January 20, 2006
Federalism Is Not For Sissies

By Froma Harrop

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.

Conservatives often 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 all viewpoints.

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.

State prerogatives 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.

Copyright 2006 Creators Syndicate

Froma Harrop

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