- The Washington Times - Wednesday, December 25, 2002

Most of what has been hashed and rehashed about Sen. Trent Lott's infamous reference to Sen. Strom Thurmond's 1948 presidential bid is of only passing interest now that the Mississippian quit the Senate leadership.
Some wanted a different Senate majority leader anyway and were secretly thankful for any excuse. Before the coup, only a couple of historical comments about the incident caught my attention. One was the observation that half of Americans were not even alive in 1948, and probably have no idea what Mr. Lott was talking about. The other was a poignant column by publisher Ralph Eubanks, offering his personal reflections on what it was like growing up black in Mississippi.
When he researched his family background, Mr. Eubanks "found the words 'states' rights' and 'illegal encroachment by the federal government' used in place of 'segregation' and 'integration.'" That comment is quite correct, yet it troubles me for two reasons. As a college student in the early 1960s, I was passionately opposed to the military draft and just as passionately in favor of the Rev. Martin Luther King's dream of treating people as individuals, not as members of arbitrary categories. On the other hand, I was and still am a big fan of decentralized government, otherwise known as federalism or devolution.
The 1948 States' Rights Party campaign failed to derail the proper extension of civil rights to all Americans. Yet the effort nonetheless managed to hijack the vital concept of federalism, even today. By defending segregation in terms of states' rights, Dixiecrats tainted one of the most effective checks and balances the Founding Fathers created.
The label "states' rights" was nonsense. States have no rights; only individuals have rights. The Constitution enumerated a deliberately narrow list of what the federal government could legitimately do, essentially just a common market with a common currency and army. The 10th Amendment added that "powers not delegated to the United States Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
As Cato Institute scholar Roger Pilon points out, the states, too, derive "their just powers from the consent of the governed." States never had any right to provide unequal treatment under the law, regardless whether that meant favoritism (affirmative action) or the opposite (segregation).
Federalism encourages relatively efficient, innovative and responsive government by creating competition among states and cities over the quality and cost of government services. States that charge steep taxes for mediocre services invariably repel talented citizens and promising businesses. State politicians can easily be held accountable for results that fail to measure up to other states.
Federalism diffuses political tensions by allowing for a wide variety of local cultural and political tastes. Las Vegas and Salt Lake City are geographically close, yet far apart when it comes to social mores. If you cannot tolerate being near gambling and prostitution, don't live in Nevada. The ease of voting with your feet makes federalism an excellent safety valve for social intolerance. Abortion became such a nationally divisive issue because the Supreme Court "made a federal case out of it," even though murder cases are left to local jurisdictions.
The national prohibition of drinking likewise raised the stakes to an intolerable level, though nobody worried much about dry counties that long outlasted the federal law. State referendums wish to decriminalize the medical use of marijuana, but federal drug czars, who have long been intoxicated with unconstitutional powers, obstruct democracy, too.
The saddest legacy of the segregationists' perversion of federalist arguments is that too many Americans have become dangerously sanguine about "encroachment by the federal government."
Some of the recent federal bullying has been merely irksome, such as the absurd experiment with a nationwide speed limit of 55 mph. The federal government had no legitimate authority to meddle with speed limits. It did it by threatening to withhold federal funds. It used the same trick to impose an equally unenforceable requirement that college students reach the age of 21 before tasting beer. A farce, of course, but now a federal farce. All "internal revenue" is extracted from the citizens of states, but Congress keeps threatening to make that flow of cash into a one-way street unless the state conforms to more and more of these petty federal dictates and mandates.
Federalism means the federal government should focus on its main responsibilities and not meddle in matters best handled closer to home. A focused federal government would never have allowed "homeland security" to become a belated afterthought. And a focused federal government would never allow state attorneys general to redesign national securities law (which really is "interstate commerce") through backroom deals.
Washington's overreaching has become particularly ominous when it comes to the federalization of crime and education. "The trend to federalize crimes that traditionally have been handled in state courts," wrote Chief Justice William H. Rehnquist, "threatens to change entirely the nature of our federal system."
A 1999 American Bar Association task force chaired by former U.S. Attorney General Ed Meese issued a rigorous critique of that trend, noting that it diverts limited police, court and prison resources away from violent crime toward assorted victimless offenses. Making matters worse, Congress armed federal prosecutors with a long list of ill-defined crimes that they often pile up to secure plea bargains such as conspiracy, mail fraud and racketeering. Meanwhile, the FBI keeps pushing for more powers to snoop, and new anti-terrorist laws are scary in this respect.
As for education, the federal government provides only about 6 percent of all funding for K-12 schooling. Yet the feds hope to leverage that minor sum by bullying schools to conform to federal standards a tactic other countries have used to brainwash children with pro-government propaganda.
What Mr. Lott should have said, but his replacement as Senate majority leader still could, is that the "states' rights" crowd set out to spoil an extremely valuable principle federalism that made this country uniquely tolerant, diverse and flexible. The younger generation needs to relearn the value of federalism in order to understand that the states' rights crusade was an illegitimate corruption of the idea. But the whole idea that government-run schools might teach students that the federal government should be limited in any way seems an unlikely dream if the federal government keeps encroaching on what our children are taught and how.

Alan Reynolds is senior fellow at the Cato Institute and a nationally syndicated columnist.

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