THE FEDERALISM FLIP-FLOP

Democrats Now Argue For States' Rights

A historic turnabout is underway.

Liberals are now picking up the mantle of states' rights, while
conservatives find themselves arguing for the supremacy of national
government.

State sovereignty, once the discredited viewpoint of segregationists, is
now becoming the battle cry of mainstream liberals.

Conservatives, for their part, are now citing the constitutional views of
government centralizers they once despised.

This side-swapping on the "inviolate" right of the states to make law free
from the meddling of the federal government should come as no surprise.
Thwarted by the Bush ascendancy and the currently conservative tone of the
national judicial, legislative, and executive branches, liberals are
embracing state government as a means for protecting and advancing their
political interests. Hence we see US senators like Democrats Jon Corzine of
New Jersey, Christopher Dodd of Connecticut, and Charles Schumer of New
York pondering or now planning runs for the statehouse.

A movement of well-known liberal Democratic leaders into state government
could foretell expansions on the state level of health insurance programs,
stem-cell research, gay marriage laws, more expansive reproductive rights
laws, and more aggressive environmental and consumer protection
legislation. Liberals will look for their cover to the 10th Amendment,
which states that powers not delegated to the national government by the US
Constitution are reserved to the states, or to the people -- unless the
Constitution clearly prohibits these powers.

As long as national government was moving in a progressive direction, which
it has done steadily since the 1930s, the 10th Amendment meant nothing to
liberals. It was more often the province of conservatives, who used it to
advance a go-slow agenda on civil rights, reapportionment, affirmative
action, government use and control of public lands, and various local
police practices. But now, we find Civil War era arguments for state
sovereignty increasingly advanced to protect liberal initiatives from
national government preemption. States' rights arguments are being made in
defense of physician-assisted suicide for the terminally ill. Medical use
of marijuana is now framed as a states' rights issue, as are state
regulations on HMOs and pharmaceutical pricing. Ironically, the assault on
local majority rule is now coming from the right. In the last four years,
conservatives in Washington have turned their back on states' rights along
a number of fronts.

It is Republicans who are challenging California's medical marijuana law
and Oregon's "death with dignity" law. And the Bush administration seems
not at all interested in letting California dictate auto emissions to car
manufacturers. Naturally, the liberals now cry "hypocrisy."

Meanwhile, conservatives are on their own journey.

Preoccupied with the threat of terrorism in the wake of 9/11, conservative
courts that might once have ruled to protect individual privacy now rule
in favor of potentially intrusive government surveillance, likely
superseding some state privacy and civil liberties laws. Republican
lawmakers also have been criticized for giving the Securities and Exchange
Commission supreme rulemaking power rather than concurrent power with
states to protect consumers from fraud.

When challenged, conservatives charge that liberals' new respect for
federalism comes only when blue state values are threatened.

The reality is that both sides have used federalism selectively, as they
have other constitutional doctrines, on an "as needed" basis.

Our political and legal history is full of this kind of constitutional
opportunism. Constitutional provisions aside, history and geography both
have played a role in producing the diversity of values that now seek the
protection of state sovereignty. The nation is vast, and states possess
their own unique histories that have created distinctive political and
policy traditions (think gambling in Nevada). People are socialized into
the values of the communities in which they are raised.

How these values operate in the public sphere is what steers local politics
in distinctive directions.

Some may argue that the idea that the nation comprises an increasing
plurality of values and political visions is vastly exaggerated. After
all, there has also been discussion in recent years about the
nationalization of American politics and the watering-down of local
distinctions. But while there are vast numbers of people who adhere to
traditional ways of life, there are increasing numbers who are in open
rebellion against these traditions. Constitutional arguments are
hard-pressed to resolve these matters.

Perhaps this federalism talk is really a distraction that prevents us from
engaging the issues for what they are: debates about whose values ought to
prevail in law and policy.

Slavery is not a states' rights issue, it is a moral issue.

Federalism arguments are not relevant to slavery, moral ones are. Instead
of avoiding substantive moral argument in favor of politically anchored
invocations of the 10th Amendment, the appropriateness of national rather
than local sovereignty would be better addressed on an issue-by-issue
basis. Fortunately, the history of American politics shows that citizens
are mostly content to effect change through periodic elections.

Under our system, losses are only temporary and losers generally consent to
be governed by the winners, only to retrench and reorganize in hopes of
regaining the majority next time. This mostly peaceful back-and-forth will
continue so long as the citizenry remain committed to the meta-principles
of civility and process that permit us to express our competing visions.