When a Republican draws the map of "South California" — his proposed 51st state...

... he leaves Los Angeles in the north.

Picture the political gerrymandering that could be done if it were feasible to redraw state lines!

Now, California is way too big. It's population is 37,253,956, according to the 2010 census. That's nearly 10 times the size of the entire United States at the time of the first census in 1790 (3,929,214). At the time of the founding, of course, there was much talk of the United States as a "large" republic. (See, e.g., Federalist #10.) The states were supposed to have an important role offsetting some of the problems of that largeness. How is that supposed to work today, especially in the absurdly overlarge California?

But redrawing the lines now? One look at Jeff Stone's South California map should tell you what chaos lies there.

"State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.'"

That quote has long been on my list of best quotes about federalism in the history of the Supreme Court, so I was pleased to see it quoted in a Supreme Court case that came out today, Bond v. United States. It's a quote within a quote, and now it's a quote within a quote within a quote.

One thing I like about it, aside from the sound principle — that the constitutional structures of government were devised to protect the people — is that Justice O'Connor, in New York v. United States, was quoting a Justice Blackmun opinion that was a dissent from an opinion she wrote one year earlier. In that earlier case, Coleman v. Thompson, Blackmun had chided her for relying on federalism as if it existed for the sake of the states rather than for the people. It seemed as though Justice O'Connor felt a need to get on the right side of that principle.

In today's case, Bond, the Blackmun/O'Connor idea about federalism was used to explain why a criminal defendant had standing to challenge the constitutionality of the federal crime she was charged with (the Chemical Weapons Convention Implementation Act of 1998). (Carol Anne Bond had put caustic chemicals on a doorknob, door handle, and mailbox likely to be touched by a woman who had gotten pregnant via Bond's husband.)

Bond made a federalism-based constitutional challenge, and the Court of Appeals said that she lacked standing because she wasn't asserting her own legal rights or interests — as required by standing doctrine. In this view, only the states have standing to raise the issue that Congress has exceeded its enumerated powers and made a crime in an area that is reserved to the states under the 10th Amendment.

Intuitively, you should sense that the Court of Appeals was wrong. Here's this woman, charged with a crime that is — if she's right about the scope of Congress's power — a nullity. She's supposed to endure conviction and punishment on the theory that only the state is allowed to say that Congress overstepped its power? That's crazy.

Do you see how eloquently the old Blackmun/O'Connor quote explained why it's crazy?

Because the limitations of federalism exist to protect citizens from the excesses of power, when Bond argues that there is a federalism limit on congressional power, she is asserting her own legal interests.

"The nation's first federally funded bicycle 'freeway.'"

"The last mile, through downtown [Minneapolis], was ready May 23 and was by far the most expensive leg at $9 million, more than five times the cost of the first 3 1/2 miles."

Sounds lovely, but why does the federal government fund municipal improvements like this?

"The last extension was pricey, with retaining walls [and] private property owners, and it was full of political hurdles, but I think the city's very proud of it, and I know we've saved lives," said David Klopp of the CLPA. "I don't think it's safe to put cars, trucks and bicycles on the same road."...

Charlotte Zelle, 19, of Minneapolis, pedaled to the ceremony with her father, and said of the trail: "I think it's beautiful, and I don't feel endangered by cars."

So... you'd like us to bike, but you're sending the message that it's not safe to bike along with cars and trucks. How are we supposed to get to the trail or use it to commute or see the city? Either we can ride with motorized traffic or we can't.

That said, I love bike trails, and I'm a frequent user of Madison trails that have received plenty of federal funding.

Surprise! The IRS won't let you deduct business expenses for your drug trafficking enterprise.

Even if the voters in your state approve of medical marijuana and you're running a "dispensary" for people who have doctors' permission slips to use what is banned under federal law. And thus the federal government has figured out how to crush the dispensary business.

Mitch Daniels in the WSJ: "Unless you're in favor of a fully nationalized health-care system, the president's health-care reform law is a massive mistake.."

The Indiana Governor (and potential GOP presidential candidate) ponders what the states can do if the law is not repealed or judicially voided. The states cannot be commandeered to run the program, so there is leverage to bargain. These are the conditions that 21 governors have proposed to the Secretary of Health and Services:

• We are given the flexibility to decide which insurers are permitted to offer their products.

• All the law's expensive benefit mandates are waived, so that our citizens aren't forced to buy benefits they don't need and have a range of choice that includes more affordable plans.

• The law's provisions discriminating against consumer-driven plans, such as health savings accounts, are waived.

• We are given the freedom to move Medicaid beneficiaries into the exchange, or to utilize new approaches to the traditional program, instead of herding hundreds of thousands more people into today's broken Medicaid system.

• Our state is reimbursed the true, full cost of the administrative burden to be imposed upon us, based on the estimate of an auditor independent of HHS.

• A trustworthy projection is commissioned, by a research organization independent of the department, of how many people are likely to wind up in the exchange, given the large incentives for employers to save money by off-loading their workers.

Obviously, this is a very different system than the one the legislation intends....

That's a GOP proposal on how to tweak health care reform, which is what Obama and others have said they need. With the prospect of 21 states dropping out of the enforcement regime, there should be real pressure to work with them and try to draw them back in.

On the other hand, you really are in favor of a fully nationalized health-care system, then you might celebrate the states failure to go along with the attempt to include them. And if what happens is, as Daniels predicts, "first-rate operational catastrophe," then that sets up the collapse into the only workable fix a fully nationalized health-care system.

Are you watching the reading of the Constitution on the House floor?

I just turned on C-SPAN and hit the 2d Amendment right on the nose. Do I have some kind of right-wing instinct?

Here, you can watch on the internet. Hurry! They're up to the 6th Amendment.

UPDATE: The 10th Amendment won a spatter of applause.

UPDATE 2: John Lewis read the 13th Amendment – abolishing slavery — and that got a big round of applause. Section 1 of the 14th Amendment — read by Democrat Mel Watt — also got some healthy applause.

UPDATE 3: Silence at the 17th Amendment.

UPDATE 4: The word "sex" is in the Constitution.

UPDATE 5: You have one sentence to read: How can you mispronounce one of the words? Compulsatory, etc. etc.

UPDATE 6: Applause... either for the document as a whole, now completely read, or for the idea that they shouldn't give themselves a raise, which was the last thing read.

UPDATE 7: I missed the birther outburst. Did it really happen?

Rep. Jim Himes (D-Conn.) tweeted from the House floor that a "birther" had interrupted the Constitution reading that's been taking place.

Yes, it happened...



... from the gallery. It wasn't another Joe Wilson "You lie"-type situation.

UPDATE 8: The heckler — who has been arrested — yelled "Except Obama, except Obama. Help us Jesus." Jesus? Why drag in Jesus?

Randy Barnett, on Bloggingheads, talking about his "repeal amendment"...

... with UT lawprof Sanford Levinson:



(I'm just starting to listen. I'll pick some clips out and add them below. Here's the NYT article on Randy's proposed constitutional amendment — which would empower the legislatures of 2/3 of the states to repeal any federal law.

ADDED: Randy talks about the repeal amendment here, and Sandy dumps on it here.

"The protection accorded under Irish law to the right to life of the unborn was based on profound moral values deeply embedded in the fabric of society in Ireland and the legal position was defined through equally intense debate."

Wrote the European Court of Human Rights in Case of A, B, and C v. Ireland, which Linda Greenhouse discusses in the NYT:

No right under the [European] Convention was violated [where the plaintiffs were able to travel to another country to obtain an abortion], the court said by a vote of 11 to 6. Granted, “the process of traveling abroad for an abortion was psychologically and physically arduous” for these women. And granted also that in their particular circumstances, they could have obtained legal abortions in 35 to 40 other countries covered by the Convention. But because Ireland’s law is based “on the profound moral views of the Irish people as to the nature of life,” the court said, Ireland was entitled to an extra “margin of appreciation.” This phrase expresses a measure of deference toward a country’s right within the framework of international law to chart its own domestic course. With its extra margin, Irish law prevailed.

Greenhouse notes that the European Court accepted a situation similar to what would come into being if the United States Supreme Court withdrew the constitutional right to abortion and the matter were left to state law. She says the case gave her "the eerie feeling that I was peering into a domestic future."

Obviously, not all states would choose to join the anti-abortion bandwagon, even if they had the Supreme Court’s permission. California, New York, the District of Columbia, Connecticut and Massachusetts (once two of the most anti-abortion states, but times change) would remain places of refuge for desperate women, Englands to the Irelands that are Wyoming (which has no abortion provider), the Dakotas, or the Deep South, where a shrinking handful of doctors provide abortions in a hostile regulatory climate. More than a third of all women live in counties without an abortion provider, and that number is growing. Long-distance travel is made more onerous in the half of the states that require 24-hour waiting periods after “counseling,” necessitating two trips or an overnight stay.

The second commenter over there brings up Justice Kennedy's interest in referring to international law:

The right has roundly criticized Justice Kennedy for his interest in international law. Whaddaya bet they won't criticize him for citing the case of A, B & C v. Ireland? Watch the Court chip, chip, chip away at Roe & at Planned Parenthood v. Casey.

Well, what about the left? What about those who approve of the use of the decisions from foreign court in the analysis of American constitutional law? Whaddaya bet they won't want to have to pay any attention to "the right to life of the unborn... based on profound moral values deeply embedded in the fabric of society"?

"If I invoked the Insurrection Act against her wishes, the world would see a male Republican president usurping the authority of a female Democratic governor by declaring an insurrection in a largely African American city."

"That left me in a tough position. That would arouse controversy anywhere. To do so in the Deep South, where there had been centuries of states' rights tensions, could unleash holy hell."

I was struck by that passage in Bush's memoir, "Decision Points." Bush, of course, ended up getting criticized for seemingly not "car[ing] about black people," so it's interesting to think that his delays — at least as he presents them now — had to do with the history of the South. But look closely as the 2 concerns that slowed Bush's imposition of federal authority in New Orleans:

1. Gender. Bush didn't like the image of the male pushing the female aside. He thought he'd be criticized for that.

2. "States' rights tensions." That's a strange way to evoke the history of racism in the south if you want to convey that you cared about the suffering of black people. "States' rights" was the cry of those who resisted federal efforts to advance integration. Bush was, in fact, being deferential to the Southern governor.

Bush, sensitive to potential criticism about sexism and states' rights, exercised restraint, which exposed him to criticism about race.

There was rapper Kanye West who told TV viewers: "George Bush doesn't care about black people." Jesse Jackson compared the plight of some survivors with being trapped in the "hull of a slave ship".

"Five years later, I can barely write these words without feeling disgusted. I am deeply insulted by the suggestion that we allowed American citizens to suffer because they were black... The more I thought about it, the angrier I felt. I was raised to believe that racism was one of the greatest evils in society," Bush writes. "I faced a lot of criticism as president. I didn't like hearing people claim I had lied about Iraq's weapons of mass destruction or cut taxes to benefit the rich. But the suggestion that I was a racist, because of the response to Katrina, represented an all-time low. I told Laura at the time that it was the worst moment of my presidency. I feel the same way today."

He feels bad about this criticism and is contemptuous of those who expressed it, but: 1. His own words indicate that he put racism third on a list of 3 things he was worried he'd be criticized for, and 2. Jackson and West were speaking emotionally at the time when the suffering was going on.

Meanwhile, Kanye West cracked under pussycat questioning from Matt Lauer.

Even California didn't want to legalize non-medical marijuana.

Prop 19 failed. In yesterday's Bloggingheads — the "Non-Obsolete Edition" — Matt Welch and I talked about the effort to legalize the so-called "recreational" use of marijuana, which is far less popular than the "medical" use. You can watch the whole segment here, but — I know these Bloggingheads things are long — I don't want you to miss the part where I connect the favoring of medical legalization to left-wing values that I despise. It's only 80 seconds:



Note that the "medicinal" use of alcohol — "self-medicating" — is considered especially bad. The good alcohol use is for personal pleasure — one might say the pursuit of happiness — and most certainly not out of a physical need. Isn't it odd that it's the other way around for marijuana?

***

If you watch the whole segment — 16+ minutes long, sorry — there's a lot of discussion of the way the federalism problem would work out if the state stopped criminalizing marijuana. It's a misnomer to say that would "legalize" marijuana, because the federal crimes still apply. It would still be a crime to possess, grow, or distribute marijuana. The federal government can't force state officials to carry out the enforcement of the federal law. (It can lure them into that role with conditions on spending, but it can't commandeer the state law enforcement personnel. That's Printz.)

As Matt notes, Eric Holder announced a few weeks ago, that if Prop 19 passed, federal drug agents would "vigorously enforce" the federal law in California. California's a huge state, and that would be damned hard to do. I suggest that Holder may have only said that to try to influence California voters to reject Prop 19, and Matt seems certain that was the reason. And that seemed to work.

It would have been quite chaotic if Prop 19 had gone the other way. In the 16+ minute clip, you can see that Matt loves the idea of the chaos that would destabilize everything with, perhaps, the ultimate result that the federal government would give up on its marijuana crimes. I, on the other side, resist the chaos. I don't think it would work well to have something appear to be legal and at the same time be a very real federal crime. Much as I like decentralized law and the benefits of federalism, where there is valid federal law, it supersedes state and local law. That is the constitutional structure.

9th Circuit Judge John T. Noonan Jr. can't understand the Justice Deparment's argument that the Arizona immigration law is preempted by federal law.

At oral argument today:

"I've read your brief, I've read the District Court opinion, I've heard your interchange with my two colleagues, and I don't understand your argument," Noonan told deputy solicitor general Edwin S. Kneedler. "We are dependent as a court on counsel being responsive. . . . You keep saying the problem is that a state officer is told to do something. That's not a matter of preemption. . . . I would think the proper thing to do is to concede that this is a point where you don't have an argument."

"With respect, I do believe we have an argument," responded Kneedler, who said the Arizona law is unconstitutional and threatens civil liberties by subjecting lawful immigrants to "interogation and police surveillance.''

Yeah, well, but that's not preemption.

Here's my old post trying to make sense of the preemption argument. I came up with this (admittedly strange and politically inadvisable) argument:

The federal government has responsibility for immigration, and it has expressed, through written law and real-world efforts, an extremely lax policy toward illegal immigration. Given that federal policy and the supremacy of federal law, one could argue that it is not within the state's proper power to dictate a different policy and impose it on the federal government (by referring a lot of new cases of individuals violating federal law).

I really need to see the whole transcript. Ah! Here's today's oral argument:

"Attorney General Eric Holder... said that legalizing recreational marijuana in California would be a 'significant impediment' to the government's joint efforts with state and local law enforcement..."

I'm picturing the Washington Post editors high and dorkily giggling.

Federal district judge rules that the states' lawsuit challenging health care reform can go forward.

The claims that survive are based on Congress lacked power under the Commerce Clause and that the act commandeers the states.

ADDED: I'm reading the opinion. Judge Roger Vinson rejects the argument that the individual mandate is actually a tax and therefore that the Anti-Injunction Act is an obstacle to the lawsuit. Key point:

[I]t is inarguably clear that Congress did not intend for the exaction to be regarded as a tax...

Congress didn't call it a tax and "the defendants are wrong to contend that what Congress called it 'doesn’t matter.'"

Congress did not state that it was acting under its taxing authority, and, in fact, it treated the penalty differently than traditional taxes.

The failure to call it a tax was especially important because the act was so controversial:

One could reasonably infer that Congress proceeded as it did specifically because it did not want the penalty to be “scrutinized” as a $4 billion annual tax increase, and it did not want at that time to be “held accountable for taxes that they imposed.” In other words, to the extent that the defendants are correct and the penalty was intended to be a tax, it seems likely that the members of Congress merely called it a penalty and did not describe it as revenue-generating to try and insulate themselves from the potential electoral ramifications of their votes.

Because it is a penalty and not a tax, the act cannot be upheld with the taxing power. The question must be the scope of the Commerce Power.

AND: Judge Vinson upheld the standing of the individual plaintiffs and the state plaintiffs, and he held that the claims were ripe. Even though the mandate doesn't go into effect until 2014, it is "certainly impending" and "responsible individuals, businesses, and states will have to start making plans now or very shortly to comply with the Act’s various mandates."

Finally, the judge considered the motion to dismiss for failure to state a claim. He dismissed some of the claims relating to state sovereignty, and I won't bore you by attempting to paraphrase this part. If you don't know the law in this area, you'd be better off trying to read pages 41-58 of the opinion. So let me confine myself to the individual mandate. Judge Vinson rejects the due process argument, because the scrutiny in this area is minimal and Congress had a rational basis for the mandate. But the Commerce Clause challenge survived.

At this stage in the litigation, this is not even a close call. I have read and am familiar with all the pertinent Commerce Clause cases... This case law is instructive, but ultimately inconclusive because the Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before.... There are several obvious ways in which Heart of Atlanta and Wickard differ markedly from this case...  Those cases... involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity of operating a motel or growing wheat, you are engaging in interstate commerce and subject to federal authority....

... The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive....

"As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed" — but his Administration must continue the fight against gay rights.

The Obama administration will appeal the decision from a district court in Massachusetts that the Defense of Marriage Act is unconstitutional.

The appeal comes at a tough time for Obama, who has been trying to shore up his liberal base ahead of the contentious congressional elections when his fellow Democrats are expected to lose many seats to Republicans. Democrats could lose control of the House of Representatives.

A key concern has been whether those who have supported Obama in the past will show up to vote in the November 2 midterm elections. He has opposed same-sex marriages but supported civil unions and extended some benefits to gay partners of federal employees.

To be fair, in his 2008 campaign, Obama said he was opposed to same-sex marriage. But, of course, people who wanted to believe he embodied the hope that they wanted to hope believed that he really, secretly, supported same-sex marriage. And he opposed DOMA:

As your President, I will use the bully pulpit to urge states to treat same-sex couples with full equality in their family and adoption laws. I personally believe that civil unions represent the best way to secure that equal treatment. But I also believe that the federal government should not stand in the way of states that want to decide on their own how best to pursue equality for gay and lesbian couples — whether that means a domestic partnership, a civil union, or a civil marriage. Unlike Senator Clinton, I support the complete repeal of the Defense of Marriage Act (DOMA) – a position I have held since before arriving in the U.S. Senate

If you brightened at that February 2008 statement, did you perceive that if a court said the same thing — that DOMA is antithetical to federalism principles and to equality — that Obama would fight against that court decision? Obama only supports Congress repealing DOMA — did you notice that at the time? — and if Congress — the new Democratic Congress — applies its first burst of power in 2009 to other matters...  well, too bad. Vote for them again in 2010 and maybe they'll do something for you some day. The arc of history is long!

But heaven forbid that the courts rouse themselves to the point where they strike down the statute. Did Obama ever give you the impression that he believed that courts should be in the forefront, protecting the rights of the oppressed and downtrodden — that courts ought to have "the empathy to recognize what it's like to be ... gay"? Did you take that empathy remark the wrong way? To say a judge should "recognize what it's like" is not to say the judge should perceive that you have rights and actually enforce them. You silly voter!

Remember how it felt in '08 when Obama won? Remember stuff like "Barack Obama: America's First Gay President"?

Because if Barack Obama follows through with even half of the promises he made to the LGBT community during his campaign, he'll have done more to advance gay rights in this country than any President before him – combined.

Remember how it felt in 2009, in the first spring of Obama's power? The NYT had an article titled "As Gay Issues Arise, Obama Is Pressed to Engage." My reaction was:

How can he rake in votes just by seeming to care about the rights and interests of gay people? Not even seeming all that much — he's against same-sex marriage! — but just by stirring hopeful feelings and looking like somebody who cares. Well, he's already done it once. Why shouldn't he believe that what worked once will work again?

That was written in May 2009 — Springtime for Obama — and now it's Fall 2010. Things aren't so warm and sunny anymore, and now is when he needs to maximize the votes. Most Americans oppose gay marriage, and he can't alienate them, so won't you gay people (and you people who support them) continue to do what you're supposed to do and vote for those Democratic candidates? You know the Republicans won't help you. That's the grubby argument.

***

A reading from the word of Obama:

I will never compromise on my commitment to equal rights for all LGBT Americans. But neither will I close my ears to the voices of those who still need to be convinced. That is the work we must do to move forward together. It is difficult. It is challenging. And it is necessary. Join with me, and I will provide that leadership. Together, we will achieve real equality for all Americans, gay and straight alike.

"By structuring Race to the Top in the guise of a competition, Obama cleverly gets states on board with his formulas for school reform they would have otherwise resisted."

"Even if a state doesn't get a dollar of federal funding, the competition is making it easier to start new charter schools, subject teachers to private sector-style performance management, and force districts to fix their schools. It also forces states to begin addressing the single biggest threat to their fiscal solvency: the $600 billion in unfunded teachers' pensions and retirement obligations. Best of all, these steps cannot be easily overturned (unless the state wants to lose future federal funding). It also means that Obama isn't accused of imposing unfunded mandates on state and local governments even if, in essence, that's exactly what he is doing."

What Rand Paul really said about the Civil Rights Act of 1964.

Rand Paul is coming under attack for things he said about the Civil Rights Act of 1964, which outlawed race discrimination in privately owned restaurants and hotels. He's also being defended, of course, notably here, by Allahpundit:

I don’t like to go back-to-back on the same subject but a hot rumor hit Twitter as the last post was being published that Paul told NPR he would have voted against the 1964 CRA. (Much like certain Democrats who are still serving in the Senate did.) As you’ll see, it’s not true. The reporter, smelling blood, badgers him about it, but Paul never quite gives him a straight answer. And he qualifies his response with enough virtue — he opposes institutional racism, would have marched with MLK, likes a lot of what was in the CRA — that there’s really no wound inflicted here. His reservations about the law have to do not with the ends but with the means of federal compulsion; he wants business owners to serve everyone but clearly prefers using boycotts and local laws to pressure them. It’s not a question of being pro- or anti-discrimination, in other words, it’s a question of how federalism and civil-rights enforcement mesh. The left’s going to give him plenty of grief for that — expect questions soon about whether he would have voted to ratify the Fourteenth Amendment — but the “closet Klansman” narrative that NPR’s going for here is D.O.A.

It's true that Rand made many expressions of his opposition to race discrimination in what was a hearty effort to blunt the effect of what he was saying, but it is not true that his "reservations" were limited to federalism concerns. (As to federalism, there was an argument, rejected long ago by the Supreme Court, that the Constitution did not empower Congress to regulate in this area.)

Rand was also expressing the view that owners of private businesses have a right to decide whom they will serve. Such a right would not run counter to the 14th Amendment, because the 14th Amendment only protects individuals from the actions of the state and privately owned restaurants and hotels are not the state. If you want a legal requirement that these businesses treat people equally, you need to pass a statute, which is why the Civil Rights Act of 1964 was passed.  And that statute was susceptible to arguments it violated the right of the business owners to do what they wanted with their own property. When the Supreme Court upheld the Civil Rights Act of 1964, not only did it need to find an enumerated power for Congress to act, but it also had to deal with the argument that the Act violated the Due Process Clause. Rand's statement harkened back to both of those old arguments.

Look at what he said:

I don’t like the idea of telling private business owners—I abhor racism. I think it’s a bad business decision to exclude anybody from your restaurant—but, at the same time, I do believe in private ownership. But I absolutely think there should be no discrimination in anything that gets any public funding, and that’s most of what I think the Civil Rights Act was about in my mind....

I would not go to that Woolworths, and I would stand up in my community and say that it is abhorrent, um, but, the hard part—and this is the hard part about believing in freedom—is, if you believe in the First Amendment, for example—you have too, for example, most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things. . . . It’s the same way with other behaviors. In a free society, we will tolerate boorish people, who have abhorrent behavior.

He likens private property rights to free speech rights. If you care about free speech rights, you defend even the people who say horrible things — Nazis, the KKK, etc. That's standard constitutional law doctrine. In Rand's view — and in the view of many libertarians — property rights work the same way. So you could have this horrible racist restauranteur who excluded black people, and the government would have to leave him alone, just as the government couldn't do anything about it if a white person had a dinner party at his house and only invited his white friends.

***

A few years ago, I was at a conference with libertarians, and I was confronted with exactly this point of view. I expressed my concern that they were putting an extreme and abstract idea above things that really matter in the world. I challenged them — in what I thought was a friendly conversation — to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism. Which came first, the proud defense of private property or the shameful prejudices that polite people don't admit to anymore?

For raising the subject, I was loudly denounced, both at the dinner table, and on the Reason Magazine website. As I said at the time:

I am struck -- you may think it is absurd for me to be suddenly struck by this -- but I am struck by how deeply and seriously libertarians and conservatives believe in their ideas. I'm used to the way lefties and liberals take themselves seriously and how deeply they believe. Me, I find true believers strange and -- if they have power -- frightening. 

I appreciate libertarians up to a point, but the extreme ones are missing something that is needed if you are to be trusted with power. I'm glad Rand Paul is on the scene, but I'm going to hold him to his own statements, and it is plain to me that Allahpundit has misunderstood or misrepresented what he said. I'm certainly not saying he's a racist, but he seems to support a legal position that would place racist private businesses beyond the power of anti-discrimination statutes.

UPDATE: Rand Paul goes on the Laura Ingraham show and, with the help of her very supportive questions, finally gets around to saying that if he were in Congress in 1964, he would have voted for the Civil Rights Act.  Here's audio of the entire segment. Here's a text summary.

UPDATE 2: Allahpundit responds to me:

Althouse’s point is that Paul opposes any government interference in how someone runs their business, which would be strong form laissez faire; I assumed, because he danced around NPR’s questions and because this was obviously about to become a major headache for him, that he was taking the more palatable, weaker form position that it’s more acceptable for state and local agencies to act against discrimination but that the feds should stay out. (As it turned out, he now says having the feds interfere is fine.) That’s why I brought federalism into it, and that’s why I thought the Fourteenth Amendment would eventually end up in the discussion. If Paul doesn’t want the feds meddling in private businesses to protect minority rights, does he at least support letting them meddle with state governments that refuse to do so?

"Meddle" in what way? Require the states to legislate? Under New York v. United States, that is more of a constitutional problem than directly regulating. Do you mean putting conditions on accepting federal funds? That could be done most easily. If you mean using §5 of the 14th Amendment, that shouldn't work, because the states are not violating rights by failing to control the choices private citizens that are not, in fact, rights violations. It's hard to believe Paul would support these things (even before he conceded that he'd vote for the CRA of 1964).

"Very bad news for constitutional federalism."

Says Ilya Somin about today's decision in Comstock...

The big problem is not just that the Court ruled that Congress had the power to detain “sexually dangerous” federal prisoners who have already completed their sentences. By itself, this is a relatively minor policy (except, of course, for the people detained). The really dangerous element of the majority opinion is that it adopts the highly deferential “rational basis” test for assessing assertions of power under the Necessary and Proper Clause, holding that “in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”

Though "the statute involved here is somewhat peculiar,"  so that it might be distinguished in future cases, Eugene Volokh says that the Chief Justice's joining the majority suggests that the Court has lost its taste for striking down federal laws on the ground that they exceed Congress's enumerated powers.

To be sure, the facts of this case are unusual, because the law here applies only to people who had already been convicted of federal crimes. But the majority’s rationale seems quite broad; it concludes that federal power challenges should be upheld so long as they are “rationally related to the implementation of a constitutionally enumerated power” — that’s the famously extremely deferential “rational basis” test....

But, "the case has little or no import for the constitutional challenges to the individual health insurance mandate," says Randy Barnett:

Comstock involved whether ample connection existed between the law incarcerating sexual predators after their federal criminal sentence had been completed and an enumerated power....

With the challenges to the individual mandate, however, Congress is explicitly asserting that the individual mandate is “necessary and proper” to execute its power under the Commerce Clause. Moreover, the argument for “necessity” is reasonably straight-forward: it is necessary to compel all uninsured persons into the insurance pool to pay for the increased costs being imposed on insurance companies by the Act. Under the Court’s normal deferential approach, finding “necessity” won’t be hard.

The problem with the mandate is whether it is a “proper” means to achieve a constitutional end. ...

In Comstock, nothing about the incarceration of sexually dangerous persons was alleged to be an “improper” means of pursuing an enumerated end. The issue was whether or not the statute was enacted pursuant to an enumerated power....

The Supreme Court's new federalism decision.

United States v. Comstock, today's Supreme Court case upholding the federal civil-commitment statute, deals only with the question whether Congress has an enumerated power to make a law that authorizes the continued detention of sexual dangerous or mentally ill persons after they have completed serving their federal prison sentences. That is, the case is not about whether there is an individual right to be free of this deprivation of liberty — only whether the federal government can do it.

On this federalism question, the Court relies on the Necessary and Proper Clause of the Constitution. The persons who are detained have, in every case, been convicted of federal crimes. If there was federal power to create those crimes and to impose criminal punishment for them, then why wouldn't it follow that the federal government could do something more to those individuals? Justice Breyer writes for the majority: "the same enumerated power that justifies the creation of a federal criminal statute... justifies civil commitment...."

[T]he statute is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute.

Justice Kennedy writes separately to note that federalism concerns have been adequately tended to: "this is a discrete and narrow exercise of authority over a small class of persons already subject to the federal power." Ditto Alito: "This is not a case in which it is merely possible for a court to think of a rational basis on which Congress might have perceived an attenuated link between the powers underlying the federal criminal statutes and the challenged civil commitment provision. Here, there is a substantial link to Congress’ constitutional powers."

Justice Thomas dissents (joined by Justice Scalia):

Absent congressional action that is in accordance with, or necessary and proper to, an enumerated power, the duty to protect citizens from violent crime, including acts of sexual violence, belongs solely to the States....

Not long ago, this Court described the Necessary and Proper Clause as “the last, best hope of those who defend ultra vires congressional action.” ... Regrettably, today’s opinion breathes new life into that Clause, and... comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that “we always have rejected"... In so doing, the Court endorses the precise abuse of power Article I is designed to prevent—the use of a limited grant of authority as a “pretext . . . for the accomplishment of objects not intrusted to the government.”

Obama's "Race to the Top" competition over money for schools hasn't worked out so well.

Why are only Delaware and Tennessee getting the money?

Officials from several states criticized the scoring of the contest, which favored states able to gain support from 100 percent of school districts and local teachers’ unions for Obama administration objectives like expanding charter schools, reworking teacher evaluation systems and turning around low-performing schools.

Marshalling such support is one thing for a tiny state like Delaware, with 38 districts, they said, and quite another for, say, California, with some 1,500.

Oh, how I loathe these federal intrusions into state and local decision-making about public schooling. Money is raked out of the states and then dangled in front of them to entice them to do things they don't want to do and couldn't be forced to do by direct regulation. And the ultimate, ironic slap in the face is they don't even get the money. Let that be a lesson!

Linda Greenhouse peers into the psyches of the Supreme Court Justices to predict what they'll say about the constitutionality of the health care bill.

She predicts the decisional path in the brains of the judges will be determined by deep instincts about the states and the federal government:

The architects of the Rehnquist federalism revolution....

Go to the link for some detail on what Greenhouse likes to call the "federalism revolution."

.... were Chief Justice William H. Rehnquist and his fellow Arizonan, Justice Sandra Day O’Connor (Chief Justice Rehnquist was actually from Milwaukee, but he decided during his Army service in North Africa that he liked the air of the desert rather than the cold and damp of the Great Lakes.) They were Westerners to whom the notion of states’ rights came naturally.

But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

Chief Justice Roberts appears particularly in tune with the exercise of national power. 

Here, Greenhouse notes 2 dissenting opinions —Massachusetts v. Environmental Protection Agency, where Roberts would have saved the EPA from the state's lawsuit to force it to deal with global warming, and Gonzales v. Oregon, where Roberts would have let the United States attorney general keep doctors from prescribing the suicide drugs that were authorized by Oregon law.

Finally, Greenhouse aptly observes that even some of the Justices who favor the states in federalism decisions lose their nerve when they are confronted with "issues that people really care about." Chief Justice Rehnquist balked when he got to the Family and Medical Leave Act (in Nevada Department of Human Resources v. Hibbs) — and that case was only about whether an employee of a state could get back pay when the act was violated, not the more momentous question of whether the act was constitutional or could bind the state.

So now we have a monumental new law. Can we really imagine the Supreme Court thwarting it?

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.

But the Supreme Court got cold feet about standing up to the will of the democratic branches of government right after Franklin Roosevelt won a big landslide election in 1936. The health care reform law followed an election that wasn't about health care reform at all. The main thing people were thinking about when they voted for Obama in 2008 was the dramatic economic crisis. There were also the 2 wars and amorphous hopes for a post-racial America.

The 2008 election cannot be read as a mandate for health care reform, especially not for the aspect of it that is challenged in the current lawsuits: the  individual mandate to buy health insurance. That could not possibly have been foremost in the voters' minds. First, during the campaign, Obama spoke emphatically against it. And second, even after a year of talk about the reform, people don't really understand what the individual mandate is going to be.

There isn't a big majority of Americans who are counting on being compelled to buy insurance. There isn't even a majority — even a thin majority — of Americans who favor the health care reform as a whole, and this is even before they need to confront something that is probably going to shock and distress a lot of people who haven't studied the text of the law and have simply trusted that the government is about to give them the good things they need.

Greenhouse tries to patch this hole in her argument:

Midweek polls showed the public already rallying around the new health care law. That trend is likely to accelerate as people realize that the law’s benefits belie the scare stories — just around that time that the state challenges are likely to reach the Supreme Court. It won’t require a summa cum laude in history from Harvard to be able to tell history’s wrong side from its right.

So Chief Justice Roberts and the others are going to want to surf the wave of history... that wave that we're still watching for.