Federalism incentives, II

States' rights is kind of a dirty word, and not without good reason. In any event, it seems to address a certain formalist, structural view of the states as these entities that, in that lovely phrase from Blatchford, "entered the union with their sovereignty intact." But as Justice Black's Younger opinion intimates, one can make arguments for federalism that appeal to its normative appeal rather than its formalist pedigree. That is, one can say that "federalism [c]ould be understood not in terms of states' rights, but rather in terms of the national interest in the independent functioning of the states," Althouse, How to Build a Separate Sphere: Federal Courts & State Power, 100 Harv. L. Rev. 1485, 1508, and more pointedly, that "federalism is no mere vestige of the pre-constitutional era ... The states are a means; the end is the liberty of their citizens. States are valuable alternative governments which have power because it benefits the people to diffuse power," Althouse, Variations on a Theme of Normative Federalism: a Supreme Court Dialogue, 42 Duke L.J. 979, 980. And I think when you're talking to ordinary voters, in this day and age, civics education has become so atrophied that it's become necesssary to offer a normative justification for these seemingly arcane rules. People don't learn civics in a way that the formalist argument is intuitive, and don't even get me started on the appeal to tradition - people don't read Oakeshott in school. They don't read Burke. If they learn about the French Revolution, they certainly don't learn about Reflections on the Revolution in France. I really worry that the Constitution may be lost in my lifetime, and if switching emphasis from formalism to the inherent virtues of the system can help open the door for people to understand and engage, then I think that's okay, as long as we don't lose sight of the fact that this isn't only about normative federalism. Like standing, there's prudential aspects that can be bent and there are structural aspects that can't.

In terms of the particular points you raise - I don't have any objection in the abstract to congestion plans. "[M]otorized liberty"? Well, you can have all the motorized liberty you like as long as you aren't driving on roads. The state has the authority to impose such charges, although I think it ought to do so sparingly and only as necessary. Can states "ban uninspected food or even enforce labor laws governing illegal immigrants"? I would imagine you'd get into federal preemption and negative commerce clause problems.

Can "abortion, gun control, marriage, school prayer, education, [and] pollution control ... be resolved by States without producing new problems between States"? Oh, I expect that it'd produce tensions. That's a given. But in all instances, the questions are, in order, does the state have legal authority to do this, does it have the moral authority to do this, and is this good policy? I think school prayer may or may not belong on that list, because school prayer may raise a legitimate federal question, depending on how one construes the establishment clause in light of the 14th Amendment.

You're right about the militia, but the militia the framers knew doesn't even begin to resemble the national guard of today, see Amar, America's Constitution: a Biography 321-6 (2005), which is one reason why the 2d amendment is such a difficult puzzle.