The Past Is Gone: Why Liberals Should Rethink States' Rights

The federal government had to thumb its nose at states to end slavery and Jim Crow. Now it's the reverse: States are leading the way against Washington's myopic drug policy.

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America's fraught relationship with federalism is evident in the fact that it's nearly impossible to see the phrase "states' rights" without thinking of slavery, Jim Crow, and the ideology of white supremacy. For decades, "states' rights advocates" invoked the vertical separation of powers to help them subjugate blacks. Post-WWII icons of the right like William F. Buckley and Barry Goldwater never erred more seriously than when they opposed federal intervention to safeguard the equality of black Americans, as if preserving federalism as a constitutional mechanism to protect liberty mattered more than liberty itself. Liberals justifiably criticize those men for their blindness -- their failure to discern that Jim Crow was an unmitigated scourge, so unjust that extraordinary steps to end it were not only justified, but incumbent upon any nation of liberty-loving people.

It is precisely the evil of slavery and the incomparable importance of undoing its legacy that ought to make us open to the possibility that liberalism was best served in that instance by infringing on state prerogatives, but is best served in most instances by respecting Madisonian federalism.

Isn't there evidence for that notion in current events?

In Colorado and Washington, voters have begun to undo a War on Drugs that has done more damage to black America than any other post-Civil Rights Act policy, and catastrophic harm besides, borne most heavily by the least well-off among us and our impoverished southern neighbors. Eighteen states flout tyrannical federal rules that prohibit cancer patients from smoking marijuana to relieve their symptoms. As President Obama ponders a crackdown on these laboratories of democracy, do liberals want to be on the side of states' rights or federal prerogatives?

Thank goodness liberals let neither national opinion nor federal legislation like the Defense of Marriage Act discourage them from fighting toward gay marriage -- a defining civil-rights issue of our time -- by unapologetically appealing to state judiciaries, state legislators, and state electorates.

State prerogatives must never be unchecked.

Every American is entitled to constitutional rights that the federal government is obligated to protect, state officials be damned, and our system properly gives various powers to Washington, D.C. It would hardly do for Idaho or Mississippi to start formulating their own foreign policies.

On drug prohibition, Obama, the embodiment of federal power, takes a position inferior to Goldwater, who supported a medical marijuana toward the end of his life, and Buckley, who years ago called for legalizing marijuana, as did the editorial board at National Review.

Says Tom Dickinson in Rolling Stone:

Legalization has set Colorado and Washington on a collision course with the Obama administration, which has shown no sign of backing down on its full-scale assault on pot growers and distributors. Although the president pledged to go easy on medical marijuana -- now legal in 18 states -- he has actually launched more raids on state-sanctioned pot dispensaries than George W. Bush, and has threatened to prosecute state officials who oversee medical marijuana as if they were drug lords. And while the administration has yet to issue a definitive response to the two new laws, the Justice Department was quick to signal that it has no plans to heed the will of voters.

Indiana's staunchly conservative governor, Mitch Daniels, hasn't come out for marijuana legalization, but he's decent enough to grant that the voters of Colorado and Washington deserve to be governed under laws of their choosing rather than a national regime imposed from afar. Here's Betsy Woodruff relaying his comments:

"I hope that people will be consistent," he told me, referring to conservatives who support states' rights. "I believe that federalism is, first and foremost, a protection of liberty. And I would just hope that people who say they believe that would be consistent."

He continued to say that regardless of his personal opinion on decriminalization, states should be able to make their own choices on the issue.

"Without endorsing what they [Colorado and Washington] did, I think they had, under our system, a right to do it," he said. "A lot of the worst problems we've got in this country, and some of the worst divisions we have, came when the right of citizens in community and in polities, like their state, had those rights usurped by the federal government. And having disagreed with it when it happened on other occasions, I sure wouldn't call for it here."

Admit it, liberals: It's enough to make you wonder whether nowadays states' rights might not do more good than not to Americans of every race. And whether a federal crackdown that delays drug reform for another decade or two might cause "federalists" to repent in their last years, lamenting that they allowed their preconceived suspicion of state's rights to delay liberty-advancing reforms.