Professor Bainbridge...on law, politics, religion, culture & food

Doctrines Don’t Kill People, People Kill People

If I may so paraphrase an old NRA slogan, Eugene Volokh offers what I think is the definitive take on Ann Althouse's argument that "someone promoting federalism today needs to pay attention to the way it was used 50 years ago."

... of course we should expect that the institutions will sometimes be misused. Each of them, for instance, helped play a role in preserving slavery or segregation. The Supreme Court's first use of the substantive due process doctrine, for instance, was in Dred Scott v. Sandford, the 1857 case in which the Court struck down the Missouri Compromise by holding that Congress had no power to automatically free all slaves who went into certain federal territories. Each of them has been misused many other times as well, though we may disagree about which times they were.

So a particular incident in which an institution has yielded bad results -- or, to be precise, yielded results that we think were worse than they would have been in the institution's absence -- is some evidence against the institution's quality. In that respect, it does taint the institution. But by itself each such incident taints the institution only slightly, because the question isn't whether the institution will ever help bring about bad results, but whether on balance it's better than the alternatives.

I'm not sure why Eugene would call federalism an institution, but set that question aside. Principles are tools by which we build a just society. To say that federalism is tainted by its association with racism is like saying all hammers are tainted because Warren Leblanc used one to kill Stefan Pakeerah or, for that matter, like saying all video games are tainted because Leblanc was supposedly inspired by Manhunt.

Because hammers can be misused, of course, it behooves one to exercise care when using it. But one hardly needs to invoke Pakeerah's memory every time one swings a hammer. Likewise, it's hardly necessary for me to preface every blog post or article I write about Delaware and competitive federalism with some cautionary note about Jim Crow.

Tempest, meet teapot.