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Consistency & Federalism



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Jonathan Adler made some kind and interesting comments about my column on federalism yesterday. I’ve been out of commission and so was unable to respond, and will be again for a while. But here’s my further several cents’ worth.

Jonathan says that it is fair to call conservatives hypocrites on federalism when they oppose the federal gun-free schools act as unconstitutional while supporting the federal medical-marijuana ban as constitutional. I will admit that it is hard for me to think of a rationale to distinguish these cases at the moment, and I have become more persuaded by Jonathan’s position on the medical-marijuana question since the last time we exchanged comments about it. (I still maintain that the demand that John Ashcroft give up on attempts to enforce the federal law in advance of a definitive judicial ruling on its unconstitutionality was, if anything, more hypocritical coming, as it did, from people who ordinarily believe in judicial supremacy.)

No doubt Adler is correct that many conservatives adopt “constitutional or theoretical rationales for or against federal involvement on a fairly ad hoc basis.” Of course, most people, including most conservatives and, I would add, most libertarians, cannot be expected to have fully thought-out, perfectly consistent theories of federalism. If someone wants to argue that most supporters of a ban on partial-birth abortion have not thought through the constitutional and federalist issues involved, I will concede the point without a qualm. If someone wants to argue that the partial-birth abortion ban is unconstitutional or is not consistent with a sound theory of the limits of the federal government, I will engage him in that debate. But if someone is saying that a person who calls himself a federalist and supports the ban (or, say, supports a federal judicial ruling against state laws on sodomy) is a hypocrite–well, the point of my essay was to explain why I thought that claim is false.



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