TheAgitator.com
Agitator Premium
Tuesday, May 27th, 2003Because you’re (un)paying customers, you get a little bonus this week — a column on Ashcroft I wrote that got bounced from FoxNews.com. It was bounced mainly because the editor didn’t like the timing — coinciding I guess with the terror-alert bump. No worries. It’s his site, his call.
But I do think it’s a pretty good column, and I hate to see it go to waste. So here, for you, last week’s also-ran….
Ashcroft’s Funky Federalism
When John 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, a journal the lefty website Common Dreams once said â??views people of color as mosquitos swarming onto the veranda to ruin the eveningâ??s mint julep.â?
In that interview, Ashcroft had some very kind things to say about the Confederacy, about â??statesâ?? rightsâ? and about preserving southern heritage. â??Traditionalists must do more,â? Ashcroft said, â??Iâ??ve got to do more. Weâ??ve all got to stand up and speak in this respect, or else weâ??ll be taught that these people were giving their lives, subscribing their sacred fortunes and their honor to some perverted agendaâ?¦â?
I didnâ??t then and donâ??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 â??statesâ?? rightsâ? or, more broadly, â??federalism.â? â??We donâ??t support slavery,â? Confederate apologists say, â??we just donâ??t think the federal government had the right to abolish it.â? â??We donâ??t support segregation,â? the thinking goes, â??but we donâ??t think the federal government should be telling states how to govern themselves.â?
As someone who does believe in statesâ?? right and federalism — and who also thinks the Thirteenth Amendment and Brown v. Board of Education were important and necessary — Iâ??d like to make the point that there is a case to be made for federalism that has nothing to do with segregation or, for that matter, anything race-related.
It goes like this: government works most efficiently when itâ??s most accountable to the people. If we must have government interference in our lives, itâ??s best to do it first at the local level, then at the state, and then — only in limited circumstances — at the federal level. Parochial 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.
When John Ashcroft and other Republicans who have spoken with Confederate and/or segregation apologist organizations have spoken publicly about â??statesâ?? rights,â? then, theyâ??ve been able to speak with two tongues — one plays to the more nefarious inclinations of these organizations whose support they seek, but whom I suspect they donâ??t really agree with, and the other provides cover when theyâ??re called out by critics who accuse them of racism — â??I wasnâ??t talking about slavery,” they can say, “I was merely making the case for federalism.”
The problem with Attorney General Ashcroft — and the reason I write about him today — is that his record as Attorney General thus far has shown him to be a man completely unsympathetic to the tenets of federalism when they happen 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 for capital federal crimes in areas of the country traditionally opposed to capital punishment. Yes, itâ??s completely within Ashcroftâ??s reach as AG to issue such a directive, but itâ??s also not the undertaking of a man sensitive to the primacy of local rule. Isnâ??t it at least a little inconsistent for man who professes to believe in statesâ?? rights to specifically charge prosecutors to seek the death penalty in states that donâ??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 initiative approved by the voters of Oregon.
Ashcroftâ??s questionable allegiance to federalism has become glaring when it comes to 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 transcendence of federal law time and again, going so far as to send federal agents into convalescent centers with assault weapons and, in some cases, handcuff terminally ill patients to their beds.
In another particularly galling example, Ashcroftâ??s Justice Department convicted marijuana activist Ed Rosenthal in federal court for growing large stashes of marijuana. Problem is, Rosenthal wasnâ??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. When told after the trial, the jurors who convicted Rosenthal called a press conference to express their outrage at having been misled.
Ashcroftâ??s supporters counter that as Attorney General, his job is to uphold and enforce the federal code — whether or not he agrees with a particular law isnâ??t important. But thatâ??s a bit naïve. Like any other cabinet head, the Attorney General works with a budget, with limited resources. He hasnâ??t nearly enough capital 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 actually makes policy when he chooses which federal laws heâ??s going to actively enforce, and to what extent.
John Ashcroftâ??s decision to devote considerably large swaths of DOJ time and resources to challenging state drug and assisted-suicide laws he feels are too liberal canâ??t be dismissed with the likes of â??heâ??s just doing his job.â? 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.
As Iâ??ve stated above, I donâ??t think John Ashcroft is a bigot. But given his 1998 interview with the Southern Partisan regarding statesâ?? rights, and given his actions as Attorney General, one canâ??t help but wonder:
Why was Senator Ashcroft so sympathetic to the â??statesâ?? rightsâ? cause when it came to issues like the Confederacy and segregation, but when it comes whether or not a terminal cancer patient ought to be able to ease his pain with a marijuana cigarette, Attorney General Ashcroft canâ??t let the states govern themselves?
Great piece, Mr. Balko.
I hadn’t ever heard of the racist angle to federalism. Is federalism widely associated with racism? Being a federalist myself I certainly hope not. Also, I think the racist federalist argument is pretty bogus. One of the basic tenents of the constitution is equal liberty for all, so when one group is treated as less than lawfully equal, it’s a constitutional failure that must be fixed at the constitutional and federal level, not the state level. Although truthfully I don’t understand why a constitutional amendment was nessary, seems to me that they could have simply started prosecuting violations. I might be wrong, but didn’t the constituion offer legal protection for blacks before it was amended? So why was the amendment needed?
Radley, it’s pieces like this that keep me coming back to your site. Great work!
I’ve noted the confluence of these two forces on my blog. Selective Federalism and Discretionary Prosecution.
It’s not just John Ashcroft; it’s also driven by legislators who Must Do Something (since law enforcement falls outside of their job duties, that Something must include passing quick, poorly written new laws) and prosecutors hungry for “performance metrics” (convictions) who have growing discretion in the number of crimes and venues in which to try a single criminal offense.
once again a great article Radley
I’ve got one (probably stupid) question.
Several times I’ve heard about how the jury didn’t know Mr. Rosenthal was growing for the city of Oakland, why didn’t defense attorneys bring that up? Would the judge not allow them to?
thanks in advance
Kurt Erikson, for the most part the Constitution is a consistent,
logical piece of thinking, but there is this one area where it
shows exceptionally clear signs of compromise. That being of
course slavery. On this subject the document seems to, more
or less, war with itself, which given the political division
of the time on the issue is perhaps to be expected.
On the one hand we have a constitution that is an extraordinary
assertion of the rights of individuals and of limitation of
power of the state. By any sensible logic all this rhetoric and
internally consistent logic would seem to apply to all people, but
slaves are more or less explicitly and legalistically denied
that human status, with no attempt being made to justify the
exception.
In my opinion the Constitution was an assault on slavery — and an
effective assault at that — but it’s an assault that’s complicated
enough that people have to think about it to get it and if they
don’t think about it, but are ‘surrounded’ by it, they absorb the
spirit of the document which means they absorb a logic implying
slavery is evil — which was of course a revolutionary message
in a world where slavery was the norm most places.
What He Said
At the risk of sounding like Radley Balko’s ideological man-bitch, I’ll point you to his lost column today. Pay close attention to his justification for federalism and localized government, about a third of the way through. And then nod sagely…
Good article, But it could have been written about any AG with emphasis on their personal projects. That alone somewhat deflates it’s value. I for one remember RFK and his game federalizing local crimes which crossed state lines. Oh well!
w h hall,
That may be true, but other AG’s don’t go around claiming to be Federalists
Ashcroft and Federalism
Radley has posted a column that was rejected at Fox News about Ashcroft. 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 whether or…
Kurt, I seriously think you could profitably read up on US history. In particular, these three periods would be of interest -
- The founding of the country and the related compromises made between the (almost) free and slave states.
- Pre and post Civil War
- 1955 – 1970 or so
Then you’d be very aware how federalism could be linked with racism, and why the Constitution was not sufficient.
Federalism and States Rights as a genuine check on Federal power disappeared in 1913 with the passage of the 17th Amendment. Prior to 1917, the State Legislatures appointed the Senate, so expansions of Federal Law and authority proposed by the popularly elected House needed to be approved by a body that explicitly represented the interests of the States, as well as a body that directly represented the interests of the People.
Modern day Federalism is selective because it no longer exists as a part of the checks and balances of our Constitutional structure. It is now a mere historical relic, brought out for display when it serves a specific purpose or agenda, and quickly put away when it impedes one’s agenda. This is why there is no consistancy to modern day “Federalism.”
As an example, Congress has passed a lot of laws tying Federal highway funds to the passage of certain state laws, such as speed limit and drunk driving laws. Under a true Federalist system, as existed prior to the 17th Amendment, the Senate, composed of appointees of State Legislatures, would refuse to pass such a bill. The modern-day Senate, facing re-election by the exact same electorate as the House, is barely distinguishable from the House. It is certainly not a State Legislature’s check on the Federal government.
I doubt that we would have the ever-expanding Federal drug laws without the 17th Amendment. As we are seeing in California, the State Legislatures have a genuine and compelling interest in tailoring drug laws to local circumstances, but they are hamstrung by the fact that, lacking their Constitutionally intended role in Congress, their ability to evolve drug laws comes only at the pleasure and whim of the Presidential Administration, which currently has no interest in allowing them to do so.
WAY TO GO JOHN. WELCOME THE REST OF THE COUNTRY TO RECONSTRUCTION
Ashcroft and Federalism
Radley Balko points out that for John Ashcroft federalism can have many meanings (kind of a Straussian thing):Why was Senator Ashcroft so sympathetic to the â??statesâ?? rightsâ? cause when it came to issues like the Confederacy and segregation, but when it…
Care to elaborate, Johnny Reb?
I’m sorry, but I find this a moldy oldy that is also completely unpersuasive.
First, you fail to demonstrate that Ashcroft is a federalist in any way. You don’t cite a single federalist action or even vote. In the one interview you quote (just out of curiosity, did you read the whole thing, or just excerpts reported by other media?), he says “traditionalists”. You use “state’s rights” later (in quotes), but provide no context — did Ashcroft even use those words?. In fact, you provide a fairly clear picture of what segregation apologists in a general sense say, but are near silent about Ashcroft himself. If I’m reading something about Ashcroft, do me the favor of describing him, not some other group of which he may or not be a member (you say he isn’t a bigot, but do you include him as a segregationist apologist? If so, you provide no connection other than you talk about them an awful lot). Surely you can do better. Surely you didn’t use the Southern Partisan quote just to smear him as a possible bigot.
He may well be a federalist, but based on this article, that would be a leap of faith on the reader’s part. And while you provide your own definition, wouldn’t it have been helpful to provide Ashcroft’s definition? You accuse him of being a funky federalist, but provide no evidence that he’s even a federalist, let alone that his definition of federalism agrees with your own.
Second, you mischaracterize Richard Cohen (or if not Richard, then the Richard mischaracterized the truth): “Ashcroft has specifically charged U.S. Attorneys to aggressively seek the death penalty for capital federal crimes in areas of the country traditionally opposed to capital punishment. ” What I could find was that “In New York and Connecticut, two jurisdictions with an inexplicable reluctance to apply the death penalty — who can explain the effete East? — Ashcroft has ordered local prosecutors to seek the death penalty in cases where they had decided not to.” and that “Time magazine tells us that 12 times since assuming office, Ashcroft has overruled local U.S. attorneys and demanded they ask for capital punishment.” My understanding is that during the regular review of cases, Ashcroft has directed prosecutors to ask for the death penalty in cases where they hadn’t planned to — which isn’t what you said.
Third, I find that you are incorrect in your application of federalism. Perhaps your own views are coloring your application of federalism? But I digress. To me, federalism in this country means that constitution delineates the authority of the national (U.S., federal) government; the national government has only the authority granted it by the constitution, and no more. The states or the people retain all other authority; and local governments derive from the respective states. And where the national government has authority, it supercedes the states. So when Congress makes a law within its authority, that law takes precedence over state law(s). You have the crafting of laws correct (they should be pushed down to the lowest possible level), but the precedence backwards (higher level laws take precedence).
So how does this apply to the death penalty? Shouldn’t the justice department seek to carry it out uniformly? Yes. If there are differences between the states, then that is a matter for local juries, not the justice department. National policy should be uniform across the states (which is why its at the national level); state policy should vary from state to state.
On the matter of assisted suicide and drug laws, it’s fine and dandy for a state to make such things legal. But the voters of Oregon cannot overturn federal law. That would be a violation of federalism, not upholding it. If the voters in Oregon don’t want a state or local penalty for a particular act, then great, but they can’t change federal law all by themselves.
So on the matter of Ashcroft being a fairweather federalist, you provide no evidence whatsoever that he is a federalist, nor are the actions you cite incompatible with federalism.
Now this raises the point of whether or not these laws should be at a national level. I think most federalists would agree that the national government has usurped a lot of authority of the years it doesn’t legally possess. While I think the national government has gone overboard in federalizing crime, the case Cohen cited was that of spying, which IMHO is a national matter, not a state matter. Carjacking no, espionage yes. But I do think the drug laws and the prescription laws that are being used in the case of assisted suicide should be at the state level.
But here again you go overboard. The idea that Ashcroft is spending “considerably large swaths of DOJ time and resources to challenging state drug and assisted-suicide laws” is both unsupported and laughable, as is the further assertion that it’s detracting from the search for al-Qaeda. The idea that an organization as large as the justice department, and with the responsibility to enforce the national legal code, drop everything but the hunt for al-Qaeda is wrong, wrong, wrong, and flies in the face of the law of diminishing returns.
And yes, the Attorney Generals job is to uphold all the laws of the land — those he agrees with, and those he doesn’t. The best way, the only way to get a law declared unconstitutional is to prosecute somebody – courts can’t rule without a case before them. A senator’s job is to not only craft the legislation, but to worry whether or not the government has the authority to enact it.
Fedralism in a Nutshell
A great quote on Federalism by Radley Balko of theagitator.com:…government works most efficiently when it’s most accountable to the people.
Tony,
Since this was a federal indictment, the judge would not allow the defense to use anything relating to the medical necessity rule, being that the feds do not recognize the herb as a viable medication.
This is well documented on the web. Do a search at any of your favorite search engines.
WE IN THE SOUTH HAVE BEEN LIVING UNDER THE THUMB OF THE FEDERAL GOVERMENT SINCE WE LOST THE WAR.
Federalism and the Federal Drug War
I have evinced skepticism about so-called federalist critiques of the federal governmentâ??s conduct in the drug war. My doubts notwithstanding,…
Hi! Plz visit my site about tshirt