January 20, 2006
Federalism Is Not For Sissies
Federalism is not
for sissies. The belief that states should have more power means
accepting that you will win some and lose some. When states do
their own thing, the policies that emerge may reflect a local
culture that is not yours.
claim ownership of the federalist idea that state governments
are closer to the people than far-off Washington -- and therefore
better able to serve the public. In practice, federalism can serve
The Supreme Court
ruling in favor of Oregon's doctor-assisted suicide law reminded
liberals that when conservatives are running the federal show,
states' rights can work for them, also. The problem for liberals
isn't that federalism is a conservative principle, but that many
conservatives aren't principled.
Justice Antonin Scalia,
for example, talks a federalist line, but only when it suits the
needs of the moment. He tends to see the U.S. Constitution as
his personal mirror. Scalia disapproves of physician-assisted
suicide, and so saw no reason to seriously explore whether Oregonians
had the right to allow it.
The case centered
on former Attorney General John Ashcroft's claim that he could
swoop down from Washington and punish doctors who prescribed lethal
medication to terminally ill patients under Oregon law. Scalia
thought that sounded about right.
A 6-3 Supreme Court
majority saw it otherwise. Writing for the court, Justice Anthony
Kennedy said that Ashcroft was supporting "a radical shift
of authority from the states to the federal government to define
general standards of medical practice in every locality."
In other words, states have the power to regulate doctors.
Scalia was joined
in his dissent by Clarence Thomas and, alas, the new chief justice,
John Roberts. Scalia opined that doctor-assisted suicide is no
more "a legitimate medical purpose" than "eugenic
infanticide." Eugenic infanticide is the abhorrent practice
of killing babies deemed genetically inferior.
A theatrical, but
cracked comparison. The Oregon law empowers terminally ill adults
to end their own lives -- not the lives of others -- and there
are strict rules for doing even that. And although the physician
prescribes the lethal medication, patients must take the pills
on their own.
do appeal to Scalia when they reflect his personal preferences.
In 2000, he helped overturn a federal law that let rape victims
sue their attackers in federal court. The justices held that such
crimes are state concerns to be handled in state courts. They
rejected the notion that violence against women interfered with
interstate commerce and was therefore a federal matter.
That was a respectable
federalist position, but then comes the California medical marijuana
case. The California law let seriously ill people smoke marijuana
to relieve their discomfort, with a doctor's approval. Now, Scalia
is arguing that a patient who grows three marijuana plants in
the backyard for his own medical use -- and in accordance with
California law -- is somehow affecting interstate commerce.
In the recent doctor-assisted-suicide
case, Scalia complained that the Oregon law was based on "a
naked value judgment." It may shock him that laws are full
of value judgments. The federalist argument for why Washington
shouldn't make all the laws is that the people in different states
hold different values. That's why Texas allows capital punishment
and Michigan doesn't. It's why California imposes fewer restrictions
on abortion than does South Dakota. It's why Massachusetts allows
same-sex couples to marry and Alabama does not.
Of course, there
are basic constitutional rights that transcend state customs --
as shown in the Supreme Court's overturning of segregationist
state laws. But for such matters as medicine, marriage, driving,
insurance and the prosecution of crimes, the states do a mostly
adequate job of determining what's right for their people.
To repeat: The beauty
of letting states make these decisions is that you and your neighbors
get to run your own lives. The drawback is that you lose the power
to run the lives of other people in other states.
The impulse to remake
everyone else in one's own image may be human nature, but Supreme
Court justices are supposed to look for higher principle. It is
Scalia's special brand of narcissism that sees liberal or, in
the case of the Oregon law, libertarian values as "naked"
and his own as fully clothed.
2006 Creators Syndicate