The late, great States

The law, lawyers, and the court.
July 22 2004 5:01 PM

The Late, Great States

Where have all the federalists gone?

John Ashcroft
Ashcroft: a policy of reversal

The modern Republican Party is the offspring of Barry Goldwater, whose 1960 manifesto "The Conscience of a Conservative" provided the intellectual framework for a movement that would eventually raise up Ronald Reagan, Newt Gingrich, and George W. Bush. Goldwater saw the future as a choice between states' rights and individual liberty on the one hand, and centralized tyranny on the other. "Freedom depends on effective restraints against the accumulation of power in a single authority," he declared, calling on "the federal government to withdraw promptly and totally from every jurisdiction which the Constitution reserves to the states."

He wrote those words when history was proceeding in exactly the opposite direction, as it continued to do for years afterward. The notion of states' rights, despite its central role in the vision of the framers, became discredited in the 1960s largely because it was proclaimed so vociferously by Southern segregationists. By the time he died in 1998, Goldwater must have abandoned any hope of restoring to the states their rightful prerogatives. But in recent years, that tide has begun to turn, thanks mostly to a conservative Supreme Court that has acknowledged something once dismissed as the musty obsession of a few crackpots: The Constitution limits the power of the federal government to legislate in local matters.

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The revolution began in 1995, when, in a stunning decision in United States v. Lopez, the court struck down the Gun-Free School Zones Act because the law in question, regulating gun possession in and around schools, did not have an impact on interstate commerce—the all-purpose excuse for congressional intrusion into traditional state spheres.

By calling into question the connection between a federal law and interstate commerce, the court erased a decades-old legal fiction that had permitted the federal government to mess around in matters that should have concerned only the states. In 2000, the court invalidated a portion of the Violence Against Women Act on the same ground and struck down part of the Brady Act obligating local authorities to enforce federal restrictions on handguns. A constitutional principle once considered as obsolete as John C. Calhoun was now sitting up and taking nourishment. For the first time since the New Deal era, the court had opened up the possibility of resurrecting authentic federalism.

And how have conservatives in the elected branches responded to the opportunity offered them by the high court? By running from the room in terror. In one legislative battle after another, it's been liberals who have resisted preemptive decrees from Washington and conservatives who have demanded uniformity from Maine to Hawaii. The most conspicuous case is the Federal Marriage Amendment, which would forbid any jurisdiction in the United States from granting same-sex couples access to marriage or civil unions. In supporting the amendment, conservatives have abandoned their old darling, the 1996 Defense of Marriage Act, which upheld federalist principles  by guaranteeing each state the right to decide for itself what to do. The political right has paid lip service to the idea of federalism by warning that this new strategy was necessary because the Supreme Court could find a constitutional right for gays to marry, thus usurping the democratic process in 50 states. But for the foreseeable future, that's about as plausible as Antonin Scalia eloping with Lil' Kim.

This is only the latest lapse from conservative federalist principles. Shortly after taking office, John Ashcroft reversed the Clinton administration's policy of tolerance for an assisted-suicide law approved by voters in Oregon, insisting it violated federal regulations on controlled substances. The 9th Circuit Court of Appeals, however, noted in State of Oregon v. Ashcroft that when the Supreme Court declined to find a constitutional "right to die," a concurring Justice Sandra Day O'Connor indicated that the place of resolve the issue was in the "laboratory of the states." The appellate court also saw Ashcroft's directive as an intrusion into a realm long assigned to state governments—the regulation of medical care.

Conservatives who cheered the Supreme Court's rediscovery of the limits of the commerce clause were not cheering in December 2003, when the same 9th Circuit applied this logic to the administration's campaign against medical marijuana in California, where it is allowed by state law. Siding with two seriously ill women who had not been healed by conventional medicine, the appeals court said their use of cannabis simply didn't affect interstate commerce and that its regulation was thus up to the state. The Supreme Court has agreed to hear the case in its next term.

What's notable about all three episodes is not just that conservatives have abandoned their faith in federalism, but that they've done so in disputes where the case for federalism was most compelling. If Iowa is happy to pollute the Mississippi River and live with the consequences, it deprives downstream Louisiana of any choice in the matter. In such instances, it makes sense for the federal government to step in. But Oregon can allow doctors to dispense lethal drugs without jeopardizing Nebraska's right to shield its citizens from the potential abuses of right-to-die laws. Like same-sex marriage and medical marijuana, assisted suicide is an appropriate issue for state-by-state decisions because its effects are almost entirely local. (To be sure, states are customarily obligated to honor marriages transacted in other states, but most experts agree they are entitled to decline when an out-of-state marriage violates their clear public policy.) The people affected by these local issues are the ones whose votes ultimately determine the policy, which is just as it should be.

So, what alienated Republicans from federalism? It's not simple hypocrisy. True, their sympathy for states' rights was partly the product of a historical accident. From the New Deal onward, state governments were generally less activist than the federal government, where the legislature was under almost unbroken Democratic control for half a century. So, conservatives preferred to keep decision-making in places where they could prevail. But their fondness for states' rights also stemmed from conservatives' sincere distrust of government power and their belief that one crucial way to constrain it was to diffuse it among 50 capitals instead of channeling it all into one.

That perspective lost much of its appeal once the GOP found it could not only elect presidents with reasonable consistency but also dominate Congress as well. Virtue is harder to practice once temptation is beckoning. And virtue would have to be its own reward: A member of Congress is more likely to enjoy a long tenure if she promises solutions from Washington than if she advises constituents to call their state rep. No one runs for re-election bragging about all the problems he stopped his congressional colleagues from solving. And who wants to fight 50 battles if you can prevail everywhere by winning just one? Once Republicans saw all the great things they could do with centralized power in Washington, they forgot why they ever found it worrisome in the first place.

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