Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore. He lives in Washington, D.C.
Suppose you are a sincere conservative advocate of “states’ rights.” What conclusion would you draw from Saturday night’s presidential forum on Fox News Channel’s Huckabee show?
As I once pointed out elsewhere, American attitudes toward the division of power between state and federal government track a famous line from Thomas Jefferson’s’ first inaugural address: “We are all republicans,” he said, holding out an olive branch to the other party, “we are all federalists.”
But as he himself demonstrated in office, when it comes to limits on federal power, we are all hypocrites. The basic view of “states’ rights” is that they extend to any policy that the speaker thinks will go his or her way at the state level. Policies become law at the federal level become, ipso facto, “national problems.” Certainly this mode of thinking seems to have affected some of the Republican presidential candidates.
The only two who seem to have given serious thought to the division of authority between the states and the federal government are Rep. Ron Paul, R-Texas, and Gov. Rick Perry, also of Texas. As for the rest, some show interest in federalism as a slogan, and a surprising number show no interest in it at all.
The Huckabee segment featured individual questioning of six of the declared candidates: former House Speaker Newt Gingrich of Georgia; former Sen. Rick Santorum of Pennsylvania; Perry; Rep. Michele Bachmann, R-Minn.; Paul, and former Massachusetts Gov. Mitt Romney.
The questioners were (from right to left on your television screen) Virginia Attorney General Ken Cuccinelli, Florida Attorney General Pam Bondi, and Oklahoma Attorney General E. Scott Pruitt.
As someone who has spent his political career in Washington, Gingrich clearly wants to do big things once he gets his hands on the levers of federal power. What, he was asked, about his proposal to empower local citizen boards to decide whether longtime undocumented residents of a community should be deported or allowed to remain? Why shouldn’t the states be making that decision?
Gingrich’s answer ought to chill “Tenthers” in the unseen audience. “The 10th Amendment actually talks about the states and the citizens,” Gingrich said (check the text, he’s got the wording about right). Thus, the implication is, the federal government can reach over the head of the states and empower boards in cities and towns — presumably made up of appointees by President Gingrich, not Governor Whoever — to carry out important federal programs. I’m about as nationalist as they come, but even I never considered the 10th Amendment as a source of federal power before.
Santorum, also a Washington creature, want the federal government to exercise pastoral authority over our safety and our sex and family lives. Asked by Bondi whether any part of the Patriot Act was unconstitutional, he said, “no.” When asked whether states or the federal government should be defending marriage and the family, he said that “the president can lead a revitalization of marriage.” Asked whether regulation of abortion might be best left to the states, he said, “I support a constitutional amendment” — which would, of course, federalize the issue; Santorum deceptively tried to claim that solution was state-oriented since the states would have to ratify the amendment. A marriage amendment is needed too, he said: “We can’t have 50 definitions of marriage. Marriage is too important” to be left to the states.
Perry really does believe the states should be free to have policies he dislikes. He had to back off that position early in the race, when he said states that wanted gay marriage should be allowed to have it. Now he’s firmly on board for the marriage amendment. Last night, though, he said he’s against a national “right to work” law, noting that we need “to get the federal government out of making one size fit all even if its for things that we thing we would like.” What if a state continually fails to provide an education for its children — should the federal government step in? “No.… If you believe in the 10th Amendment and you believe that the people in that state are going to impact those legislators, they will do that,” Perry replied.
Cuccinelli asked him about “strict constructionist” judges — what does the term mean? Perry, who has a tendency to see things in terms of good people and bad people, explained that it means a judge “who is not a legislator or a rogue, and we’ve got about four of each of those” on the Supreme Court. This Court is out of control, he said. “The idea that they’re telling us in Texas we can’t have the 10 Commandments on our Capitol grounds — that’s pretty offensive to me.” (Perry was a party to that case; he seems to think he lost, but actually he won. When he gets back to Austin he should take a look: the monument’s there.)
As for abortion, Perry said that the role of the states is to discourage it “until we pass that life amendment to the U.S. Constitution.” Labor law, however, should be left to the states.
Bachmann truly seemed not to have given a thought to federalism before Saturday night. Why, Pruitt asked, had she previously said that states could not constitutionally have individual mandate programs either? “It goes back to that liberty interest that each of us has, and there can be reasonable difference about that,” she said. Could states — as Oklahoma and Virginia have done — pass statutes blocking the Affordable Care Act? “The federal-government Obamacare bill will trump the state statutes,” Bachmann replied. “It is the law of the land right now.”
As for immigration, Bachmann said, under Article I § 8 of the Constitution “a specific enumerated power is the government needs to deal with the border.” (I’m still scratching my head about which “specific” textual power she means.) “It’s not the states’ role.” Cuccinelli asked about S.B. 197, which would use the commerce power to override state tort laws and court procedures in medical malpractice cases. Her response: “I support tort reform absolutely.” Asked which Supreme Court decision (“other than Roe v. Wade”) of the past 50 years she most dislikes, she answered Kelo v. City of New London — a case that, however unpopular, left the issue of eminent domain to the states rather than federalizing it.
Paul fended off Pruitt, who, as the attorney general of the state where the Oklahoma City bombing occurred, asked for an alternative to the Patriot Act. “There’s nothing in our Constitution that says violent acts should be a prerogative of our Constitution,” he said. Paul said that Medicare, Medicaid and Social Security were all unconstitutional, but should be phased out slowly. (This riled Cuccinelli: “Why would you sign a budget that contains something unconstitutional?” Paul answered, in effect, Be patient, sonny.) Asked whether he opposed any amendments to the Constitution, the congressman wisely cited the 18th, already repealed.
Romney had almost nothing to say about states. “We need to have a federal government that sees its job as helping the private sector grow and thrive and add jobs” — a role that sounds like “picking winners and losers” to me. He said he still supports part of No Child Left Behind since “the federal government has a role to stand up to the federal teacher’s unions” (not clear what “federal teachers’ unions” are). Romney judges would “protect the Constitution and follow the Constitution as it was written and intended and the law of Congress as it was written and intended, rather than have the Supreme Court see its role as spring from or departing from the Constitution to impose their views.” No mention of pro-state views in that answer. Should we get rid of federal labor law (another Cuccinelli cause)? “I would not propose getting rid of all federal labor law, but I do say we have to rein in the power of the National Labor Relations Board.”
In their final statements, neither Gingrich, Romney, Perry, Bachmann, nor Santorum found a kind word for the states. Paul, however, went into an aria of anti-federalist rhetoric. “One issue we have to revisit, because the Founders understood it but we have forgotten about it, and that is the principle of nullification. If the federal government won’t respond … the states have to be able to nullify this. This would reverse the trend and this would stop the usurpation of all the powers and privileges from the states to the federal government.”
So, true-blue (“true red,” I suppose) “states’ righters,” you face an unappetizing choice. The only two candidates who really understand your issue are supremely unlikely to win the nomination. Meanwhile, the two leading candidates against Obama clearly have no plan to give back any federal power, and one (Gingrich) seems to be itching to expand it.
That is how American history runs. “States’ rights” are important to the party out of power; but power flows to Washington because the voters want it there. 2012, whatever else it brings, will probably not prove an exception to that rule.