Baude responded to my argument here. He writes:
First, Smith’s essay automatically assumes that all zombies will be evil enemies of the human race. Maybe that is true, but what if it is not? And given that most of us do not believe in zombies in the first place, how much confidence should we give to our beliefs about what nonexistent zombies would be like if they did exist?
Second, if Smith is right that all zombies would be an inherent threat to humanity, there is nothing to fear from federalism. No U.S. state would want to enable the decimation of the human race, and so no state would grant rights to evil zombies.
Third, that means that zombie 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? Surely the federal government needs and has the power to manage spillovers, but that does not automatically imply a top-down answer to the hard fundamental questions.
The one serious point is that much of the above applies, mutatis mutandis, to other cases of disagreement over fundamental questions.The ZombieLaw Blog covers this discussion and adds some points on the matter here. I am proud to point out that a "zombified" image of me appears in that post as well. My colleague, Seth Fortin, points out that this debate has some interesting implications for government policies addressing race.
Baude raises some interesting points. In my capacity as the author of an essay where I urge the use of federal criminal law to prosecute the undead, I will stick by my guns that zombies will be evil. I would also argue that we can be sure that Congress knows the right answer to the zombie problem because Congress has already enacted the right answer into law in the form of broad federal criminal laws rife with strict liability crimes and mandatory restitution requirements.
I admit, however, that I may have been too quick to conclude that states will grant rights to zombies if they are given the freedom to do so. Most people will probably agree that zombies are dangerous, and will refuse to support policies granting personhood to zombies. Those people who feel a misguided sympathy toward zombies are likely to soon find themselves among the ranks of the undead. In this respect, Baude makes an interesting and important point about federalism arguments.