For anyone following the current national debate about Roe vs. Wade, the concept of women’s rights seems to be front and center. The decision, one seen as a landmark for women’s rights and bodily autonomy, has been in effect since 1973. Partisans on both sides have dug in their heels and planted their flags ever deeper as a result of the recent leak into the partisan soil they stand on, refusing to give ground with some on the left resorting to violence and doxing the conservative justices on the Court in order to threaten them and/or demonstrate in front of their private residences (which is illegal – see the “Picketing and Parading Law”).
What’s most interesting, however, is that few of these ideological partisans have taken the time to argue the constitutionality of the quasi-decision of the Court. They make most of their arguments on the grounds of morality, women’s rights, or an incorrect application of the Constitution. Further, they’ve forgotten, as it seems the Court has since the inception of the 14th Amendment, the Founders’ vision for the nation central to which is the notion states should operate independently of the Federal government to a large degree, the 10th Amendment, that most forgotten Amendment, being the proof.
Even in the teaching of the Constitution in high school, most teachers gloss over both the 9th and 10th Amendments as though they barely exist when, in fact, it is those two amendments that are supposed to be the bulwark against an encroaching federal government and yes, an increasingly encroaching federal judiciary on the individual rights of American citizens. In short, since the 14th Amendment’s passage, both the federal government as well as the Court have been jockeying with each other in an attempt to expand each branch’s power and influence, states’ rights being the casualty.
This jousting has been greatly exacerbated by a Congress which has willfully and purposefully abrogated its power to the presidency so members do not have to take a definitive stand on any controversial issue, all in the name of re-election. Better to say benign and vague statements than stand firm in your convictions. To do the latter means exposing oneself to criticism that might be used against one in an election season. The predictable result of this lack of congressional character is government power flowing upward, the presidency gladly taking on more and more, issuing Executive Orders that have the force of law as long as Congress or the Court doesn’t counteract it. Recent presidents have taken advantage of this “not in the constitution” action:
Bill Clinton: 254 E.O
George W. Bush: 291 E.O.
Barack Obama: 276 E.O.
Donald Trump: 220 E.O. (One term)
Joe Biden (to date): 89 E.O.
Enter the Supreme Court
A body that was supposed to be the most minimal of all the federal branches has now become the second most important one, a superlegislature of sorts, handing down decisions that effectively change the course of the nation with the force of law rather than the force of constitutionality, the very purpose that was intended. The Founders never conceived of a Court that could or would wield this much power, but alas, it has come to pass.
Further, those that sit on the court are of two types: Activist justices and strict constitutionalists. In brief, the difference is that the former choose to remake the constitution through decisions, as though superseding the proper procedure of either congressional law (of which we’ve already discussed won’t happen for reasons already stated), or bypassing the most constitutional procedure of all – a constitutional amendment, the latter a long process but well worth it as whatever is being debated becomes constitutional as it is placed inside of the document.
In all of the scenarios above, the federal government acts as the overwhelming body, meaning, if you look at the preceding paragraphs, I did not mention states at all, when, in fact, it is the states that are supposed to have significant power but have had their power, and the 10th Amendment, consistently ignored, almost as though the 10th Amendment itself doesn’t exist. This is not only wrong, but it is…unconstitutional.
If we are to look at the Roe v. Wade decision as it was handed down in 1973, the rather liberal and activist Warren Courtmade the decision on dubious grounds to begin with…applying the 14th amendment as well as the 4th Amendment’s right to privacy as grounds for its creation. Legal scholars on both sides of the political aisle agree that decision, as a matter of constitutionality, was poor, its constitutional justification spotty at best. This does not mean to say that the action is wrong, but only so on the basis of constitutional law.
Since there is nothing in the Constitution that specifically renders abortion legal or illegal, the decision, based on the 10th Amendment, should have been thrown back to the states, meaning the concept of abortion is a state matter, not a federal one. The Warren court was acting as the very definition of activist in handing down that decision, but looking at it in historical context, it is easy to see why.
1973 was the very height of the women’s rights movement in the United States, and as the members of the Court were decidedly politically left in their leanings, it only stands to reason they would find a way to manufacture a decision as they did; they simply discarded the 10th Amendment, finding another avenue or line of reasoning to support their decision.
What this means, if the current leaked decision holds, is that Roe will be thrown back to the states as it should have been in 1973, correcting a legal and constitutional error, and curtailing to some degree the reach of the federal government. As a matter of course, those on the left are furious as they prefer a stronger federal government over state’s rights. Those on the right, predictably as well, welcome the decision as it not only checks the box on abortion, but reaffirms the idea of states’ rights over the federal government.
There is no question the issue of abortion and a woman’s right to have one is, at best, a prickly pear, especially on ideological grounds. That is not the point of this post. What is, however, is the issue of states’ rights versus the ever expanding role of the federal government since, at least, 1913 and the Woodrow Wilson administration only to be further expanded by FDR in the 1930’s and again by the Johnson administration in the 1960’s.
The whole notion of our federal system is one in which the federal government’s powers are checked so as to not interfere with the states as well as our individual liberties. Since at least 1913, there has been a slow, molasses-like creep depriving us of those rights, this decision being the first shot across the bow.