Thursday, December 04, 2003

This conversation brings up one of the arguments in the public sphere that I'm most uncomfortable with, basically, "There should be no appeals to federal courts from the conservative point of view, since conservatives favor states' rights, and appealing to the federal courts reveals the hypocrisy."

The first thing I dislike about this is that it invokes a somewhat monolithic view of coservatives. Some conservatives believe that the governement should not discriminate based on religion. Conservatives tend to prefer that state legislatures handle difficult questions rather than federal courts. Thus, it's hypocritical to appeal to the Supreme Court to stop this discrimination. Well, not quite. The two positions are not at all contradictory.

As for this particular case, I disagree that revoking the scholarship based on the declaration of major is a denial of his right to education. I tend to agree with Dahlia Lithwick that this case falls in the middle ground -- states can or cannot choose to fund education. It's not unconstitutional for them to do so, and it's not unconstitutional for the m to not do so. Though I disagree with he conclusion that this is the only way to "prevent a theocracy" for reasons Eugene Volokh outlines. I'd rather see the amendment repealed through the democratically appointed legislature.

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