STATES RIGHTS, FROM THE LEFT

Like the gorilla in the old suitcase ads, conservatives in Washington
have been stomping on liberal state laws. You have Attorney General
John Ashcroft trying to smash Oregon's doctor-assisted-suicide law.
He's also sent out enforcers to grab people growing medical marijuana
in their backyards even though their states have sanctioned it.
Meanwhile, the Food and Drug Administration threatens states wanting
to buy cheaper prescription drugs from Canada.

The Bush administration thought it had crushed all attempts to raise
vehicle fuel-efficiency standards. Then who comes loping along but
California with ideas of its own. California has drafted regulations
that would force automakers to sharply cut emissions of carbon dioxide
and other greenhouse gases over the next 10 years. The only way they
can do that is by building can cars that use less gas.

Ford Motor Co.'s chairman has expressed concern that different states
would make different rules. "If individual states are doing their own
thing, versus the federal government," William Clay Ford Jr. said, "it
does make our life a lot more complicated."

But he need not worry. California is making fuel-efficiency standards
for everyone. Californians buy more than 10 percent of the nation's
passenger vehicles. And several Northeastern states have said they
will follow its lead. So California can play king of the jungle,
because it effectively makes the law of the land.

The automakers can either go along with California's regulations or
they can run to Washington for protection. If the past is any guide,
they will probably join the long line of industries asking the Bush
administration to shield them from state laws. Only Washington has the
authority to set fuel-economy standards they will argue. And
California reply that it has been setting air-quality standards since
before the 1970 Clean Air Act, and so may continue. California's
sort-of-Republican governor, Arnold Schwarzenegger, also backs the
tighter rules.

Like other conservatives, Bush administration speaks fondly of state
sovereignty: The Constitution gives the federal government the power
to raise armies, impose tariffs, coin money and regulate commerce, and
that's it. The states can do everything else.

But now that conservatives hold the federal power, they don't seem to
mind wielding it against states that don't follow their creed. And
from the campaign-contribution point of view, offering to shield
business from regulation-minded state officials can prove quite lucrative.

As for liberals, they've been largely out to lunch on matters of
states' rights. Ask them why, and theyll drag you back three or more
decades into days of segregation. They'll recall Southern governors'
barring black children from white schools in the name of states rights'.

But ask liberals to comment on a recent states' rights controversy,
and theyll come up blank. That's because the big civil-rights battles
are done with, and they are not wired to see the doctrine of states'
rights as something that works for them.

Liberals could learn a lot from principled supporters of federalism -
the idea that power should not be centralized in Washington but shared
with the states - regardless of the outcome.

Marci Hamilton, a professor at the Benjamin Cardozo School of Law,
explains that federalism is not results-oriented. It is just a formal
rule that determines who decides in a particular arena - the states or
the federal government.

"Certainly liberal states would take much more liberal positions than
the current federal government on numerous issues, if left to
themselves," she writes. "And some more conservative states will take
more conservative positions. Given these realities, how can one say,
as liberals often do, that states' rights, as a concept, is
conservative?"

Jonathan Adler, a law professor at Case Western Reserve University,
has criticized fellow conservatives for supporting Ashcroft's efforts
to overturn Oregon's doctor-assisted-suicide law. "Most health and
safety regulation, including the regulation of medical practice, was
traditionally reserved to the states," he writes. And because assisted
suicide falls into that category, the Oregonians' will must be respected.

Liberals frustrated by the federal government's refusal to address
environmental, health and other issues should take a fresh look at
federalism. They could create havens of progressivism at the state
level - assuming, of course, that they keep the federal gorilla in his
cage.