Not yet a year into his administration, Obama's record on 10th Amendment issues is already clear: He'll let the states have their way when their policies please blue team sensibilities and he'll call in the feds when they don't. Thus, he'll grant California a waiver to allow it to raise auto emissions standards, but he'll bring the hammer down when the state tries to cut payments to unionized health care workers.

That's not how it's supposed to work. As Madison explained in Federalist 45, the powers delegated to the federal government were "few and defined," to be exercised mainly on "external objects" like foreign policy and international trade. All else — criminal law, marriage, social policy — remained with the states or the people.

Of course, No. 45 also contains one of the Federalist's saddest sentences, in which Madison predicts that federal tax collectors will be "principally on the seacoast, and not very numerous." (Sometimes the Framers weren't all that prescient.)

Indeed, the federal government's massive power to tax and spend has increasingly allowed it to trample state prerogatives. As the $786 billion stimulus package came online this year, for the first time ever, federal aid surpassed the sales tax as the largest source of revenue for the states.

"This money isn't manna from heaven," warned Indiana state Sen. Jim Buck, "it comes with a price."

California learned that lesson back in May. Struggling to close a $40 billion budget gap, the state government lowered payments to home health care workers, but the Obama team threatened to withhold billions of dollars in stimulus money unless the wage subsidies were restored.

Officials in Gov. Arnold Schwarzenegger's office accused the Service Employees International Union, a longtime Obama ally, of improper influence.

Just a few years back, the Republicans — nominally the party of federalism — were busily wielding federal power to enforce red state values — prosecuting medical marijuana patients, punishing doctors participating in Oregon's "Death with Dignity" initiative, and trying to overturn Florida court decisions that allowed Terry Schiavo to be removed from life support. In that odd political climate, you often heard liberals lamenting the decline of states' rights.

That strange new respect for the 10th Amendment lasted roughly as long as the blue team's exile from power.

Education Secretary Arne Duncan said recently that "if we accomplish one thing in the coming years, it should be to eliminate the extreme variation in standards across America." Diversity is bad, uniformity double-plus good; get with the program, comrade.

But one of federalism's core virtues is the enormous diversity it allows. Decentralization makes it easier for Americans to escape unwelcome state experiments with fiscal and social policy.

It enhances the political power of individual citizens by allowing important decisions of governance to be settled closest to where Americans live and work. And it avoids making politics a centralized war of all against all, where each contested issue is settled in a one-size-fits-all fashion at the level furthest from the people.

Our federal system shouldn't be a red team/blue team issue, respected or flouted depending on who's up and who's down. Conservatives are learning to rue their abandonment of federalist principles during the last administration; liberals may come to regret their rush toward centralization during the next.

There are now a staggering 1,804 subsidy programs in the federal budget. Hundreds of programs were added this decade, and the recent stimulus bill added even more. The result is that we are in the midst of the largest federal gold rush at taxpayer expense since the 1960s.

The chart below reveals the government's growing subsidy empire. It is based on my count of programs in the Catalog of Federal Domestic Assistance. The 2,205-page CFDA is an official compilation of all federal aid or subsidy programs, including grants, loans, insurance, scholarships, and other benefits.

The CFDA was launched in the 1960s because members of Congress needed a guide to help their constituents access benefits from the hundreds of new Great Society programs. There were 1,019 federal subsidy programs by 1970; the number rose more in the late 1970s before President Reagan cut back in the early 1980s. It started growing again in the late 1980s, but leveled out in the mid-1990s as Congress briefly restrained the budget.

This decade, budget restraint vanished and the number of subsidy programs grew by 27 percent. The number of subsidy programs in the Department of Agriculture increased 56 percent thanks to bloated farm bills in 2002 and 2008. Transportation funding also saw a surge of federal involvement.

Another area of expansion is homeland security, grants for which subsidize state and local activities such as firefighting. Homeland security is important, of course, but local emergency services should be funded by local governments, not by Congress, because federal politicians often steer funds to projects that are wasteful or have little national-security relevance.

The growth in the number of subsidy programs illustrates the government's increasing disregard for federalism — the constitutional principle that the federal government ought not to encroach on state, local, and private activities. State governments are becoming little more than regional divisions of the national government, nonprofit groups and businesses are becoming tools of the state, and Americans are becoming European in their tastes for cradle-to-grave handouts.

To illustrate the broad advance of the federal welfare state, here is a sample of large and small subsidy programs added since 2000 and their annual cost:

• Medicare prescription-drug benefit ($62 billion)
• Homeland-security state grants ($1 billion)
• Local firefighter-staffing grants ($180 million)
• Clean-diesel funding ($156 million)
• Healthy-marriage promotion ($150 million)
• Community abstinence education ($117 million)
• Education-data-systems grants ($100 million)
• Small-shipyards subsidies ($98 million)
• Bioenergy-fuels grants ($80 million)
• Anti-gang state grants ($45 million)
• Laura Bush library program ($26 million)
• Specialty-crop block grant ($49 million)
• Seniors' farmers-market program ($22 million)
• EPA community-action grants ($2.4 million)
• Drug-free-workplace grants ($1 million)

All these programs cost taxpayers money, but they also generate great deals of bureaucracy. Each requires armies of federal, state, and local administrators to handle grant applications, police eligibility, calculate funding formulas, and write stacks of reports that nobody reads.

These efforts don't always work, so scam artists claim unjustified benefits. (The cost of fraud is in the tens of billions of dollars for large subsidy programs such as Medicare and Medicaid.) And each new subsidy program spurs the creation of lobby groups that set up camp near Capitol Hill to push for even higher federal spending.

It is very sad that, in the nation founded on individualism and limited government, more people than ever are suckling at the federal subsidy teat. Pres. Barack Obama has proposed new subsidies in energy, health care, and other areas. If enacted, they would take America farther away from the traditions of self-reliance, voluntary charity, and entrepreneurism that made it so prosperous in the first place.

Americans need to wake up and fight back before the addictive drug of subsidies puts individualism in a coma. People should start using new Internet tools, such as www.usaspending.gov, to research who gets all these subsidies and complain to Congress about the abuse of their tax dollars. There is no time to lose, because the spending increases President Obama envisions are truly frightening.

The response to the Amethyst Initiative was predictable: Advocates of restricted access and zero tolerance decried the statement for not recognizing that the MLDA21 saves lives by preventing traffic deaths among 18- to 20-year-olds. The president of Mothers Against Drunk Driving, for example, accused the university heads of "not doing their homework" on the relationship between the drinking age and traffic fatalities.

In fact, the advocates of the MLDA21 are the ones who need a refresher course. In our recently completed research, we show that the MLDA21 has little or no life-saving effect.

To understand why, a bit of history is useful.

When the U.S. repealed the prohibition of alcohol in 1933, states were free to legalize, regulate or prohibit access to it as they saw fit. Most legalized but regulated it. In particular, 32 states adopted an MLDA of 21, while 16 chose an MLDA between 18 and 20. With few exceptions, these disparities persisted through the late 1960s.

Between 1970 and 1976, 30 states lowered their MLDA from 21 to 18. These changes coincided with other national efforts to enfranchise youth, exemplified by the 26th Amendment, which granted those 18+ the right to vote.

In 1984, however, Congress passed the Federal Underage Drinking Act (FUDAA), which withholds transportation funding from states that do not have an MLDA21. The justification given for the act was that higher MLDAs would result in fewer traffic fatalities.

By the end of 1988, after passage of the FUDAA, all states adopted an MLDA21. Several states had adopted an MLDA21 before the FUDAA, but the other states were less eager to change. Several passed MLDA21 legislation but set it up for repeal if the FUDAA were held unconstitutional. Others enacted "sunset provisions" in case federal sanctions expired. But when the Supreme Court upheld the FUDAA, states faced a strong incentive to maintain an MLDA21.

Our research compares traffic fatality rates in states before and after they changed their MLDA from 18 to 21. In contrast to all earlier work, however, we examined separately the impact in states that adopted an MLDA21 on their own and those that were coerced by the FUDAA.

The results are striking. Virtually all the life-saving impact of the MLDA21 comes from the few early-adopting states, not from the larger number that resulted from federal pressure. Further, any life-saving effect in those states that first raised the drinking age was only temporary, occurring largely in the first year or two after switching to the MLDA21.

Our results thus challenge both the value of the MLDA21 and the value of coercive federalism. While we find limited evidence that the MLDA21 saves lives when states adopted it of their own volition, we find no evidence it saves lives when the federal government compels this policy.

This makes sense if a higher MLDA works only when state governments can set a drinking age that responds to local attitudes and concerns — and when states are energized to enforce such laws. A policy imposed from on high, especially one that is readily evaded and opposed by a large fraction of the citizenry, is virtually guaranteed to fail.

The major implication of these results is that the drinking age does not produce its main claimed benefit. Moreover, it plausibly generates side effects, like binge drinking and disrespect for the law — the very behavior that events planned for this month's alcohol awareness theme are designed to deter.

If we are to truly tackle the dangers of youth drinking, we must admit that the National-21 experiment has failed. We welcome the surgeon general's recent call to action to reduce underage drinking, to the extent that it provides tips for families and educators to curb the dangers of alcohol abuse.

The federal government has taken alcohol policy out of these parties' hands, however, by imposing an ineffective policy on everyone. An awareness campaign can only do so much when the most significant impediment to change is not on college campuses but in Washington.

Bush claimed to respect federalism, but his Justice Department repeatedly brought the heavy hand of the law down on desperately sick people who, with the approval of their state governments, used marijuana to ease their pain.

Calling off the raids was the right thing to do, and—for a liberal president vulnerable to the charge of being "soft on drugs"—a politically courageous move ("the Audacity of Dope"?).

Thousands of Americans use marijuana to treat glaucoma, cancer, and other diseases. The federal government has no business coming between them and their doctors. Cancer survivor Richard Brookhiser made that clear when he testified before Congress in 2006.

Brookhiser, a staid senior editor at National Review, hardly resembles the stereotypical pot smoker. But in 1992, he contracted a particularly virulent form of cancer and found that only marijuana would allow him to hold down enough food to survive the treatment.

"God forbid that anyone in this room should ever need chemotherapy," Brookhiser testified, but if you do, "Let me assure you that whatever you think now, or however you vote, if that moment comes to you, you will turn to marijuana. Extend that liberty to your fellow citizens."

In recent years, 13 states have done just that. After California passed the Compassionate Use Act in 1996, the Clinton administration commissioned a comprehensive study on medical marijuana.

That report came out 10 years ago this month, and it indicated that the drug had shown promise as a treatment "for symptoms such as pain relief, control of nausea, and vomiting." The scandal-scarred Clinton worried that his opponents might portray his administration as a klatch of licentious Baby Boomers, so he wasn't entirely happy with the report's result. His administration sued medical marijuana dispensaries, and tried to revoke the licenses of doctors who prescribed the drug.

President Bush was more aggressive still. In the case of Gonzales v. Raich, the Bush Justice Department insisted that, regardless of what California's voters had decided, it had every right to deny use of the drug to a woman with an inoperable brain tumor.

In the process, the Bush team undermined the core constitutional principle that federal power is limited. As Justice Clarence Thomas wrote in his Raich dissent, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

Holder made clear last Wednesday that the Obama administration won't pursue cases like Raich. That's good news, but the new policy doesn't go nearly far enough. There's no good reason to wage war against people who use marijuana as medicine, but neither is there any reason to prosecute recreational users. It's a disgrace that, in the 21st century, in a free country, we continue to send people to prison for using or selling the drug.

Survey data tell us that some 40 percent of Americans have tried pot. Any policy that suggests that 100 million Americans are criminals needs rethinking. Among them are a host of political elites who support the drug war, at least tacitly: Bill Clinton, Al Gore, Newt Gingrich, Sarah Palin, and Barack Obama himself.

Obama's no legalizer. But his early moves—including the appointment of a moderate as drug czar—suggest that he's much less hawkish than his predecessors. There are even some signs of new thinking on Capitol Hill.

Last year Reps. Barney Frank (D-MA) and Ron Paul (R-TX) cosponsored a bill to decriminalize possession of marijuana. Senator Jim Webb (D-VA) recently took to the pages of the Washington Post to lament the fact that the United States locks up more people per capita than any other country in the world—many of them nonviolent drug offenders.

We're still far away from calling an end to our foolish and destructive War on Drugs, but the debate finally seems to be headed in the right direction. The prospects for drug policy reform look better than they have for decades.

A commitment to the following principles is a necessary condition for the GOP to regain a political influence proportional to their potential voter base. Listing these principles in alphabetical order but not necessarily their relative importance:

Competence: First, the GOP must regain a reputation for competence. Whatever the potential case for the current U.S. wars in the Middle East and the troubled asset recovery program (TARP), they could hardly have been managed with less competence. The two wars in the Middle East are now the longest wars in American history, with U.S. forces scheduled to stay in Iraq for three more years and who knows how long in Afghanistan.

Treasury Secretary Henry Paulson has changed the focus of TARP every week or so since it was approved in October with no improvement in general economic conditions to date. And the authorization to loan up to $700 billion to the financial industry has led to a queue of other industries and now state and local governments seeking a bailout.

This history should lead the GOP to select a governor with a record of good management as its next presidential candidate, preferably one who has worked effectively with a Democratic legislature.

Constitutionalism: In 1929, federal expenditures were 3 percent of gross domestic product, mostly for the military and the deferred costs of prior wars; federal expenditures are now about 21 percent of GDP, mostly for programs for which there is no explicit constitutional authority. One should not have expected President Bush to reverse this pattern, but he should not have added to it. Instead, he initiated two wars without a congressional declaration, approved a broad reduction of civil liberties, and substantially increased federal expenditures for education, health and financial subsidies.

Reducing the federal government to its enumerated powers is a long-term challenge that is probably unrealistic. Congressional Republicans, however, should take the lead in opposing any unconstitutional exercise of current powers or any addition to these powers. Insist on a congressional declaration as a necessary condition for any new war, oppose any proposed legislation (like the Patriot Act or TARP) that authorizes an extraordinary delegation of powers to the president, and insist on a constitutional amendment to add any new powers.

Federalism: The United States was created as a compound republic in which the federal government had the potential to check an abuse of power by the state governments, and the state governments had the potential to check an abuse of power by the federal government.

Three developments in the 20th century, however, substantially increased the relative powers of the federal government at the expense of the states: The 17th amendment in 1913 substituted the direct popular election of U.S. senators for their appointment by the state legislatures. The rapid increase in federal grants to state and local governments after World War II made them petitioners for federal funds rather than a basis for countervailing political power. And the 1973 decision by the Supreme Court in Roe v. Wade threatened to reduce the powers of state governments to set the rules for a wide range of cultural issues, leading the social conservatives to become an increasing part of the national Republican coalition beginning in the 1980s. In the 2008 election, however, the dominant role of the social conservatives in the Republican base led GOP candidates for federal office to lose the support of many voters who are economic conservatives and cultural liberals, especially among younger voters and suburban college-educated voters.

One way or another, the future of the GOP as a national party will depend on appealing to these groups without losing the support of the social conservatives. This is consistent with a continued effort to overturn the Roe decision and to oppose any other federal decisions on social issues in order to reinforce the authority of state governments to set the rules on these issues.

Fiscal responsibility: The Bush administration has unfortunately undermined the traditional Republican commitment to fiscal responsibility by two irresponsible arguments - (1) that tax cuts would "starve the beast" and (2) that spending other peoples´ money is "compassionate conservatism." As a consequence, federal expenditures have increased faster than at any time since the Lyndon Johnson administration, and the federal budget has changed from a $128 billion surplus in fiscal 2001 to an expected deficit of nearly $1 trillion in fiscal 2009!

There is no way to restore a reputation for fiscal responsibility other than a broad confrontation with the Obama fiscal program. Oppose every major new spending program, including the proposed tax credits to the middle class. Reinforce the existing support for a pay-go rule, even at the risk of a tax increase. Look for some budget cuts that might be supported by the Democrat "Blue Dogs." Stop pretending that budget deficits do not matter; they are effectively a tax increase on your children and grandchildren.

Realism in foreign policy: For a decade or so now, U.S. foreign policy has been guided by a small group of former Democrats who call themselves neoconservatives. That group led us into three wars, several other military interventions, a large increase in the defense budget, some reduction in our civil liberties and the antipathy of much of the rest of the world - in the name of countering imagined threats and promoting democracy.

Until the brief Gulf war of 1991, every U.S. war in the 20th century was initiated by a Democratic president and approved by a Democratic Congress. There was every reason for the Republicans not to repeat this record. Of course, there are evil people and dangerous governments in the world. In December 2001, I made an argument in a televised debate that Saddam Hussein was a thug and the Iraqi government was a threat to its own population and to its neighbors, but that was not a sufficient basis for the U.S. government to go to war because Iraq was not a direct threat to the United States.

The best guidance on U.S. foreign policy was made in 1821 by then Secretary of State John Quincy Adams that "America goes not abroad in search of monsters to destroy." The GOP should restore its more characteristic commitment to a realistic foreign policy - one based on a more realistic evaluation of the major threats to America´s most important interests.

Tolerance: Finally, Republicans should recognize that the United States is a heterogeneous society of people who do not agree on everything. To rebuild the GOP, it must be "an inviting and welcoming people" - welcoming to people with different views on some issues, welcoming to people of a different background, race, religion, education and lifestyle. Otherwise, the future of the GOP is that of a small party of middle-class white Southerners, and the future of the United States is a "progressive" loss of liberty to an ever-increasing state.

A commitment to these principles would also prove to be a sufficient condition for the GOP to regain political influence if, as is probable, the Obama administration and the Democratic Congress overestimate the breadth and strength of their temporary mandate, which is based primarily on a negative referendum on the record of the federal government during the Bush administration.

But right now the justices are asking for the solicitor general's advice on a decision that, if left unchecked, would ratify an appalling exercise of government power at the expense of private citizens. Federalism, separation of powers, and some muddled Court precedent are all on the table.

STATE HYPOCRISY

In Biomedical Patent Management Corp. v. California Department of Health Services, the biotechnology company known as BPMC is suing the state of California for patent infringement—specifically, of the company's patent on a form of prenatal screening for fetal abnormalities. Ignoring the merits of the suit, the federal district court in San Francisco dismissed it on the ground of "sovereign immunity": Under the Supreme Court's reading of the 11th Amendment, a state cannot be sued in federal court without its consent. The U.S. Court of Appeals for the Federal Circuit—which handles all appeals in patent litigation—affirmed the lower court decision.

So BPMC has turned to the Supreme Court, which in recent years has been increasingly willing to reverse the Federal Circuit. The company wants the Court to strip California's immunity in this case because the state's Department of Health Services previously waived immunity when it joined a suit brought by a state contractor about the same patented procedure. That is, after California actively litigated the earlier suit (which sought and failed to obtain a declaratory judgment that the contractor was not infringing BPMC's patent), the state should be precluded from turning around to claim immunity when it gets sued over the same issue.

Moreover, as BPMC notes, the University of California (among other state agencies) routinely submits to federal court jurisdiction when it pursues claims for violations of its own patent rights. Given that California uses the patent system (and courts' enforcement thereof), it has relinquished whatever sovereign immunity the state enjoys—immunity that is legally suspect in any event when the sovereign engages in commercial activities.

And, boy, does California use the patent system. The state universities alone own more than 3,300 patents that generate $210 million in annual revenue. California has filed 21 patent infringement suits since 1990 and won more than $900 million in judgments since 2000.

And yet the state has also wielded sovereign immunity arguments to get suits dismissed at least six times since 1987 (including suits by Genentech and Eli Lilly & Co.).

While the worst peddler of this double standard, California is by no means alone. At least 32 states have filed at least 173 patent suits since the mid-1990s.

UNFAIR ADVANTAGE

Business groups hope that the Supreme Court will remove what they see as a competitive advantage enjoyed by state entities: Private patent holders can't seek recompense for a state's unlicensed use of software or medical devices, while states can turn to the courts to protect their patents. Medical innovators and technological entrepreneurs in the private sector suffer.

"It's audacious for a state to use the federal courts to sue for patent infringement, but to block infringement suits against it as a sovereign that cannot be sued," says Robin Conrad of the National Chamber Litigation Center in a press release. The center has filed an amicus brief on behalf of the U.S. Chamber of Commerce in the case—only the second time the Chamber has ever filed in a Supreme Court patent case.

This hypocrisy should not even be in play any more, not since Congress passed the Patent Remedy Act of 1992. That legislation was intended to "clarify that states .?.?. are subject to suit in federal court by any person for infringement of patents."

That sounds clear enough. But in 1999 the Supreme Court ruled in a trademark case, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, that Congress' legislative powers under Article I of the Constitution were insufficient to trump states' sovereign immunity. Except in 2006 the Court held the opposite in a federal bankruptcy case, Central Virginia Community College v. Katz. The votes in these seemingly contradictory decisions were 5-4.

In fact, neither case should have been close: When a state repeatedly and voluntarily invokes federal court jurisdiction in a series of similar cases—under patent or any other law—it generally has waived immunity against suits brought by private parties under those same laws. And the precedent is well established that a state waives sovereign immunity when it seeks to adjudicate its rights in federal court. For example, the Supreme Court unanimously held in the 2002 case of Lapides v. Board of Regents of the University System of Georgia that a state loses its 11th Amendment immunity when it removes a case from state to federal court.

EASY CALL

So, as the solicitor general's office collects agency views and mulls the administration's position, it should recognize that Biomedical Patent Management Corp.—an unwieldy name for an important case—not only represents the chance to right the balance between a state and its citizens with respect to intellectual property. It also provides the perfect opportunity for the Court to clarify its jurisprudence on the relationship between Congress' Article I powers and states' 11th Amendment immunity.

Sovereign immunity is properly a shield against lawsuits challenging a state's governmental action, not a sword with which to carve out economic advantage over private competitors. If the Supreme Court declines to hear this case, thereby letting the Federal Circuit ruling stand, it would reinforce that unfair advantage—and strike a blow against private sector innovation.

Whoever it is that replaces the outgoing Paul Clement should not agonize over this one. The next solicitor general should advise the Supreme Court to grant this petition for review. And the justices should take his advice.

The candidates, however, have overlooked a central idea that animated Reagan's view of government. That was federalism, the constitutional principle that the federal government's responsibilities are "few and defined" as James Madison put it.

Reagan believed that the federal government had grown too big and swallowed up too many activities that, in the words of the 10th Amendment, should be left to the states and the people. Education, welfare, food stamps, and other such activities were not properly federal roles in his view. Here is Reagan kicking off his run for the presidency on November 13, 1979:

The federal government should do only those things specifically called for in the Constitution. All others shall remain with the states or the people ... The federal government has taken on functions it was never intended to perform and which it does not perform well. There should be a planned, orderly transfer of such functions to states and communities.

When in office, Reagan worked to effect that "orderly transfer." He took aim at the massive system of "grants-in-aid" for the states that had been built up in the 1960s. He managed to cut the number of these subsidy programs from 434 in 1980 to 335 by 1985, and to shrink aid spending by 24 percent relative to the size of the economy. He also killed "revenue sharing," which was a no-strings-attached spigot of federal cash for the states.

Unfortunately, state aid soared after Reagan left office because his successor, George H.W. Bush, had no interest in federalism. The Republican Congress of the mid-1990s briefly revived federalism with its reform of welfare, which was one of the most wasteful state aid programs.

But since the late 1990s, subsidies for the states have risen rapidly including subsidies for health, education, and highways. In a recent study, I calculated that the number of grant-in-aid programs jumped from 653 in 2000 to 814 by 2006.

Sadly, the Bush administration has buried federalism. Consider that Ronald Reagan wanted to abolish the Department of Education, and he at least succeeded in roughly freezing the department's budget. The current president, by contrast, has doubled the department's budget and increased federal regulations imposed on the nation's schools.

If elected, would today's GOP candidates be Bush Republicans or Reagan Republicans? Romney, McCain, and Giuliani talk about cutting federal "waste" and "pork." But the problem with the $2.8 trillion federal budget is not $30 billion in pork, it is $2 trillion of spending that violates the 10th Amendment to the Constitution as properly the responsibility of the states and the people.

What about presidential candidate Ron Paul? Paul is certainly a strong believer in the 10th Amendment, but he has been mainly occupied by the war in Iraq and hasn't focused his campaign on cutting domestic spending.

That's why I'm pleased that Fred Thompson has thrown his hat into the ring. Thompson has been talking and writing about his belief in federalism. In a recent speech, he argued that "centralized government is not the solution to all our problems...this was among the great insights of 1787, and it is just as vital in 2007."

Thompson rightly argues that the abandonment of federalism has caused a range of pathologies including a lack of government accountability, the squelching of policy diversity between the states, and the overburdening of federal policymakers with local matters when they should be focusing on national security issues.

Federalism "is a tool to promote freedom" as Thompson puts it. So for the supposed heirs to Ronald Reagan who are running for president, let's hear more about expanding our freedom by cutting the federal government down to constitutional size.

Today, I began a new odyssey in an attempt to renew the registration on one of my vehicles.

Theoretically, DMV was supposed to send something in the mail, but that never arrived and I was unaware that my registration expired until one of DC's finest recently pulled me over (to his credit, he gave me a warning rather than impounding the car, which ostensibly is the law in such situations). So I went online to find out about renewing the registration, and was horrified to discover that I had to make a visit to DMV because my registration had lapsed (needless to say, I can't think of a single reason why this should require an in-person visit).

Resigned to an unpleasant experience, I woke up early so that I could avoid a three-hour line at the DMV office and managed to see someone after a wait of just 15 minutes. But when I attempted to register, I was told that Fairfax County had placed a hold on my registration because of unpaid taxes. I would like to claim that I was being a principled tax protester, but I meekly pay my car taxes...at least when I'm aware that a bill is due. I don't know whether to blame the Post Office or the vehicle bureaucracy, but there are no letters from Fairfax County in my inbox.

In any event, the logical next step should have been for me to pull out a credit card and take care of both the unpaid tax and the registration. Silly me. Not surprisingly (and this may be a good thing), there is no coordination between Fairfax County and the state government. So I had to surrender my spot at the counter and go look at a sign with numbers for various local tax offices. I called Fairfax County's automated system, filled with naive thoughts about making an automated payment and then taking care of my registration.

I was surprised to learn that Fairfax County thinks I have four cars. Unfortunately, the system does not tell you the cars you ostensibly own, or which car has the unpaid tax bill. But the amount was not very large, so I was willing to pay it - even if it was for a car I didn't own. Like any sensible person, my top goal was to avoid having to make a repeat visit to the DMV. So I spent the next five minutes typing in a bunch of numbers in response to about 10 different prompts, only to be told that my credit card was not accepted. So I then typed in the information for another credit card and got the same rejection message. Since I know my credit cards are good (I used one of them last night and used the other one after leaving DMV just to make sure), I opted out of the automated system and eventually got to speak to live bureaucrat. For reasons that I will never understand, though, the bureaucrats can only process payments if you have a Discover card.

Utterly defeated, I tucked my tail between my legs and went to work. At some point, before a less-friendly cop pulls me over, I will now have to visit the Fairfax County tax office and then make a second visit to the DMV. And if that is all that I have to do, I will consider myself lucky.

But there is a silver lining to this dark cloud. I now am fully re-energized in my disdain for government.

A proposal to grant the District a full vote in the House has passed the House and the Senate government affairs committees, and a full Senate vote is scheduled for July. President Bush threatens to veto the measure if it passes. But the congressmen promoting it are overlooking a radical and vastly superior alternative: giving the bulk of the District back to Maryland, just as Congress returned Alexandria and Arlington to Virginia in 1846.

Mayor Adrian Fenty might not like it, but retrocession would be superior for most District residents on political, fiscal and economic grounds. Politically, District voters would get full representation in the House of Representatives, plus the opportunity to vote for the two senators from Maryland, the several senior state officials and the local legislators.

The effects of the change could be dramatic. The population of the District has declined about 27 percent since 1950 — a consequence of high taxes, lousy schools and high crime rates. A retrocession to Maryland and an increased prospect of better government could substantially reverse this decline.

The most likely new residents of Washington, Md., would be those who are now most deterred by the District's high taxes and poor government services: wealthier individuals and families, those with school-age children, those who expect to leave estates and businesses — especially unincorporated businesses, restaurants and hotels.

Washington's new residents would increase the political demands for better schools and lower crime, reducing the problems of the two major District services with the worst records. And these changes would further increase the value of residential and commercial property, increasing property tax revenues without increasing effective tax rates.

Retrocession would also lead to a division of government roles between the District and the state of Maryland. A division of roles similar to that now in Maryland would leave the new city of Washington, Md., with control of K-12 education, police, fire, corrections and streets; and most expenditures for parks and recreation, housing and waste disposal.

The Washington government would no longer bear the rapidly increasing costs of Medicaid, the responsibility for administering the University of the District of Columbia, and the special problems of providing long-term incarceration. Maryland would assume the responsibility for providing higher education, public welfare, health and hospitals, highways and prisons.

Washington, Md., would still be the national capital and would continue to receive substantial funding from the federal budget. Some regional organization could control land-use patterns consistent with the appearance and security of the major capital facilities, conditions characteristic of almost every other capital city in the world.

The fiscal effects would be dramatic, too. Almost all District taxes are substantially higher than the sum of Maryland state and local taxes — the only exception being D.C.'s property taxes, which are the lowest in the region.

As it turns out, neither Maryland voters nor their legislators would have to approve a retrocession. On its own authority, Congress could return most of the District to Maryland, other than a smaller area designated as the new "Seat of the Government of the United States," as it did in returning Alexandria and Arlington to Virginia.

A constitutional amendment, however, may be required to void Amendment XXIII, which granted three electoral votes to the District whatever its population, but that could be managed.

Retrocession of the District to Maryland would obviously be a complicated matter, but it could yield substantial benefits for residents of both. With government services such as they are in the District, a single vote in a chamber of 435 federal legislators isn't going to change much. D.C. needs a much bigger shot in the arm, and retrocession could be it.

In spring 2006, Massachusetts enacted legislation to ensure universal health insurance coverage to all residents. The legislation was a hybrid of ideas from across the political spectrum, promoted by a moderately conservative Republican governor with national political aspirations, and passed by a liberal Democratic state House and Senate. Groups from across the political spectrum supported the plan, from the Heritage Foundation on the right to Families USA on the left, although the plan had detractors from across the political spectrum as well.

This study briefly describes the basic structure of the Massachusetts plan and identifies the good, the bad, and the ugly. Although the legislation, as Stuart Altman put it, "is not a typical Massachusetts–Taxachusetts, oh–just–crazy–liberal plan," there is enough "bad" and "ugly" in the mix to raise serious concerns, particularly when the desire to overregulate the health insurance market appears to be hard–wired into Massachusetts policymakers' DNA.

If we want to make health insurance more affordable and avoid the "bad" and the "ugly" of the Massachusetts plan, Congress — or, barring that, individual states — should consider a "regulatory federalism" approach. Under such an approach, insurers and insurance purchasers would be required to subject themselves to the laws and regulations of a single state but allowed to select the state. As with corporate charters, this system would allow employers and insurers to select the regulatory regime that most efficiently and cost–effectively matches the needs of their risk pools. The ability of purchasers and insurers to exit from the state's regulatory oversight (taking their premium taxes with them) would temper opportunistic behavior by legislators and regulators, including the temptation to impose inefficient mandates and otherwise overregulate.

Crime is a serious problem, but under the U.S. Constitution it is a matter to be handled by state and local government. Chief Justice John Marshall observed in 1821 that Congress had "no general right to punish murder committed within any of the States." Unfortunately, as the years passed, Congress eventually assumed the power to enact a vast number of criminal laws pursuant to its power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

This Congress should not exacerbate the errors of past Congresses by federalizing more criminal offenses. The Commerce Clause is not a blank check for Congress to enact whatever legislation it deems to be "good and proper for America," and the proposed hate crimes bill is simply beyond the powers that are delegated to Congress.

Even if it presented no constitutional problem, it would still be unwise to support hate-crimes legislation. For one thing, it is imperative that federal law-enforcement focus on foreign threats, such as al Qaeda. One of the reasons the terrorists were able to elude detection prior to the September 11 attacks was that the FBI was charged with so many responsibilities that it lost sight of its most important responsibility — protecting the homeland from foreign threats. But the FBI was only trying to fulfill to the additional missions that the Congress assigned to it. A veto would underscore the point that there will be no backsliding while Bush remains in office.

Of course, one should not forget that all of the violent acts that would be prohibited under the proposed bill are already crimes under state law. Over the last few years, there has been a great deal of publicity surrounding the brutal killings of James Byrd in Texas and Matthew Shepard in Wyoming. The individuals responsible for those murders were quickly apprehended and prosecuted by state and local authorities. President Bush knows the Byrd case well, as he was the state governor at the time. Those incidents do not show the necessity for federal action; to the contrary, they show that federal legislation is unnecessary.

The proposed bill is called the "Hate Crimes Prevention Act," but it is not going to prevent anything. Any thug that is already inclined to hurt another human being is not going to lay down the gun or knife because of some new law passed by Congress. The culprits involved in the killings of James Byrd and Matthew Shepard, for example, made a conscious decision to disregard basic homicide statutes. And those murders took place in states that have the most drastic legal sanction available under the law: the death penalty. The notion that any federal hate-crime law could have prevented those brutal killings is naïve.

Proponents of hate-crime legislation believe that such laws will increase tolerance in our society and reduce intergroup conflict. But hate-crime laws may well have the opposite effect. The men and women who will administer hate-crime laws — police and prosecutors — will likely encounter a never-ending series of complaints with respect to their official decisions. When a U.S. attorney declines to prosecute a certain offense as a hate crime, some will complain that he is favoring the groups to which the accused belongs. And when a U.S. attorney does prosecute an offense as a hate crime, some will complain that the decision was based upon politics and that the government is favoring the groups to which the victim belongs. This has already happened in some of the jurisdictions that have enacted hate-crime laws at the local level.

Hate-crimes legislation will also take our laws too close to the notion of thought crimes. It is true that the hate-crime laws that exist presently cover acts, not just thoughts. But once hate crime laws are on the books, the law-enforcement apparatus of the state will be delving into the accused's life and thoughts in order to show that he or she was motivated by bigotry. What kind of books and magazines were found in the home? What internet sites were bookmarked in the computer? Friends and co-workers will be interviewed to discern the accused's politics and worldview. The point here is that such chilling examples of state intrusion are avoidable because hate crime laws are unnecessary in the first place.

Many members of Congress recognize these problems, but they fret about the political risks involved in opposing a "hate crimes" proposal. President Bush has been down this road before. In 1999, he refused to sign the "James Byrd Hate Crimes Act" while he was governor by saying that "all crimes are hate crimes." As president, Bush should remain steadfast against the effort to enact federal hate crimes legislation.

In a recent column, "Moralizing and politics," I found it admirable that Third Way economists were shunning the party line by adopting an optimistic approach and demonstrating that the "the middle class is shrinking... because more people are better off." Unfortunately, sensible statistics do not always produce sensible policies.

The source of the Schumer proposals was a Third Way memo last July addressed to "progressive candidates" and written by Anne Kim, a lawyer and former aide to Rep. Jim Cooper, Tennessee Democrat. It is all about campaign rhetoric -- "ways to talk about taxes if you believe that some ought to be increased." Candidates were advised to develop attractive language to support assorted tax breaks to narrow voting blocs, and also advised how to avoid talking about other taxes raised to make up the loss.

Promising special tax deductions and credits to specific groups of voters means, by definition, adding new "loopholes." In the similar proposals of Mr. Schumer and Third Way, special tax favoritism is to be granted only to parents of infants rather than parents of school-age children, for example. Third Way would also add tax breaks for couples with $75,000 incomes buying their first home but not for couples with $35,000 buying their second home. Ironically, the Third Way memo also advises progressive candidates to propose "closing loopholes" to "make the tax code simple and fair." For example, "candidates can decide to choose a savings target -- such as $10 billion a year -- for closing loopholes."

In a Third Way press release claiming credit for the Schumer plan, "Kim acknowledged that there would be costs to the plan, but noted that 'there is plenty of fat in the tax code to pay for this."' But her memo said: "The proposals above lay out approximately $250 billion in tax cuts over 10 years." Mr. Schumer's similar plan is reported to lose $80 billion of revenue during its first four years, with only a one-year patch for the AMT -- but the 10-year revenue loss was unreported.

Vague talk about "closing the tax gap," or Ms. Kim's $100 billion "savings target," will not get around the new congressional paygo rules. Even if it did, that leaves the Third Way plan with a $150 billion gap to fill, without any of the promised relief from the alternative minimum tax (AMT).

Ms. Kim suggested "additional sources of offsets" would be found in "Sen. Kerry's proposal to repeal tax cuts for high-income households. This proposal would save $61.1 billion over 10 years, which provides ample room for the proposals above [$250 billion] plus AMT reform [about $600 billion] and other initiatives."

Out of that $61.1 billion, Congress would have "ample room" to add $250 billion in new loopholes, fix the AMT and fund "other initiatives'? That imaginative arithmetic demonstrates what Ms. Kim meant by "ways to talk about taxes" without actually saying "some ought to be increased."

Legislators still hoping to advocate the tax increases without suffering his political oblivion are advised to describe higher tax rates as mere "offsets" to finance new loopholes for narrow groups. Under those redefined "offsets," the 33 percent tax rate would be increased to 36 percent and the 35 percent rate to 39.6 percent. One unintended consequence is that thousands of Subchapter S corporations and limited liability companies would promptly revert to filing their profits under the lower corporate tax, so individual tax revenues would end up smaller than otherwise.

The top tax on dividends would be raised by 164 percent under the plan, which would obviously crash the market for dividend-paying stocks. The capital-gains tax would rise to 20 percent, but there would be few stock market gains left to tax.

The political fallout might be as perverse as the impact on tax revenues and stock prices. Personal exemptions and deductions would continue to be phased out at higher incomes, under the tax-increase plan, which (like the AMT) is a sneaky way to raise marginal tax rates on large families in overtaxed "blue" states such as New York, Massachusetts and California.

Even if this soak-the-rich scheme could actually raise $61.1 billion over 10 years, that would not even begin to pay for Mr. Schumer's grab bag of new loopholes, much less any durable fix for the AMT. Besides, the Congressional Budget Office (CBO) expects federal revenues from the individual income tax alone to total $17.5 trillion from 2008 to 2017. Hoping to extract an extra $6 billion a year from a few rich people cannot possibly be what really motivates so many Democrats' impulse to raise the highest, most economically destructive tax rates.

My January column "Tax cuts and the rich" used CBO data to show that, "for the bottom 80 percent as a group, the total federal tax fell from 14.1 percent in 2000 to 11.4 percent in 2004 -- a 19.1 percent tax cut. The tax cut was deepest among the poorest fifth (29.7 percent), largely because of the Bush administration's refundable tax credit for children. For the middle fifth, the total tax rate fell from 16.6 percent to 13.9 percent -- a 16.3 percent cut. As for the top 1 percent, their overall tax rate was merely trimmed from 33 percent to 31.1 percent -- a 5.8 percent cut."

To raise enough revenue to fund all the Third Way promises would require undoing all those Bush tax cuts -- those for the bottom 80 percent, not just the top 3 percent. "[Jim] Kessler of Third Way," notes the Los Angeles Times, "concedes that the most realistic funding source is the repeal of Bush's tax cuts."

Whenever some politician or political strategist begins offering a package of pleasant-sounding tax breaks for this group or that, be wary that the economy may be strangled by the many strings attached.

The drug in question is Gardasil, a vaccine for four types of human papillomavirus, two of which are responsible for cervical cancer. The federal Food and Drug Administration approved Gardasil last year for use against human HPV in females aged 9 to 26. By a veto-proof majority of 119 to 21, the Texas House of Representatives voted last week against mandating Gardasil for middle school-aged girls, but the Texas Senate has yet to weigh in on the issue, and Gov. Rick Perry is expected to veto the bill.

If he does — and the Texas Legislature doesn't have the votes to override his veto — then his earlier executive order mandating vaccination will stand.

These mandates would be quite a boon for Merck, as Gardasil is one of the most expensive vaccines on the market. With a price tag of $360 for a series of three shots, vaccinating approximately 30 million middle school-aged girls in the United States would bring in more than $10 billion.

Gardasil is not all it is cracked up to be. A recent study in the Journal of the American Medical Association indicates that among women ages 14 to 24, the rate of all 37 types of sexually transmitted HPV combined is 33.8 percent — already a number much lower than the 50 percent figure sited on Merck's Web site. But the rates for the two types of HPV responsible for 70 percent of all cervical cancers (16 and 18), are far lower: only 1.5 percent and 0.8 percent, respectively.

The American Cancer Society sees its fight against cervical cancer as a success story even without Gardasil. When detected early through Pap testing, the survival rate for cervical cancer is over 90 percent. Thus, when early detection methods are used, only around 0.2 percent of the girls being vaccinated are actually at risk of dying of cervical cancer from HPV 16 or 18 even without the vaccine.

Under these circumstances, are we really prepared to spend $10 billion administering this vaccine?

And while it's horrible that anyone at all should die of cervical cancer, the long-term risks that may be associated with Gardasil are totally unknown. Studies followed the women who participated in drug trials for an average of less than three years. What if some horrible unexpected side effect materializes?

This possibility isn't as far fetched as you might think. In 1976, swine flu caused only one documented death in the United States, but the vaccine administered by government mandate seriously injured or killed hundreds. It turned out that the vaccine caused Guillain-Barré Syndrome, a rare paralytic disease similar to polio, with a 5 percent fatality rate and a 10 percent rate of permanent paralysis.

Mandatory Gardasil vaccinations would certainly brighten Merck's future, but it's not so clear that they're in the best interest of American girls. In all but the clearest cases, health risk assessments should be left up to individual families, not only because making such determinations rightly rest with families, but because it's simply not sensible policy to experiment on such a large portion of our population all at once. What if, 10 years from now, we discover that the vaccine causes infertility or another form of cancer?

To add insult to injury, not only has Merck left Texas lawmakers in the dark about the myriad of possible downsides to mandatory HPV vaccination, it has actively lobbied and paid large campaign contributions to politicians willing to support such policies.

According to documents obtained by the the Associated Press last month, Merck donated $5,000 to Gov. Perry on the same day his chief of staff met with his budget director for an "HPV vaccine for Children Briefing."

To the casual observer, it looks a lot like Merck is paying politicians to do its bidding. Mandating HPV vaccinations would bring Merck huge profits, possibly at the expense of ordinary Texans — or at least at the expense of little girls.

The index presented in this report attempts to measure how closely existing school systems resemble free markets and rates education policy proposals on how conducive they are to the rise of competitive marketplaces. We define an education market as a system that provides the freedom for producers and consumers to voluntarily associate with one another, as well as the incentives that encourage families to be diligent consumers and educators to innovate, control costs, and expand their services. It is a system in which schools can offer instruction in any subject, using any method, for which families are willing to pay.

One of the least surprising findings of the Cato Education Market Index is that no U.S. state currently has anything resembling a free education marketplace. Perhaps more surprising, few of the prevailing "school choice" reforms, which are often described as "market-based," "marketinspired," or even "free-market" proposals, actually embody true markets. It is our hope that this index will spur debate about the necessary and sufficient conditions for a lasting and vigorously competitive education industry, and hence serve as a guide to policymakers interested in harnessing market forces for the betterment of children's educational opportunities.

• Full Technical Report
• Cato Education Market Index Spreadsheet
• Cato Education Market Index Web Tool
• CEMI State Ratings Explained

This report presents the findings of the Cato Institute's eighth biennial fiscal policy report card on the nation's governors. The report card's grading is based on 23 objective measures of fiscal performance. Governors who have cut taxes and spending the most receive the highest grades. Those who have increased spending and taxes the most receive the lowest grades.

Only one governor receives an A this year— Republican Matt Blunt of Missouri. The next two highest-scoring Republicans are Rick Perry of Texas and Mark Sanford of South Carolina. The highest-scoring Democratic governors are John Lynch of New Hampshire and Phil Bredesen of Tennessee.

Nine governors receive Fs. In alphabetical order, they are Kathleen Blanco of Louisiana, Michael Easley of North Carolina, Kenny Guinn of Nevada, Christine Gregoire of Washington, Mike Huckabee of Arkansas, Ruth Ann Minner of Delaware, Janet Napolitano of Arizona, Bob Riley of Alabama, and Brian Schweitzer of Montana.

Governors who received praise in previous editions of the report card but have lower grades this year include Arnold Schwarzenegger of California (current grade, D); Jeb Bush of Florida (current grade, C); Bill Owens of Colorado (current grade, D); George Pataki of New York (current grade, D); and Bill Richardson of New Mexico (current grade, C).

(View the list of Governor scores and grades.)

Redistribution

The standard view is that policies like welfare must be federal; states will avoid redistribution for fear of becoming welfare magnets. This concern is understandable, but a different mechanism suggests redistribution is often excessive. Redistribution to the poor creates a demand for redistribution from the near poor, and then from the sort-of poor, and then from the working poor, and so on. The end-result is massive redistribution, mostly from the middle class to the middle class. This generates huge distortions.

Nothing guarantees, of course, that leaving redistribution to the states gets the balance just right. But the chances are better since competition between states nudges against the tendency for excess redistribution. And many states have unemployment benefits, welfare programs, and minimum wages that are well above anything required by federal law. So, rightly or wrongly, states do not race to the bottom.

Environmental Policies

Most environmental issues are local. Air and water pollution affect residents who live near the pollution source. The demand for a clean environment is likely to differ between rural and urban areas, high and low income areas, agricultural versus manufacturing areas, and so on. Likewise, the costs of alleviating pollution differ substantially across areas.

Federal policies do not readily address this heterogeneity. As with redistribution, moreover, the potential for excess regulation is clear, so leaving things to the states promises a better balance. And a race to the bottom is again not obvious; many states, sensibly or not, adopt more stringent regulation than anything required by the federal government.

Education

Education has historically been the province of state and local government, but No Child Left Behind and other federal policies are overturning that situation. This is an especially egregious overreach by federal government. To begin, nothing about education suggests under provision if left to the states. And federal intervention generates bureaucracy while suppressing variety and innovation. Remember that states experimented with charters, vouchers, and accountability long before NCLB.

More importantly, federal control over the production and dissemination of ideas is the road to thought control. All totalitarian governments have monopolized the educational system. Keeping intervention in education at the state level provides a counter-weight to this danger.

Abortion

The issue for abortion policy is defining what constitutes murder. And states have done this historically. Roe v. Wade upset the situation by reading privacy rights into the Constitution where none plausibly exist. And whether or not Roe was right constitutionally, a federal ban on laws restricting abortion is ill-advised as a matter of public policy.

The reason is that deciding when life begins is impossible. Passions will always run high on abortion, and most people will favor neither unlimited access nor severe restrictions.

Leaving abortion to the states accepts this heterogeneity. Absent Roe, most states will retain legal abortion while a few will restrict or ban it. Most women will still have access to legal abortion, and most people will feel they have some control over abortion policy. Of course, leaving abortion to the states also rules out federal legislation about abortion, such as bans on partial birth procedures.

Gay Marriage

As with murder, defining marriage has always been the province of states. The legalization of gay marriage in Massachusetts, however, spurred a call for federal regulation. As with abortion, however, there will always be strong opinions on both sides. Leaving the issue to the states avoids the polarization that comes from pushing one view on everyone. The possible downside is confusion arising from different laws in different states, but this concern seems overblown. Marriage, divorce, and guardianship laws have always differed somewhat across states. And the legalization of gay marriage in Massachusetts has not generated significant problems.

The United States lucked into what has been, and could continue to be, one of the most effective governmental structures available: federalism. Yet the U.S. has moved strongly away from this approach over the past century. Few people favor every implication of the federal approach, but most also appreciate it on certain issues. And that is the point: by making many people somewhat unhappy, federalism avoids making some people become truly alienated. That is essential to a free society.

Funerals are expensive in other states as well, but Maryland's costs are much higher than they need to be. A recent Washington Post exposé revealed that a World War II-era state law that supposedly was enacted to protect consumers from fly-by-night morticians is now being used by existing funeral homes to block legitimate competitors from opening shop.

The law is just one of several state regulations that morticians are using to gouge consumers. By comparing Maryland funeral costs to similar costs in states without such anti-competition laws, we calculate that Marylanders pay some $784 more per death on funeral expenses.

Funeral directors couldn't engineer this protection by themselves; they've had help from state lawmakers who have prevented attempts to reform the funeral laws. Few Marylanders are aware that one of Annapolis's more generous political benefactors is the Maryland State Funeral Directors Association. The State Board of Elections campaign finance database reveals that the association's political action committee and individual funeral homes have doled out nearly $246,000 in political contributions since 2000.

With all those dollars flowing from the funeral industry to state politicians, Marylanders should wonder what the money is buying.

People usually think that businesses dislike regulation. But businesses often find it profitable to have regulations crafted to impede would-be competitors. This allows politically well-connected businesses to charge higher prices and manipulate consumers' choices. These shenanigans are known as rent-seeking.

Rent-seeking is a problem in many states' funeral services industries, but they've become even more galling in recent years because they're offsetting a number of innovations that should be lowering funeral costs. The advent of direct-to-consumer sales of caskets and other funeral goods threatens to cut out the mortician middle-men who sell those goods at a big markup. Independent funeral homes are also being threatened by chains that use centralized embalming and better labor management techniques to lower overhead costs. Perhaps most threatening of all is the increasing popularity of cremation.

Funeral home directors and owners have fought these innovations in many states through rent-seeking. Working with their politician friends, they have defended and strengthened anti-competitive funeral regulations aimed at stemming the tide of Internet casket sales, the expansion of funeral home chains and the popularity of cremations. One of their recent "successes" has been to convince several states to mandate that crematoriums employ licensed embalmers, even though crematoriums don't need embalmers.

Consumer groups have fought these laws in several states, scoring a few victories via the courts. But Maryland's funeral laws will be harder to reform because they are especially obstructive and are protected by powerful lawmakers. The Post article gave much of the credit for killing Maryland reforms to East Baltimore Delegate Hattie Harrison, dubbing her the "guardian angel" of the funeral industry.

It shouldn't be surprising that Maryland's funeral laws seem impossible to reform; Annapolis is probably the richest rent-seeking playground of any of the state capitals. From alcohol sales to gasoline sales, from health care workers to hospitals, Maryland regulations are filled with anti-competition provisions that hurt consumers and enrich politically favored businesses.

But maybe, in the 2006 session, adverse publicity over Maryland's funeral laws will bring about some change. Maybe Del. Harrison and her allies will lose enough of their political grip to allow pro-consumer reform to occur. And maybe, just maybe, Marylanders enduring the grief of losing a loved one will no longer suffer the additional insult of an over-inflated funeral bill.]]> Wed, 01 Feb 2006 00:00:00 EST http://www.cato.org/pub_display.php?pub_id=5497 http://www.cato.org/pub_display.php?pub_id=5223 Roe v. Wade and the cases affirming it since 1973 are now settled law, outweighing his view that Roe was wrongly decided.

Neither option is satisfying, of course, the first for obvious reasons, the second because it elevates precedent over the Constitution. To be sure, liberals of late have a selective regard for precedent -- now that they've jiggered the Constitution into a shape they like. But conservatives too give the appearance of being less than straight when they imply, as they often do, that precedent should trump the Constitution. If that's the case, why the conservative enthusiasm for Judge Alito?

Yet there's a good case for the conservatives' ambiguity, having nothing to do with abortion. It goes to the connection between politics and law. Sen. Cornyn captured it nicely when he said that the 1985 memo "may be a legal opinion, but it is not an answer to the question, 'If confirmed, will you apply the principles of stare decisis in regard to Supreme Court decisions, including Roe v. Wade?'" To that question, the proper answer is neither yes nor no. There are cases, after all, in which precedent should control because the Constitution is silent on the matter before the court.

Whether Roe is such a case, I turn to next. But it should be clear that were Judge Alito to answer yes or no to Sen. Cornyn's question, he would in effect be revealing his hand on a wide array of questions potentially before the court, including Roe. The effect, insofar as his answer would correlate with a Senate decision to confirm or not to confirm, would be to decide those cases politically, not legally, which is why he should refuse to answer that question. But we can address it, and it's time we did. Even if Judge Alito, to prevent the Senate from turning into a political courtroom, must decline to state his views on the role of precedent, we can ask whether the Constitution is silent on the matter of abortion (as many conservatives believe), and thus whether precedent should carry substantial weight (which many conservatives deny).

At bottom, Roe raises two questions, one substantive, the other jurisdictional, and they should be taken in that order. Note first, however, that the substantive question arising in Roe is very different from the one at issue in Griswold v. Connecticut, the 1965 decision on which, many believe, Roe rests. Griswold challenged a state statute prohibiting the sale and use of contraceptives. Thus, the statute could not be said credibly to be defending the rights of anyone; on the contrary, it ran afoul of rights. By contrast, the statute at issue in Roe was designed precisely to protect rights, the putative rights of the unborn. And so the basic substantive question was clear: When does the right to life begin?

On that question, the Constitution is indeed silent -- mostly. Here's why. We would all agree, I hope, that if a doctor took the life of a baby one day after birth, it would be infanticide -- murder. Thus, states that protected older babies but not younger ones would doubtless be subject to equal protection challenges, at least, and would probably lose. But if taking the life of a baby one day after birth is murder, what is the difference if the act is performed one day before birth? It strains credulity to suppose there is any real difference. Well, what of two days before birth -- and so on down the line? It's impossible to draw a principled line at which to say, precisely, that this is where the right to life begins. The court's trimester taxonomy in Roe was its own invention, entitled to no more constitutional support than anyone else's opinion on the matter.

And so we come to the jurisdictional question: Who decides? And on that the Constitution is not silent. Whether we believe that the right to life begins at conception or at some point over the next 270 days, we all believe, I hope, that it begins at some point along that line. We all agree, that is, that there is some point at which abortion amounts to murder. We just can't agree about where that point is. And so we're faced with a classic line-drawing problem, not unknown in other areas of the law, but here involving the criminal law and, therefore, the general police power -- the power that belongs, under the Constitution, to states.

We come, then, to the heart of the matter. Just as states draw lines differently between murder and manslaughter, so too they should be expected to do so here. In fact, they were doing so when Roe was decided 32 years ago. If ever there were a case in which the court should have let the political process unfold naturally, this was it. Were the court to have done so, we would not have had over three decades of endless political and legal turmoil over this one decision, turmoil that has skewed and even poisoned every confirmation battle since. Indeed, no less than Ruth Bader Ginsburg made a similar point in her 1993 Madison Lecture at the New York University School of Law, two months before she was nominated for the high court. A more "measured" opinion, she said, might have spared the nation this pain.

It would not be the end of the world, therefore, if the court were one day to overturn Roe, for the issue would simply return to the states. A conservative state like Utah might prohibit most abortions, but next door in Nevada we might see a liberal regime. On an issue about which reasonable people can have reasonable differences, that result should not surprise.

Judge Alito, however, does not and should not have to say even this much in his upcoming confirmation hearings. Those who insist on his saying more are largely the same people who insisted on the court's deciding this issue in the first place. They politicized the court then. They should not be allowed to do it again.]]> Mon, 28 Nov 2005 00:00:00 EST http://www.cato.org/pub_display.php?pub_id=5223