Phony Federalism

The 10th Amendment to the Constitution is like the skinny
teenage girl who blossoms over the summer and suddenly finds
herself besieged by suitors. Once ignored, it has found a host of
champions among Republican presidential candidates who are
competing to show their devotion.
The amendment contains just one sentence: "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."
It is a bulwark of federalism, which allows states the freedom
to adopt different policies reflecting their peculiar
circumstances. It was meant as a check on those who would demand
uniform practices from one end of America to the other.
Given the conservative preference for local control and distrust
of national mandates, it's no surprise to hear Republicans
asserting the central importance of this provision. In his book
Fed Up, Texas Gov. Rick Perry said attacks on the 10th
Amendment have led to "unprecedented federal intrusion into
numerous facets of our lives."
When he was governor of Minnesota, Tim Pawlenty said he might
invoke the amendment to resist implementing President Barack
Obama's health care reform. Former Massachusetts Gov. Mitt Romney
used it to explain why his state health program is constitutional
while Obama's is not. Rep. Michele Bachmann (R-Minn.) is also fond
of citing it.
They all seem to grasp the point of the 10th Amendment. As the
Center for Tenth Amendment Studies at the Texas Public Policy
Foundation says, it is to "protect our freedoms" and "prevent
federal government power from controlling our everyday lives."
Liberals, by contrast, have never had any strong attachment to
state sovereignty. Since the New Deal, they have regarded
centralized power as the best way to advance the welfare state.
They may favor state discretion when it favors their causes. But
they don't pretend to be consistent on the issue.
Conservatives, however, do. Pretend, that is. When there is a
conflict between state sovereignty and conservative policies, their
reverence for the 10th Amendment abruptly goes by the wayside.
That became apparent several years ago, when the Bush
administration asserted its power to prevent Californians from
using medical marijuana after the state allowed it. It also tried
to block an Oregon law allowing doctor-assisted suicide. Attorney
General John Ashcroft had no qualms about mobilizing the fearsome
resources of the federal government when states veered out of
line.
He has new company among the GOP presidential aspirants, who
support the 10th Amendment except when they don't. When New York
legalized same-sex marriage, Perry first said, "That's New York,
and that's their business, and that's fine with me." But he soon
reversed course, endorsing the Federal Marriage Amendment, which
says marriage "shall consist only of the union of a man and a
woman."
Bachmann has made a similar exception. Asked about same-sex
marriage in New York, she said that "the states have the right to
set the laws that they want to set." Then she threw herself behind
a constitutional amendment to repeal that right.
Pawlenty? Romney? More of the same. The conspicuous exception is
Rep. Ron Paul (R-Texas), who has a weirdly consistent respect for
the principles of federalism.
Perry tries to reconcile the contradiction by insisting that
he's merely trying to keep activist federal judges from overruling
the states that limit matrimony to its traditional form. He fears
the U.S. Supreme Court may someday rule that gays have a
constitutional right to wed their partners.
But that's not an argument for a constitutional amendment to ban
same-sex marriage. It's an argument for a constitutional amendment
to guarantee states the right to ban it.
Perry and the others are straining to make two and two equal
five. "The support of a marriage amendment is a pro-states' rights
position," he says, "because it will defend the rights of states to
define marriage as it has been." This is like saying that a draft
protects a young man's right to serve in the military.
The more important fact is that the amendment takes away the
right of states to make their own choices -- and in a realm where
they have always had great latitude. It does not uphold the
sovereignty of states to let them adopt one policy and only one.
The test of a commitment to federalism is supporting it even when
it yields unpalatable outcomes.
The 10th Amendment has plenty of admirers professing their love.
But as any fetching young female soon learns, such declarations are
not always sincere.
COPYRIGHT 2011 CREATORS.COM

lesbian television lesbian books lesbian dvd