The Last Words on Federalism's "Taint":

Additional thoughts on the subject — and the debate that prompted it — from Daniel Drezner and Jacob T. Levy. I think they have the last words.

UPDATE: Silly me. Of course Ann Althouse gets the last word — she's a diva.

ANOTHER UPDATE: Will Baude didn't get the message.

Roach (mail) (www):
Of course, we may want to ask if anti-federalism and civil rights laws are tainted by opposition to agrarian culture, social engineering schemes like forced integration, and the regional power grabs by the Northeast.
1.1.2007 1:59pm
Goober (mail):
I do hope this episode is now over, although it's been ... somewhat fun to watch at times.

P.S., you still owe us a Sunday song lyric.
1.1.2007 2:10pm
Daryl Herbert (www):
Now I have the last words.
1.1.2007 8:00pm
Tom Tildrum:
I'm sorry; I consistently like Levy's writing and have always found him quite sensible, but this post is a trainwreck.

His seven scholarly points boil down to the conclusion that political theory has absolutely nothing substantive to offer on the question at hand (concluding that "it's a case-by-case balancing test" is not a theory).

Overall, Levy's post simply evades Althouse's point: does he believe that to oppose the passage of the Civil Rights Act of 1964 "is not to support Jim Crow"? That's what Althouse was writing about, and the fact that the Liberty Fund's stated principles lead to opposition of *that* extension of federal power. Levy twists around this issue by changing the subject and writing instead about "the centralization of 1937," but that's so far off point as to be nearly irrelevant.

Levy does make the point that "in figuring out the balance of advantages about any particular allocation of responsibility between the states and the center, Jim Crow must loom large in the American historical memory." That point, of course, is precisely what Althouse was arguing at the Liberty Fund conference, and precisely what the libertarians there were insistently ignoring. For some reason, though, when Althouse makes Levy's own point, Levy calls her "dogmatic." Given Levy's focus only on Althouse's arguments, and not on the libertarians' pigheadedness, his analysis is hopelessly one-sided.

What's worse, Althouse is dogmatically anti-racist "without a theory"! Given Levy's own inability to articulate any coherent theoretical point about federalism and racism, this conclusion is simply risible.

Finally, Levy chastises Althouse for her personal tone, while wholly ignoring the personal nature of the Ron Bailey's attacks on her. This is borderline sexist; when a man goes after a woman in this way, Levy has nothing to say, but when a woman retaliates, he's offended.

Thus, I would hate to think that this aberrantly poor post (from a writer whom, as I said, I usually respect very much) should be taken as the last word on this subject. I think Levy needs to respond forthrightly to the real questions that Althouse has raised: can one oppose the passage of the Civil Rights Act without supporting Jim Crow, and if one's principles lead one to support Jim Crow, is that racist? Also, I think Levy needs to examine how much his own predilections and loyalties may have influenced his analysis, and he should apologize to Althouse for the slanted and patronizing tone of his post.
1.2.2007 12:56am
GAH (mail):

can one oppose the passage of the Civil Rights Act without supporting Jim Crow, and if one's principles lead one to support Jim Crow, is that racist?

Levy doesn't have to answer those questions because they aren't serious questions. If the world were a simple place with "problems" which yeilded to unique "solutions" and if the CRA of 1964 was the unique solution to the problem of Jim Crow, then, and only then, would opposition to the passage of the CRA be suffiencent as evidence of racisim.

As for the second question, obviously no. If ending Jim Crow costs something valued higher than the benefits of ending Jim Crow then opposition to Jim Crow can be irrelevent to racisim. For example, if one thought that the methods being used to end Jim Crow would lead inevitably to an American Police State where no civil rights were respected.
1.2.2007 11:20am
Jacob T. Levy (mail) (www):
can one oppose the passage of the Civil Rights Act without supporting Jim Crow, and if one's principles lead one to support Jim Crow, is that racist?

1) Yes. The state/ private nexus in the south was messy and complicated-- and, in my judgment, overcoming Jim Crow did require the CRA-- but to have supported aggressive desegregation, the Voting Rights Act, and generally actually holding southern governments to the standards of the 14th and 15th amendments is to have opposed Jim Crow-- regardless of one's stance on the CRA.

2) Yes. But "support Jim Crow" =/= "oppose some particular means of opposing it." Sometimes genuinely important standards about rights or procedures or rules come into opposition to genuinely important substantive outcomes. Often, in fact. It's therefore routinely illegitimate to slip from someone's strong insistence on the right, rule, or procedure to an imputed view on the substance.

The point about dogmatism and a theory: I agree that I don't have a theory in that sense. And so I think I have an obligation to expect differences of judgment about where the boundaries between federal and state power will lie. Althouse also doesn't have a theory; but she says that people whose judgment differs from her own are presumptively racist.
1.2.2007 12:08pm
No one will ever have the "last word" on this topic as long as Ann Althouse is in a snit. Maybe we should all just STFU and let her have it. It's not as though she has been doing herself much good.
1.2.2007 3:20pm
Proud to be a liberal :
I do think that it is useful to remember that President Reagan began his campaign for president with a speech in favor of "state's rights" in or near Meridian, Mississippi, where three civil rights workers, James Chaney, Michael Schwerner, and Andrew Goodman were brutally murdered with the participation of local law enforcement -- and when some of their murderers were still alive and free.

In the end, I do believe that Dr. King and his supporters have won the battle on the Civil Rights Act of 1964 and it is very unlikely that any Supreme Court would find that statute unconstitutional at least on the basis of race. Because today, I do not think it is acceptable to condemn the Civil Rights Act of 1964, which has done much good for America.
1.4.2007 12:31am