zombie federalism: the complex history of national race policy

My colleague Michael Smith and Volokh Conspirator Will Baude have a small blog feud going about whether the nation should take a federalist or centralized approach to a zombie apocalypse, if one should arise. Michael’s basic point is that a zombie apocalypse is a national crisis, like a war or a plague, and so requires a federal response:

[B]attling the armies of the undead will require the living to present a unified front, and a federal standard of zombie personhood will prevent the fragmentation of this front. Leaving states to define whether zombies . . . could undermine the uniform prosecution of these zombies under the federal criminal law.

Baude, on the other hand, thinks of zombies as a new but probably permanent presence in our country, and one which may not be malignant:

[Z]ombie federalism matters if, and only if, there is disagreement, at the state level, about whether the newly discovered zombies really are evil. And in the case of disagreement on such a fundamental, existential question, why should we be so sure that we — or really, Congress, the president and the Supreme Court — know the right answer ex ante?

Baude raises an important point. The federal government has a pretty shabby history of dealing with minority populations, especially those seen as (or, more accurately, stereotyped as) threatening to the social order. One need only think briefly about Dred Scot and the controversy over fugitive slave laws, or federal Indian policy well into the 20th century, or today’s immigration debates, to notice that our federal policies are often disastrous, lowest-common-denominator affairs. A “federal standard of zombie personhood” is particularly troubling if it is used primarily, as Michael seems to suggest, to assign criminal culpability, without also assigning the protections and benefits of citizenship.

On the other hand, it’s not clear to me that things work out particularly well if we leave the treatment of minority populations to state discretion, either. Remember our experiment with sectionalism and slavery? Remember Georgia’s determined drive to get the Cherokee out of their gold-rich Appalachian homestead? Remember Jim Crow? Remember the NYPD’s post-9/11 campaign of spying on Muslims? Supposed federalism can easily degenerate into simply ignoring civil-rights-free zones within our borders.

One can also put this in a more positive light, of course: both the federal government and the states have occasionally pushed the public to think harder about justice by taking bold action. The Brown v. Board of Education decision, on the federal level, and the various state supreme court decisions and legislative acts that have recognized gay marriage, on the state level, have advanced the cause of justice and in so doing have driven public opinion.

I’m more than willing to grant Baude’s premise that zombies might not be the slavering, brain-crazed hordes we’ve been told they are. My question is, which is better for the maligned and outcast zombie: a federal policy, which could give them some uniform protections but might also leave them with nowhere to go to better their lot? Or a federalist approach, which might lead to unconscionable disparities in rights, but might also create at least some truly safe spaces for zombies?

That it is not easy to answer such a question suggests that our classic arguments over federal structures might simply have limited value in protecting the rights of despised minorities in a democracy. Whatever approach we choose, it seems unlikely that the rights of zombies will truly be protected unless a significant portion of the public can make the moral leap of recognizing their humanity. On the other hand, both federal and state governments can play a role in aiding that recognition. I’m not sure one is any better equipped than the other, which suggests that advocates for zombie justice should take their opportunities at whatever level they are presented, rather than getting too bogged down in a particular theory of federal/state balance.

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