Can Missourians govern themselves?
Whether one has resolved the ethical issues involved in the embryonic stem cell debate, a stealth but radical proposition is buried in the fine print that would eliminate the ability of Missourians to have a political say in any further stem cell discussions. A leading federalist principle is the belief that the government that works best is that which is closest to the people. Whether this principle shall continue and indeed whether Missourians can govern themselves is the unfortunate question entangled in the debate over embryonic stem cells.
It has been repeated in the press that the proposed amendment would make permissible in Missouri anything permissible under federal law. Indeed, this is stated in the first sentence of the amendment. However, one must read to the very bottom on the third page buried in the fine print that these words do not mean what they say. In the fine print it states that “permissible under federal law” actually means that whatever is not prohibited under federal law must be permitted in Missouri. There is no prohibition under federal law. Therefore, everything will be permitted in Missouri. This amendment is specifically designed to eliminate any Missouri legislators and any Missouri citizens from enacting any laws on embryonic stem cell research.
This is a radical proposal unknown in the 132 pages of the Missouri Constitution and its 185-year history. The provision is contrary to the whole form of government set up by the Founding Fathers, against more than 200 years of judicial interpretation of the role of federal and state governments and unprecedented in over two centuries of federalist principles.
Almost 200 years ago the Supreme Court stated that “No direct general power over [health laws of every description] is granted to Congress; and consequently, they remain subject to State legislation.” Indeed, the principles of federalism were so very important to the Founding Fathers that the concept was the sole subject of the Tenth Amendment to the Constitution adopted in 1791.
If the proposal passes, on Nov. 8 Missouri citizens will, effectively, have no voice in what the members of Congress from California, Texas and Maine decide is appropriate in Missouri.
The assumption in the proposed embryonic stem cell amendment is that Missourians are unable to govern themselves; that the Missouri legislature is unable to enact laws embodying the will of Missourians. It presumes that if, for example, a disease treatment was found in embryonic stem cells, that the Missouri legislature would forbid this from happening in Missouri. This is, of course, an outrageous assumption for which the drastic step of a constitutional amendment is not necessary.
In an interview appearing in the St. Louis Post Dispatch on Sept. 17, the Ambassador Danforth responds to the question of “what are the basic principles [he is] most concerned about?” with the reply that he is most concerned about “the involvement of [federal] government in life-and-death decisions. The involvement of the federal government in what was a state issue. Also, that the federal courts were used to trump the state courts.” How Ambassador Danforth allowed himself to be bullied into permitting the evisceration of federalist principles in the proposed amendment is curious when he declares that his single greatest concern is the federal government’s involvement in state affairs.
Missourians need to know that voting for Constitutional Amendment 2 will set us down the unprecedented path of amending our State Constitution to strip us of 200 years of traditional rights. Once we give away that power we cannot – and will not – get it back. (William Placke, is an attorney in St. Louis, formerly with Clifford Chance, the largest law firm in the world, and is president of St. Louis Lawyers Chapter of the Federalist Society for Law & Public Policy Studies. The views expressed herein are entirely those of the author and not of any entity with which the author is associated.)