Look Who's Defending States' Rights
For the last 70 years, conservatives and liberals have
argued whether assorted powers should be centralized in
Washington or entrusted to the states. The debate is still
going on, but with a strange twist. Somewhere along the
line, the two factions switched sides. The result is like
watching a version of "The Odd Couple" in which
Jack Lemmon is the slob and Walter Matthau is the neat freak.
People who cheered the expansion of federal power under
Franklin Roosevelt's New Deal have suddenly rediscovered
that the Constitution assigns many prerogatives to state
governments. Last week, a task force of the National Conference
of State Legislatures, a bipartisan group long seen as unsympathetic
to conservatives, issued a report roundly criticizing the
Bush administration's No Child Left Behind Act.
Among the complaints were many of the same ones made by
Democrats in last year's presidential primaries. The act,
it concluded, lacks adequate funding, relies on misguided
measures of progress, sets unreasonable requirements for
teacher training, and conflicts with other federal and state
laws. But the report also leveled a surprising charge: that
it violates the 10th Amendment to the Constitution.
If you're not familiar with that amendment, don't feel
bad. Neither is the Supreme Court. The amendment says, "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." But since the
1940s, those words have been intepreted to mean anything
but what they say.
In practice, and in legal theory, the 10th Amendment became
as obsolete as powdered wigs and wooden teeth. Only a small
group of conservative and libertarian legal mavericks has
argued for taking it seriously.
Now, however, the National Conference of State Legislatures
upholds a position that, a few years ago, would have had
liberals hooting with laughter: "The Task Force does
not believe that No Child Left Behind is constitutional
under the 10th Amendment, because there is no reference
to public education in the U.S. Constitution." Liberals
are not jeering now, but applauding.
If that weren't odd enough, there is another strange fact:
The administration responsible for the law is beloved by
conservatives. They've found that they don't mind the federal
government running things, as long as they're running the
Having long argued for local control of schools, conservatives
now enthusiastically defend a program that represents the
biggest federal intrusion into education in American history.
What about the fact that the Constitution doesn't mention
education? They. Don't. Care.
This is hardly the only issue on which old enemies have
traded positions. This reversal is most obvious in the right's
push for a constitutional amendment to ban same-sex marriage.
Laws on matrimony have traditionally been a state responsibility.
Though states are generally required to accept legal contracts
made in other states, they have always been allowed to reject
marriages they find objectionable -- such as unions where
one partner is below a certain age.
Conservatives claim the amendment is needed to prevent
gay marriage from being mandated nationwide by the courts.
But if that were the true goal, the amendment would simply
affirm the sovereignty of the states over the issue, instead
of forcing them all to prohibit same-sex unions.
Conservatives are not the only people prone to convenient
changes of heart. A lot of liberals who pledge allegiance
to the Defense of Marriage Act, a statute assuring states
the right to make their own decisions, would celebrate if
the Supreme Court proclaimed a constitutitional right to
same-sex marriage. The left's deployment of federalism is
mostly a tactical maneuver, not a principled one.
Still, if liberals keep championing the rightful powers
of the states, they may develop a lasting attachment. Lately,
in two cases before the Supreme Court, they've been telling
Washington busybodies to take a long walk off a short pier.
One case concerns federal raids on a California woman who
was growing marijuana for medical use, as allowed under
a California law that the administration bitterly opposes.
The other involves Oregon's Death with Dignity Act, which
lets doctors prescribe lethal drugs to terminally ill patients
and which the Justice Department wants to overrule.
In these instances, conservatives want faraway bureaucrats
butting into local affairs, while liberals say that maybe
Barry Goldwater was right about the dangers of big government.
Already, this alignment is beginning to look normal rather
than bizarre. We can all be thankful for gravity, because
the world seems to be upside down.
Today's Article to a Friend