Federalism and Polarization
St. Thomas Journal of Law and Public Policy, Vol. 1
34 Pages Posted: 13 Apr 2007
Some commentators believe that American society and politics have become unusually - and dangerously - polarized. The Supreme Court's 1973 decision in Roe v. Wade has been one of the most prominent and persisting causes of that polarization. President Bush's recent appointments of two new Supreme Court Justices have renewed speculation whether the Court might again consider overruling Roe. If Roe were overruled, it might seem that the question of abortion could be returned to the States, and that different legal regimes regulating abortion, reflecting the values of the electorates in different states and regions, would then emerge. Such a checker-board solution to the problem of abortion, while unsatisfactory to both pro-life and pro-abortion forces, might at least ease much of the polarization that Roe has occasioned. Moreover, that approach would accord well with the original design and structure of our federalist system, which has historically referred decisions over polarizing moral differences to the state rather than the national level.
This article argues that a checker-board outcome is unlikely to emerge if Roe is overruled. De-constitutionalizing the abortion issue will not de-nationalize it. The Supreme Court's past and recent decisions concerning Congress' powers to regulate interstate commerce, to appropriate funds, and even to exercise a purported national police power, would vest Congress with the authority, in a post-Roe world, to legislate a national abortion policy. Overruling Roe would thus be likely to trigger a continuing winner take all struggle over abortion at the national political level, rather than leading to a federalism-based resolution of the problem of polarization.
Keywords: Federalism, Roe v. Wade, abortion, law and society, Congress
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