Dobbs, Federalism, And Green Day
On Friday, the Supreme Court delivered what is by far the premiere conservative victory of the century. Roe v. Wade has been overturned; it should be something we celebrate, as we acknowledge those whose hard work has put us in this position. However, many of the reactions to the Dobbs decision are quite concerning, and they accentuate a truth we have known since the time of Saint Paul, “the letter killeth, but the spirit giveth life.” We may have the Dobbs decision that ends Roe, but it ends the letter of the law. The spirit of Roe, however, endures, and it gives rise to questions that must be confronted—questions about who we are as a nation.
Following the release of the Dobbs decision, President Joe Biden delivered a brief speech to the American people. His remarks reveal much. He began by portraying Friday as a “solemn day,” in which the Supreme Court “took away a constitutional right from the American people.” Most of his speech focused on this idea that the court was committing an unprecedented act of taking away a sacrosanct right from the American people. He then altered course, calling for solutions and action, and said something worth serious consideration: “Let me be very clear and unambiguous, the only way we can secure a woman’s right to choose… is for Congress to restore Roe v. Wade as federal law.”
While the ruling says only that it returns the matter of abortion to the people and their elected representatives, to many, the point of the Dobbs decision is to take the federal government’s hands out of an issue seen as belonging to the states, focusing on elementary principles of federalism—extending the sphere, taking in a greater variety of parties and interests, and letting the states act as competing factions; thus, there can be no tyranny of majority at the federal level. This is Madison’s argument in Federalist No. 10, and it is quite clever. Yet, this could potentially be its flaw, and, in my estimates, President Biden’s remarks help unveil it.
There is a natural tendency to use the federal government to secure, for the nation as a whole, what we believe to be the most integral functions of civil society in the states (and, concerning abortion, with the Dobbs ruling, this is still possible). For example, take, along with Roe, the cases Justice Thomas lists in his concurrence, Obergefell, Lawrence, and Griswold. These are cases which deal with the principal aspects pertaining to the human person: marriage, sex, and the dignity of human life. They deal with our deepest passions and desires, what the very telos of human life is, and they have tremendous effects on our societies; thus, they fall under the jurisdiction of governments. As Hamilton says in Federalist No. 15, “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint.”
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Hamilton is right, and in the same paper he states that “we must extend the authority of the Union to the persons of the citizens—the only proper objects of government.” Inherent in these quotes is an Aristotelian view of government: that it is created “to secure life itself, and continues to exist to secure the good life.” The government has a stake in what it means to live the good life, and Americans know this—it is why Biden wants abortion solved at the federal level. Which leaves us asking: can this issue belong solely to the states?
Our federal government has a claim on citizens, not just states in a confederacy (unlike federal constitutions of the past). We all see ourselves as Americans, sharing a common end. What happens when we are pursuing two antithetical ends? The Green Day rock singer, Billie Joe Armstrong, has renounced his U.S. citizenship over Dobbs. Why? Because he does not want to live in a country where states are allowed to restrict a woman’s fundamental right to choose. I cannot say I want to live in a nation where, in other states, babies are ripped apart in their mother’s womb.
All of these reactions raise the question of whether a nation is a nation at all—if nation truly means anything—if it allows both. Dobbs leaves us asking what it means to be American. Perhaps the federalist nature of our government, in perpetuity, makes that very question increasingly difficult to answer.