Phony Federalism

The Republican Party is a fickle friend to the 10th Amendment.

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.

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