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POLITICAL PLAY | JAMES G. GIMPEL

The federalism flip-flop

Democrats now argue for states' rights

A historic turnabout is underway. Liberals are now picking up the mantle of states' rights, while conservatives find themselves arguing for the supremacy of national government.

State sovereignty, once the discredited viewpoint of segregationists, is now becoming the battle cry of mainstream liberals. Conservatives, for their part, are now citing the constitutional views of government centralizers they once despised.

This side-swapping on the "inviolate" right of the states to make law free from the meddling of the federal government should come as no surprise. Thwarted by the Bush ascendancy and the currently conservative tone of the national judicial, legislative, and executive branches, liberals are embracing state government as a means for protecting and advancing their political interests. Hence we see US senators like Democrats Jon Corzine of New Jersey, Christopher Dodd of Connecticut, and Charles Schumer of New York pondering or now planning runs for the statehouse.

A movement of well-known liberal Democratic leaders into state government could foretell expansions on the state level of health insurance programs, stem-cell research, gay marriage laws, more expansive reproductive rights laws, and more aggressive environmental and consumer protection legislation.

Liberals will look for their cover to the 10th Amendment, which states that powers not delegated to the national government by the US Constitution are reserved to the states, or to the people -- unless the Constitution clearly prohibits these powers.

As long as national government was moving in a progressive direction, which it has done steadily since the 1930s, the 10th Amendment meant nothing to liberals. It was more often the province of conservatives, who used it to advance a go-slow agenda on civil rights, reapportionment, affirmative action, government use and control of public lands, and various local police practices.

But now, we find Civil War era arguments for state sovereignty increasingly advanced to protect liberal initiatives from national government preemption. States' rights arguments are being made in defense of physician-assisted suicide for the terminally ill. Medical use of marijuana is now framed as a states' rights issue, as are state regulations on HMOs and pharmaceutical pricing.

Ironically, the assault on local majority rule is now coming from the right. In the last four years, conservatives in Washington have turned their back on states' rights along a number of fronts. It is Republicans who are challenging California's medical marijuana law and Oregon's "death with dignity" law. And the Bush administration seems not at all interested in letting California dictate auto emissions to car manufacturers. Naturally, the liberals now cry "hypocrisy."

Meanwhile, conservatives are on their own journey. Preoccupied with the threat of terrorism in the wake of 9/11, conservative courts that might once have ruled to protect individual privacy now rule in favor of potentially intrusive government surveillance, likely superseding some state privacy and civil liberties laws. Republican lawmakers also have been criticized for giving the Securities and Exchange Commission supreme rulemaking power rather than concurrent power with states to protect consumers from fraud. When challenged, conservatives charge that liberals' new respect for federalism comes only when blue state values are threatened.   Continued...

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