Has Ashcroft Abandoned Federalism for Federal Power?

Recently, Mississippi gubernatorial candidate Haley Barbour posed for a fundraising event with the unabashedly bigoted Council of Conservative Citizens (search). The organization used Barbour’s photograph on its website and Barbour, for his part, has said he has no intentions of asking them to take it down.  According to Fox News:

Barbour, 55, said some views on the St. Louis-based group's Web site are "indefensible," but he does not want to tell any group it cannot use his picture or statements.

"Once you get into that, you spend your time doing nothing else," Barbour said Thursday. "I don't care who has my picture. My picture's in the public domain. It gets published in newspapers every day."

One wonders how Barbour would have felt were his photo used on a website promoting communism or child pornography.

Traditionally, Republicans have hid behind the notion of states rights, or federalism, when confronted with their inability to let go of the Confederacy (search), segregation and Jim Crow (search).  But now that Republicans control both the White House and Congress, their actions seriously call into question just how devoted they really are to those principles.

Perhaps the best example is the current Attorney General John Ashcroft.

When Ashcroft was nominated to be Attorney General by President Bush in 2001, a consortium of left-wing interest groups set out to paint him as a racist.  The most damning evidence in their favor was a 1998 interview Ashcroft gave to the Southern Partisan (search), a journal the leftist website Common Dreams says “views people of color as mosquitoes swarming onto the veranda to ruin the evening’s mint julep.”

In that interview, Ashcroft had some very kind things to say about the Confederacy, about “states’ rights,” and about preserving southern heritage. “Traditionalists must do more,” Ashcroft said, “I’ve got to do more. We’ve all got to stand up and speak in this respect, or else we’ll be taught that these people were giving their lives, subscribing their sacred fortunes and their honor to some perverted agenda…”

I didn’t then and don’t now think that John Ashcroft is a racist. I do, however, think that he has no problem accepting the votes and political patronage of people who are. And too often the kind of nostalgia for the Confederacy and for Jim Crow championed by outlets like the Southern Partisan are masked behind the principle of “states’ rights” or, more broadly, “federalism (search).”  “We don’t support slavery,” Confederate apologists say, “we just don’t think the federal government had the right to abolish it.”  “We don’t support segregation,” the thinking goes, “but we don’t think the federal government should be telling states how to govern themselves.”

However, one can passionately support states’ right and federalism and also think the 13th Amendment (search) and Brown v. Board of Education (search) were important and necessary.  Federalism has nothing to do with segregation or, for that matter, anything related to race issues.  

Government works most efficiently when it’s most accountable to the people.  If we must have government interference in our lives, it’s best to do it first at the local level, then at the state, and then -- only in limited circumstances -- at the federal level.  Provincial government allows us the freedom to move away from jurisdictions we find oppressive or unfair. 

The framers of the Constitution understood these ideas, and so granted only minimal powers to the federal government, and through the Tenth Amendment, reserved most everything else to the states.

John Ashcroft and other Republicans who have spoken with Confederate and/or segregation apologist organizations and then publicly about “states’ rights” have been allowed to speak with two tongues: one plays to the more nefarious inclinations of these organizations whose support they seek (but with whom I suspect they don’t really agree) and the other provides cover when they’re accused of racism. “I wasn’t talking about slavery, I was talking about federalism,” they can say.

But Ashcroft’s record as Attorney General thus far has shown him to be a man completely unsympathetic to the tenets of federalism when they happen to conflict with his own personal values.

This past winter, for example, Washington Post columnist Richard Cohen reported that Ashcroft has specifically charged U.S. Attorneys to aggressively seek the death penalty (search) when prosecuting capital federal crimes in areas of the country traditionally opposed to the capital punishment.  Yes, it’s completely within Ashcroft’s reach as AG to issue such a directive, but it’s also not the undertaking of a man sensitive to the importance of local rule.  Isn’t it a bit unseemly that a man who professes to believe in states’ rights would specifically charge prosecutors to seek the death penalty in states that don’t support it?

Voters in Oregon recently decided that the terminally ill and elderly in that state ought to be permitted to end their own lives through physician-assisted suicide.  But Attorney General Ashcroft opposes assisted suicide, and so has taken the state of Oregon to court to assert the supremacy of federal law over the law approved by the voters of Oregon.

Ashcroft’s questionable allegiance to federalism has become most apparent in the drug war.  Despite the clear intent of voters in several states to allow the use of marijuana for medicinal purposes, the Attorney General has asserted the supremacy of federal law time and again, going so far as to send federal agents into convalescent centers with assault weapons and, in some cases, handcuffing terminally ill patients to their beds.

In another particularly galling example, Ashcroft’s Justice Department convicted marijuana activist Ed Rosenthal (search) in federal court for growing large stashes of marijuana.  Problem is, Rosenthal wasn’t just growing the plants for medicinal use (legal under California state law), he was growing them for the city of Oakland.  DOJ prosecutors persisted, and not only was Rosenthal convicted under federal law, the jury that convicted him was never told that he was actually working for the city.

Ashcroft’s supporters counter that as Attorney General, his job is to uphold and enforce the federal code -- whether he agrees with a particular law isn’t important.  But that’s a bit naïve.  Like any other cabinet head, the Attorney General works within a budget.  He hasn’t nearly enough resources or prosecutors to go after every infraction of the federal criminal code (which, thanks in no small part to allegedly federalist-minded Republicans, is expanding exponentially).  Consequently, Attorney General Ashcroft sets policy when he chooses which federals laws he’s going to actively enforce, and to what extent. 

Ashcroft’s decision to devote considerably large amounts of DOJ time and resources to challenging state drug and assisted-suicide laws he feels are too liberal can’t be dismissed with the likes of “he’s just doing his job.”  He chose to set examples in California and Oregon because he felt DOJ resources were better utilized challenging those laws than, for example, investigating Al-Qaeda sleeper cells.

Is John Ashcroft a bigot? Probably not. But given his 1998 interview with the Southern Partisan regarding states’ rights compared with his actions as Attorney General, one can’t help but wonder: Why was Senator Ashcroft so sympathetic to the “states’ rights” cause when it came to issues like the Confederacy and segregation, but when it comes to whether or not a terminal cancer patient ought to be able to ease his pain with a marijuana cigarette, Attorney General Ashcroft won’t let the states govern themselves?


Radley Balko is a writer living in Arlington, Va. He also maintains a Weblog at www.theagitator.com.

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