A Question of States' Rights

FROM THE ARCHIVES (Daily Nebraskan columns)

A Question of States' Rights

Jeremy Patrick (jhaeman@hotmail.com)

Daily Nebraskan (www.dailyneb.com)
October 02, 2000

No opinions so fatally mislead us, as those that are not wholly wrong; as no watches so effectually deceive the wearer as those that are sometimes right.
---C. C. Colton

In politics, some fads rise up and then fade away, never to be heard from again; others lie low in periods of unpopularity, only to pop back up every few decades when the time seems right. A powerful and growing movement in this country has reunited under the banner of "States' Rights."
The states' rights ideology has been popular in the South since pre-civil war days, but now it's increasingly becoming part of the standard lexicon of Republican and Conservative activists. Prominent Republican politicians and jurists, building on the traditional belief that the federal government is a bloated bureaucracy, have turned to the notion of states' rights and sovereignty as support for their conservative vision of America.
As the GOP platform states: "our commitment (is) to restore the force of the 10th Amendment, the best protection the American people have against federal intrusion and bullying ... Washington must respect that one size does not fit all states ..."
Several Justices of the Supreme Court have embraced the ideology and have used it to strike down certain federal laws, such as those that allow persons discriminated against on the basis of age or disability from suing state agencies.
Almost all of us can agree that federalism (the division of power between states and the federal government) has some merit. The Constitution was designed to disperse power in order to prevent tyranny and we can all see the virtue in having 50 separate "laboratories" to experiment with what laws bring about a just and fair society.
However, the rhetoric of states' rights is actually employed for more sinister purposes.
As legal scholar James Wilson said, "When one studies the history of federalism in the United States, states' rights advocates usually favored federalism to protect something else. Initially, the slave owners relied on federalism because they knew the federal government was the greatest threat to their peculiar institution. Later, racists relied upon states' rights to protect the continued subordination of African Americans through segregation and violence."
What do current states' rights advocates hope to achieve? They use the concept to attack environmental laws, workplace-safety regulations and even some civil rights laws. It is clear that they are not committed to the concept to protect against "tyranny" but merely an instrumental tool to achieve desired goals.
States' rights activists abandon the concept whenever the federal government imposes a conservative ideology on states. Recent examples are abundant.
In 1996, voters in California approved Proposition 215, an initiative that allows marijuana to be approved for medicinal use. Although seven other states have passed similar laws, last month (at the request of the Justice Department) the Supreme Court issued an emergency ruling preventing an Oakland medicinal marijuana club from opening.
The federal government has "fiercely attacked" medical marijuana laws, even threatening to incarcerate physicians who prescribe the drug. Where is the vigorous defense of state "sovereignty" now? Conservative states' rights activists are nowhere to be found.
Similarly, Oregon's law allowing physician-assisted suicide would be "essentially nullified" by a pending Congress bill that would enact criminal penalties for doctors prescribing lethal doses of pain medication. Although Maine residents will vote on a similar assisted suicide initiative in November and the Alaska Supreme Court is considering a right-to-die case that may result in limited legalization, conservatives are pushing for the federal law.
If states' rights activists sincerely believed in the virtue of limited federal government and an opportunity for states to experiment, they would speak out. So far they have been silent.
If the federal government is too large, it is the people's fault. The same persons who elect state officers elect their federal representatives, and (in these cynical times) you rarely encounter anyone pleased with either their local or state governments.
In the abstract, the idea of states' rights as a limitation on federal power seems wise. In modern political discourse, however, "states' rights" is simply a code word: conservatives invoke it with vigor when they dislike a particular federal policy and ignore it without shame otherwise.

(c) 2000 Jeremy Patick