THE OPPORTUNIST'S FRIEND (AND FOE): STATES' RIGHTS

DURHAM, N.C. -- We are all republicans, we are all federalists," Thomas
Jefferson said in his first inaugural address. What Jefferson didn't add --
since he didn't know it yet -- was that when it comes to states' rights, we
are all hypocrites.

Attorney General John Ashcroft is the latest offender. Earlier this month,
the attorney general (who apparently felt that the anthrax scare and
terrorism were pretty much under control) moved against the real menace to
the nation: Oregon's Death with Dignity Act.

As governor of Missouri, Mr. Ashcroft once remarked: "Those in Eastern
Europe and the Russian republics know that it's futile to have an
all-powerful centralized bureaucracy. And we pray that someday those on
Capitol Hill will learn the same." Now, however, he has become the ultimate
federal nurse, interposing himself -- and the Drug Enforcement
Administration -- between Oregon physicians and their dying patients.

So, is John Ashcroft a hypocrite? Of course. But so are we all. One scans
American history in vain to find a major figure whose position on states'
rights was not directly connected to his or her position on the underlying
political question. When it suits our leaders, they are in favor of broad
federal power; when it does not, they claim "states' rights."

When Jefferson was out of office, he supported state "interposition"
against the national government. When he got into office, he wielded
federal power eagerly. James Madison made similar swerves.

When Southerners ran the government, New Englanders who opposed the War of
1812 muttered about secession. As the South felt its control slipping away,
Southerners discovered the primacy of states' rights. Stephen A. Douglas
believed in federal power to build railroads, but not to limit slavery in
federal territories. As a Senate candidate in 1858, Lincoln vowed to
protect Illinois's right to prohibit slavery. As president in 1861, he
dispersed the Missouri Legislature to prevent it from voting to secede.

And so it went and so it goes -- politicians adroitly changing sides when
it suits their political needs and their positions in government. Those
outside of federal office fear federal power. When the outs become the ins,
they find federal power much less scary.

In the 1995 Lopez case, the Supreme Court held that Congress could not
outlaw the carrying of guns in local school zones -- and essentially
proclaimed itself the principled referee of "what is truly national and
what is truly local."

The justices, by implication, assure us that they can make this
determination without succumbing to their own political sympathies. If in
Bush v. Gore five of them decided that Florida could not be trusted to
count its own votes, that is because the controversy was clearly a national
matter. And if the justices decide that Congress lacks the power to permit
rape victims to sue their attackers in federal court, that must be because
the issue is unquestionably local.

Mr. Ashcroft's latest move will almost certainly end up before the Supreme
Court. Four years ago, the court suggested that assisted suicide was a
matter for the states. "Throughout the nation, Americans are engaged in an
earnest and profound debate about the morality, legality and practicality
of physician- assisted suicide," Chief Justice William Rehnquist wrote.
"Our holding permits this debate to continue, as it should in a democratic
society."

Now Mr. Ashcroft has decided that the debate has gone far enough, and
perhaps hopes that the conservative court will once again embrace the
principle that my mistakes are "truly local" and yours are "truly national."