Back to Federalism
The proper remedy for polarization.
Apr 10, 2006, Vol. 11, No. 28 • By DAVID GELERNTER
FEBRUARY'S COMMENTARY has one of the most frightening essays of recent years, in which James Q. Wilson makes the case that Americans are polarized to an unprecedented extent; bitterly divided. Responsible conservatives should confront this problem and show the country how to solve it. Not to solve it is to invite catastrophe. Why does the burden fall on conservatives? Because they are running the federal government and it is their duty to lead.
Wilson lists several causes of today's profound polarization. He mentions the divided, politicized press, one-issue pressure groups, the polarizing effects of higher education, and the rise of ideological parties in place of the old-style sectional coalitions Americans are used to.
There is another cause too: the collapse of federalism. The Founders designed a vast garment for America that hugs where it should hug and stretches where it should stretch; each state creates its own society, and the Constitution stitches them all together into a comfortable, sensible union suit. "As this government is composed of small republics, it enjoys the internal happiness of each," writes Alexander Hamilton in Federalist 9, "and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies."
But the collapse of federalism has ruined this valuable arrangement. The collapse gathered momentum with the Supreme Court's 1973 decision in Roe v. Wade, which legalized abortion and was a tragedy for reasons beyond those that are usually discussed; a tragedy even for Americans who believe in completely unregulated abortion. Roe was a power grab in which uniformity was imposed on a facet of society that had been allowed to vary. "Diversity" is a big selling point on the left, but not among believers in an activist Supreme Court.
At the start of the 1960s, some states permitted abortion where the mother's life was in danger, or in rape or incest cases. Others banned it completely. (Of course illegal abortions were always available, sometimes under hideous conditions.) Then things started to change. In 1967, Colorado passed the first liberalized abortion law of modern times. In 1970, New York became the first state to allow abortion on demand, for the first 24 weeks of pregnancy. Several other states followed, but their laws included residency requirements to restrict eligibility. New York's did not. Accordingly, large numbers of people made their way to New York in the early '70s for legal abortions.
But unlike the 1973 Roe decision, the 1970 New York State law did not become the springboard for a nationwide antiabortion movement. Those who believe that some deed is a crime want it to be illegal, not inconvenient. And after 1970, legal abortion on demand was inconvenient--but available. So there is no reason in principle that the New York law shouldn't have been just as agitating and hateful to pro-lifers as the 1973 Court decision.
No reason except federalism. True federalism accommodates profound national disagreement by allowing each state to tailor the local climate to suit itself. Federalism is an escape-valve that lets polarizing bitterness blow off into the stratosphere. In 1971, conservative Texans (for instance) might have been unhappy about New York's abortion law. But at least their own state--their own society, which they had built for themselves and their children--wasn't implicated in the crime. Conservative Texans believed they had done the right thing even if New Yorkers hadn't.
Come 1973 this invaluable peace of mind was stolen from them. In 1973, the Supreme Court imposed a uniform view of abortion on every community in the nation. (Like the ancient Romans forcing images of their gods into every temple in the Empire.) Of course there are cases in which moral considerations require all states to do the same thing. But anyone could have seen that, in the case of abortion, there were serious arguments on both sides. And nowadays even (some) liberals admit that there is no "right to abortion" in the Constitution. Roe was a power grab pure and simple, an exercise in "raw judicial power" as Justice Byron White wrote in his Roe dissent, which seriously damaged federalism in America. A few weeks ago, South Dakota's Republican governor signed a highly restrictive new abortion law. That's what federalism is for: letting South Dakota's citizens do what they think is right in their own state, not what Vermont or the Harvard faculty thinks is right. But the law is a direct challenge to Roe, and its hold on life is tenuous.