The short answer to Orin Kerr's question is yes:
Over at BloggingHeads.tv, Ann Althouse and Jonah Goldberg have a very interesting video discussion of a question raised by a recent Liberty Fund conference about Frank Meyer: Can you detach constitutional doctrines and principles from the history of the political environment in which such doctrines and principles were used? They focus on federalism and states' rights, which 50 years ago often were used by racists in the South to defend Jim Crow. Does that history mean that federalism is now tainted? Should proponents of federalism atone for the past associations of their ideas? Or should ideas stand on their own merits, without regard for who has used them in the past?
The Swiss provide an excellent example of how federalism can work brilliantly in practice, that's the simplest counter-example to the "Jim Crow argument" against federalism. To suggest those who support the continuation of federalism need to somehow "atone" for the views of others begs the question of how far ideological cousins of evil-doers share the blame. Where is the outcry over the fact that the average member of the Democratic or Green parties today shares an extraordinary degree of ideological common ground with various totalitarian movements such as Communism? I'm not going to deny that blacks suffered grievously under Jim Crow laws, but to demonize federalism due to its tolerance of Jim Crow laws without demonizing "left-liberalism" for its similiarity to most totalitarian left-wing movements renders the whole issue a farce.
Quite frankly I think this whole thing is largely absurd if for no other reason than the fact that federalism is at the core of the US Constitution, even with all of the amendments considered, and that if it is invalid, so is our whole system of government. Considering the fact that every major democracy and republic practiced slavery, had some sort of deep class discrimination among other things, we might as well resign ourselves to descending into a feedback cycle of nihilism if we ponder this topic too long.
What else is there left to say except that utopia still means "nowhere" and Heaven is still beyond human reach? Government is frequently run by scoundrels and ruthless criminals; people are evil toward one another; injustice is more common than justice. There is nothing new under the sun and the human condition has not changed. Though America be more liberal in some respects today, one could easily argue that ironically, "free" men and women today enjoy far less autonomy than they did 100 years.
Today a black man may not legally face discrimination, but in many areas he may not legally carry a weapon to defend himself, his home may be violently invaded with military-level force over a small amount of marijuana, his children can be taken away from him easily on specious grounds ranging from his wife making half-baked claims of abuse to a number of things which may upset social services, half of his money may be claimed in taxes, his due process rights under many areas ranging from drug crimes to tax laws are a joke, he can be spied on in a myriad number of ways and many more. The wheel has shifted, and the centralized state that the fourteenth amendment gave us has simply taken one form of tyranny and replaced it with a more virulent, less obvious one. My, how things do change...
Anybody see Spike Lee's CSA?
Man, that confederate flag on the moon sure was perddy!
Jim Crowe is the stupidest throw-away straw-man argument that... oh wait, it's just leftist rationale.
Today, the "slavery" is just spread around more equally through "taxation". Americans pay more in taxes than the serfs of feudal Europe did. Let's hope that one day our chidren's grandchildren look back on the 20th century and its Marxist progressive taxation with the same disdain that people look back on "slavery" in the 19th century do today.
I think they are going to have bigger issues to worry about thanks to some of the technological advances. One of them is how they are going to deal with advanced nanotechnology that allows them to build things basically at the cost of materials.
Flush out your thought more. I'm curious how that would be something to give logistical pause.
I think it will dramatically undermine the system of property rights and productivity. Basically it will turn all discussions of property rights WRT making products into discussions over intellectual property, and people will suddenly start asking why it is that they have to pay a company a premium for their parts when they can just download the schematics and build them themselves.
Think of it like this. Napster for schematics, nanoreplicator, go out and buy raw metal, etc. and the nano replicator builds it for you. Why would someone want to buy a video game console when they can have their replicator build the parts from the ground up using the schematic they bootlegged? That's what I'm getting at. If I have a chance, I'll probably turn this into a full blog post.