Claeys on federalism, Roberts, Tom, and Rick

Friend and law prof Eric Claeys sends these thoughts, regarding the conversation Tom and I have been having (here, here, and here) about federalism, judging, moral conflict, and John Roberts:

Tom and Rick are having a very interesting discussion about whether a judge is ethically responsible for the consequences that follow secondarily when he enforces a structural provision of the Constitution like federalism.  I asked Rick to weigh in because I've been thinking about this issue, in connection with an article I just wrote critiquing thoughts by Hadley Arkes on the same issue.

Tom has a point that the judge ought to be concerned about being
culpable, but if one tallies up all the other factors about which the
judge ought to be comparably concerned, Rick turns out to be more or
less right.

To illustrate my point, I'm going to run with Tom's example
(civil-rights laws in 1960s America), assume that a judge follows pure
original-meaning principles to decide how he is required to decide the
case as a judge, and then applies some sort of prudential calculus to
ask whether his action is morally justifiable and prudent in the
circumstances.  (Largely because I think original-meaning interpretation brings out the tensions especially starkly; I think other theories of interpretation could raise the same sorts of considerations in a different case.)  Tom's right; the judge needs to be concerned about the possibility of providing material cooperation to some remote degree in a vivid and immediate injustice.  But in the same vein, the judge also needs to consider ...

1.  Whether the judge makes himself culpable for undermining the rule of law by upholding the civil-rights statute.  Unclear.  If the judge turns a blind eye to the original meaning of "interstate commerce" here, he lays down one small but unmistakable precedent for judges disregarding text for policy preferences in other cases.  He's then a little bit responsible for deviations from the Constitution in other specific cases, and for general politicization and corruption of the judiciary if they occur.

2.  Whether the judge makes himself culpable for other bad consequences to the federal-state system.  Also unclear. If the judge upholds the civil-rights laws, the precedent he sets will be used to uphold other laws--federal environmental schemes, new anti-discrimination laws, gun-free school-zone laws, &c &c.  Now, if one is Judge Noonan and thinks that federalism is a relic, no problem.  But if one subscribes to the principle of subsidiarity, Commerce Clause federalism reflects an instinct that local governments tend to regulate more effectively on a lot of fronts than central governments.  Now, local regulation can be parochial and organized to discriminate against local minorities, as Federalist 9&10 anticipated and Jim Crow confirmed.  But the claim behind Commerce Clause federalism is that local regulation works better *often enough* that the local and national functions ought to hardwired constitutionally into the system.  To take just one of thousands of examples implicated, maybe by upholding the civil-rights laws, the judge becomes responsible for the bad consequences that follow when national production quotas force poor urban consumers to pay a lot more for wheat and milk than they would probably pay in a system where states regulated agriculture in a competitive interstate market.

These balances of diffuse possibilities get pretty complicated pretty
fast.  Better for the judge to adjudicate with what he deems the best
theories of interpretation & adjudication available.  Those theories
will mark off classes of cases where the judge has no power, or (in
structural cases) where a level or branch of government that seems
clearly incompetent or unjust ends up with practical control over a
situation.  A judge ought to lose sleep over cooperating formally with
gross injustice; I don't think he ought to lose sleep over these kinds
of situations.

Rick