Real state

Stevens: Returning power to states is not a neutral act but an invitation to tyranny | Comment

Stevens: Returning power to states is not a neutral act but an invitation to tyranny |  Comment

Many people have responded to the US Supreme Court ruling on abortion by saying that it really doesn’t decide anything; it only returns power to the states. All options are still open. But that’s only partly true. The Dobbs decision has, in fact, changed the political landscape. By quashing Roe v. Wade, he decided that the right to privacy does not include the decision to have an abortion. States now have the power to make decisions for themselves, but the Supreme Court has told us that there is no right to protect. Why should states protect abortion if there is no right?

Imagine what things would look like if the Supreme Court decided that there was no right to own and bear arms and left it up to the states to decide what to do with guns. Some states might protect gun ownership anyway, but if there were no constitutional right to own and bear guns, some or many states might decide – immediately or at some point in the future – to confiscate all weapons. They could make it illegal to cross state lines to buy a gun. They might consider it a crime to help someone cross state lines to buy a gun. Returning power to states once a right is abolished is not a neutral act.

The point of having a constitution is to limit both legislative and executive power. The fact that the decisions are not made far away in Washington does not mean that the decisions will be better. Indeed, as James Madison pointed out, majorities can be tyrannical. In fact, states can be a hotbed of oppression.

With the ratification of the Constitution, the states relinquished the sovereign power they had had under the Articles of Confederation, where they formed only a “friendship league”, and no significant action could be taken without the unanimous consent of all States. The Constitution established a nation. And this nation was not created by the consent of the States. Ratification was not made in the state legislatures; on the contrary, it was realized in special conventions of the people. Therefore, the preamble to the Constitution says that the country was created by “We the people”, not by the states. That’s why states don’t have the right to secede, as some states tried to do in the 1800s and as Republicans in Texas want to do today. And that’s why states can’t override federal legislation.

The Tenth Amendment does not establish a “states’ rights” doctrine. As Walter Berns, the brilliant curator of the American Enterprise Institute, points out, the Tenth Amendment only gives states the remaining powers. Table scraps. If the Constitution does not give power to the United States or prohibit the states from exercising it, then the states can do it, or the people retain the power. This is why states cannot restrict freedom of speech or of the press. This is why states cannot establish religion.

Thus, states only have the power to make decisions on abortion if the Supreme Court decides that there is no fundamental right to be protected from aggressive state majorities. The problem is not really the power of the state; the only real question is whether there is a fundamental right to be protected. If the right exists, states are powerless to suppress it. If there is no law, nothing can prevent States from doing what they want.

But consider this: Roe v. Wade said the right to privacy includes the abortion decision. He never said the right was absolute; it must be weighed against other rights, including the state’s right to protect life. But he proclaimed a right based on the right to privacy. Since Dobbs, a number of politicians have suggested that there is no right to privacy. They want to see the right to privacy decision, Griswold v. Connecticut, also cancelled. It would open the door to state legislation on a number of other things: private sexual behavior, even between consenting married couples; access to birth control, even for married couples; gay marriage; and many other things that would not have to be protected as private.

Returning power to the states does not automatically lead to better decision-making, and it could result in a majority within a state trampling on the rights of a minority. The real question is whether there is a right to be protected. This is hotly debated today, as it should be.

Solomon D. Stevens earned his doctorate in political science at Boston College and taught constitutional law, American government, and political theory. He lives in North Charleston.

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