11 March 2001

A central tension in American politics, since the signing of the Constitution, has been the strength and breadth of the Tenth Amendment, the last component of the Bill of Rights. The amendment states that "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 probably fair to say that the most fundamental struggles in American history can be viewed as a result of the Tenth Amendment: from the right to own slaves or maintain segregated schools, to the right to develop or enforce laws on gun ownership, or the right to change or challenge that which constitutes "free speech," the struggle for power between State governments and the Federal government has been central in defining who and what Americans are as a nation.

This tension exists in large part because many Americans have chosen to perceive State governments as "local," in contrast to the Federal power based in Washington - and it continues to be a major American political theme. George W. Bush used it as a tool to fight former Vice President Al Gore, claiming that Gore represented Washington, "the Beltway," i.e. greater Federal interests - while Bush, by contrast, would push for more "States' rights" and the opportunity for States to have greater control over their own political and economic destiny. As President, Bush now has the ability to initiate legislation that refocuses on the Federal role as he defines it, or push for legislation that repeals existing laws that impose financial or other burdens on the States (such as the Americans With Disabilities Act (ADA)). And, of course, as the nation's Chief Executive, Bush can direct Federal agencies to assist States in areas of housing, health and welfare, urban development, education, and more - without imposing extensive oversight into how the States use those funds.

During the campaign, and into the first weeks of the new Bush administration, this spelled out what may look like a liberal's worst nightmare. "States' rights" - even just the phrase - carries strong connotations: from the Civil War, which some believe to have been more about the overarching issue of these presumed rights than about maintaining slavery, to more modern discriminatory practices that have required Federal decisions to overturn them, such as the "separate but equal" premise, vacated in 1954 by the United States Supreme Court's decision in Brown v. Board of Education, or the ADA, which was signed into law in 1991 to protect people with disabilities from broad forms of discrimination.

Yet disaster for Federalists is hardly at hand, and in fact, may not be here at all: for every Federal law that changes, giving States greater "freedom," citizens within those States can decide they liked the laws as they were, and push to have them passed locally. So while it may have taken the Supreme Court to overturn laws allowing segregation - and we are a better nation for the fact that they did so - there is nothing dictating that all legislation must follow a path through Federal oversight. Moreover, the liberal love-affair with Federal rule has always seemed somewhat out-of-whack - certainly there's no reason why the "do-gooding" principles of the Democratic party, which (traditionally) sees itself as a champion for those who cannot help themselves, cannot be applied as effectively at the local level as it can at the national level. In fact, it sometimes looks as though Federal involvement has been invoked by the American left in part because liberal groups have been unable to pass or amend certain laws at the State level, and thus sought out Federal involvement as a second chance.

This equation of relying on Federal power to overturn undesirable State laws, seems unacceptable to both the left and right wings of American political interests - and yet it is a part of American politics that should remain as tense and complex as it is now. Ultimately, the tension between the State and Federal governments over their respective jurisdictions is probably the one thing that most protects minority groups of all stripes. This is because while "local" governments should, in theory, be more representative of their populations, they aren't necessarily any more immune to the external influences that those conservative "States' rights" advocates suggest the Federal government is beholden to. Nor can Federal or State positions often be predicted when it comes to these issues. Take some recent examples.

Within the last two weeks, the United States Supreme Court has issued two rulings regarding fairly specific, State-related issues. In the first case, two employees had sued their State employers in Federal court, claiming that their needs - as dictated by their handicaps - were not being adequately met, in violation of the ADA. The Court ruled in favor of the States, arguing that Congress overextended its legislative reach when it allowed State government employees to sue their employers under the Act. This violates the Constitution's Eleventh Amendment, which protects the States from Federal lawsuits under certain conditions, which the Court thinks were met in these cases.

In the second case, brought by the Ku Klux Klan, the State of Missouri argued that it was within its rights to restrict the KKK's ability to participate in a program, sponsored by the State, that encourages citizens groups to "adopt" pieces of highway and take responsibility for maintaining them - in exchange for a sign on the road acknowledging their participation in the program. The Supreme Court ruled that, despite what Missouri considers to be the Klan's offensive minority views on race relations, it could not prohibit the group from participating in the program (and having its roadside sign maintained at the State's expense) merely because it disagrees with these political views. This was seen to be a violation of the Klan's First Amendment right to free speech.

Is there any reason to assume that State (and other local) governments are any more representative of their constituents than the Federal government is? Perhaps the question is incorrectly phrased: is there any reason to believe that the Federal government is capable of representing local interests adequately? Even a left-wing, Democratic luminary such as Tip O'Neill - who sat in Congress for thirty-four years, the last ten of them as Speaker of the House - famously said "All politics is local."

Whether this takes the form of an NAACP-organized boycott of a southern State that refuses to stop using the Confederate Flag as its own, or passing a law prohibiting discrimination against people based on their body type, as in San Francisco: the American left should not forget that even without Federal intervention, it is not without means. Localized social action can sometimes overwhelm even the powers that seem most monolithic (look at the protests against the World Trade Organization in Seattle last year). Nor should American conservatives, so frequently condemnatory of Federal intervention, forget that it has often found safety within those borders - such as the decision in favor of the Klan, or the looming Federal income tax cut which, if enacted, may have an even greater effect on local economies than on our national one.

Because ultimately, Tip O'Neill was mostly right. But under our Constitutional system, we have attempted to balance the power between local interests and the broader world around us; it is this world, involving activities and ideas in other States, and other countries, that local interests are most likely to miss out on, so the Federal government plays a key role in uniting local views into one national perspective. What the Federal government does not do - and what makes the whole issue of "States' rights" a canard for both conservatives and liberals - is prohibit people from pushing for the legislative changes they want at their local level, and using other tools available to them - economic and social, as much as political - to try to achieve their goals.