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Friday, January 03, 2003


Glenn Reynolds linked approvingly to this article on federalism by Marci Hamilton. What I would like to respond to:

First, for federalism purposes, John Ashcroft would have been better off leaving Oregon to enforce its liberal assisted suicide law. Instead, he insisted that the federal government intervene.

In debate after debate, I have heard critics of federalism claim, based on Ashcroft's decision, that the Bush Administration is only committed to States' rights when it serves a conservative agenda - not as a fundamental constitutional principle.

Ashcroft should not have provided them with grist for this mill. But of course, the politicians are doing what politicians do--turn everything into politics. A liberal Administration would doubtless have decried federalism and at the same time, deferred to Oregon - in a different kind of hypocrisy. Again, though, the problem is the hypocrisy - not States' rights as a general principle.

Hamilton neglected to mention the little problem we here in California have had trying to get the Feds to go along with our allowing doctors to prescribe pot for pain. Or the Republican-backed Federal DOMA. What part of conservative theory makes family law a federal concern? In response to her "alternative hypocrisy" argument, Hamilton is wrong on simple logical grounds. For a conservative administration to exercise a power they claim they do not or should not have is hypocrisy. For a liberal administration to choose not to exercise a power that they claim to have is not hypocrisy. Wrong, maybe, but not hypocritical.

But in theory, Hamilton's basic point is valid. We here in California put Democrats in overwhelming control of our government, but our options are limited by a federal government run by Republicans elected primarily by decedents of people who tried to break off from the U.S. government. True Federalism sounds great to me. So Hamilton has convinced me, a liberal, that I should support judicial candidates who believe in True Federalism. Good for her.

But there is still a practical problem. The point of her article was that we should support Bush's judicial nominees, because they support federalism. Then she admits to a valid criticism that the Bush administration has hypocritically used federalism to support only conservative policies. In response to this criticism, she offers only a hypothetical Tu Quoque argument that a liberal administration would commit an opposite but equal hypocrisy. I have refuted that argument above, but assume it is accurate. So what? I am still a liberal, and the Bush administration still hypocritically uses federalism to push a conservative agenda. So why should I support Bush's judicial nominees?

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