Back to Federalism
The proper remedy for polarization.
Apr 10, 2006, Vol. 11, No. 28 • By DAVID GELERNTER
Both a constitutional amendment and jurisdiction-limiting legislation have their points. Amendments are hard to pass--which might be a kind of advantage; basic court reform must have wide public support if it is going to last. (If conservatives are serious about rolling back judicial power, and don't aim merely to confiscate the left's judicial blackjack and hand it over to the right, then broad public support is essential.) Jurisdiction-limiting legislation, on the other hand, offers fast relief.
Although abortion is an intensely controversial issue, it's also a logical one on which to base a campaign to restore federalism. Annulling Roe, returning control over abortion law to state legislatures, and forbidding federal courts to touch the issue offers advantages to liberals and conservatives both.
Liberals will go ballistic over this suggestion. Erase their beloved Roe? But many states would pass their own liberal abortion laws. Legal abortions would still be readily available. And liberals would no longer need to throw fits over each new Supreme Court nomination. Justices would no longer have the power to override the people's will on this topic.
Some conservatives, too, are likely to be outraged at the prospect of such a law, as it would end their daydream of a Court-decreed abolition of legal abortion. But they'd still have the power to restrict or even ban abortion in their own states, if they were persuasive enough to carry the local citizenry with them. Although voluntary abortion would still be legally available in America, conservatives would have the power in principle to change things all over the country, wherever they were able to convince a majority of a state's population to follow their lead.
And even if conservatives failed to pass significant restrictions on abortion, they'd know that abortions were legal because the people willed them to be, not because five justices did. Assuming that strong restrictions on abortion are morally imperative (I think they are), Supreme Court rulings are the wrong way to get them. Granted, Roe was a corrupt ruling that must still be overturned. But conservatives can't argue any more convincingly than liberals can that the Constitution addresses abortion.
Some states, of course, are just barely red or blue. Some states would see bitter fighting instead of relieved agreement over local abortion law. Yet many states do seem to be fairly decided and consistent in their liberalism or conservatism. In all events, federalism is no panacea, and can't possibly make all polarizing disputes disappear. It is merely a help. And we need all the help we can get.
There is no reason for conservatives to attack polarization by abandoning their agenda and moving to the center. Conservatives are on a roll. In broad terms (forget this week's headlines, and this month's, and this year's), conservatives have become (to the horror of the cultural establishment) the smart party, the high-IQ party, the party of ideas. Open-minded thinkers turn increasingly to the right. Conservatives can serve their country best by defending their ideas, not by dumbing them down to fit a centrist preconception of what Americans really want. Americans say they like centrist ideas but don't; they like exciting ideas that seem likely to move the country forward, and make it a closer approximation to the "shining city on a hill" it was always supposed to be.
A restoration of federalism is the best hope we have to help heal the bitterness that could otherwise tear this country apart. We've already had one civil war. Anyone want to try for two?
David Gelernter is a contributing editor to The Weekly Standard.