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Letting States Make Policy

A Commentary By Froma Harrop

Friday, August 12, 2011

Majorities in liberal states often back policies that most folks in conservative states abhor -- and vice versa. The difficulty of reaching accord among warring but heartfelt views partly explains Washington's paralysis.

But note this: New York recently legalized gay marriage without having to consult with Tennessee, Nebraska and Idaho. Alabama limited the right to abortion without having to compromise with California, Massachusetts and Hawaii. With Washington, D.C., in disarray, this has been a busy time for states going their own way.

Does the trend represent federalism at its best or growing national disunity and polarization? The answer to both questions is "yes." And the first may offer a solution to the second. For controversies around such matters as guns, marriage and voter ID, having the states choose their own path in harmony with local sensibilities acts to release tensions.

Texas Gov. Rick Perry, a likely Republican candidate for president, recently raised some conservative hackles by saying it was "fine" for New York to legalize gay marriage. But then he lowered some conservative hackles by characterizing abortion as a states' rights issue. Perry deems himself "pro-life," and we know that letting states ban abortion requires first overturning Roe v. Wade, the Supreme Court decision that effectively legalized the procedure.

Perry rests his case on the 10th Amendment, which says: "The powers not delegated to the (federal government) by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This division of powers underlies the principle of federalism.

"You can't believe in the 10th Amendment for a few issues," Perry said, "and then, (for) something that doesn't suit you, say, 'We'd rather not have the states decide that.'" That principled statement is one drug war advocates should recall when federal agents invade the backyards of Californians growing medical marijuana consistent with their state laws.

Of course, such states' rights arguments have been used to defend such evils as legalized racial discrimination. And a patchwork of 50 different sets of laws on the same matter can cause headaches.

For example, some states allow gay marriage, some civil unions, some domestic partnerships (similar to civil unions) and some none of the above. Both Washington state and Oregon ban same-sex marriage while permitting domestic partnerships. But gay couples wanting full marriage can tie the knot on the tribal land of the Suquamish in Washington's Kitsap County or of the Coquille in Coos Bay, Ore. Both tribes have legalized same-sex marriage.

Opinions that reflect local conditions often contradict the partisan stereotypes attached to them. Gun rights are supposed to be a conservative passion, but fairly liberal Maine recently eased its gun laws. Maine is largely rural with a strong hunting tradition and relatively little crime. Practical considerations ruled the day. One of the most left-leaning states, Vermont (also rural), has among the most lax gun laws in America.

Many pro-choice people, your author included, would not be dismayed were Roe v. Wade overturned. Letting the states make their own abortion law would release our national politics from a never-ending war between irreconcilable views. One fewer area for strife in a presidential election should be welcome.

In the end, no one would have to live in a state that forbids abortion. No one would have to live in a state that lets illegal immigrants pay in-state tuition to attend public colleges, if that's something he or she can't abide. We refer to Connecticut, Illinois and Maryland.

Washington, D.C., hasn't been doing a great job of late handling its enumerated powers. Asking the states or the people to deal with the rest may not be a bad idea.

COPYRIGHT 2011 THE PROVIDENCE JOURNAL CO.

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