LATE NOTES ON FEDERALISM AND JIM CROW. I'm very late in wading into the Jim Crow/federalism debate, but a couple of points I haven't seen anyone else make yet:

  • Eugene Volokh is right that the "federalism permitted Jim Crow, and hence it's bad" argument is fallacious. Just as no constitutional theory can consistently prevent normatively odious outcomes when they have substantial political support, there is no institutional arrangement that can always produce outcomes than one considers to be normatively desirable. (If asked to design a new American constitution, I would unquestionably choose a Parliamentary model with a very powerful federal government; but while I strongly believe that this would produce more congenial political outcomes from my perspective in the long run, it would also have produced much worse outcomes from my perspective than the current Madisionian framework did in 2002-6.) However, I don't think this is the real problem with "states' rights" and Jim Crow. The bigger problem is that the slavery and Jim Crow eras demonstrate that most people who invoke federalism don't actually care about it. From the Louisiana Purchase to the Fugitive Slave Act to the Tennessee Valley Authority, political actors who used "states' rights" to defend slavery and apartheid had no problem with expansive (and, in many cases, constitutionally shaky) constructions of federal power so long as they were consistent with their substantive preferences. Similarly, while there were some rare exceptions (such as Barry Goldwater), most people who opposed Brown and the Civil Rights Act also opposed desegregation at the state and local level; it was a substantive preference for apartheid, not a commitment to federalism, that motivated George Wallace to invoke the 10th Amendment. To borrow Roy's line about libertarians, people willing to routinely subvert strongly-held political commitments in favor of particular conceptions of federal/state power relations are as rare of Pieces of the True Cross.
  • As much as I hate to side with Ann Althouse over a blogger I respect, I couldn't disagree more strongly with Radley Balko's assertion that "were it not for state-mandated segregation, the private sector would have integrated on its own." Most Jim Crow laws were largely symbolic codifications of existing practices; they ratified a social order rather than creating it. Aggressively enforced civil rights legislation was crucial to crushing apartheid because 1) within this social order, economic incentives for private actors compelled toward segregation rather than desegregation and 2) as a result, outside of a few urban centers blacks who challenged the status quo were likely to lose employment, housing, and/or credit (in addition to the always-present threat of private terrorism). To believe that Jim Crow would have withered away absent any state intervention is implausible in the extreme.

--Scott Lemieux

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