Parties shifting on rights of states

Politics: In a reversal, Republicans increasingly seek to bolster the federal government while Democrats side with the wishes of states.

February 01, 2004|By Michael Hill | Michael Hill,SUN STAFF

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.

- 10th amendment to the Constitution

The last of the amendments that make up the Bill of Rights is the foundation of a political cry long associated with conservatives.

"States' rights" has been evoked to oppose the growth in the authority of the federal government for several generations of American politics.

The cry was heard in opposition to the Civil Rights movement that called for federal court orders and legislation to force states to desegregate schools, buses and, eventually all public accommodations. The argument - based on the 10th amendment - was that because the Constitution didn't say anything about the federal government running schools or businesses, then those are the concern only of the states.

Now consider the fact that President Bush, who declares himself a conservative, is running for re-election promoting his "No Child Left Behind" act though it has the federal government telling the states all sorts of things about running their schools.

As the country goes into a presidential campaign, there are indications the states' rights banner may have switched to liberal hands on this and other issues from pot smoking to an person's right to die.

"No liberal can do it explicitly in those words without creating a backlash in certain portions of the Democratic Party," says William Galston, director of the Institute for Philosophy and Public Policy at the University of Maryland, College Park. "There are parts of the party that will resist the idea of states' rights in those terms as long as they live.

"But I think if the issue is framed differently then a Democrat should and will pick up the banner of states as the laboratory of democracy. That was a classic progressive era slogan that is just as good now as it was 100 years ago," he says.

Consider that the state of California decided to allow the medical use of marijuana but the Bush Justice Department under Attorney General John Ashcroft made a federal case out of it - prosecuting a man for growing marijuana though his acts were legal under the state law.

Ashcroft intervened in Oregon when that state decided to allow physicians to assist terminally ill patients who wanted to commit suicide.

Much of the legal drive behind regulating Wall Street has come from a state attorney general, Elliot Spitzer of New York, not the federal regulatory bodies.

California has long been ahead of the federal Environmental Protection Administration in restricting pollution, running afoul of the federal government in the Reagan administration. It provoked the ire of the current administration by trying to carry out tough standards over the small engines used in lawnmowers. The state, with the help of its new Republican governor, Arnold Schwarzenegger, eventually won that fight.

"At least since the 1980s, there has been a movement on the part of liberals - beginning with issues of the environment - in favor of states' rights and state autonomy," says Matthew Crenson, a professor of political science at the Johns Hopkins University.

Jack Fruchtman Jr., a political scientist at Towson University, says this has also been evident in the courts as Republican appointments changed the federal judiciary.

"As the federal courts got more conservative, liberals began looking to state courts to achieve their ends," Fruchtman says.

Crenson notes that the Reagan administration explicitly stepped on states' rights when it proposed not allowing states to adopt tougher pollution standards than those required by the federal government. It also used the prospect of withholding federal highway dollars to force states to rescind bans on double tractor-trailers. This trend continues with the current administration.

"In education, with No Child Left Behind, what they have done is create the most centralized education program since the Johnson administration," Crenson says.

Galston, who was a top domestic policy adviser in the Clinton administration, says the No Child Left Behind act will probably not be an issue in this year's campaign as it is the result of 15 years of bipartisan work.

"It is true that [it] enhances the reach of federal authority over public education, but on the other hand, many people in both parties came to believe that was the only way to break through the stagnation and induce states and localities to pay attention to a percent of the student population that was persistently neglected," he says.

It is on an issue such as gay marriage that you hear Democratic presidential hopefuls defending the rights of states - whether it is the civil unions that were signed into law by then-Vermont Gov. Howard Dean or the court ruling in Massachusetts that allows gay marriage on the basis of equal rights. The call for federal intervention in these state matters comes from conservatives calling for a constitutional amendment.

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