Is the Supreme Court moving us backward, or back toward federalism? | Opinion
Sanford V. LevinsonThe current Supreme Court is rightly regarded as the most “federalism”-friendly court in at least a century. The court often uses the language of “state sovereignty,” a thoroughly mysterious, but evocative, notion. How autonomous are states to be? Are they free to restrict abortions? Deny marriage licenses to same-sex couples? Return to Jim Crow? Secede from the union?
Prior to World War I and, in fact, not really until after World War II, American citizens didn’t enjoy fundamental rights that could be transported across state boundary lines. The Bill of Rights limited the national government; the states, not so much.
In Dobbs vs. Jackson Women’s Health, 50 years of semi-settled constitutional law was upended in the name of federalism. Roe vs. Wade was overruled and regulation of abortion returned to the sovereign states. The majority said that the court had committed a grievous error back in 1973 when it held that the Constitution offered national protection for reproductive choice. Instead, it should be a decision that states can individually make.
Lest one believe that the court is fully committed to federalism and state autonomy, one should also take notice of the decision handed down literally the day before Dobbs in New York State Rifle & Pistol Association vs. Bruen, There the same majority that eviscerated the right to reproductive choice invalidated a New York state law limiting the rights of individuals to carry arms outside their homes.
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