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The End of Federalism?
John Eastman has an interesting take on the reaction to the Miers nomination.
Why has there been such a firestorm over President Bush's most recent nominee to the Supreme Court? One answer: the nomination of Harriet Miers exposes the fault lines of disagreement within the conservative coalition, and appears to have boxed out one significant—perhaps the most significant—component of that coalition.
Read his column, The End of Federalism?, to find out the component to which he is referring and how it has been boxed out. If he is right, this could be a telling development for the Republican political coalition. Comments by those who have read his analysis are welcome here.
Beerslurpy (www):
Very disturbing but not the least bit surprising given the past 4 years.

The unfortunate thing is that most special interests are results oriented and very much focused on operating within whatever form the system takes. So they wouldnt necessarily be troubled by having an inefficient or broken system as long as their narrowly defined interests were served. These groups are easier to appease and their votes are worth the same as everyone else's.

The old "conservative glue" tends to be founded on a deeper and longer term view of the issues, and would not take architectural shortcuts to get where we wanted to be. I guess the only way this group can hope to triumph over the constantly changing political fads is to outmaneuver the usurpers over the course of many years. Maybe by finding ways to satisfy the other short term groups without deviating too far from the true path? I think the only real strength of the traditional conservatives is that we have a consistently good set of arguments we can present for those willing to listen (alas).

I dont think it is a problem with a simple answer. Much of the impetus behind the current big government craze was created by events beyond our control. Sometimes history just sweeps you along to places you would rather not be.
10.25.2005 10:53pm
Voorhies (mail):
As an older libertarian lawyer I must say it is remarkable the way younger libertarian attorneys have gotten in bed with Republicans. However, there isn't any other place to participate. I'm impressed, nonetheless with the intelligent out pouring of opposition to the Miers nomination.There was a time when we had them on the run on the economic front and no where else. Now, the authoritarians of all degrees are getting the juris kicked out of their jurisprudence. Keep after them Roundy!
10.25.2005 11:18pm
Voorhies (mail):
Keep after them Randy!I'm trying to write and watch the game.
10.25.2005 11:20pm
Anonymous Jim (mail):
I think he is right. What is surprising is not that he is, but that it has taken so many so long to realize this.

For example, many on the religious right decry "activist judges" like those in the Teri Schiavo matter. What they want is activist judges who will set aside principle for their principles.
10.25.2005 11:24pm
Stan Morris (mail):
Speaking from the same podium as Vorhies, I used to think Wickard was dying on the vine with Lopez and Printz sprouting. I was first inclined to trust the President. The more I read and hear, the more I'm disappointed in Mr. Bush. I believe as Prof. Eastman apparently does, that the President's M.B.A is showing through.
10.25.2005 11:31pm
Michael Dimino:
Thomas Keck makes an analogous argument in a recently published book: The Most Activist Supreme Court in History. According to Keck (like Eastman), some aspects of the Republican Party figured out that their policy goals could be better achieved by discarding intellectual ideals of originalism and the enumerated powers doctrine. The result is a Court that feels comfortable striking down both economic regulations and laws infringing personal liberty.

Assuming Eastman's analysis is correct, the Miers nomination is nothing new in this regard; those of us who were disappointed with Raich, Roper, etc., etc. already knew that we do not have, and are not likely to get, a Court that applies the Constitution consistently in accord with the original understanding. Rather, the public and the party care about outcomes in specific cases, and theoretical consistency is derided rather than held out as the goal of "law."
10.25.2005 11:36pm
Been There, Done That:
Kelo is another good example.

More than a few Republicans like the outcome because it's too damn hard for developers to get what they want. I mean, really, how else do you deal with these idiots who refuse to sell their land and muck up a perfectly good yuppieplex?
10.25.2005 11:44pm
Dave Hardy (mail) (www):
What can be loosely identified as conservative or right has two major components, one libertarian and one ... statists would be the libertarian term, but let us say rules/hierarchy. The world consists of rules, and hierarchies to administer them. What we see here is just the internal clash between the two. What we identify as liberal is likewise a loose cooalition, between, say, the FDR liberal (nationalist in foreign policy, modestly concerned about civil liberties), the later liberal (somewhat nationalist, more concerned about civil liberties--except for property rights, of course) and the post 60s liberal (not nationalist at all, very concerned about some civil liberties, and otherwise very statist).
10.25.2005 11:48pm
dk35 (mail):
Well, whenever anyone asks me for an example of people being simultaneously be bright and naive, I will, for the rest of my days, be able to point to Randy Barnett et al. You had so many opportunities to smell deceit from the Bush machine, but yet you soldiered on for him.

Now that you have been more or less officially booted from the Republican party, I really would encourage you to at least think about forming an alliance, even a temporary one, with the modern Democratic party. And before you just dismiss me out of hand, please think again. Or at least provide a reasoned explanation why the Democratic party would be worse for you than the Republicans.
10.25.2005 11:51pm
Bobbie:
Wasn't the Civil War the end of federalism?
10.26.2005 12:06am
Randy Barnett (mail) (www):
dk35:

Rather than simply delete the ad hominem post, I thought I would ask: When did I "soldier on" for the Bush administration? The only official connection I have had with the Bush administration is to bring suit against it. (As for the Democratic Clinton administration, it brought suit against my client, the Oakland Cannabis Buyers Cooperative.) Of course, I have expressed support for those policies of the Bush administration with which I agreed.
10.26.2005 12:12am
DRJ (mail):
I agree with the author's description of what motivates the Doves and how that group wants an activist court - as long as it's conservative. The analysis regarding the Marketeers is logical insofar as it applies to big business; however, I'm not sure it accurately reflects the small business owners who are often libertarian and/or wary of federal government. But I have more concerns about the discussion of the Hawks. Are they really so willing to forfeit the traditional conservative ideology of less government? To believe this, you must accept that the War on Terror so changed the Hawks that they are willing to embrace big government.

The Marketeers and Hawks combination seems like an updated version of the military-industrial complex meme. Maybe it's a "something old is new again" moment but, if so, who's left? Where do all the conservative intellectuals come from if they aren't Doves, Hawks or Marketeers?
10.26.2005 12:50am
CharleyCarp (mail):
I'd be interested to know if there's anyone out there at all -- either pro or con Miers -- who thinks she would rule for Oregon in the assisted suicide case. Anyone?
10.26.2005 12:57am
JG:
I'm not sure I agree that Kelo is a particularly good example. Though I don't doubt that lots of pro-business Republicans supported it for no other reason than that it was pro-business, Kelo also happens to be very pro-federalism and very un-activist. One certainly (and obviously) needn't be libertarian to be a traditional and principled Republican.
10.26.2005 1:04am
Brett Bellmore (mail):
I think a large part of the problem is the accumulated weight of campaign regulations, which have by now made any threat to go elsewhere patently absurd. There really ARE only two games in town now, the Democrats and the Republicans, by law. Which means they really don't have to care if their bases get disgusted, so long as the opposition remains worse. Which it always will be, the entire race to the bottom.
10.26.2005 1:08am
hey (mail):
as a libertarian locally and a hawk globally, I'll take a stab at why people of similar temperment aren't looking at the dems.

1) their economics scare us. even those dems who understand economics generally (Corzine, Wall Street libs, etc) have completely batty ideas about how to run an economy. They generally have way too much faith in the feds running the economy.

2) the general position on national security is scary. Lieberman is ok, but other than that, not so much. The staffers and interns tend to be very heavily anti-war, anti-cia, anti-military, being that they're young and left-leaning. bad news for someone who views national security as very important and who believes that singing kumbaya is an ineffective method of getting dictators and communist autocracies to behave.

3) their attitude towards regulation is scary. from environmental to labour onwards, the instinct of the party is more regulation. especially among the intern and staffer class.

does this mean that we're battered spouses? um yeah, yeah it does. one of the major issues is that for so many dems, especially those in the staffer/intern demo, the results of a policy are less important to the intentions behind the policy. when you literally can't have a conversation with people because they are so ideologically opposed to doing somethign because it feels bad... oy.

whats left to the libertarians and hawks is to seriously threaten the coalition. see the uproar against Miers. demonstrating to republicans that not listening to us will have us not vote, not contribute, not help is a more real threat than a threat to go to the other side.

there were good comments abotu the difference between the 2 types of marketeers: big business prefers regulations and bureaucracy as its a barrier to entry. big business will always survive regulation, though it would prefer less taxes. small business gets destroyed by regulation. just like how nationalised health care is great for GM as it gets a huge unfundable liability off its books, while it destroys small businesses who now have much higher employee costs from day one.

i'd love an alternative, but as long as the dems are the property of radical hippy communists... not going there
10.26.2005 1:58am
Victor Davis (mail) (www):
Depressing because it rings true.

The only caveat I would add is that maybe "we" haven't been boxed out so much as "we" have failed to sell our ideas. Rallying people around moral causes, or economic interests, etc., is comparatively easy and we have to be persuasive on the ground with ordinary people. (Dang, this is what all extremist groups probably say.)

But people demand to see tangible benefits, defined as particular outcomes. One thing the Miers debacle is pounding into my head is that the vast majority of people simply don't care a lot about process; notice how quickly concern about process was discarded just on the *impression* that she might not vote to overturn Roe or that she might endorse "quotas". Heck, more than half the Republicans who are up in arms about Miers are upset on consequentialist grounds, meaning that the vast majority of the party is focused strictly on outcomes. If there's been one thing more disappointing than the nomination, it has been the abandonment of principle in the ensuing debate.

"Boxed out" is indeed the right terminology for how I feel. Federalism was just the convenient tool used against the status quo in the 1980s. But the optimist in me still says that it also strikes a true chord in Midwesterners and Southerners. There is still latent support out here in the hinterland. Surely.

Regardless, this will get worse before it gets better. I, like Eastman feel like this has been an intentional estrangement.

Time to regroup and rethink. I will close by noting that not everything is hunky-dory in the remaining three legs, either. Bush's fiscal policies are leading us toward a tax increase sometime well before 2012, and this may become an obvious necessity before 2008. If we think this fracture is bad, wait until a Republican tries to raise revenues.
10.26.2005 2:19am
A Guest Who Enjoys This Site:
Eastman offers a more eloquent version of the 'frustration' I have voiced to the RNC. The 'Reagan Revolution' was never something that Bush the Senior represented; remember, they were once competitors. (Interestingly, Pat Robertson, who now supports the Miers nomination so adamantly that he has publicly threatened any senator who votes against her, warned against 'the New World Order' that Bush the Senior was an intrinsic part of.) Now, despite every effort to tie themselves to the 'Reagan Legacy,' Bush the Junior's administration seems more closely tied to his father's philosophy than Reagan's.

There is no debate that Ronald Reagan's overarching philosophy was predicated on "getting government off our backs."

In 1964, Reagan gave a speech in which he said:


This is the issue of this election: Whether we believe in our capacity for self-government or whether we abandon the American revolution and confess that a little intellectual elite in a far-distant capitol can plan our lives for us better than we can plan them ourselves.

You and I are told increasingly we have to choose between a left or right. Well I'd like to suggest there is no such thing as a left or right. There's only an up or down -- [up] man's old -- old-aged dream, the ultimate in individual freedom consistent with law and order, or down to the ant heap of totalitarianism. And regardless of their sincerity, their humanitarian motives, those who would trade our freedom for security have embarked on this downward course.



In his 1980 address to the Republican National Convention, Reagan said:


Never before in our history have Americans been called upon to face three grave threats to our very existence, any one of which could destroy us. We face a disintegrating economy, a weakened defense and an energy policy based on the sharing of scarcity.

The major issue of this campaign is the direct political, personal and moral responsibility of Democratic Party leadership --in the White House and in Congress -- for this unprecedented calamity which has befallen us. They tell us they have done the most that humanly could be done. They say that the United States has had its day in the sun; that our nation has passed its zenith. They expect you to tell your children that the American people no longer have the will to cope with their problems; that the future will be one of sacrifice and few opportunities...

...I will not stand by and watch this great country destroy itself under mediocre leadership that drifts from one crisis to the next, eroding our national will and purpose. We have come together here because the American people deserve better from those to whom they entrust our nation's highest offices, and we stand united in our resolve to do something about it.

We need rebirth of the American tradition of leadership at every level of government and in private life as well. The United States of America is unique in world history because it has a genius for leaders -- many leaders -- on many levels. But, back in 1976, Mr. Carter said, "Trust me." And a lot of people did. Now, many of those people are out of work. Many have seen their savings eaten away by inflation. Many others on fixed incomes, especially the elderly, have watched helplessly as the cruel tax of inflation wasted away their purchasing power. And, today, a great many who trusted Mr. Carter wonder if we can survive the Carter policies of national defense.

"Trust me" government asks that we concentrate our hopes and dreams on one man; that we trust him to do what's best for us. My view of government places trust not in one person or one party, but in those values that transcend persons and parties. The trust is where it belongs--in the people. The responsibility to live up to that trust is where it belongs, in their elected leaders. That kind of relationship, between the people and their elected leaders, is a special kind of compact...

First, we must overcome something the present administration has cooked up: a new and altogether indigestible economic stew, one part inflation, one part high unemployment, one part recession, one part runaway taxes, one party deficit spending and seasoned by an energy crisis. It's an economic stew that has turned the national stomach...

But let our friends and those who may wish us ill take note: the United States has an obligation to its citizens and to the people of the world never to let those who would destroy freedom dictate the future course of human life on this planet...

Tonight, let us dedicate ourselves to renewing the American compact. I ask you not simply to "Trust me," but to trust your values--our values--and to hold me responsible for living up to them. I ask you to trust that American spirit which knows no ethnic, religious, social, political, regional, or economic boundaries; the spirit that burned with zeal in the hearts of millions of immigrants from every corner of the Earth who came here in search of freedom...



In his 1981 Inaugural Address, Reagan continued to maintain his thought:


In this present crisis, government is not the solution to our problem; government is the problem. From time to time we've been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. Well, if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?...

It is my intention to curb the size and influence of the Federal establishment and to demand recognition of the distinction between the powers granted to the Federal Government and those reserved to the States or to the people. All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government...

It is no coincidence that our present troubles parallel and are proportionate to the intervention and intrusion in our lives that result from unnecessary and excessive growth of government...



As Eastman indicates, the political pragmatism adhered to by the current Bush Administration seems to stand in remarkable contrast to the values espoused by Reagan in these quotes and elsewhere. So stark is this contrast, Reagan's words reach a the level of being an almost prophetic warning regarding the very language Bush now ill-advisedly uses. If political pragmatism, the result of a 'reaching across the aisle' philosophy gone bad, means the sacrifice of ideals long held, how can the Republican Party continue to claim the 'moral' or 'intellectual' high ground on issues? Is this the reason Bush fears, or at least has attempted to avoid, the 'debate' so many conservatives hoped to engender with a nominee different from Miers?

By definition, pragmatism is an approach which evaluates or values beliefs and theories, not on suitability, principle, or desirability, but in terms of the success or the potential success of their practical application. Again, as Eastman points out, this would seem to be particularly appropo in light of the Miers nomination. It is also contrary to the very philosophy 'owned' by Reagan. In his 1989, Farewell Address, Reagan summed up his legacy thus:


...I won a nickname, 'The Great Communicator.' But I never thought it was my style or the words I used that made a difference: it was the content. I wasn't a great communicator, but I communicated great things, and they didn't spring full bloom from my brow, they came from the heart of a great nation--from our experience, our wisdom, and our belief in the principles that have guided us for two centuries. They called it the Reagan revolution. Well, I'll accept that, but for me it always seemed more like the great rediscovery, a rediscovery of our values and our common sense...

...there is a great tradition of warnings in Presidential farewells, and I've got one that's been on my mind for some time. But oddly enough it starts with one of the things I'm proudest of in the past 8 years: the resurgence of national pride that I called the new patriotism. This national feeling is good, but it won't count for much, and it won't last unless it's grounded in thoughtfulness and knowledge...

We've done our part. And as I walk off into the city streets, a final word to the men and women of the Reagan revolution, the men and women across America who for 8 years did the work that brought America back. My friends: We did it...



This is the 'glue' to which Eastman refers. And, as he points out, it is the "idealism" which seems to have been abandoned by the Republican Party. The thrust of the Reagan revolution was to get government off the people's backs. It was never about asking which programs "BIG GOVERNMENT" should back (guns or butter?) or which elitist 'paradigm' was the superior "leadership philosophy." It was about government serving the people it represented; i.e., a representation that is "trusted," but one that is continually 'verified' by the people.

The traits of leadership are: fairness, consistency, judgment, dependability, initiative, decisiveness, tact, integrity, sincere interest, exuberance, unselfishness, bearing, courage, knowledge, loyalty, and endurance. No where in this list do I see a requisite for dealing with things in a practical manner. In fact, the practical application of this combination of traits often entails an impractical approach to achieve success.

Thus, we are led back to the frustration induced question I posed to the RNC:


I'm not sure I know what it means to be a Republican anymore. Do you?


The only solace, if we can term it that, I take is found in the fact that the Democrats don't seem to know who they are either. Is this the leadership equivalent of being lost?
10.26.2005 3:04am
Anon For Blogs (mail):
Eastman's analysis rings somewhat true. If it is, I think it says something about the fragility of linking political movements to legal concepts and theories. Ultimately, people care more about the substance than the form of law. Did anyone ever really think that what was driving the pro-life movement was concern about constitutional interpretation and allocation of authority between courts and legislatures? Did law professors suddenly start writing stare decisis articles post-Casey because of intellectual interest? In the chicken and egg question of legal theory and policy, I think we know which one comes first.

This is not to diminish the sincerity of many of the legal thinkers who took up the cause of federalism. As someone who's more left of center, I've honestly been extraordinarily impressed by the Miers reaction -- it turns out you're not all a bunch of political hacks after all. Which, honestly, means a lot.

But the point is -- political movements care about substance, not form. In the end, is that a bad thing? Is it unreasonable for people to care more, as a polity, about substantive questions (fetal death v. women's choice, efficient economy, etc.) than the intricacies of how those decisions get made?
10.26.2005 3:13am
eng:
I've always thought Spencer's The Man versus the State explained quite clearly why the Democratic party is no place for a liberal and especially not a libertarian.
10.26.2005 3:20am
Mr. Mandias (mail) (www):
This sort of libertarian posturing is silly. The number of people who care nothing at all about God or the economy or national security is vanishingly small. Yet a great deal many conservatives are opposed to the Miers nomination, many of them business types or, like myself, religious conservatives (in fact, I would consider myself a dove, a marketeer, a hawk, and a federalist, all of the above).

Attempts to say, here is the religious right, which has perverted conservatism, and are we true federalists, are self-defeating. To the extent that you are effective at creating that split, you lose. Successful politics are coalition politics. Coalition politics work best when the camps within the coalition are blurred together. Trying to separate them out for the sake of a little self-congratulation on one's own purity is as frivolous as hell.
10.26.2005 3:36am
jgshapiro (mail):
I'm kind of alarmed, to tell the truth, about Randy's comment that he thought about deleting the post calling him naive, before he decided instead to respond to it. That comment did not seem anywhere near ad hominem enought to justify deletion. Makes me wonder what else has been deleted . . .
10.26.2005 4:30am
jgshapiro (mail):
As someone who is somewhat libertarian and hawkish I would take a different tack on the Dems than Hey does. It's not just (or even primarily) the economic danger from the Dems that is a deterrant to voting for them.

The problem with the Dems is that even though there are a few who have realistic views on foreign policy and terrorism, they are a small minority in the Democratic party -- probably more so today even than in 2004. How many votes did Lieberman, Clark and Graham get collectively in the 2004 Democratic primaries? The base of the party is represented by Howard Dean, not Joe Lieberman. Once upon a time you had Scoop Jackson Democrats. Now they are called moderate Republicans.

Even if the Dems defied expectations and nominated someone who is nationalist on foreign policy, he or she will have a damn near impossible time putting these policies into action without fighting their fellow Dems tooth and nail for 4 years. You can triangulate only so much. Moreover, if this was your plan, you would need someone with the backbone to stand up to the party base. Kerry was certainly not that man. Neither was Gore.
10.26.2005 4:56am
Perseus:
Just a point of clarification on Eastman's use of "Hawks" and "Doves." People normally associate hawks with a more aggressive foreign policy and doves with a less aggressive one. Eastman, by contrast, uses "hawk" to denominate those (like Machiavelli) whose primary concern is foreign policy and "dove" to denominate those whose primary concern is domestic policy in the Aristotlean sense of the term (i.e. forming the moral character of citizens).

End of short lesson in (Straussian) political philosophy.
10.26.2005 6:37am
Visitor Again:
Randy Barnett

Rather than simply delete the ad hominem post, I thought I would ask: When did I "soldier on" for the Bush administration?

Thos who run this website seem to have a very nonlibertarian view of what should be allowed to see the light of day. The day you or your colleagues delete messages like that one is the day I stop coming here.
10.26.2005 8:55am
Dustin R. Ridgeway (mail):
They've deleted messages before. Usually when they are grossly off topic or are ad hominems that distract from te discussion. It's their weblog and they can operate it as they choose; there is nothing non-libertarian about that.
10.26.2005 8:59am
Visitor Again:
joshapiro

I'm kind of alarmed, to tell the truth, about Randy's comment that he thought about deleting the post calling him naive, before he decided instead to respond to it. That comment did not seem anywhere near ad hominem enought to justify deletion. Makes me wonder what else has been deleted . .

Yes, I read your comment after posting my own comment above. There are words I use to describe people who threaten to use their power this way, but Barnett would regard them as ad hominem so I won't use them here.
10.26.2005 9:13am
Visitor Again:
They've deleted messages before. Usually when they are grossly off topic or are ad hominems that distract from te discussion. It's their weblog and they can operate it as they choose; there is nothing non-libertarian about that.

Legally they can do anything they want with it Whether they should do that is an entirely different question. Forgive me, I thought libertarianism meant more than private property trumps all other values. I'm not a libertarian, although I like to think I have a libertarian streak. Suffice it to say that my libertarianism is not yours. According to my version, if you put up a forum and invite public comment, you accept messages with which you disagree unless they contain offensive language.
10.26.2005 9:33am
DNL (mail):
The post should have been deleted, as should mine.

Randy's original post ends with:

Comments by those who have read his analysis are welcome here.
The implication is clear: the original author does not have a way for readers to comment publicly and Randy believes it was worth discussion.

The putative ad hominem post was put in here to attack Randy, not discuss the article, and should have been deleted.
10.26.2005 9:51am
DNL (mail):
The post should have been deleted, as should mine.

Randy's original post ends with:

Comments by those who have read his analysis are welcome here.
The implication is clear: the original author does not have a way for readers to comment publicly and Randy believes it was worth discussion.

The putative ad hominem post was put in here to attack Randy, not discuss the article, and should have been deleted.
10.26.2005 9:51am
dk35 (mail):
Firstly, I want to thank those of you who have written of your concern about Randy's "deletion" comment.

As for my original comment, I think it is rather reductionist to call it an "ad hominem," but I'll go ahead and take some blame in that I may not have fleshed out the comment enough. Quite obviously, I don't have the ability to look into the hearts and minds of Randy Barnett or any other libertarian legal scholar for that matter. I thought that was obvious, at least, and assumed that others would realize that that was not what I was trying to say. What I do still maintain though, is that in an objective sense, given all the evidence at hand, the attempt to promote a federalist agenda through the Republican party was, and is, a naive pursuit. For example, thinking that Scalia (the darling of the Republican party) would remain a consistent vote for federalism, regardless of the issue at hand, even if it touched on an issue that many in our society look at from a morals perspective (marijuana use) seems a naive legal strategy, given Scalia's past public and private statements and decisions.

Finally, I do appreciate that some (hey, jgshapiro) took my challenge seriously and addressed the question of whether libertarians might want to consider a switch in political alliances. Not that I agree with their opinions (for example, I would suggest that that if libertarians engaged with those democrats who shared the philosophy of Justice Breyer, they might find some common cause..but this is probably a discussion for another forum) but I thank them for their good faith efforts to engage in debate.
10.26.2005 10:18am
Visitor Again:
What about those comments above supporting Randy, then? Delete them, too, on the ground they are off topic? So much for free discussion.

Look, either you allow free discussion or you don't. If you don;t, then I'll go where it's allowed. I come here for the reader comments, not for what Randy and his colleagues post.
10.26.2005 10:23am
magoo (mail):
Anyone who thinks the concern over Miers is less about Roe and more about Raich and Gonzales has a very rusty set of political antennae.
10.26.2005 10:40am
Wrigley:
Eastman writes: "Who can be opposed? Well, the old glue: Strict constructionists. Federalists. Libertarians. People like Randy Barnett, John Yoo, Roger Pilon, Bill Kristol, Charles Krauthammer, and George Will. We've been boxed out, and we know it."

Is he serious? He gives us his whole schpiel describing the "Hawks, consist[ing] of strong advocates of national power in the Cold War (and now the war on terror)." In the same breath, he calls John Yoo a federalist/libertarian. Has he ever read Yoo's scholarship? I think it's fair to say that Yoo would contend that the President could eat enemy combatants as a snack per his inherent Article II commander-in-chief powers. Without starting a debate on the merits vel non of Yoo's positions, it is ludicrous to call him a federalist/libertarian.
10.26.2005 11:02am
Bob Bobstein (mail):
It might be an unfair criticism of Eastman's punchy and readable column, but I think it oversimplifies the various groups, and overestimates the weight that intellectuals have in policymaking. Interest groups by and large get their way by dint of financial or numerical clout. Intellectuals may be along for the ride, but I don't see much of a reason to believe that they play a key role. Maybe this observation is especially apt for the Grover Norquist-era bigger-faster-more-programs-and-debt Republican party, but I think it applies across the board to some extent.

Many, many more people care about getting the "right" result on abortion, say, than upholding any principles about federalism or anything else. Politicians talk up federalism when it suits them on a given issue, and ignore it otherwise (ie, Ashcroft as a senator talking to Southern Partisan magazine, then doing otherwise when states did stuff he didn't like as AG). How many elected federal officials genuinely care about it? I think Bob Barr did... anyone else?

DRJ: The analysis regarding the Marketeers is logical insofar as it applies to big business; however, I'm not sure it accurately reflects the small business owners who are often libertarian and/or wary of federal government.

Small business owners don't donate as effectively as big businesses; they will lose almost every time when their interests conflict.

Victor Davis: maybe "we" haven't been boxed out so much as "we" have failed to sell our ideas. Rallying people around moral causes, or economic interests, etc., is comparatively easy and we have to be persuasive on the ground with ordinary people.

Well... good luck with that. I think that federalism is a concern for pointy-headed academics and people like me who post on their blogs, but it won't resonate, except among people who don't like what the federal gov is doing on a certain issue. The South, once thought to be pro-federalism, is now the stronghold of big government conservatism. Hope I'm wrong, but there's no evidence that I see that says I am.
10.26.2005 11:08am
Perseus:
It depends on what is meant by Federalism. Hamiltonian rather than Madisonian Federalism is certainly amenable to a strong executive (Pacificus) and to the federal government pre-empting the varying economic regulations of the states. Still, Hamiltonian Federalism doesn't get you to the kind of big, unlimited government that the Administration seems to have embraced.
10.26.2005 1:17pm
Shelby (mail):
Bob Bobstein:
Interest groups by and large get their way by dint of financial or numerical clout. Intellectuals may be along for the ride

There's a fair argument that intellectuals serve largely to provide a gloss - a veneer of justification - for power politics. I don't know that I buy it, though.

Anon for Blogs:
As someone who's more left of center, I've honestly been extraordinarily impressed by the Miers reaction -- it turns out you're not all a bunch of political hacks after all. Which, honestly, means a lot.

Well, thanks. I don't think I'm "right" of center, but this (the reaction to Miers) is the reaction I expected from the libertarian-minded. Unfortunately I have learned not to expect it from anyone else. Counterexamples are welcome!

Is it unreasonable for people to care more, as a polity, about substantive questions ... than the intricacies of how those decisions get made?

Yes, it is specifically as a polity that people absolutely should NOT care more about substantive questions. It's as a polity that we set the ground rules, the rules that are then used to resolve substantive differences. I don't expect people on the whole to do so, I just know that they should, and fail to do so at their peril.
10.26.2005 2:51pm
fling93 (www):
I disagree that there was ever any glue. In a two-party system, you don't need glue. What keeps each of the three legs of the triad in the party is that they have nowhere else to go. Their polar opposite is already entrenched in the other party.

This has always been less true for limited government and federalism types. Those who place a higher importance on social liberty than economic liberty are already in th Democratic Party because they find the "Moral Majority" wing of the Republican Party more distasteful than the "Tax and Spenders" in the Democratic Party.

What he calls "the glue" never ever had any power in the party. The party used to pay lip-service to their beliefs to win their votes, but once they had enough power not to need it, they stopped. And it seemed to me that federalism tended to be ignored whenever it conflicted with, say the War on Drugs or Abortion or what-have-you.

Just my impression, anyway.
10.26.2005 5:54pm
Jam (mail):
Real Federalism died in 1864, in a country court house. Since then, the uS of A has been in the process of becoming the like the Estados Unidos de Mexico.

The States, in the under the compact adopted in 1789, of independent republics in a voluntary Union, by the use of bayonets has morphed into administrative subdivisions of the Central government.

All the fights, for control of the Central government, since 1864 have been on matters pragmatic and not on principles.

The "living document' is a "dead letter." And a very old rotten corpse at that.
10.27.2005 1:56pm
Jam (mail):
When SCOTUS upholds bad law because to overturn a bad law would do "irreparable" damage to the SCOTUS reputation, Federalism is dead.

If the appointment of one person to the SOCUTS is so significant in determining what is constitutional, Federalism is dead.
10.27.2005 2:01pm
Jam (mail):
Real Federalism died in 1864, in a country court house. Since then, the uS of A has been in the process of becoming like the Estados Unidos de Mexico.

The States, under the compact adopted in 1789, independent republics in a voluntary Union, by the use of bayonets, have morphed into administrative subdivisions of the Central government.

All the fights, for control of the Central government, since 1864 have been on matters pragmatic and not on principles.

The "living document' is a "dead letter." And a very old rotten corpse at that.

PS: Apologies to all. I clicked the wrong button.
10.27.2005 2:04pm