Sam Rosenfeld goes to admirable lengths to dismiss my complaints about liberal hypocrisy when it comes to championing states’ rights. Not surprisingly, I’m unpersuaded. His case largely rests on the assertion that liberals haven’t been as gung-ho for federal power as my alleged strawman suggests. Instead, liberals have been “instrumentalists.” He writes:

Liberals have always taken a much more honestly instrumentalist approach to questions of federal-state balance. We’re guided by the prospect of specific policy outcomes in rendering our judgments on such matters; conservatives are quite obviously guided in the same damned manner to the same extent, only they still seek to hold fast to “federalism” and “states’ rights” as parts of some fundamental ideological credo.

Translation: liberals have an ends justify the means attitude towards policy “outcomes.” If state courts get the job done, hooray for state courts. If liberals can’t get what they want from state courts, let’s see what the federal courts will do for us. If the federal courts are no good, maybe referenda, legislation, regulatory fiat, goat entrails, etc. will get the job done. This was the strategy of the progressives and it remains the strategy of liberals today. Put nicely, “instrumentalism” is another way of saying we’ll run with the ball wherever the field is open. That’s why liberalism has become basically a lawyer’s and bureaucrat’s business for the last 30 years — their policy prescriptions don’t sell at the ballot box. Affirmative action, abortion, gay marriage etc lose in elections and referenda so liberals spend their time opposing statewide ballot initatives and convincing unaccountable judges to do for them what they can’t do democratically.

If the instrumentalist approach is concerned with policy outcomes, then the policy outcome liberals favor — according to Rosenfeld — must be that Schiavo be slowly starved to death. And if death is the policy outcome he favors, I’m still confused why he wouldn’t argue in favor of Schiavo being executed quickly and painlessly rather than take the risk that the New York Times is wrong when it says starving to death over two weeks is no worse than a trip to the beach.

I do have serious reservations about Congress’ intrusion here. But I’m also willing to accept that my preferred political system would allow for local jurisdictions to do things I consider to be outrageous and immoral without interference from the Federal government. Rosenfeld admits that his governing philosophy is not so restrained. Instrumentalism, by definition, is a philosophical approach to government which does not overly concern itself with the limits of governmental power.

But, oddly, that doesn’t stop him from pounding the table about how conservatives have abandoned the rule of law and judicial autonomy thanks to the Republicans’ “inability to recognize any limits on their actions.” This seems like a pretty grandiose indictment in the wake of a congressional effort to give a federal judge oversight of a single case. If they don’t recognize any limitations on their actions, why didn’t they try something they don’t have the legal authority to try? (As far as I know, no liberal constitutional scholar has claimed Congress doesn’t have the authority to do what it did.) Indeed, if conservatives are so instrumentalist, why didn’t they try an “outcome based” approach which resulted in something other than rolling the dice with a federal judge?