Posted by Orin Kerr:
Baude v. Bainbridge and the Federalist Divide:
In a response to charges that conservatives lost their federalism
principles in the Schiavo case, [1]Stephen Bainbridge suggests that
federalism isn't really much of a principle among social
conservatives:
I see federalism and limited government as means to an end, while
[Glenn Reynolds] seems to see them as ends in and of themselves. I
find his to be a fairly typical worldview among libertarians, who
make a fetish out of federalism and small government without regard
to whether they actually contribute towards the public good in a
given case.
[2]Will Baude responds:
Well, yes. A commitment to federalism is unlikely to do much work
if one employs it only when it would be useful in an individual
case. What one has then is not a commitment to federalism but a
commitment to using every rhetorical argument and political
strategem available to get one's way. This is fine, so far as it
goes.
Then again, it would be quite remarkable to press his argument to
its logical extreme. One could say the same thing about the rule of
law, commitments to constitutionalism, rules against military coup,
and so on. If Professor Bainbridge wants to play for short-term
victories and ignore systemic concerns, fine, but why poo-poo those
who think that we should generally work within certain legal or
traditional strictures, even when it leads to a bad outcome in one
case?
. . .
Again, this is a perfectly sensible way to think-- that
structure should always be subordinated to the immediate payoff--
but it isn't a particularly federalist way to think. Indeed, since
'federalism' is invoked only where the case-specific substantive
result is desired isn't even using federalism "as (a) means to an
end"; it's using federalism as a talking point.
In a way, the Schiavo case reminds me of debates over [3]Bush v.
Gore. The political implications of different jurisprudential views
reversed their usual polarity for a few weeks, and it was like
watching a legal version of [4]Freaky Friday.
References
1. http://www.professorbainbridge.com/2005/03/reynolds_on_sch.html
2. http://www.crescatsententia.org/archives/2005_04_01.html#005235
3.
http://supct.law.cornell.edu/supct/search/display.html?terms=Gore&url=/supct/html/00-949.ZPC.html
4.
http://www.amazon.com/exec/obidos/tg/detail/-/B00005JMCW/104-4184752-9687916?v=glance
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