SWITCHING SIDES ON STATES' RIGHTS

Although they wear the same standard-issue black robes, it's difficult to confuse U.S. Supreme Court Justices Antonin Scalia -- an impassioned conservative with thick, dark hair -- with John Paul Stevens -- an ardent liberal whose mane is as white as the court's famous marble columns.

But had you shut your eyes during oral arguments recently in a case involving California's medicinal-marijuana law, you might not have recognized who was talking.

It was Scalia, historically one of the leading proponents of the rights of states, who vigorously challenged the attorney for two California women who want to keep using medicinal marijuana, which is legal under state law but whose users can still be arrested under a federal ban on the drug. And it was Stevens, long a defender of the federal government's reach, questioning the central government's ability to trump the decisions of California doctors who prescribe marijuana.

The role reversal is emblematic of a larger one taking place in recent years in the debate over how to balance power between the states and the federal government.

The shifts are causing us to rethink how we view Republicans and Democrats, and conservatives and liberals, not just on the Supreme Court but in the White House and Congress as well.
For decades, ``conservative´´ has been shorthand to describe conservative social values and a belief that the federal government should exert minimal authority over the states. Republicans generally bought into those views. A ``liberal,´´ in contrast, held liberal social values and favored a greater reach for the federal government. Democrats generally fell into this camp.

Times have changed.
Though Republicans have taken over the reins, Washington is hardly being stripped of its far-reaching power. And it's becoming difficult to use the same labels to describe beliefs about social policy and federal-vs.-state authority.
The shifts make it hard to predict how the Supreme Court justices will vote on medicinal marijuana and other states' rights cases such as assisted suicide and same-sex marriage that appear headed toward them. Will they stick to their past positions?
The nine aging justices are, in the end, the ultimate guardians of the balance of power between the states and the federal government. The changing nature of the battle over states' rights raises the stakes when the next court vacancies arise. (One may come soon, as Chief Justice William Rehnquist may step down because of thyroid cancer.)

The struggle between those advocating the rights of states and the rights of the federal government is as old as the United States itself. The American Revolution was, after all, a revolt by the 13 original colonies against a dominant centralized power, the king of England. At first the new country tried keeping central authority to a minimum. But the nation struggled under the diffuse system created in 1781 by the Articles of Confederation, in which states had most of the power. The Constitution drafted six years later was an attempt to create a stronger central government, particularly in defending the nation and directing its economy, while still recognizing the desire for significant state power. It was a concept of power-sharing known as federalism, causing the main advocates of the new Constitution to dub themselves Federalists.

But the Constitution's built-in balance of power also has built-in conflicts, a point one of the leading Federalists, James Madison, sought to downplay.
``The federal and state governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes,´´ Madison wrote. Because of the ``ultimate authority´´ of the people, he argued, it would take more than the ``comparative ambition´´ of the federal and state governments to tip the balance of power between them.

For a long time, it was easy to figure out how conservatives and liberals would handle issues involving those comparative ambitions. After liberals took hold of the federal government in 1933 following the election of Franklin Roosevelt -- a grip they maintained, at least in part, through control of the White House or Congress, for nearly the entire period until 2002 -- they were the ones pushing the pre-eminence of Washington over the individual states. Their concept of a dominant federal government prevailed from the expansion of government under the New Deal to creation of Medicare under the Great Society and the enactment of wide-ranging environmental laws in the last part of the 20th century. Conservatives, meanwhile, spent most of the past seven decades resisting Washington's authority. They defended the power of states, notably during the civil rights movement in the 1950s and 1960s and more recently in trying to preserve property rights in light of laws such as the federal Endangered Species Act.

President Reagan was able, to some extent, to implement a conservative vision after he became president in 1981, using his executive authority to roll back federal regulations in areas such as the environment and workplace guidelines. He also helped create a conservative majority on the Supreme Court, which under Chief Justice Rehnquist started to curb federal authority. Landmark rulings in 1995 and 2000 voided federal laws that had banned gun possession near schools and voided federal civil remedies for violent crimes against women, in both cases because the court's majority deemed the laws a violation of states' rights. Today, with conservatives holding all the reins of power in Washington, you'd expect more of the same.

But traditional conservatives have switched sides on matters of federalism. They are the ones arguing for federal authority over states on issues ranging from the No Child Left Behind education reforms to same-sex marriage, for which they have proposed nothing less than an amendment to the U.S. Constitution to ban it. (In fact, some Democrats charge that the shift of power to the Republicans was accomplished by the reversal of the Supreme Court's conservative justices on states' rights when they halted the Florida recount after the 2000 election, clinching George W. Bush's victory.)

Conversely, traditional liberals have in the past few years taken up the states' rights call. Witness this speech last summer by Sen. Edward Kennedy, D-Mass., one of the leading proponents of the Civil Rights Act of 1964, which outlawed racial discrimination in public places: ``Make no mistake, a vote for the federal marriage constitutional amendment is a vote against civil unions, domestic partnerships and other efforts by states to treat gays and lesbians fairly under the law,´´ Kennedy said, defending the decision by his state´s Supreme Court earlier this year that legalized gay marriage there. ``It is a vote against allowing states to decide these issues for themselves.´´

Southern conservatives -- both Democrats and Republicans -- made the same basic argument in opposing the Civil Rights Act 40 years ago. But while states like Alabama and Mississippi were out of the national mainstream in the 1960s on civil rights, the shift of the nation politically to the right now makes socially liberal states such as California and Massachusetts out of the national mainstream on issues like gay marriage and medicinal marijuana. Traditional labels no longer apply in the nation's new political environment, for a simple reason: Whichever party holds sway in Washington finds it difficult to resist the opportunity to use federal power to impose its policy views on the nation. The minority party, in turn, retreats to defending states' rights as a way to blunt the spread of those policies.

``I think many liberals are realizing, `Gee, there really is a value to turning back to the states because the states may be our best hope for protecting civil rights and liberties,´ ´´ said Cheryl Hanna, a professor at Vermont Law School.

For traditional conservatives, states' rights now pose a threat to their values.
``Conservatives, I think, are perfectly happy to say, `We don´t want liberal states like California legalizing marijuana for medical purposes. . . . Therefore, the federal government needs to step in and stop it,´ ´´ Hanna said.

Social conservatives now have the power to do that. They showed that in 2003 when the Republican majority in Congress pushed through a ban on so-called partial-birth abortion, which President Bush signed. For years, states had been the ones attempting to enact such limits because Democrats in Washington had the power to block national legislation.

If the U.S. Supreme Court were to overturn the 1973 decision that made abortion legal -- a possibility should some abortion-rights supporters on the court retire -- states may be in the position of once again trying to pass abortion laws. This time, however, it might be liberal states like California seeking to allow the procedure, rather than conservative states such as Texas trying to ban it. It might seem counterintuitive, yet those who are pushing for a marriage constitutional amendment say they are standing up for the rights of states. Without such a ban nationally, they ask, would a same-sex couple married in Massachusetts have their marriage recognized if they moved to a state that bans such marriages? Would one state be trying to force its laws on another?

Moreover, supporters of a marriage amendment note that it cannot be ratified without the approval of at least three-quarters of the state legislatures -- a mechanism that the Federalists argued more than two centuries ago would protect states' rights. Conflicts resurfacing The conflicts over the rights of states and the federal government, having dogged the nation since its birth, will resurface as the top court decides whether Californians can use medicinal marijuana without worrying about getting raided by federal agents. We may see more clearly than ever that ``liberals´´ like Stevens and ``conservatives´´ like Scalia can no longer be so neatly defined. Consider the point made by attorney Randy Barnett, who represented the two California women in the marijuana case. Barnett argued that a socially liberal view -- permitting marijuana use -- should be upheld by conservative justices like Scalia because it favored states´ rights. ``Federalism,´´ he said after the Nov. 29 oral arguments, ``is for all the states to exercise to protect the liberties they want to protect regardless of what ideological agenda those liberties fall into.

"Traditional labels no longer apply in the nation's new political environment, for a simple reason:

Whichever party holds sway in Washington finds it difficult to resist the opportunity to use federal power to impose its policy views on the nation.
The minority party, in turn, retreats to defending states' rights as a way to blunt the spread of those policies."

“The natural progress of things is for liberty to yield and government to gain.” Thomas Jefferson

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Tenth Amendment -- the last in sequence of the Bill of Rights, which comprises the first ten amenedments to our great Constitution. Most of us who are old enough to have been taught history (the good old days when schools actually taught something) --- know how this topic has been bashed, bantered, and raped through the years -- add Lincoln's antics, etc. Is the Tenth dead???

The 'natural progress' of ignoring our Constitutional restrictions on governments must be stopped.

I love Scalia and his philosophy dearly. But he does have a blind spot on certain issues. You can't just turn States Rights on and off to suit your particular purpose. I don't like prostitution and gambling, but I don't live and pay taxes in Nevada so its none of my business.

I wouldn't appreciate a liberal judge born in Massachussetts interfering with my State's hunting regulations because he doesn't like guns. It works both ways.

power is the ultimate drug and federal the ultimate power.

Something that we Americans do is to confuse the gov't with the state. In Europe they don't have that blindness. The State is much more than the gov't. The ultimate power does not reside in the Fed Gov't, but in the whole system. View the press and the military as additional organs of the State and the bureaucracy and security as additional branches of the gov't and you begin to see the situation. Security could be seen as State rather than Gov't, but that is the idea. Where do corporate industries live? State or Gov't?

Many people of both parties wish the Tenth was dead.

Apparently, they would like it to read:

'The powers delegated to the United States by the Constitution are unlimited, or, if delegated by it to the States, are reserved by the States to control the people.'

power is the ultimate drug and federal the ultimate power.

6 bigsigh

Power trips are not limited to the feds. Many state & local officals are hooked bad on the ultimate drug.

17 posted on 12/12/2004 11:20:29 AM PST by PISANO (Never Forget 911!! & 911's 1st Heroes..... "Beamer, Glick, Bingham & Bennett.")

Arkinsaw wrote:

You can't just turn States Rights on and off to suit your particular purpose.

Exactly.
-- Wise words need repeating.

And, States 'rights' are to be as feared as federal powers.

You're taking my comment way to literally and since you are, it does not exclude power grabs by other levels of government.

Have the last word, this is way too much time on that simple phrase.

Javelina wrote:
Yet one more reason for a divided government.

Yet more reason for a more divided political process.

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