. Neither Wilson's centralization nor FDR's had anything to do with fighting Jim Crow (indeed Wilson made it national policy, and FDR provided Jim Crow with massive subsidies and material support-- see Katznelson, When Affirmative Action Was White). The crucial transformation of the Commerce Clause was neither necessary nor sufficient nor particularly relevant for much-later civil rights activity-- Heart of Atlanta could have been decided on the basis of the 14th Amendment, not the Commerce Clause. To oppose the centralization of 1937 is not to support Jim Crow.
7) But, finally, the Union Army, the federal courts, and Congress did play decisive roles in breaking racial despotism, and I doubt that any balance of advantage calculations could possibly show that the indirect costs to freedom from the attendant erosion of federalism came close to outweighing the benefits. I've met a lot of conservative/ southern agrarian types whose view of federalism seems to be otherwise; and there were moments in the American libertarian movement when some undoubtedly antiracist libertarians (Murray Rothbard) sided with the Dixiecrats, mistaking the means (federalism) for the end (freedom). This is an old mistake-- Lord Acton made it with respect to the American Civil War-- but it's still a mistake.
Jim Crow does in a real sense taint American federalism, though Ilya Somin is certainly right to say that it taints American centralization, too. It doesn't taint the whole of American federalism, or of federalist jurisprudence. And in order to preserve the states in their ability to protect freedom in the overall system, the states have to be left some leeway-- not treated with such knee-jerk suspicion that every arguably bad state law is considered a Jim Crow-like mortal threat to civic values. But in figuring out the balance of advantages about any particular allocation of responsibility between the states and the center, Jim Crow must loom large in the American historical memory.
In my own assessment, the American center remains massively too powerful, and federalism in the U.S. generally needs to be bolstered not further eroded. But, yes, the project of bolstering it should be haunted by Jim Crow, and chastened by the memory.
UPDATE: Oy. I just read some more of Althouse's own posts on all this-- which are a really bizarre mix of extreme defensiveness, extreme personal vitriol, and a dramatic interest in herself and her own sense of righteousness. And I then remembered the tone, and remembered where I'd heard of Ann Althouse before. (I know she's become a big-deal blogger, but she's never been on my to-read list.) She was the one who found Feministing blogger Jessica guilty of having breasts while standing in the same room as Bill Clinton. The arguments that followed spiralled nastily quickly-- I think due to that same combination of traits. I don't know Professor Althouse-- never met her-- and I have no idea whether the persona of her blog corresponds to her character. (Blogging's not for everybody, and it can be very tricky to keep control of the tone of one's blogging.) But the blog persona seems to be consistent across the two cases, and to be... something less than admirable.
A commentor on this Amber Taylor post writes:
I think that Jacob Levy is right on and essentially agrees with Ann Althouse. I think Levy's criticism goes to Althouse's style, rather than her substance.
That is, top-down thinking is very limited when thinking about Federalism. Althouse agrees with this fundamental point when she criticizes the libertarian worship of ideas (really top-down ideas) and failure to acknowledge the limitations (or exceptions to) top-down thinking exhibited by libertarians.
Personally, I am not as bothered by Althouse's style as is Levy. But like Levy, I agree with Althouse on substance.
Not quite. I agree that we lack bright-line rules and are in the world of judgment calls. I strongly disagree that those whose judgment calls differ from Althouse's are to be presumed racist until they prove (to her!) otherwise. That's more than a stylistic difference. Part of really recognizing complexity is recognizing the likelihood of reasonable disagreement.
Althouse's position isn't really an anti-dogmatist one. It's dogmatism without a theory. She's drawn a bright line in a particular place, and those on the wrong side of it are presumed to be arguing in bad faith for malicious motives because no one could ever really hold such a view. Her bright line isn't drawn deductively, but it's a much brighter line than those that have been drawn by any of her critics. Even if I draw the federalism line kind of close to where she does, I do so on the basis of balancing considerations some of which she's preemptively declared it illegitimate to even take into account.
FINAL UPDATE: Althouse responds. She's displeased that both Dan and Jonathan Adler declared my post to be the 'last word' (not a claim I made). And, apparently, she thinks we're talking across genres:
I'm writing in a different mode from them. I'm not trying to model an academic writing style or demeanor. I'm writing in a way that makes the squares exclaim "You, a law professor!" I'm doing something different here.
Or, as she says elsewhere, what she does is
not the political/law/academic blogging those bloggers who like to take shots at me do. Oh, no! It's something else. Do you get it?
Maybe I don't. So, rather than perpetuate the genre mistake and argue further, I'll direct you to her own last word.