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Will the Supreme Court save federalism from the conservatives?


At last year's American Bar Association convention, Justice Department lawyer Mark Quinlivan warned that defending "states' rights" has a disreputable past and a dangerous future. A consistent commitment to state sovereignty, he said, would allow states to opt out of national civil rights laws and revive racial segregation.

"States can't selectively assert their independence from the federal government on national issues," Quinlivan declared. "You cannot cherry-pick your federalism."

Tying federalism to racism is a familiar tactic of the left, but it was odd to hear it coming from a representative of the putatively conservative Bush administration. After all, one of the things conservatives are supposed to conserve is our constitutional design, at the center of which is a distinction between local and national matters.

Not only that, but President Bush says his favorite Supreme Court justices are Antonin Scalia and Clarence Thomas, the two members of the Court who are most inclined to enforce the doctrine that Congress has only those powers explicitly granted by the Constitution. And as the 10th Amendment makes clear, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States"—which, by the way, legally enforced racial segregation is, under the 14th Amendment—"are reserved to the States respectively, or to the people."

Why would a lawyer working for a conservative administration suggest that insisting on this separation of powers is a bad idea? The puzzle becomes clearer when you know that Quinlivan was talking about marijuana—specifically, about the ability of states such as California to allow their residents to use the drug as a medicine, an issue the Supreme Court will consider on Monday.

Conservatives generally don't like marijuana, so they're not inclined to give the states leeway in this area. But if that is what their avowed federalist principles amount to in practice, they are not principles at all.

In the case the Supreme Court is considering, the U.S. Court of Appeals for the 9th Circuit concluded that Congress' authority to regulate interstate commerce does not extend to medical use of marijuana in states that allow it. This means the Drug Enforcement Administration may no longer raid the homes of people like Angel McClary Raich and Diane Monson, the two plaintiffs in this case, who use marijuana to relieve severe pain and nausea, among other symptoms.

Urging the Court to uphold the 9th Circuit's ruling, several distinguished constitutional scholars—including Charles Fried, a solicitor general in the Reagan administration—note: "This case involves household production for household consumption, with no sales or prospect of sales. If the Government can regulate that, it can regulate anything."

These are perilous times for conservative principles. With Republicans controlling all three branches of the federal government, their grip tightened by this month's elections, conservatives will be tempted to forget their scruples about concentrating too much power in one place, as long as their guys are in charge.

But someday the other guys will take over. So conservatives had better think hard before they abandon the limits that keep the federal government from assuming power over every aspect of life.

To see how federalism cuts both ways, consider abortion. Although a recent New York Times/CBS News poll asked respondents whether President Bush "is likely to appoint Justices who will vote to…make abortion against the law," the actual result of overturning Roe v. Wade would be to return the issue to the states.

Meanwhile, though, the Supreme Court's unjustified nationalization of the issue has invited conservatives to respond in kind. And so we get patently unconstitutional laws such as the "partial birth" abortion ban, which covers purely intrastate activity on the pretext that it "affects" interstate commerce.

Conservatives who supported this law cannot consistently question the constitutionality of the Federal Access to Clinic Entrances Act, which relies on the same bogus Commerce Clause rationale. Nor would they be able to credibly wield constitutional objections against federal legislation overriding state restrictions on abortion.

In addition to imposing national policies regarding medical marijuana and abortion, the Bush administration has sought to override the states in areas such as assisted suicide, pain treatment, education, and marriage. Newly confident after the elections, the president is not likely to be more respectful of the balance between state and federal authority. The best hope for federalism is that the justices he appoints, with Scalia and Thomas as his models, will be.