Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, May 9, 2011

Carter on abortion and federalism

Joe Carter, of First Things, and of whom I am a big fan, has this essay, "The Lives Federalists Won't Save", that is -- with all due respect-- right about a lot, but also misguided about some things.  Responding to Ron Paul's statement that abortion is strictly a matter for the states, Carter writes:

But as he tends to do on Constitutional issues, Paul puts his preference for procedure ahead of principle. If any level of government fails to do its duty in defending and protecting the lives of its innocent citizens, it is the obligation of the other branches to compensate for the failure in governance. Paul disagrees, preferring, when the two conflict, to defend federalism rather than the lives of the unborn.

Unfortunately, many pro-life conservatives share Paul’s libertarian view of federalism. They mistakenly assume that American-style federalism—a system that shares power between the federal government and state governments—is an inherently conservative philosophy. But federalism is a neutral philosophical position; it is neither conservative nor liberal. . . .

Readers should check out Carter's post in the entirety.  My concern, in a nutshell, is that he has not separated clearly enough two questions that, in my view, need to be distinguished.  The first is, "under our particular constitution, what are the powers -- that is, what are the scope and reach of the powers -- that have, in fact, been vested by We the People in the government of the United States?"  The second is, "should questions about the rights and dignity of unborn children be decided at the state, or at the national, level?"  It is certainly true, as Carter says, that federalism -- as a political theory, or as an institutional-design strategy -- ought not to be so fetishized as to obscure the moral obligation of a decent political community to protect the innocent and vulnerable from violence.  But, to take seriously the possibility that, under *our* particular constitution, questions regarding the extent to which abortion may or should be regulated belong, generally speaking, to the states, which have the traditional police power, is not to fetishize federalism.

Carter writes, "[w]hile federalism has its place in deciding constitutional questions, its strict binary nature—either state or federal—is ultimately inferior to other principles of governmental demarcation, such as subsidiarity or sphere sovereignty."  As a matter of political theory, I think Carter is quite right here.  But, my own view is that when it comes to "deciding constitutional questions", we ought to consider the Constitution as positive law, and not as an occasion for philosophical competition among subsidiarity, federalism, nationalism, etc.  Carter says it is a "central failing of federalism: the tendency to allow squabbles over power to trump matters of justice."  With all due respect, constitutional law *is* about "power" -- it is about "who decides, and how?"  It is not that questions of "procedure" are more important than "matters of justice", but it *is* the case that constitutional structure creates a framework -- a scaffolding -- for the resolution of "matters of justice."

Carter writes:

Conservatives should be for more checks and balances and limits on government, rather than a mere shifting of power from federal to state authorities. What does it reveal about our movement when conservatives (and libertarians) are defending limited government by advocating that state governments be allowed an increase in unchecked power and illegitimate authority?

Federalism can be useful in drawing up legitimate lines of Constitutional authority. But when it is allowed to transfer power to the states from other societal spheres, the philosophy merely establishes fifty separate laboratories of liberalism.

This is, or could be, an indictment of our Constitution -- that is, the indictment that, with relatively few exceptions, our Constitution (that is, We the People) leaves the police power, for better or worse, with the states, leaving them with the ability to function as "laboratories of liberalism" -- but I think Carter is begging the question when he suggests that "federalists" are proposing to merely "shift" power from the national government to the states.  The "federalists'" claim, as I understand it, is that powers were, at the outset, vested here, and there, and that this vesting needs to be taken seriously (or undone).

https://mirrorofjustice.blogs.com/mirrorofjustice/2011/05/carter-on-abortion-and-federalism.html

Garnett, Rick | Permalink

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True federalism, as stated by the 10th Amendment, would be a very good thing if it were truly allowed by our political/judicial climate. Roe VS. Wade, among it's other flaws, was a terrible breach of federalism. Issues like abortion and same-sex marriage should also be left to the states but, as Mr. Carter demonstrates, good luck selling that idea to the current conservative (and I use that word loosely) base. They talk a good federalist game on economic issues but when one of the social issues comes to the fore (DOMA and the Terri Schiavo case come to mind) that goes right out the window.

Posted by: Edward Dougherty | May 10, 2011 11:44:50 AM

Without getting into the (im)morality of abortion, the Tenth Amendment would not have prevented the Roe decision. The Tenth Amendment does not act as a limit on Personal liberty which is what the Roe Court based their decision on. Whether that decision or its bases were right or wrong is a different question: either way the Tenth Amendment is not relevant to my knowledge.

sean s.

Posted by: sean samis | May 10, 2011 3:12:40 PM