SWITCHING SIDES ON STATES' RIGHTS

Although they wear the same standard-issue black robes, it's difficult
to confuse U.S. Supreme Court Justices Antonin Scalia -- an
impassioned conservative with thick, dark hair -- with John Paul
Stevens -- an ardent liberal whose mane is as white as the court's
famous marble columns.

But had you shut your eyes during oral arguments recently in a case
involving California's medicinal-marijuana law, you might not have
recognized who was talking.

It was Scalia, historically one of the leading proponents of the
rights of states, who vigorously challenged the attorney for two
California women who want to keep using medicinal marijuana, which is
legal under state law but whose users can still be arrested under a
federal ban on the drug. And it was Stevens, long a defender of the
federal government's reach, questioning the central government's
ability to trump the decisions of California doctors who prescribe
marijuana.

The role reversal is emblematic of a larger one taking place in recent
years in the debate over how to balance power between the states and
the federal government. The shifts are causing us to rethink how we
view Republicans and Democrats, and conservatives and liberals, not
just on the Supreme Court but in the White House and Congress as well.

For decades, "conservative" has been shorthand to describe
conservative social values and a belief that the federal government
should exert minimal authority over the states. Republicans generally
bought into those views. A "liberal," in contrast, held liberal
social values and favored a greater reach for the federal government.
Democrats generally fell into this camp.

Times have changed.

Though Republicans have taken over the reins, Washington is hardly
being stripped of its far-reaching power. And it's becoming difficult
to use the same labels to describe beliefs about social policy and
federal-vs.-state authority.

The shifts make it hard to predict how the Supreme Court justices will
vote on medicinal marijuana and other states' rights cases such as
assisted suicide and same-sex marriage that appear headed toward them.
Will they stick to their past positions?

The nine aging justices are, in the end, the ultimate guardians of the
balance of power between the states and the federal government. The
changing nature of the battle over states' rights raises the stakes
when the next court vacancies arise. (One may come soon, as Chief
Justice William Rehnquist may step down because of thyroid cancer.)

American Revolution

The struggle between those advocating the rights of states and the
rights of the federal government is as old as the United States
itself. The American Revolution was, after all, a revolt by the 13
original colonies against a dominant centralized power, the king of
England. At first the new country tried keeping central authority to a
minimum. But the nation struggled under the diffuse system created in
1781 by the Articles of Confederation, in which states had most of the
power.

The Constitution drafted six years later was an attempt to create a
stronger central government, particularly in defending the nation and
directing its economy, while still recognizing the desire for
significant state power. It was a concept of power-sharing known as
federalism, causing the main advocates of the new Constitution to dub
themselves Federalists.

But the Constitution's built-in balance of power also has built-in
conflicts, a point one of the leading Federalists, James Madison,
sought to downplay.

"The federal and state governments are in fact but different agents
and trustees of the people, constituted with different powers, and
designed for different purposes," Madison wrote. Because of the
"ultimate authority" of the people, he argued, it would take more
than the "comparative ambition" of the federal and state governments
to tip the balance of power between them.

Dominant government

For a long time, it was easy to figure out how conservatives and
liberals would handle issues involving those comparative ambitions.

After liberals took hold of the federal government in 1933 following
the election of Franklin Roosevelt -- a grip they maintained, at least
in part, through control of the White House or Congress, for nearly
the entire period until 2002 -- they were the ones pushing the
pre-eminence of Washington over the individual states. Their concept
of a dominant federal government prevailed from the expansion of
government under the New Deal to creation of Medicare under the Great
Society and the enactment of wide-ranging environmental laws in the
last part of the 20th century.

Conservatives, meanwhile, spent most of the past seven decades
resisting Washington's authority. They defended the power of states,
notably during the civil rights movement in the 1950s and 1960s and
more recently in trying to preserve property rights in light of laws
such as the federal Endangered Species Act.

President Reagan was able, to some extent, to implement a conservative
vision after he became president in 1981, using his executive
authority to roll back federal regulations in areas such as the
environment and workplace guidelines. He also helped create a
conservative majority on the Supreme Court, which under Chief Justice
Rehnquist started to curb federal authority. Landmark rulings in 1995
and 2000 voided federal laws that had banned gun possession near
schools and voided federal civil remedies for violent crimes against
women, in both cases because the court's majority deemed the laws a
violation of states' rights.

Today, with conservatives holding all the reins of power in
Washington, you'd expect more of the same.

But traditional conservatives have switched sides on matters of
federalism. They are the ones arguing for federal authority over
states on issues ranging from the No Child Left Behind education
reforms to same-sex marriage, for which they have proposed nothing
less than an amendment to the U.S. Constitution to ban it.

(In fact, some Democrats charge that the shift of power to the
Republicans was accomplished by the reversal of the Supreme Court's
conservative justices on states' rights when they halted the Florida
recount after the 2000 election, clinching George W. Bush's victory.)

Conversely, traditional liberals have in the past few years taken up
the states' rights call. Witness this speech last summer by Sen.
Edward Kennedy, D-Mass., one of the leading proponents of the Civil
Rights Act of 1964, which outlawed racial discrimination in public
places:

"Make no mistake, a vote for the federal marriage constitutional
amendment is a vote against civil unions, domestic partnerships and
other efforts by states to treat gays and lesbians fairly under the
law," Kennedy said, defending the decision by his state's Supreme
Court earlier this year that legalized gay marriage there. "It is a
vote against allowing states to decide these issues for
themselves."

Southern conservatives -- both Democrats and Republicans -- made the
same basic argument in opposing the Civil Rights Act 40 years ago.

But while states like Alabama and Mississippi were out of the national
mainstream in the 1960s on civil rights, the shift of the nation
politically to the right now makes socially liberal states such as
California and Massachusetts out of the national mainstream on issues
like gay marriage and medicinal marijuana.

Traditional labels no longer apply in the nation's new political
environment, for a simple reason: Whichever party holds sway in
Washington finds it difficult to resist the opportunity to use federal
power to impose its policy views on the nation. The minority party, in
turn, retreats to defending states' rights as a way to blunt the
spread of those policies.

"I think many liberals are realizing, 'Gee, there really is a value
to turning back to the states because the states may be our best hope
for protecting civil rights and liberties,' " said Cheryl Hanna, a
professor at Vermont Law School.

For traditional conservatives, states' rights now pose a threat to
their values.

"Conservatives, I think, are perfectly happy to say, 'We don't want
liberal states like California legalizing marijuana for medical
purposes. . . . Therefore, the federal government needs to step in and
stop it,' " Hanna said.

Conservatives in power

Social conservatives now have the power to do that.

They showed that in 2003 when the Republican majority in Congress
pushed through a ban on so-called partial-birth abortion, which
President Bush signed. For years, states had been the ones attempting
to enact such limits because Democrats in Washington had the power to
block national legislation.

If the U.S. Supreme Court were to overturn the 1973 decision that made
abortion legal -- a possibility should some abortion-rights supporters
on the court retire -- states may be in the position of once again
trying to pass abortion laws. This time, however, it might be liberal
states like California seeking to allow the procedure, rather than
conservative states such as Texas trying to ban it.

It might seem counterintuitive, yet those who are pushing for a
marriage constitutional amendment say they are standing up for the
rights of states. Without such a ban nationally, they ask, would a
same-sex couple married in Massachusetts have their marriage
recognized if they moved to a state that bans such marriages? Would
one state be trying to force its laws on another?

Moreover, supporters of a marriage amendment note that it cannot be
ratified without the approval of at least three-quarters of the state
legislatures -- a mechanism that the Federalists argued more than two
centuries ago would protect states' rights.

Conflicts resurfacing

The conflicts over the rights of states and the federal government,
having dogged the nation since its birth, will resurface as the top
court decides whether Californians can use medicinal marijuana without
worrying about getting raided by federal agents.

We may see more clearly than ever that "liberals" like Stevens and
"conservatives" like Scalia can no longer be so neatly defined.
Consider the point made by attorney Randy Barnett, who represented the
two California women in the marijuana case. Barnett argued that a
socially liberal view -- permitting marijuana use -- should be upheld
by conservative justices like Scalia because it favored states' rights.

"Federalism," he said after the Nov. 29 oral arguments, "is for all
the states to exercise to protect the liberties they want to protect
regardless of what ideological agenda those liberties fall into."