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The Claim Defies the Facts, the Constitution, and Logic

Thursday, Jan. 02, 2003

Brace yourself for an onslaught of kvetching over the Supreme Court's federalism jurisprudence. You will see it in the judicial confirmations soon to come - especially Jeff Sutton's nomination to a seat on the U.S. Court of Appeals for the Sixth Circuit. And if there is a 2003 Supreme Court vacancy, as seems likely, it will only get more intense.

Listen carefully, for much of what is said about the Court's federalism cases is going to be misguided, unfair, or just plain inaccurate.

Newspapers, Senate Democrats, and liberal law professors will all offer you the following spin: They will say, with all apparent sincerity, that the revival of States' rights is a disaster for civil rights. The National Organization of Women and other liberal lobbying groups are taking this message to all 50 States.

The anti-civil-rights States the liberals are decrying, however, don't really exist anymore - as is evidenced by the fact that the problems liberals point to are decades old. It's true that in the pre-civil rights era, States were the source of some of the ugliest civil rights violations, and the federal government was one of the most effective protectors of civil rights. But no longer.

Yet liberals keep dredging up what is now ancient history, as if these wrongs - terrible as they were in their time - were still ongoing. Syndicated columnist E.J. Dionne took this very path this week, pointing to the Trent Lott embarrassment as a reminder of the evils of the southern States, and the evil of States' rights in general.

This anachronistic approach is deeply unpersuasive: Where is the current evidence for the claim that federalism, and States' rights, are anti-civil rights? The truth is, there is little to no such evidence, but the claim is repeated over and over, nonetheless.

Equating the States with Civil Rights Violations Is Anachronistic

In truth, times have changed--dramatically. The States and the people of the States no longer are the evil attackers of civil rights while the federal government is the savior. Remember, the groups that lobbied at the federal level for civil rights lost little time moving into the States and obtaining civil rights laws in the States as well.

As a result, there are a plethora of equal opportunity statutes in the States, offering protections from race, gender, disability, and other forms of discrimination. Indeed, when the Supreme Court recently addressed Congress's power to apply the Americans with Disabilities Act and the Age Discrimination in Employment Act to the States - in Board of Trustees of Univ. of Alabama v. Garrett and Kimel v. Florida Bd. Of Regents - it noted that both federal laws were mirrored in laws passed by the vast majority of States.

Indeed, it is a rare civil rights claim that is not brought under both federal and state constitutional and statutory law. And at times, this occurs because state law is more expansive and more protective of rights than federal law; state civil rights law can and does at times go beyond federal civil rights law.

You wouldn't know this, however, from the way liberals talk about civil rights issues.

Federalism Is Not Results-Oriented: It Can Help Civil Rights

It's important to remember, too, that federalism is just a formal rule that determines which entity rules in a particular arena--the States or the federal government. It does not govern what policy either must adopt. And, as explained above, when responsibility for civil rights issues falls to the States, not the federal government, it hardly falls into a vacuum: States are now very active in civil rights matters.

One thing is true: If responsibility in a particular area of the law falls solely to the States, laws will vary state-by-state. But that doesn't necessarily mean less protection. If the States are permitted to experiment in rights protections within constitutional boundaries, some will have expansive protections - indeed, more expansive protections than the federal government - and some will have fewer.

We have already seen this kind of variation with abortion, where there is a great variety in abortion laws from state-to-state (within the federal constitutional framework of the Supreme Court's decisions in Roe v. Wade and Planned Parenthood v. Casey, of course).

The truth is that there are arenas where--if the Supreme Court has held, or were to hold in the future, that States have exclusive latitude--liberals, not conservatives, will be able to win the policy debate. Medical use of marijuana, and assisted suicide, are two possible examples to add to abortion law.

Certainly liberal States would take much more liberal positions than the current federal government on numerous issues, if left to themselves. And some more conservative States will take more conservative positions.

Given these realities, how can one say, as liberals often do, that States' rights, as a concept, is conservative? At most, it is a neutral idea; the policy choice is filled in by the state whose right it is, according to the Court, to resolve it.

Ashcroft and Lott's Actions Have Made It Unfairly Harder to Defend Federalism

The Bush Administration must now defend federalism to get its favored candidates through. Unfortunately, its task has been made significantly harder by the fact that Attorney General John Ashcroft and former Senate Majority Leader Trent Lott have muddied the waters considerably.

First, for federalism purposes, John Ashcroft would have been better off leaving Oregon to enforce its liberal assisted suicide law. Instead, he insisted that the federal government intervene.

In debate after debate, I have heard critics of federalism claim, based on Ashcroft's decision, that the Bush Administration is only committed to States' rights when it serves a conservative agenda - not as a fundamental constitutional principle.

Ashcroft should not have provided them with grist for this mill. But of course, the politicians are doing what politicians do--turn everything into politics. A liberal Administration would doubtless have decried federalism and at the same time, deferred to Oregon - in a different kind of hypocrisy. Again, though, the problem is the hypocrisy - not States' rights as a general principle.

Meanwhile, Trent Lott did more damage, by taking us back to the era when the word "state" meant "civil rights violators" and "federal" meant "protect us from these evil States." It is easy to fall into familiar ideas, and one could see liberals, witnessing the Lott saga, nostalgically reaching back to a time when they had a deep message, a resonant message.

But that message no longer is based on factual reality: Now, as noted above, States protect civil rights, too. States have been the object of lobbyists from both sides of the aisle on civil rights for decades and given the Supreme Court's federalism cases, they will continue to be.

Sometimes liberals will win; sometimes conservatives will. But federalism concerns the choice of forum; the result reached in the forum is up to the people of the State, acting through their representatives.

The Federalism Cases' Results Legally Depend on the States Being Pro-Civil Rights

Here is the deepest irony: the Supreme Court's federalism cases are actually predicated on the fact that the States did not continue to engage in widespread and persisting constitutional violations, as they did prior to the Civil Rights Era. In other words, it is the States' improved record that laid the framework for the federalism decisions. Thus, the reality that States' rights cannot be equated with anti-civil-rights policy is no coincidence. Instead, it is a direct result of Constitutional law. But again, this is little discussed, and not widely known to the public; thus, again, the result is the distortion of the States' rights debate.

Section 5 of the Fourteenth Amendment gives Congress broad latitude to bring the States back within constitutional parameters when they do engage in widespread, persisting Constitutional violations. Thus, if the States had worse civil rights records than they do now, Congress would have far more power to assert its power in the civil rights area. Or, put another way, it is only - and precisely - because the States have turned a corner on civil rights that the Court has found the means of turning back a small portion of the ever-enlarging, ever-dominating power of the Congress.

Section 5 should make civil rights supporters less leery of States' rights. Not only did it ensure that state power would only be restored when States began to consistently respect civil rights, it also ensures that if they ever stop, they will lose power to Congress as a result.

Thus, suppose we someday were to return to the horrendous era when the States turned a blind eye to civil rights, and civil rights groups found no willing ear in the state legislatures. In that unlikely event, according to Supreme Court doctrine, Congress will again have the power necessary to bring the States, through federal civil rights legislation, back into the constitutional fold.

That shouldn't be a surprise to anyone familiar with the Constitution - though liberal law professors often omit to note it. After all, this is simply what Section 5 says, and means.

So when you start reading about the terrible things done in the name of federalism, ask this question: What exactly have the States done recently that makes them automatically suspect? Examples from the 60's and earlier should concern us as a matter of shameful American history, but not as a matter of contemporary policy.

Then ask another question: Which policy does the speaker support, and why can't it be accomplished in the States, and not only at the federal level?

Perhaps the answer may be that it is more convenient for lobbyists to have one office in Washington and not fifty in the fifty States (I have heard this response repeatedly). If so, tell the speaker that lobbying convenience is simply nowhere near a good enough reason to jettison a part of the Constitution's structure that has been there since the beginning and for very good reasons.

Besides, lobbyists would no doubt benefit from going beyond the Beltway, and watching State policies in action; it would be all to the good for them to see how various policies actually affect those they are intended to help. A little loss of lobbying convenience may lead to a great gain in education for lobbyists. That would be an ultimate good for the people.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her email address is Her other columns on federalism, States' rights, and Supreme Court jurisprudence may be found in the archive of her columns on this site.

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