Federalizing Social Policy
January 30, 2006
As the Senate prepares to vote on the confirmation of Supreme Court nominee Samuel Alito this week, our nation once again finds itself bitterly divided over the issue of abortion. It's a sad spectacle, especially considering that our founders never intended for social policy to be decided at the federal level, and certainly not by federal courts. It's equally sad to consider that huge numbers of Americans believe their freedoms hinge on any one individual, Supreme Court justice or not.
Roe v. Wade was wrongly decided, but not because the Supreme Court presumed to legalize abortion rather than ban it. Roe was wrongly decided because abortion simply is not a constitutional issue. There is not a word in the text of that document, nor in any of its amendments, that conceivably addresses abortion. There is no serious argument based on the text of the Constitution itself that a federal "right to abortion" exists. The federalization of abortion law is based not on constitutional principles, but rather on a social and political construct created out of thin air by the Roe court.
Under the 9th and 10 amendments, all authority over matters not specifically addressed in the Constitution remains with state legislatures. Therefore the federal government has no authority whatsoever to involve itself in the abortion issue. So while Roe v. Wade is invalid, a federal law banning abortion across all 50 states would be equally invalid.
The notion that an all-powerful, centralized state should provide monolithic solutions to the ethical dilemmas of our times is not only misguided, but also contrary to our Constitution. Remember, federalism was established to allow decentralized, local decision- making by states. Today, however, we seek a federal solution for every perceived societal ill, ignoring constitutional limits on federal power. The result is a federal state that increasingly makes all-or-nothing decisions that alienate large segments of the population.
Why are we so afraid to follow the Constitution and let state legislatures decide social policy? Surely people on both sides of the abortion debate realize that it's far easier to influence government at the state and local level. The federalization of social issues, originally championed by the left but now embraced by conservatives, simply has prevented the 50 states from enacting laws that more closely reflect the views of their citizens. Once we accepted the federalization of abortion law under Roe, we lost the ability to apply local community standards to ethical issues.
Those who seek a pro-life culture must accept that we will never persuade all 300 million Americans to agree with us. A pro-life culture can be built only from the ground up, person by person. For too long we have viewed the battle as purely political, but no political victory can change a degraded society. No Supreme Court ruling by itself can instill greater respect for life. And no Supreme Court justice can save our freedoms if we don't fight for them ourselves.