STEAMROLLER ASHCROFT

Conservatives Beware -- An Out-Of-Control Attorney-General Is Trampling On
Your Principles

S0 FAR, the debate about John Ashcroft has focused mainly on the war
against terrorism.

Libertarians moan that the hyperactive attorney-general has hugely expanded
the government's power to monitor citizens (by wiretapping their telephones
and so on); that he has made it much easier to detain and deport immigrants
and foreign visitors, particularly Arabs; and that he has ruthlessly
accumulated power over the country's sprawling judicial system in his own
hands.

Conservatives wearily retort that wars force everybody to rethink the
balance between freedom and security.

Surely the attorneygeneral is duty-bound to err on the side of vigilance to
thwart another September 11th

Well, yes. But what if you examine Mr Ashcroft's record in other areas,
such as medical marijuana, assisted suicide and the death penalty?

You find precisely the same pattern of Johnknows-best centralisation. The
country's terror-fighter has also become the country's self-appointed
moraliser-in-chief. And he is trampling all over two conservative
principles he used to espouse: limited government and localism.

Begin with an idea precious to most Republicans: states' rights.

Mr Ashcroft has prosecuted "medical marijuana" users in California despite
a state initiative legalising the practice.

He has tried numerous ploys to challenge Oregon's assisted-suicide law
(including encouraging the Drug Enforcement Administration to revoke the
licences of participating doctors), thus snubbing both the state, which has
passed the law not once but twice, and the Supreme Court, which has
explicitly left policymaking in this area to the states.

He has repeatedly tried to bully local federal prosecutors into seeking the
death penalty, despite a long tradition of local discretion in deathpenalty
cases.

Mr Ashcroft's new reverence for central government is beginning to seem
downright Democratic, if not Gallic. The whole point of the American
political system is its sensitivity to local differences. Federalism, as
justice Louis Brandeis put it, means "that a single courageous state may,
if its citizens choose, serve as a laboratory; and try novel social and
economic experiments without risk to the rest of the country." It also
means that a huge country with a richly diverse population can try lots of
different approaches to moral issues.

People in rural Nebraska can adopt a different approach to lapdancing from
people in San Francisco; Vermont can demonstrate its uniqueness by
favouring both gay marriage and tight controls on internet porn.

"Moral federalism" has deep roots in America. The English Parliament's Act
of Toleration (1689) left religious issues almost entirely to local
discretion. People with different religious views congregated in different
regions-Puritans in Boston, Catholics in Maryland and so on. The Founding
Fathers laboured mightily to keep the federal government out of dictating
civic virtue.

James Madison noted (in Federalist Paper 56) that different groups progress
at different speeds.

Alexander Hamilton (in Federalist 17) argued that any attempt to impose a
centralised morality would be "as troublesome as it would be nugatory". The
local administration of justice is "the most powerful, most universal and
most attractive source of popular obedience and attachment".

This tradition of moral federalism would seem particularly practical now.
The country is still basically split down the middle politically, and this
political divide reflects a deeper division about values.

When it comes to matters such as God and sex, many of the people who voted
for George Bush live in a different moral universe from Al Gore's supporters.

There are clearly some areas where the federal government has to step in to
protect individual rights.

It was right to use its might to dismantle segregation in the South. Mr
Ashcroft has legal grounds to argue that the constitution guarantees
individual citizens the right to bear arms. But in general the justice
Department needs to err on the side of caution on issues where reasonable
people can disagree. it should recognise that different communities have
very different views: large cities, for instance, voted for Mr Gore by a
71% to 26% margin, while small towns and rural areas voted for Mr Bush by
59% to 38%. And it should try, as far as possible, to allow those
communities to make decisions for themselves, rather than forcing them to
bow the knee to Washington. Agreeing to disagree offers the country the
best chance of avoiding an endless culture war in which both sides use the
federal government to enforce their views.

Nobody should be more worried about Mr Ashcroft than conservatives. Hasn't
it usually been the Democratic Party that has championed big government and
Washington-knows-best morality?

And hasn't it usually been the Republican Party that has stood for local
variety?

In the 19gos the Republicans owed many of their biggest successes-from
welfare reform to school vouchers-to their enthusiasm for federalism. Mr
Bush owes his job partly to the quintessentially federalist Electoral College.

A mistake by any measure

Mr Ashcroft's conversion into a centraliser is both hypocritical and
short-sighted. It is hypocritical because Mr Ashcroft was once a leading
critic of big government. As attorney-general and then senator for
Missouri, he resisted a federal injunction to desegregate St Louis's
schools so vigorously that the Southern Partisan, a neo-Confederate
magazine, singled him out for praise.

It is short-sighted because, as an evangelical who refrains from smoking,
drinking, dancing and looking at nude statues, Mr Ashcroft represents a
minority in his own party, let alone the country.

He has no chance of winning the culture wars: the forces arrayed against
him, from the media to the universities, are too vast. The best he can hope
for is a live- an d-let-live attitude that gives minority views like his
own room to flourish. Mr Ashcroft will come to rue his Faustian bargain
with the federal government the next time a Democrat sits in his office.