Posted on 12/12/2004 10:39:22 AM PST by jonestown
SWITCHING SIDES ON STATES' RIGHTS
By Jim Puzzanghera
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.)
American Revolution
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.
Dominant government
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.
Conservatives in power
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.
JIM PUZZANGHERA (jpuzzanghera@krwashington.com)
The Olique reference that I am refering to is the Letter that Jefferson wrote. It has nothing to so with the COnstitution, nor is it any type of legal document. All that it is, is a Letter that Jefferson wrote. Like if you were to write me a letter. That's all that the Left has based their BIG MOUTHED argument on a stinking letter!! Nothing else.
That's easy, we pretend there are no state's rights and no constitution. It started post civil war and the trend exploded during FDR, unless secession becomes a reality soon, I see no way to stop it.
Brett66 wrote:
That's easy, we pretend there are no state's rights
THAT should be the opening statement for ALL candidates seeking an office in doing "the peoples" work"!
By amendment if necessary.... ;~ )
It depends entirely on the party. In this example it is a good thing, if the situation were reversed it would be tragic.
It would be tough, especially when government has such a hold on education and both parents in a family have to work to pay for this government "service".
It makes for a long row to hoe when it comes to teaching children the true meaning of the Constitution and what it stands for.
The Problem that compounded the Morman religion was the acceptance of Polygamy, which is against the Laws of God, from the Bible, so there was no seperation of the CHurch from the state in this decesion, actually there was a Conformity to the teachings of the Bible and the Laws of God. This is the same thing we are faced with now, the acceptance of Homosexuality and Same sex marriage. There is no problem with the Laws of God or the Constitution because they support each other. Homosexuality is an Abomination to Lord and is against the Laws of God. Man may choose to do what it is that he wants, it may conform to the Laws of God or it may go against the Laws of God, which way do you choose.
Which way do we, as a People Choose. Our Constitution and the Declaration of Independence are Subserviant to the Laws of God, and Conform to the Laws of God. The Laws of God cannot be changed, no matter what language that man may choose to use it can never be twisted to fit the homosexual or same sex marriage agenda.
If the Constitution is changed then it will be against the Laws of God, because it is a derivative of the Bible.
RightWhale---
I've seen you propose this Government vs State distinction before, but I'm not sure I follow. By State are you meaning society at large?
As you say, 'separation' also can't be found in the Constitution either.
-- Nevertheless, State supported churches were not seen as part of a "Republican Form of Government", and gradually were abandoned.
Soon after, Utah's statehood was held up until they separated their church from government support.
35 jones
So, --- you agree that States should not support churches?
44 jones
It was NEVER intended that the State or the Federal Government support a Religion. The people were free to practice their various forms of religious beliefs. I am sure that the prejudice of their times and their tolarance is quite evident in the religions that were Tolerated by our fore fathers.
Do you think they would have allowed the muslim religion to thrive within the borders of 18th century America? They were after all out to convert everyone to the Christian religion. Now it seems that the christian religions is under attack. Interesting times we live in.
I am referring to the Modern State. The American antistatists, which is and was most Americans from the beginning, lump the State and the Gov't together, which is unfortunate because there is a distinction. Non English speakers get this right away and do mean different things by Gov't and State. The American antistatists have created, somehow without meaning to or even knowing what they have done, the Modern State with full power and fury. Ironic, isn't it.
I'll try and read between the lines again. So by State, you mean the Modern State (Government) and by Government, you mean a more general concept of governance which would include family and other societal structures which do not have general authority of the modern state.
Am I getting warm? Can you refer me to some writing on this Government vs Modern State distinction?
Thanks.
Article VI deals with the "jurisdiction" of treaties made by the federal government with foreign countries and then yes the states are bound by such laws to enforce those treaties in spite of state laws and constitutions to the contrary.
For example, the federal Migratory Bird Act, was held unconstitutional when first applied to an Arkansas man because the our federal government lacked jurisdiction.
A treaty with Canada and Mexico was then ratified to protect migratory birds from being hunted year round.
Pursuant to Article VI (all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding) a new Migratory Bird Act was passed and the next violator of the law was convicted constitutionally.
Federal jurisdiction, prior to the 14th amendment, within the boundaries of the a sovereign state, was primarily established through the Article I, Section 8, Cl 3 and Cl 17.
Actually, the 14th just reiterated the Constitutional principle that no level of government in the Union had the power to ignore the individual rights outlined in the Constitution as Amended.
States & their Officials have always been bound to honor the 'jurisdiction' of the US Constitution by Article VI.
40 jones
There is very little such writing. Morris, maybe. As for a distinction, which branch of government is the military? How about the Press? The bureaucracy? The AFL-CIO?
There are warnings, but none of them direct and clear. Marcuse, One-Dimensional Man, much read, little understood, very clear once the reader gets onto the wavelength, is on the surface about the modern industrial society in the historical sense, but actually is a good description of the omnivorous Modern State.
Bump for later reading.
If your remark is true, then reconcile your remark with following:
Slaughter House Cases (1873) The Court ruled that the privileges and immunities clause protected only certain narrow federal rights (such as the right to travel, to petition Congress, and to vote in national elections), not the protections found in the Bill of Rights.
Quincy Railways v. Chicago (1897) The Court ruled that the state of Illinois acted unconstitutionally when it took property without paying just compensation. The Court ruled that Illinois had violated Quincy’s Fourteenth Amendment right to due process. The Court never actually said Illinois had to abide by the Fifth Amendment’s just compensation clause, but by using the Fourteenth Amendment to apply part of the Bill of Rights to a state action, the Court opened the door for similar protection of other provisions.
The following portions of the Bill of Rights have been incorporated against actions by state governments:
Freedom of Speech, Gitlow v. New York (1925
Freedom of the Press, Near v. Minnesota (1931)
Right to Counsel in Capital Cases, Powell v. Alabama (1932)
Freedom of Assembly, DeJonge v. Oregon (1937)
Free Exercise of Religion, Cantwell v. Connecticut (1940)
No Established National Religion, Everson v. Board of Ed.(1947)
Right to Public Trial, In re: Oliver (1948)
Ban on Unreasonable Search and Seizure, Wolf v. Colorado (1949)
No Evidence from Illegal Searches, Mapp v. Ohio (1961)
No Cruel and Unusual Punishment, Robinson v. California (1962)
Right to Counsel in all Felony Cases, Gideon v. Wainwright (1963)
No Self-Incrimination, Malloy v. Hogan (1964)
Right to Confront Adverse Witnesses, Pointer v. Texas (1965)
Right to Impartial Jury, Parker v. Gladden (1966)
Right to Obtain Defense Witnesses, Washington v. Texas (1967)
Right to Speedy Trial, Klopfer v. North Carolina (1967)
No Double Jeopardy, Benton v. Maryland (1968)
Right to Counsel for Imprisonable Misdemeanors, Argersinger v. Hamlin (1972)
Right to Notice of Accusation, Rabe v. Washington (1972)
In addition, the state I live in, Missouri, specifically, in our Constitution, "incorporates" the U.S. Constitution within the boundaries of the sovereign State of Missouri by stating:
Bill of Rights
Article 1, Section 4
That Missouri is a free and independent state, subject only to the Constitution of the United States; that all proposed amendments to the Constitution of the United States qualifying or affecting the individual liberties of the people or which in any wise may impair the right of local self-government belonging to the people of this state, should be submitted to conventions of the people.
Thus, -- States & their Officials have always been bound to honor the 'jurisdiction' of the US Constitution by Article VI, just as it is written.
jones
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.