Randy Barnett r0x0rz

I think I speak for all of us here in the blogosphere when I say, "go Randy Barnett! Go Randy Barnett! Restore that lost constitution, dude! Let Californians have legal weed and let the federalist chips fall where they may! (I love the New Deal as much as anybody, but come on. "Interstate Commerce" wasn't founding father-speak for "any damn thing the Federal Gummint wants to do." I'm sure we can work around this. Innovative Blue state social programs and job creation will attract all the voters and then where will our low-tax Oklahoma friends be? Shit out of luck because no one wants to live in Oklahoma no matter how light the regulatory hand is. [Some Oklahomans not included.]

Comments

[bob mcmanus]

"because no one wants to live in Oklahoma"

Umm, I am across the border a ways in Texas, and even counting a few more tornadoes...

[Susan]

Putting political considerations aside for the moment (with difficulty), here's one of the great good things about living in a place that's considered uncool; it's not infested by people who are willing to tolerate almost any inconvenience to live in a cool place (or, in high school terms, where all the cool kids live). Nor, thank God, with too many Texans, especially north of OKC.

[Matt Weiner]

But, having spent the previous year in Salt Lake City, one of the bad things about living in a place that's considered uncool is that it frequently is uncool, and full of people who are actively opposed to the sort of cool things that make life interesting. For me, tastes of course vary.

The ideal solution might be to live in a place that's considered uncool but really isn't. Like, when Mr. snot-nose Gillespie speaks of the "all-too-aptly named Pittsburgh," I don't notice anything in his exhaustive itinerary that shows him ever living within four hours of the place, so how would he know? There's a lot of cool stuff going on here--shame about the collapse of the steel industry and the city going bankrupt (and the legislature doing its best not to help) and all. And yet housing is still dirt cheap!

[Ben]

"It is one of those cases where, if the Court is intellectually honest..." & if they aren't, what are they? "They" here referring to Scalia, right? We know all the others are in various degrees scoundrels.

[C Mas]

Is this going to turn into an excuse to gut federal regulatory powers across the board in the name of protecting some little old lady's medicinal marijuana crop? If so, count me out. The "liberals for federalism" cause is woefully wrongheaded: if red states suddenly have the right to pump ungodly amounts of poison into the air, no amount of federalism is going to keep it from ending up in my blue state lungs.

[Susan]

"The ideal solution might be to live in a place that's considered uncool but really isn't."

I think if you stay in any place long enough you will discover that it has its own, deeper coolness, easily missed and difficult to access during briefer stays.

Here is a cool thing that exists only in supposedly uncool Tulsa. (Especially for John.)

[bza]

I think if you stay in any place long enough you will discover that it has its own, deeper coolness, easily missed and difficult to access during briefer stays.

That's probably true. But even as a non-native and only temporary resident of Pittsburgh I'd still maintain that the coolness of the Iron City goes beyond that. Even the nickname rocks...

[rob loftis]

I think we need a moment of collective honesty on federalism here, so I want to say it plain:

No one gives a rat's ass about the balance of power between the states and the federal government.

Whenever anyone, left or right, at any point in history, has stated a view on this subject, it has been to advance an external agenda--slavery, segregation, drug laws, whatever. The supreme court does not give a rat's ass about the balance of power between the states and the federal government. Constitutional scholars do not give a rats ass about the balance of power between the states and the federal government. The framers of the constitution did not give a rats ass about the balance of power between the states and the federal government, no matter what they may have said.

Now that we have all admitted this, we can feel free to switch sides on the issue any time we want. I personally plan to be all about state's rights for at least another year or so.

[C Mas]

Thank you, Rob. That was perhaps the single most refreshing thing I've ever read about states' rights.

[djw]

Yes, thank you Rob. I'm all for cheering on Randy Barnett at the moment, but everything you say is exactly correct.

[Matt Weiner]

Susan--
That does look very cool; on the computer I'm on, I'm unable to go beyond the photo of the old-style string band guys, but that in itself is cool. And "Take Me Back to Tulsa" is cool, too. I actually don't wish to asperse on Tulsa or Oklahoma myself, since I've never been in the state; it's hard to tell whether a place is only supposedly uncool from the outside.

My stay in SLC would've been cut short for me even if I hadn't wanted it to be, so there probably is some coolness going on that I missed. (But does Oklahoma force people to drink bad beer the way Utah does? That was very uncool.)

OT, but it occurred to me that maybe one of the lessons of Nick Gillespie's article is that libertarians' "economic freedom" may not have anything much to do with what I would consider economic freedom--the freedom to choose from a bunch of jobs that would pay me money. (Of course I've chosen a career path that gives me about none of that.) If I decide to leave the ivory tower and start from scratch in the hurly-burly marketplace, where would I go? Well, someplace that I think is cool, but also someplace where there would be a bunch of different jobs I might be able to get. And those would be more likely to be in the low-freedom places with their big cities than in a libertarian paradise like Wyoming.

[belle waring]

aww, man, rob's totally right.

[Lawrence White]

Isn't there a parallel here w/the whole Constitution in Exile schtick? An era that saw many (most?) of our families finally entering the middle class, i.e. a life of relative ease, after generations upon generations of hard labor is, for an exquisite few, the great era of un-freedom in U.S. history.

[Xavier]

Rob is dead wrong. I suppose it's true that many supporters of federalism are pursuing some other agenda, but not all of them. I know I'm perfectly willing to support federalism even on issues where the federal government would tend to support my position. That's especially true on abortion. I'm strongly pro-choice but anti-Roe.

[Katherine]

Rob's 95% right. The same is true of denunciations of "activist, unelected judges" which magically transform into concerns about the rule of law and individual rights when the tables are turned.

And you know what? That's not a bad thing. We have some reasonable degree of state power and some reasonable degree of federal power and some reasonable degree of executive/legislative power and some reasonable degree of judicial power. We're arguing about the margins--so the substantive outcome of our arguments is more important.

But somehow we feel impure admitting this, so we make these lame federalism arguments.

Anyone sincerely worried about the process concerns--concentration of power OR lack of democratic accountability--should be worried about CONGRESS right now.

[DJW]

Xavier--why? Is is just because you think it's constitutionally correct, or are states rights better on principle regardless of the constitution?

[mattH]

But does Oklahoma force people to drink bad beer the way Utah does? That was very uncool.

Two things, "private" clubs and the State Liquor store hours. These are your best resources. Admittedly, because of the liquor stores, it might not seem that way, but Pennsylvania has state-run liqour stores as well, and you can't even get 3.2 in the grocery stores.

[Susan]

Matt,
The picture is of Bob Wills and the Texas Playboys, recently mentioned by John, and there's some cool music that plays along with it that I'm guessing you can't hear either since you can't even get into the site.

You can get good beer here, at liquor stores (private, not run by the state). You can also get drinks in restaurants, since the 80's.

A diversity of jobs in any given place is indeed something to aim for. One hopes also for a reasonable match between salaries and costs of living. That would seem to be the other factor complicating things. Some supposed tourist meccas I've visited have had almost no one staffing their stores and restaurants, because they had become such cool places to live that the people who would normally provide services were priced right out of living accomodations.

I wish Randy Barnett and states' rights well, BTW, because I think the country is too large and at this point too regionally diverse for it to be governed any other way. Cmas is right about pollution, but it seems that that could be handled on a case by case basis, like this little poultry industry pollution problem we have going with Arkansas.

[jholbo]

Belle loves Bob Wills (and the Flaming Lips) just as much as I do, Susan. He's a man after my own heart ... with a razor. Belle is getting carried away in dissing Oklahoma and forgetting her true convictions. No call saying such things while an album entitled "Take Me Back To Tulsa" is in the sidebar. That is sheer inconsistency. No question.

[Susan]

OK, then, the Cain's page is for BOTH of you. I hope you can hear the nice little sound clip all the way over there in Singapore.

Susan
currently listening to "Sally Goodin"

[rob loftis]

Xavier:

I suppose if I were to continue with my earlier ranty mode, I would insist that you are lying, and not an actual counter example to my thesis, just as I insisted that the founders were lying. I won't do that though.

Here's a more reasonable statement of my point: sure the balance of power between states and the federal government is important, but it is far less important than the balance of power between all levels of government and the individual.

In most of the cases we are talking about people are most upset about some violation of individual rights: the right to grow pot or to have wild gay sex, or the aleged rights to own slaves or to not serve blacks.

Compared to figuring out the proper nature of individual rights, figuring out the proper balance of power between the states and Washington is a mere procedural issue. It is like the question of whether to have a bicameral or unicameral legislature. I suppose it makes a difference. I suppose you have to make a decision and stick with it. But is it as important as the bill of rights?

Ok, returning to my earlier mode, let me rank some issues in terms of importance, from greatest to least:

1. The relationship between the individual and the community.

2. The fate of the anus of a garbage-eating pointy-nosed rodent.

3. The relationship between the states and the federal government.

[Matt Weiner]

I exaggerated about forcing us to drink bad beer--but it was difficult to get non-bad beer in Utah, and one frequently finds oneself in situations where bad beer is the only kind on offer. (For instance, because of all the hoops you have to jump through to serve beer with more than 3.2% alcohol, it seemed like many restaurants and maybe even clubs just didn't bother with the other kind.) Good beer in PA is available for takeout from many restaurants and bars--that's where I always got mine, except for big parties. Of course in Milwaukee this is not an issue.

Susan--Whose version?

[catfish]

Of course many states-rightists are willing to cede a few issues because they think that on balance, ceding more power to the states would result in their prefered policy outcomes. If I want to gut environmental regulations or put granite monuments of the ten commandments in every public building, I would become a state's rights absolutist despite the fact that people in california and oregon would get to grow their own.

Seriously, why would you support any form of government if you didn't think things would go your way a good portion of the time?

[nnyhav]

"To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." –Brandeis, dissenting, New State Ice Co. v. Liebmann, 285 U.S. 262, at 311 (1932)

And if the states are the labs, we are ...?

[Katherine]

Congratulations also to Randy Barnett for apparently making both Scalia and Stevens (especially Stevens, alas) look dumb in a 5 minute stretch:

Scalia: That sounds like Wickard v. Filburn, where the family was eating the wheat they grew on their own farm.

Barnett: If the only activity relating to wheat on the Filburn farm was eating it at the family dinner table, the case would never have been brought.

Scalia: Isn’t that exactly what Wickard v. Filburn was about? I don’t think you’ve characterized that case fairly.

Barnett: The phrase “home consumed” in context meant consumed on the farm, by feeding to livestock, etc.

Breyer: But wasn’t homegrown and consumed wheat still regulated, irrespective of the particular use? The question was whether it “exerted substantial economic effect”.

Barnett: At that time, the Court was using the narrower definition of “commerce” that Justice Thomas has argued for. What we would call it today is “economic activity.” Filburn was engaged in economic action as part of a commercial farming enterprise.

Scalia: So why isn’t this economic activity?

Barnett: In Wickard v. Filburn the wheat was grown as part of a commercial enterprise and fed to livestock sold on the market.

Stevens: What is your view on the effect of the state law on the interstate market? Increase prices, no effect on prices, or decrease in prices?

Barnett: Can I choose trivial reduction of price?

Stevens: If you reduce demand, then you will reduce prices? Wouldn’t it increase prices?

Barnett: No, if you reduce demand, you reduce price.

Stevens: Are you sure?

Barnett: Yes.

Q: why is the Ct arguing this on the basis of drug laws and not on the basis that the FDA clearly falls within the commerce power & occupies the field on authorizing medical use of drugs?

[Susan]

Matt--it's on this album.

[Susan]

Katherine--according to Dahlia Lithwick on Slate, Breyer did suggest this.

[spacetoast]

Um, the fucking bad as shit, blow yer head off, baby, Wanda Jackson is from OK.