Who is better equipped to govern South Dakota and Mississippi? Nine, unelected judges from states other than South Dakota and Mississippi, or the elected representatives of the people of South Dakota and Mississippi?

The legislators of South Dakota have passed a bill prohibiting abortion save in cases to save the mother's life. The state's governor, Mike Rounds, signed the bill into law on Monday. Mississippi will likely follow suit within the next few weeks. What these states are boldly attempting is called self-government, something that Americans took for granted for so long that they no longer have it regarding abortion and several other hot-button issues.

There is no right to an abortion in the Constitution (In fact, all states inhibited abortions in ways contrary to Roe v. Wade prior to that decision.). Even if the Constitution contained such a right, it couldn't come from thin air. It would have to be instituted through the democratic process. The amendments to the Constitution, as well as the Constitution itself, were codified through the democratic process. So even when the First Amendment, for instance, protects minority rights, it still does so by majority will. That is because a long, long time ago, supermajorities agreed in the wisdom of the First Amendment. So, all of our rights--even the ones that predate government and are God given--must be confirmed by the will of the people if they are to be recognized by our government.

Apart from the common sense of the rights bequeathed to us is the genius of federalism. In a country as massive as ours, one-size-fits all solutions commit a violence against self-government. What's popular in New York may not be popular in Utah, which is why states retain, under the Constution, a great degree of sovereignty. State sovereignty prevents unpopular laws from being forced on a state. States are a block on government monopoly. They ensure self-rule on a level where such a thing is more feasible. Thus, they ensure diversity of governments. If you don't care for the law demanding motorcycle helmets in Massachusetts, move to New Hampshire where you can let your hair blow in the breeze. If you don't care for the sales tax in Maryland, move to Delaware (Dela)where they don't have one. If you don't care for Oregon's law banning self-serve gasoline sales, move to Idaho or California but not to New Jersey. Federalism gives Americans the power to flee, just as our republican form of government gives Americans the power to alter, institute, and abolish laws. There is no escape from centralism.

Prior to Roe v. Wade, this was the situation with abortion: fifty different laws suiting fifty different states. If you didn't like the law, you could work to overturn it, or you could move. Now, if you don't like the law, you can't overturn it, and since Roe v. Wade is uniform you can't flee it--at least within the United States. Short of a Constitutional amendment, only a Supreme Court decision can alter the status quo.

And a Supreme Court fight, it seems, is what the folks in South Dakota and Mississippi are looking for. That fight is only in part about abortion. Broader issues--self-government and federalism--are also at stake, which is why honest supporters of abortion rights hold Roe v. Wade in contempt too.

Overturning Roe v. Wade is not tantamount to outlawing abortion. Instead, overturning Roe v. Wade simply means letting the democratic process play itself out on an issue that the Constitution is silent on at best, and outlaws in the Fourteenth Amendment at worst. And when the Supreme Court corrects its 1973 mistake, whether it happens this year, the next, or the year after that, South Dakota will have its abortion law and New York will have a very different one. That's federalism. That's self-government. That's life without Roe v. Wade.

It will definitely get a lot more interesting before it's all over. I can't wait!!!

The votes don't exist on the court to overturn Roe, right? So how is bringing this challenge now a good thing? At most the Court will make some comprise, which upholds Roe in part. Or Roe is upheld in total, which would be a disaster.

I understand the red states have the feeling that they have this massive amound of Joe-mentum behind them, but as is the case with Joe-mentum, well you know...

Assuming Roberts and Alito would overturn Roe, and assuming Kennedy could not be persuaded to overturn, the 5-4 majority that upheld Roe in the Casey decision is still on the bench (Breyer, Ginsburg, Stevens, Souter, Kennedy).

Given that fact, it is doubtful the Court will even hear the case. And if they did, they would likely reaffirm Roe again.

The real wild-card is Stevens. He turns 87 next month. I would be suprised if he doesn't retire before Bush leaves office. And if the Republicans can keep the Senate in November, Bush could appoint another conservative (e.g., Luttig). That would create a 6-3 conservative majority on the Court in time to decide the S.C. case.

I've just read a Slate.com piece on the details of S.C.'s law; and while it is better than the majority of such laws (e.g., it does not include an exception for the "health" of the mother), it is not perfect.

http://www.slate.com/id/2137530/nav/tap2/

I can't recall clearly if i really read this or where, but I was under the impression that Stevens was doing everything he can to avoid letting Bush appoint his successor (maybe even yoga, j/k), so for him to retire would likely have to entail sad circumstances of personal health. Thus, I wouldn't count on Bush getting the next SC appointment, and with the state of the GOP I wouldn't count on the next several being made by anything even remotely resembling a "conservative."

Giuliani, Rice, Clinton, all wait in the wings and the nominating process is slanted in favor of establishment libs in both parties. And so the slaughter of the unborn continues . . .

All that jazz about federalism and "self-government" is nice. It's a shame Lincoln destroyed the Constitution and the Union of sovereign states by the sword in '61. To a great extent from his iron fist flows Roe.

GR

Ah yes. Lincoln, the root of all evil.

Ralph, GR didn't call AL the root of all evil, so you are guilty of a strawman. Lincoln is certainly a main root of the destruction of federalism. So why be sarcastic about it?

My sarcasm is directed to the vilification of Lincoln, the reverence for federalism, and the imagined utopia that would have been were it not for the forced preservation of the Union.

Okay on the first points Ralph but "imagined utopia that would have been"? I don't think I have read anything like that from authors sympathetic to the old south.

I was thinking earlier today actually about what Lincoln's political philosophy should be labeled as. To my mind it seems to have interesting parallels with Charles Maurras's late 19th early 20th century "integral nationalism" in France. This poli phil developed out of Hegel and Spencer so maybe it was just in the "aether" in the mid-1800s. Specific similarities include Lincoln's use of a mythical past to push a homogeneous nationalism, the glorification of violence as cleansing, his false moralism, rationalism, and what might be latterly called a "Fuehrer-Prinzip" in stressing the role of the great charismatic leader--a President who's power faces no absolute restraints because (as Lincoln wrote to Hodges) he represents the will of the "nation."

Of course, the comparison to Maurras is ahistorical. Lincoln was more the model for later western tyrants and so as the first was simply a man of no principle and overwhelming ambition, lacking in anything one can pin down as a real political philosophy.

Brilliant, informative post, Brian. This is what comment boards on blogs should be all about.

Ralph, again, you seem to be reading a lot of things into Grinning Realist's comments--utopian federalism, demoonization of Lincoln. But what he actually said is true, isn't it? States are no longer really _sovereign_ states after the Civil War. And he did do violence to the constitution in a number of ways. E.g., the conditions he put on "reentry" into the Union... And West Virginia, from a constitutionalist perspective, is just western Virginia...

Brian,

This is your turf, and I can't respond in kind. I would only suggest that those who blame Lincoln for the demise of federalism never bother to mention the other side of the balance, the "curious institution" of the South.

Skeptic,

Is the backbone of federalism the right to secede? Were Lincoln's violations of the constitution more injurious to federalism than the 17th amendment?

I am less interested in federalism or the constitution than I am the natural good. If the price for abolishing slavery was violating the constitution, so be it. If the price for ending infanticide is the same, so be it.

"Ralph, GR didn't call AL the root of all evil, so you are guilty of a strawman. Lincoln is certainly a main root of the destruction of federalism. So why be sarcastic about it?" -Skeptic

He destroyed federalism, how exactly? By not recognizing the Confederate States of America as a seperate nation when the south committed mass treason? Or are you referring to the Emancipation Proclomation?

I believe in a woman's right to choose. If she doesn't want kids, she can choose not to have sex or use birth control.

Thanks for the props Skeptic I didn't think my post was all that special but I will take it.

Ralph,

I take your point about what you find of the utmost concern, but would suggest two things.

First, if you want to say anything at all that ends slavery is by that reason (the result) a good thing as it seeks a natural good, then you can argue that. I would counter that the means must be ordered to the ends and that not all means are licit for pursuing a licit goal. Then, if you were to grant that principle we could argue the particulars of this historical action of the "Civil War."

Second, your justification for the war (its end/result/the natural good) was not the historical justification of the war at all for Lincoln and so your claim becomes separable from the issue of how one appraises Lincoln, his actions, and their consequence for federalism.

This is why his letter to Albert Hodges is so very interesting for revealing:
http://showcase.netins.net/web/creative/lincoln/speeches/hodges.htm

I am a bit unwilling myself to lay as much blame as some do on Lincoln for the demise of federalism, if only because I think his tragic asassination curtailed his plan for what would have certainly been a much less harsh "Reconstruction" then in fact took place. He became the model for future expansive visions of the presidency and encroachments on state sovereignty, but I think that as an unprincipled man himself (in terms of political thought) he may have not been completely conscious of what his wartime actions would do to radically reshape the country. Lincoln often said he thought events controlled him much more than he controlled the times, and although this was largely self-serving I do think he has a point.

I'm curious about this bit: "Now, if you don't like the law, you can't overturn it, and since Roe v. Wade is uniform you can't flee it--at least within the United States. Short of a Constitutional amendment, only a Supreme Court decision can alter the status quo."

Now, who would want to flee Roe vs. Wade? I could understand wanting to leave a state that legalizes murder, as that gives your neighbors freedoms you'd be personally afraid of -- but Roe vs. Wade doesn't give your neighbors the right to come and abort your baby at random. The only person an unborn child has to fear is the mother, and the mother's the one you're suggesting would be fleeing... Are we talking about mothers crossing state lines to flee their own temptation to have an abortion? (Straw women?)

Unordained: Keep your logic but substitute slavery for abortion. Whites, personally, did not fear being enslaved in the antebellum South. But Southerners who did not want to be mixed up in the immorality of a slave society fled north--the Grimke sisters being an example of this.

I wish you were right -- if Americans were really willing to flee immorality, to avoid living among the unclean ... we'd probably have a much saner country. Some states would be known for allowing prostitution, gambl1ng, drugs, gay marriages, and everything else some people just can't "be around" [I exclude abortion here for the sake of keeping the argument on-topic], while some states would be known not to.
That's not what we have -- both sides feel it their duty to convert the other. Pockets of immorality and hotbeds of intolerance [their own wording] must both be educated. Perhaps we need to start by educating people on leaving each other alone and voluntarily separating themselves, but that didn't work out too well for the South, and I don't think attitudes have changed. (Assuming one sees 'freeing the slaves' as only a secondary purpose of the US Civil war, as I think is fairly well documented.)
As it is, if you leave freedoms up to the local governments, I expect you will consistently see the majority enforcing their moral views on everyone, rather than segregating themselves and allowing those immoral freedoms only in restricted areas. The current culture is such that if we didn't have the Constitution [and other federal laws] to enforce a lot of our freedoms, I doubt we would have them anywhere. Most just aren't all that popular.
Thanks for taking the time to answer.