Prof. Bainbridge, responding to Instapundit's post, wrote:
I see federalism and limited government as means to an end, while [Prof. Reynolds] seems to see them as ends in and of themselves. I find his to be a fairly typical worldview among libertarians, who make a fetish out of federalism and small government without regard to whether they actually contribute towards the public good in a given case.
What do you suppose Professor Bainbridge means? I hope that he doesn't mean this: "First, decide what you want. Second, find a theory that you can use to convince people to accept that conclusion." Isn't this the same model that activist judges use?
I'm not sure something is a principle when we only apply it pos hoc, which is what Prof. Bainbridge (though I hope not) seems to be suggesting. Namely, the end we seek is the "public good." If federalism will help us reach out preconceived notion of the "public good," then let's use federalism. If not, let's use something else. But isn't that just a post hoc justification for a pre-determined conclusion. Federalism becomes a smokescreen for power politics.
I think that with principles, you have to take the good with the bad. Generally, federalism will lead to increased individual liberty, but not always. A state, e.g., may impose draconian sentences or oppressive regulatory schemes. But if there is no due process or dormant Commerce Clause violation, then I have to accept that the state has the prerogative take that act. I can't say, "Federalism should not apply here, because I believe that government regulation stifles economic growth and freedom." Instead, I must accept the state's actions.
In any event, federalism is my fetish is because federalism, on balance, will lead to greater individual liberty. I'll let two qualified people elaborate. Judge Kennedy is fond of saying that the genius of the Founders was that they split the atom of sovereignty. U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779, 838 (1995) (Kennedy, J., concurring) (“Federalism was our
Nation's own discovery. *** It was the genius of their idea that our
citizens would have two political capacities, one state and one
federal, each protected from incursion by the other”). The Framers
recognized that federalism was not good qua good: Federalism was good
because it furthered individual liberty.
compound republic of America, the power surrendered by the people is
first divided between two distinct governments, and then the portion
allotted to each subdivided among the distinct and separate
departments. Hence a double security arises to the rights of the
people. The different governments will control each other, at the same
time that each will be controlled by itself.
The Federalist No. 51,
p. 323 (C. Rossiter ed. 1961) (J. Madison). By limiting the States and
Congress to their proper prerogatives, the people enjoy greater
freedom since the structure of federalism would prevent Congressional
overreaching into local affairs. The people would have two servants,
not two masters.
Again, sometimes federalism does not lead to more liberty, though on balance, it does. But I can't merely disregard federalism because I don't like the result in a given case. Otherwise, I don't live by principles, but by whim.