The Left's Adoption of States' Rights

Times were that Southern governors stood in the doorways of their state universities to block federal troops which were escorting Black students inside. To those who decried the Southern lawmakers as racists, they responded that they were merely constitutionalists defending their states' sovereignty as the framers intended.

Supreme Court Justice nominee Robert H. Bork best exemplified the intellectual states rights defense when he used it in the early 1960s to criticize civil rights legislation. He wrote in The New Republic that local communities as represented by their legislatures have the right to decide for themselves what is best. The federal government has no right to mandate for communities what their social norms should or should not be.

President Reagan in 1980 essentially ran on a platform calling for the removal of the federal government from local matters. Followers hailed his philosophy as the new federalism. Reagan quickly became the focal point for a conservative populism which set out to protect the autonomy of the small town from the encroachment of the federal government.

But of late, the more progressive-minded politicans have been rushing to employ the states rights defense, and, consequently, conservatives have found themselves in the unusual position of upholding the federal government's right to make important decisions.

This week's House vote on the Markey Amendment provides the clearest example of how the states rights issue has been transformed from a conservative to a liberal doctrine.

The story began when New York Gov. Mario Cuomo and Gov. Michael S. Dukakis both refused to submit evacuation plans to the Nuclear Regulatory Commission (NRC) for nuclear power plants in their states. Under existing law, no plant can be cleared for operation by the NRC unless an evacuation plan has been submitted. The governors both said that they could not in good conscience present a plan because they did not believe their citizens would be safe in an accident.

The NRC promptly decided to change its laws to enable these paints to go into use despite the refusal of the governors to present safety plans. The Markey Amendment essentially sought to prevent the NRC from relaxing these standards.

Clearly, the action by the Governors marked a stand against nuclear energy. They knew that by refusing to offer the evacuation plans they were playing trump cards which would prevent the NRC from licensing the plants. Markey, as a strenuous opponent of nuclear energy, sponsored the amendment because he saw the potential in the Dukakis and Cuomo actions to prevent unclear plants from being licensed forever.

But rather than arguing the merits of nuclear energy, Markey sought to make the amendment a referendum on states rights. He spoke passionately on the House floor, telling his colleagues that the right of the two states to determine their own safety was at stake.

The Democratic representative from Long Island, which is within 10 miles of the Shoreham plant, told his colleagues that he should have the right to determine whether "his people" could be kept safe. No one from any other state, he said, should have the right to tell "him" whether he would be safe.

But decisions about who has the right to decide seem parochial compared to the more important questions of which decisions are right. Ultimately, that has been the liberal critique of the states rights defense.

It seemed irrelevant for Southern legislators to argue that segregation was a matter that should be left to the states. The point was not of jurisdiction, but of the decision itself. Once the Southern states rights defense was laid bare as a defense of racism, it collapsed. Those people who refused to view the issue as a matter of race, such as Bork, insisted that it was merely a cold legal question of jurisidiction. They say they did not realize how things would turn out, that in retrospect they would have spoken differently.

One cannot know. But as the legal philosopher Ronald Dworkin has noted, where once Bork opposed civil rights legislation in the name of protecting the autonomy of state legislatures, he now opposes state gay rights legislation. Dworkin asks the appropriate question: does Bork's position in the latter cast doubt on his reasoning in the former. Could it be that Bork's guiding arrow is not a belief in the right of states to decide things for themselves, but rather his adherence to conservative prejudices?

This ambiguity points to the real problem with the states rights defense. Ultimately it prevents or chills debate of conscience. The issues of racism or homophobia are subordinated to questions of jurisdiction. In this way, wrongs that are being done, prejudices which are being sanctioned, need never be laid bare. They remain hidden in a cloak of deception, mere footnotes to supposedly larger issues such as the sanctity of local autonomy.

The incantation of the federalism theme is no more tasteful when it emanates from the left side of the aisle. The debate over the Shoreham and Seabrook nuclear plants hinged on one's thoughts about nuclear energy. Is it fundamentally vital to national safety, or is it fundamentally dangerous?

But it was that issue, whether nuclear energy is so potentially dangerous as to be immoral, which must be debated precisely because of its emotional force, that Markey and his supporters such as Democratic presidential contender Richard Gephardt, sought to avoid.

To hear Markey, all that was at stake was the right of states to decide things for themselves. That is an empty proposition, one which knows no ideology and does more to obscure than illuminate. For if Markey were to have won, what would have been signified? Very little. Questions of local autonomy are irrelevant in issues which are essentially national in import. Decisions about zoning are one thing. Those about racism or nuclear energy are of a different order. The states rights defense cheapens public debate by reducing issues of the utmost conscience to arguments of jurisdiction and power which by nature ignore what is right or moral.