The Supreme Court recently decided, 7-2,that the federal government has the power to civilly commit federal prisoners on the eve of their release if they meet some level of danger of future harm. The dissent, by Justices Scalia and Thomas, argued that only the states have the power to implement this sort of punishment/power.

I guess I’ll be citing this decision to people who dismiss Scalia and Thomas as right-wing conservatives. It sounds like they have taken a principled approach to applying the laws of the land and accepted a result that might otherwise be objectionable.

Our federal system makes tradeoffs that were readjusted in 1787 after the Articles of Confederation proved a poor framework. Two follow-on shifts occurred after the Civil War and during the Civil Rights era, but the second of those was not a structural change to the system but a tweaking of where we draw bright lines inside the gray borders between state and federal domains.

I sense that there could be great lessons in here for mindless conservatives who call themselves federalists or states’ rights folks only because they think they can get the rules they want, and perhaps great examples for mindless liberals who do not want to believe that they are only looking for the rules they want too. These mindless _____’s are more alike than different, and they are equally dangerous to our collective freedoms — freedom from ___, and freedom to ____.

“[T]o secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Declaration of Independence.

The way that I look at these groups, which I lump together, and others who operate from a different mindset from those although toward the same ends, is that the distinction is between rules-based and outcome-based politics. This being a democracy and all, and with the fundamental protections built into our federal and state constitutions, I see myself as a systems guy, with a belief that if our systems are well-constituted, and continually subject to improvement, we should be able to consistently improve our actual results over time, with fewer disruptions from political shifts of relatively minor proportion to the grand scheme.

In such a system, it is entirely possible that we could, as a society, legitimately come to different conclusions about how we would operate in nearly every sector of public life, from the expansion or restriction of government as a participant in the economy, whether by intervention, regulation, or participation, to the relative expectations about how widespread and uniform any regulation should be (which is another way of talking about the state-federal balance).

My theory is that the contradictory view of modern “liberals” on the federal government as both king-like protector and despotic villain are grounded in the combination of Watergate, Vietnam, and the Civil Rights movement. In those three seminal interactions with the baby boomers, many saw the worst and best of the federal government all at once. (And to be clear, many people who call themselves conservatives have a similar fear of government.)

At the same time, modern “conservatives” have latched on to different memes, showing the potential tyranny of the central government and the entrepreneurial spirit of a vigorous federal system, a laboratory of 50 regulatory approaches that could lead us all to finding more efficient ways of regulating ourselves to maximize freedoms and wealth while minimizing dislocation costs, crime, and negative externalities.

I confess that I have never thought about specific elements of our history that are likely to be responsible for (or at least ideologically connected to), this description of “conservatives.” Perhaps World War II and Roosevelt’s court-packing plan, the Slaughterhouse cases, and similar depression-era changes are the genesis, but I seldom hear these types of people talk about these events. Maybe it is the failings of other governments, where tyranny has taken hold, that is the real example this group keeps learning from.

What events/movements provide the touchstones for this rule-based group? Do you think that there are inherent benefits to rules-based or outcome-based politics?