Slate: Whatever Happened to States Rights? Don't Ask Conservatives

Steve Chapman, at Slate.com (July 22, 2004):

The modern Republican Party is the offspring of Barry Goldwater, whose 1960 manifesto "The Conscience of a Conservative" provided the intellectual framework for a movement that would eventually raise up Ronald Reagan, Newt Gingrich, and George W. Bush. Goldwater saw the future as a choice between states' rights and individual liberty on the one hand, and centralized tyranny on the other. "Freedom depends on effective restraints against the accumulation of power in a single authority," he declared, calling on "the federal government to withdraw promptly and totally from every jurisdiction which the Constitution reserves to the states."

He wrote those words when history was proceeding in exactly the opposite direction, as it continued to do for years afterward. The notion of states' rights, despite its central role in the vision of the framers, became discredited in the 1960s largely because it was proclaimed so vociferously by Southern segregationists. By the time he died in 1998, Goldwater must have abandoned any hope of restoring to the states their rightful prerogatives. But in recent years, that tide has begun to turn, thanks mostly to a conservative Supreme Court that has acknowledged something once dismissed as the musty obsession of a few crackpots: The Constitution limits the power of the federal government to legislate in local matters.

The revolution began in 1995, when, in a stunning decision in United States v. Lopez, the court struck down the Gun-Free School Zones Act because the law in question, regulating gun possession in and around schools, did not have an impact on interstate commerce—the all-purpose excuse for congressional intrusion into traditional state spheres.

By calling into question the connection between a federal law and interstate commerce, the court erased a decades-old legal fiction that had permitted the federal government to mess around in matters that should have concerned only the states. In 2000, the court invalidated a portion of the Violence Against Women Act on the same ground and struck down part of the Brady Act obligating local authorities to enforce federal restrictions on handguns. A constitutional principle once considered as obsolete as John C. Calhoun was now sitting up and taking nourishment. For the first time since the New Deal era, the court had opened up the possibility of resurrecting authentic federalism.

And how have conservatives in the elected branches responded to the opportunity offered them by the high court? By running from the room in terror. In one legislative battle after another, it's been liberals who have resisted preemptive decrees from Washington and conservatives who have demanded uniformity from Maine to Hawaii. The most conspicuous case is the Federal Marriage Amendment, which would forbid any jurisdiction in the United States from granting same-sex couples access to marriage or civil unions. In supporting the amendment, conservatives have abandoned their old darling, the 1996 Defense of Marriage Act, which upheld federalist principles by guaranteeing each state the right to decide for itself what to do. The political right has paid lip service to the idea of federalism by warning that this new strategy was necessary because the Supreme Court could find a constitutional right for gays to marry, thus usurping the democratic process in 50 states. But for the foreseeable future, that's about as plausible as Antonin Scalia eloping with Lil' Kim....