'Taint Necessarily So:

Orin reports on the debate about whether federalism is tainted by its association with Jim Crow, and segregations' invocation of states' rights:

Over at BloggingHeads.tv, Ann Althouse and Jonah Goldberg have a very interesting video discussion of a question raised by a recent Liberty Fund conference about Frank Meyer: Can you detach constitutional doctrines and principles from the history of the political environment in which such doctrines and principles were used? They focus on federalism and states' rights, which 50 years ago often were used by racists in the South to defend Jim Crow. Does that history mean that federalism is now tainted? Should proponents of federalism atone for the past associations of their ideas? Or should ideas stand on their own merits, without regard for who has used them in the past?

Let me begin with a general thought, and follow up in a separate post with a more specific one.

Federalism, democracy, judicial enforcement of unenumerated rights, bicameralism, the filibuster, and the like are institutions that can be used for good as well as ill. They were instituted by people who thought that on balance they did more good than the alternatives did. We keep them today for much the same reason, or at least because we don't think the contrary strongly and broadly enough to overcome the barriers to changing the institutions.

Yet 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.