February 27, 2005
Look Who's Defending States' Rights

By Steve Chapman

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 federal government.

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.

2005 Creators Syndicate

Send Today's Article to a Friend

Steve Chapman

Send This Article to a Friend