A Federalism Role Reversal?
Conservatives and Liberals Switch Sides In the Power Struggle Between States and Feds

By MATTHEW SEGAL

Thursday, Aug. 07, 2003

While the "f-word" - federalism - has rarely been uttered lately, it provides an unspoken backdrop in two key civil rights arenas. In each, the federal government is squaring off against state and local governments. And in each, a bizarre role-reversal has occurred: Conservatives implicitly derogate states' rights, and liberals appear implicitly to invoke them.

One such arena is gay rights. In a July 30 press conference, President Bush indicated his support for federal measures to forbid same-sex marriage. These measures, if enacted, would infringe on the states' traditional prerogative to control matters of family law. Nonetheless, conservatives support them. Liberals have fought back, placing them in the unfamiliar position of opposing federal measures regulating family law.

The second such arena involves the USA Patriot Act. Many state and local governments have resisted the federal government's broad authority under the Act to restrict civil liberties. But conservatives in the Bush Administration have made their view clear: It's not up to the states to decide. Again, though, liberals have insisted that states are right to oppose the Act.

The Supreme Court's Recent Federalism Cases, and Their Bottom Line

In the civil rights era, federalism arguments were often invoked to impede change, and to keep the federal government out of the "states' business." And, of course, a strong assertion of federal power was needed to desegregate the South.

From the mid-1990s to 2000, the Supreme Court invoked federalism to curtail federal authority, relying on the Constitution's grant of only limited powers to the federal government. Specifically, it invalidated several congressional enactments as excessive exercises of federal power.

Some of these doomed statutes favored gun control, such as the Gun Free School Zones Act, struck down in United States v. Lopez, or the Brady Handgun Violence Protection Act, struck down in Printz v. United States.

Others were pro-civil rights, such as the Age Discrimination in Employment Act, struck down in Kimel v. Florida Bd. of Regents, and the Violence Against Women Act, struck down in U.S. v. Morrison.

In reaching these decisions, the Supreme Court seemed to vindicate the conservative view that law enforcement and civil rights issues are best left to the states.

In these cases - and the debates surrounding them - conservatives championed federalism, while liberals opposed it. To conservatives, political agendas blinded liberals to the proper balance of power between federal and state governments - which, they believed, ought to include a significant realm for state decisionmaking. To liberals, however, conservatives were invoking an empty doctrine to impede advances in civil rights and gun control.

The Recent Role-Reversal on Federalism Issues

Now, when Republicans control both political branches of the federal government, it turns out that conservatives are wielding federal power, well, liberally.

Consider, for instance, the suggestion by President Bush and other conservatives that the federal government should decide the gay marriage issue completely and uniformly for the entire country. Some conservatives even support a Constitutional amendment diminishing state authority in the previously protected realm of the family.

For federalism, this is more than a backtrack; it's a sprint in the opposite direction.

Now consider the controversy over the USA PATRIOT Act. The Act expanded federal authority to pursue terrorists - and, in some instances, requires local authorities to assist in these efforts. But many on the state and local level are resisting, claiming that cooperation will force them to violate civil liberties.

Indeed, three state legislatures (Alaska's, Hawaii's, and Vermont's) and 145 communities have passed resolutions expressing their view that the Patriot Act improperly curtails civil liberties. On July 16, the Anchorage, Alaska Assembly even passed a resolution instructing local law enforcement officials to refuse to help federal agents acting under the Patriot Act in ways that violate "the rights and liberties guaranteed equally under the state and federal constitutions."

Sound weirdly familiar? It should: It's the civil rights movement turned upside down - with states assuming the role of protectors of civil rights, based on their belief that the federal government is infringing them.

Meanwhile, communities are also combating the Patriot Act in other ways. In Boulder, Colorado and elsewhere, librarians are attempting to undermine a provision in the Act that gives authorities access to patrons' library records. To protect the privacy of their patrons, many librarians are expunging their records more frequently than they used to.

Fighting Federalism Battles without Using the "F" Word

These battles all involve federalism, and yet in each, neither side is likely to mention the word. Why? Perhaps they would be uncomfortable carrying the mantle of a movement that they so recently opposed. Or perhaps conservatives don't want their anti-federalism statements to haunt them in the future - nor do liberals want to be forced later to eat their pro-federalism words.

But make no mistake, federalism is at issue here. These issues are not just about which policy choice is the right one, or when a law runs afoul of the Constitution. They are about questions of power: who has the power in a given area, the states or the feds? And thus they are inherently about federalism.

Why, then, is neither side willing to acknowledge it? It may be that, for both, the idea of federalism, when it comes down to it, has little independent force. The policy choice at issue, instead, is what matters most.

After all, if either side really cared about federalism, then the concept would sometimes force them to abandon a position they would otherwise favor. And it would sometimes force them to admit that a government that they control - whether state, local or federal - lacks the power to do everything it would like to do.

If these things happened, federalism would have "teeth": It would matter. But recently, it has seemed toothless. It has appeared to be a mere political tool - used (and opposed) only when convenient, and discarded like an out-of-fashion tie when it does not suit the user.

An Opportunism that Affects Both Sides, But May Affect Conservatives More

There is some asymmetry here, for conservatives have relied on federalism arguments much more than liberals have relied on their arguments against federalism. It ought to be hard for conservatives, in the near future, to invoke federalism with a straight face.

By contrast, liberals face only a potential pitfall. To the extent they argue that the Bush administration has taken the wrong positions on civil rights issues, liberals do not contradict their previous view that the federal government may broadly legislate on civil rights. After all, accusing the federal government of getting an issue wrong is not the same as arguing that the states should decide the issue. But to the extent they argue that states - and in particular liberal states - should have more clout in civil rights matters, liberals risk undercutting their old arguments.

If conservatives and liberals do not address federalism issues now, they may be stuck with them later. And if federalism is truly worth protecting, then civil rights debates like those surrounding gay marriage and terrorism should take it seriously. This would mean that advocates should address federalism even when it complicates, rather than reinforces, their positions.

Alternatively, if advocates continue to leave out federalism entirely, then perhaps they should continue to do so forever. Of course, that won't spell the demise of either federal or state power. Instead, it will only mean that the advocates themselves will strike a balance between federal and state authority, instead of claiming that the Constitution struck it for them. And the next time the "f-word" fails to appear in a major debate, it would be due to intellectual honesty - instead of embarrassment over inconsistencies with the past.


Matthew Segal is a freelance writer and attorney. He can be reached at matthew.segal@aya.yale.edu.

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