Strengthening Constitutional Self-Government

No Left Turns

The Ideology of Federalism

There are few certainties in life, except perhaps for death, taxes, and unfounded New York Times editorials against outstanding judicial nominees. Today the NYT takes aim at Jeffrey Sutton. What is Sutton’s sin according to the Times? He has argued Federalism (which in Times-speak is "a euphemism for a rigid states’-rights legal philosophy") cases, and they don’t like the outcomes. Aside from the fact that it is grossly unfair to smear a lawyer with the position or desired outcome of his client (are defense counsels who represent murderers "pro-murder"?), the Times, apparently incapable of actually addressing the substance of federalism, decides instead to use its well-honed skill skill of ad hominem. To the extent that the NYT does address federalism, the analysis is typically outcome-based. But here is where the editorial is most wrong: federalism as a set of legal rules is object neutral, and as such may offend conservatives as well as liberals in terms of outcomes. I have a couple of explosive examples in mind, but I will save them for tomorrow, when I will have more on this topic tomorrow to correspond with Sutton’s scheduled vote.

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