Reverse Gear

Many members of Congress who like to think of themselves as conservatives are supporting what appear to be very nonconservative ideas. Whether that charge is a fair one depends on both the appropriate meaning of the term "conservative" and a proper focus on what those members are advocating.

Let's start with three examples of what conservative legislators have in store for the country. First, there is the recently passed ban on "partial birth" abortions. Second, there is proposed legislation that would eliminate all suits seeking damages against gun manufacturers, even those based on state laws. And third, there is the possible constitutional amendment that would forbid all gay marriages.

In one sense, all three are conservative positions because they would take the law in these areas back to what it once was when partial-birth abortions (along with all other abortions) were illegal in most states, when there were no damage suits against gun makers, and when no one would have imagined marriage as anything but a celebration of a heterosexual relationship. Thus, by focusing only on results, real conservatives can claim that they are true to their creed.

But there is another very important respect in which conservatives are betraying their basic beliefs by supporting these proposals. One of the tenets of conservative ideology is that there is a decided preference for resolving matters of social policy at the state level. Under this approach, the federal government should enter the picture only when there is an overriding need for national, rather than state, solutions. These principles are reflected in 10th Amendment, which reserves to the states all powers not specifically assigned to the federal government. When each of the three aforementioned proposals is examined through the federalism lens that conservatives generally employ with great ardor, they are, in fact, quite radical, because they create national standards when many states would prefer to go their own way.

Assume that Congress has the constitutional authority to enact all of these proposals (although there is substantial doubt as to the partial-birth and guns laws). The question remains, why should there be a federal law instead of leaving the matter to the states? In one respect the answer is simple: Proponents only have to get enough votes to get a bill through Congress and then persuade the president to sign it -- and they don't have to repeat the process 50 times. But, of course, that would justify making every law a national one, and no self-respecting conservative would accept that proposition.

Nor can these laws be justified on the ground that uniformity is needed to prevent commerce from being impeded by varying state laws, as is the case with safety standards for automobiles or labels for drugs. Our country can function quite well with different laws in different states on most subjects, and the availability (or not) of a partial-birth abortion, and the right to sue a gun manufacturer for the harm caused when its products are distributed in a manner that makes it virtually certain that many of them will end up in the hands of criminals, are no exceptions.

Indeed, there is every reason to place these matters into the local, not national, category. Thus, when Congress made partial-birth abortions federal crimes this year, 28 states already had enacted similar laws, but 22 had chosen not to because, for any number of reasons, their lawmakers preferred the status quo. It is precisely because partial-birth abortions are a controversial subject that a real conservative would say, "Leave the decision up to the states; Congress simply has no business getting involved."

Similarly, allowing suits against gun makers involves certain tradeoffs, and different states may weigh the pros and cons differently. Why, for example, should Texas and New York be forced to accept the same balancing of the interests of victims and gun owners where the cultures of the two states are so different, and where their lawmakers could reasonably conclude that gun violence is a much greater problem in one place than the other? The premise of federalism is that one size does not generally fit all, and yet these proposals turn that principle on its head.

The proposal to constitutionalize heterosexual marriage is even more suspect, at least in its strongest form, which tells states that they may not treat unions between persons of the same sex the same way that they treat unions of heterosexual couples. This would mean that even if a state's voters amended their constitution to provide expressly that marriage will include gay as well as straight couples, that amendment would have no effect -- not only outside that state but in it as well. By what principle of federalism can a true conservative justify Congress interfering with the right of a state to regulate the institution of marriage within its borders in that manner?

To see how radical these laws are, let's turn back the clock 30 years or so to when divorce laws began to receive serious review because many people concluded that the existing grounds were too limited. Suppose that some states had liberalized their laws but others had not, and so members of Congress introduced a uniform divorce law that eliminated all requirements of showing fault on the other party. The reaction of conservatives would have been one of shock and outrage, as it properly should have been. What business is it of the federal government to tell the states what their laws should be on divorce, or on a host of other subjects from adoption to assisted suicide to the standards for licensing occupations?

If one believes in federalism, true conservatives would have been right then. The only question is, why are they supporting these three radical positions now?

Alan B. Morrison is the founder of, and an attorney with, the Public Citizen Litigation Group.

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