"Scary," says Harvard Law Professor Laurence Tribe. "Troubling," says the Boston Globe. "Supreme Mischief," says the New York Times.
These epithets read like an advertisement for the latest teen horror flick. But in reality they are a sampling of attacks on recent Supreme Court decisions revitalizing states' rights. Commentators have labeled the court anachronistic or worse for last term's decisions bolstering state sovereign immunity. The court has been accused of returning America to the antebellum era or even to the Articles of Confederation.
If you think there was fretfulness last term, just watch the current one. The Supreme Court will decide such contentious issues as whether the states are shielded from suits under federal law prohibiting age discrimination and whether Congress has the power to prohibit states from releasing driver information in their motor vehicle records. The court will also take up the hotly debated question of whether Congress has the power to invade the province of domestic relations law through the Violence Against Women Act. The commentators instruct that to side with the states in these cases is to set back the clock.
But in fact, the future smiles upon the states. As the dimly understood trends of the global order descend upon us, our need for smaller, more accessible government will only increase.
In a time when change is the only constant, it is important to keep creativity alive in the American system. Much creativity comes from the incentives of a free-market economy. But many problems will be susceptible neither to the atomistic decision-making of the market nor to the blunderbuss solutions of a centralized bureaucracy. Here there is a need for different approaches, to find out what actually works.
For example, Florida has just implemented the nation's first statewide school voucher program, while Rhode Island opted for at least 18 new charter schools over the next three years. In the area of welfare reform, Wisconsin, an inveterate innovator and model for other states, is providing health care ("Badger Care") to the working poor to keep them off the rolls. States such as Pennsylvania and Michigan are focusing on getting people to work -- literally -- by providing cash subsidies for car purchases.
Let us praise, then, diversity in policy as well as in people. To allow different places to give different answers to difficult social questions is to recognize that neither Scotts Bluff nor Greenwich Village has any monopoly on enlightenment.
Throughout American history, the doctrine of states' rights has borne an inestimable racial burden. The sad linkage of states' rights and racial segregation epitomized the epic civil rights struggles of the 1950s and 1960s. Now, however, there is reason to believe that ceding authority to state and local governments may actually advance race relations.
It is not simply that the civil rights records of state and local governments have improved since the days of the Selma march. It is rather that more participation in state and local government may help to defuse the racial and ethnic conflicts that threaten to consume our multicultural land. Whereas formerly the great national fault lines were regional, today they are more racial and ethnic. While national and regional forces used to be inimical, today they can work together to stem the tide of identity politics.
America will have no racial or ethnic majority by the year 2050. This unprecedented racial diversity is a true blessing, but the dangers that accompany diversity are also not far off. It is fair to predict that voids in the life of our increasingly diverse nation will be filled by incessant appeals to the politics of ethnicity and race. National symbols and enterprises are often too remote to compete with this impulse to racial or ethnic exclusivity.
Shifting responsibility to smaller units of government, however, may help to replace racial loyalties with civic ones. Local, not national, government permits a community to work on common concerns, such as improving schools or simply enhancing livability. Micro-allegiances to state, local and community enterprises are the ones that will most effectively compete in the next century with appeals to ethnicity and race.
Does all of this mean that Washington is going out of business? Of course not. No one wishes to place trade or immigration policy with the states or create an Illinois Department of Defense. Congress's spending and commerce powers ensure that large elements of labor, civil rights, environmental and entitlements law will remain in national hands.
Federalism does not mean the repeal of national power as much as the reinvigoration of state sovereignty. The great contribution of the Rehnquist Court may be a 21st century change of national attitude toward the rightful roles of states.
The writer is chief judge of the U.S. Court of Appeals for the 4th Circuit.