By DEACON MIKE MANNO
Years ago, in what seems like another life, I taught college law and political science. Each semester, when I started a new U.S. government class, on the first day, I gave the students a short, ungraded test to see how much they already knew about the government and how it worked.
In general the results bothered me, for while all the students had completed high school and should have had a working understanding of how the government worked, very few were able to answer the simplest of questions correctly. I did not think it unusual that some might not know the name of the person representing them in Congress. I was, however, appalled by so many that didn’t know each state had two senators.
Now I understand that political science is not for everybody, and that the basics of much of how our government works is rooted in historical conditions as much as it is in philosophical norms. For example, the Electoral College makes no sense without understanding the particular situation in which the drafters of the Constitution found themselves.
The same thing applies when we consider the topic of federalism. Defined by a textbook, federalism “is the division of power between a central government and regional units.” In short, federalism in the U.S means a separation of national from state governmental authority. Much of what concerns those interested is how the balance of power between these governments operates.
The basic division is made in Article I, Section 8 of the Constitution, in what is referred to as the “enumerated powers” of the federal government. It contains a list of powers reserved to the federal government, the most notorious of these are the power “to regulate commerce…among the several states,” known as the “interstate commerce clause,” and the power to make such laws that “shall be necessary and proper for carrying into execution the foregoing powers,” known as the “necessary and proper clause,” or, as it is sometimes referred to as the elastic clause.
And believe it or not, the federal government was established as a government of limited powers. To an uninitiated observer this might seem strange, considering the current size and scope of today’s government. Yet Article I, Section 8 was an attempt to do just that.
Over the years, however, the federal powers have expanded beyond what our Founding Fathers might have thought, using primarily the interstate commerce and necessary and proper clauses. The federal government has claimed powers, for example, over nearly every aspect of interstate travel, including such matters as local hotel and motel accommodations. Likewise the necessary and proper clause has been used to expand federal authority that has some nexus to any of the enumerated powers.
This, of course, creates a tension between those who believe in more state autonomy and those wanting more power in the hands of a national government. Now, while recent history has seen the courts side more and more with the federal government on these issues, there is a growing list of politicians and academics who favor more power being left in the hands of the states, which have retained their general police powers.
Those who object to the current move to put more power into, or as they might say, back into the hands of the states, point to another article in the Constitution, the long-forgotten Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Now, how does this affect Roe v. Wade? Well, first, the claim that it is settled law is, in the parlance of today, disinformation. The proponents of that argument want you to think of cases such as the 1803 landmark case, Marbury v. Madison, which for the first time articulated the right of the federal courts to overturn federal laws that violate the Constitution.
But there are other cases that provided “settled law” as did the 1857 case of Dred Scott v. Sandford, which held that the Constitution did not confer citizenship on persons of African descent. That case was overturned by the Fourteenth Amendment in 1868. And let’s not forget the 1896 case of Plessy v. Ferguson, which held racial segregation was constitutional in a case involving railroad accommodations, as long as the accommodations were “separate but equal.” That decision was overturned in 1954 by Brown v. Board of Education.
So what does the leaked draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Clinic mean in reality? Well, first we do not know the extent of the final court opinion, but we do have some important clues that indicate Roe will either be overturned or it will be so gutted as to render it toothless.
But more than that, if Roe is overturned the court will be saying that all this federalism stuff matters and only the states are allowed to legislate abortion regulations under their inherent police powers.
What should also be noted is that numerous constitutional scholars, many of them very liberal, including the late Justice Ruth Bader Ginsburg, have raised serious legal questions about the constitutional underpinning of Roe. Now it should be noted that Congress could try to declare abortion a national right, but unless it does, the states should be completely in charge. Of course granting that right would probably provide more headaches in Washington to define exactly what that “right” would entail.
Overturning Roe will be a game changer, both legally and politically. The arguments about life, when it starts, and how it is protected — or not — will all return to the states. You can expect a lot of emotional debates in state legislative bodies, along with hangers and fetuses in jars. But the issue will not go away. At best it will only be one huge step in the right direction.
On a side note, students often asked me how the federal government gained so much power in relation to the states. There are many reasons for that, some involving historical circumstances, such as the Great Depression which had the nation clamoring for more federal aid while the state budgets were swamped by the economic realities of the times.
My thought, for what it’s worth, is the Seventeenth Amendment in 1913. That amendment provided for the direct popular election of United States senators. Until that time they were chosen to represent their states by the state legislature. Thus, to a large extent, the states lost much of their ability to control their senator to the whims of the people. Just a theory.
Now as you watch the continuing rhubarb over abortion, and wonder why it is happening this way, remember, it’s federalism, and it matters.
(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday morning at 9:30 CT on Faith On Trial on IowaCatholicRadio.com.)
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